(dissenting).
I cannot agree that the deed of April 6, 1923, from J. Z. Hardee to Isabella Hardee conveyed a fee simple title.
If I understand the court’s opinion correctly, that conclusion is based in the main on the holding that the second sentence of the so-called written paragraph must be ignored in that it is obscure, unclear, and of doubtful import. That sentence reads: “And at the death of the said grantees death the above described land is to revert back to the heirs of the above grantor in fee simple.” (Emphasis supplied.) Those parts of the quoted language which we have italicized are superfluous, but I feel that it is most hypercritical to say that simply because they are included the entire sentence is without meaning. The opinion of the court condemns the sentence simply because of redundancy without pointing out any uncertainty or possible double meaning. I cannot attribute any meaning to the language quoted except that at the death of Isabella Hardee the land described in the deed is to go to the “heirs” of J. Z. Hardee “in fee simple.” I submit that no reasonable construction of that sentence leads to any other interpretation. The face of the instrument in more ways than one evinces the want of skillfulness in the person who drafted it and the inartificial, imperfect use, not only of technical terms, but of words in popular use. I cannot agree with the holding of the court to the effect that the first sentence of the so-called written paragraph is clear and certain in all respects. I agree that under our cases that when viewed in the light of the surrounding circumstances, that sentence should be interpreted as conveying a present interest to the grantee subject to the use and enjoyment of the grantor during his lifetime, hence, the instrument is a deed rather than a testamentary document. But certainly a skilled scrivener would have chosen more apt language to convey that meaning. Again, one skilled in the use of technical terms would not have included the words “fee simple” in both sentences of the so-called written paragraph.
We have often said of a deed which shows on its face that it was written by an unskilled person that a much greater latitude of construction must be indulged rather than the use of technical rules and a blind adherence to the strictest meaning of those words. Hamner v. Smith, 22 Ala. 433; Campbell v. Gilbert, 57 Ala. 569; Gamble v. Gamble, 200 Ala. 176, 75 So. 924.
It seems to me to be entirely unreasonable to say that simply because the sentence *680under consideration' contains a redundancy that it must be ignored even though it is apparent that the instrument was drafted by an unskilled person. I feel that the majority opinion loses sight of reality in an effort to avoid a holding that there is an irreconcilable conflict between the two sentences of the so-called written paragraph.
Apparently the court holds that if there be an irreconcilable conflict between the first and second sentences of the so-called written paragraph then, under the provisions of § 14, Title 47, Code 1940, the deed must be construed as conveying a fee simple estate. If such is the holding of the court it appears to be based on a consideration of the deed only “from its four corners” to the exclusion of the evidence which relates to the situation of the parties and the circumstances surrounding them at the time the deed was executed. The opinion of the court never does say that such evidence cannot be considered in this case, but it is not dealt with in the opinion of the court and the Justices who have concurred in that opinion all expressed disagreement with the writer in conference when he insisted that such evidence should be considered in trying to arrive at the intention of the parties and that when so considered the deed should be construed as conveying to Isabella Hardee only a life estate. So I assume that the court intends to hold that such evidence cannot be properly considered.
As far as I can determine no decision of this court is cited in support of the court’s holding that by virtue of the provisions of § 14, Title-47, supra, the deed presently under consideration must be construed as passing to the grantee, Isabella Hardee, a fee simple estate.
In Powell v. Pearson, 220 Ala. 247, 255, 125 So. 39, 45, we said of the provisions then codified as § 6900, Code 1923, now § 14, Title 47, Code 1940, as follows: “* * It is the rule that, when the granting clause does not designate the estate, without more, it is held to vest the fee; to the contrary when the instrument shows the estate is limited by the habendum clause, and that a less estate than the fee was intended to be conveyed or devised * * And in the case of Slaughter v, Hall, 201 Ala. 212, 77 So. 738, 739, we said of those provisions then codified as § 3396, Code 1907: “* * The statute providing when the deed or conveyance shall be construed as of a fee refers to the deed or conveyance as a whole, and not merely to the granting, habendum, or other clauses in the instrument. If the deed or conveyance, considered as a whole, construed by viewing it from its four corners, clearly shows what estate was intended to be conveyed, then the statute has no field for operation. It is resorted to only when, from the whole instrument, it is doubtful what estate was intended to be conveyed * *
I see no escape from the conclusion that based on a consideration of all the provisions of the deed under consideration, there is doubt as to what estate was intended to be conveyed. I am not too certain that the majority of the members of the court agree with this statement in view of their holding that the so-called second sentence must be ignored. So, assuming that the provisions of § 14, Title 47, supra, are applicable, I am of the opinion that the court is not confined to a consideration of the deed “from its four corners” to the exclusion of a consideration of attendant circumstances in its effort to determine whether an estate less than a fee was intended by the parties.
I am committed to the view that the rule prescribed by § 14, Title 47, supra, like the rule to the effect that the first clause in a deed prevails over a subsequent conflicting-clause, is an arbitrary rule of construction and should never be resorted to until all efforts to reconcile the conflicting parts and to ascertain the true intention of the parties have failed, including a consideration of the circumstances attending the execution of the instrument.
We have said in many cases that in the construction of written' instruments the *681controlling inquiry is the intention of the parties and we have cases which hold that the intention must be ascertained from a consideration of the whole instrument, from the nature of the subject matter, and from the surrounding circumstances; that is to say, by having regard for the situation of the parties and the objects they had in view in making the contract or conveyance. First National Bank of New Brockton v. McIntosh, 201 Ala. 649, 79 So. 121, L.R.A. 1918F, 353; Porter v. Henderson, 203 Ala. 312, 82 So. 668; King v. Coffee, 222 Ala. 245, 131 So. 792; Smith v. Bachus, 195 Ala. 8, 70 So. 261. See Walker v. W. T. Smith Lumber Co., 226 Ala. 65, 145 So. 572; Nettles v. Lichtman, 228 Ala. 52, 152 So. 450, 91 A.L.R. 1455; Williams v. Johns-Carroll Lumber Co., 238 Ala. 536, 192 So. 278; Hart v. Baptist Foundation of Alabama, 264 Ala. 632, 88 So.2d 681; Brown v. Huckabaa, 264 Ala. 660, 89 So.2d 180. Of course, the rule which permits the consideration of the attendant circumstances does not authorize a consideration of what the parties may have stated as to their intention, nor their negotiations, nor evidence as to what other persons understood the parties to intend. King v. Coffee, supra; Brown v. Huckabaa, supra.
In view of the holding of the court, I see no occasion to set out here the evidence as it relates to the situation of the parties and the circumstances attending the execution of the deed, which I feel lead to the conclusion that it was the intention of the parties that Isabella Hardee was to get only a life estate under the deed of April 6, 1923, to her from her father.
The statement in the court’s opinion to the effect that the trial court’s conclusion that the deed under consideration conveyed a fee simple title was based on the application of the rule that the first clause prevails over the second clause in a conveyance, is, in my opinion, an incorrect interpretation of the decree of the trial court. I think it beyond question that the trial court based its conclusion in the main on our holding in the case of Green v. Jones, supra, which the court has felt constrained to overrule in so far as it holds that the granting clause in the deed there under consideration took precedence over subsequent clauses, inasmuch as the granting clause conveyed no certain, specific estate. That case, among others, is cited in the decree of the court and it contains no reference to the so-called arbitrary rule that the first clause in a deed prevails over a subsequent clause in conflict therewith, which rule is, generally speaking, different from the rule to the effect that the granting clause prevails where a specific, certain estate is defined therein and the granting clause is without ambiguity, obscurity or repugnancy, for where such is the case the granting clause prevails over introductory recitals as well as over subsequent clauses.
I make this observation concerning the court’s holding to the effect that the trial court based its decision on the rule that the first clause prevails over subsequent conflicting clauses, although apparently the court has not based its holding on the application of that rule.
Inasmuch as I am of the opinion that the deed of April 6, 1923, conveyed only a life estate to Isabella Hardee, I am constrained to dissent, but express no opinion as to the court’s holding concerning the deed of January 10, 1948, from Isabella Hardee to the appellee.
STAKELY, J., concurs in the foregoing views.