The principal clauses of the deed in question, so far as the issues in this case are concerned, are set out and numbered below. The granting clause is numbered 1 and is as follows:
1. "Do hereby grant, bargain, sell and convey to said Henry Willis and William T. Willis, the following premises" (describing them).
After the description come the paragraphs hereafter set out. The numbers are put in for convenience in reference.
2. "To the said Henry Willis until the said William T. Willis shall be of lawful age, or until his" (Henry Willis's) "death if he shall die before the said William T. Willis" (shall attain his majority).
3. "And to the said William T. Willis" (if he shall attain his majority or — perhaps — if Henry shall die before *Page 679 that time) "for and during his natural life, and in the case the said William T. Willis shall die as a minor, the said Henry T. Willis, if he survives him, shall have the free and undisturbed use of the hereby conveyed premises for and during his natural life."
4. "The intent and purpose of this conveyance being to vest a life estate in and to said premises, partly in the said Henry Willis and partly in the said William T. Willis, and the remainder of said estate in the heirs of the said Henry Willis or the heirs of the said William T. Willis, or their heirs andassigns of such heirs forever."
5. "To have and to hold the said premises with their appurtenances to the said Henry Willis and William T. Willis as above mentioned and the residue, remainder and reversion therein and thereof to the heirs of the same respectively and their heirs and assigns of such heirs forever."
6. "And the said Thomas Willis and wife do hereby covenant with the said Henry Willis and William T. Willis, their heirs andassigns of such heirs that they are lawfully seized of the premises . . . and that they will forever warrant and defend the same with the appurtenances unto the said Henry Willis and William T. Willis, their heirs or assigns of such heirs against the lawful," etc.
7. "And the said Elizabeth Willis doth hereby release and convey to the said Henry Willis and William T. Willis their heirsand assigns of such heirs forever, her right of dower." etc.
What is the meaning of the deed? Henry lived until after William attained his majority, and William survived Henry. Appellants are children of Henry. Respondent Robinson is the grantee of the children and grandchildren of William.
Appellants claim half the fee. Respondents claim, and the trial court found, that "under the terms and conditions of said deed, the said William T. Willis, on reaching his majority, or the age of twenty-one years, *Page 680 took a life estate in said premises, with remainder to his heirs," as the answer pleads it. The language of the court's finding is that "the said Henry Willis, by said deed, took a conditional life estate in the lands described in plaintiffs' petition during the minority of William T. Willis; and that when William T. Willis reached the age of twenty-one years, the entire life estate in all the lands described in plaintiffs' petition vested in him, the said William T. Willis, with remainder in fee simple to the heirs of said William T. Willis." The trial court delivered an oral opinion in which he set forth the reasoning which led him to this conclusion. He held that "the intent of the deed . . . was to convey the land; that is the conveying it to Henry Willis a life estate in it — until William T. Willis arrived at the age of twenty-one or his majority; and the court holds that under that deed the intent of it was that when William T. Willis arrived at his majority then Henry Willis had no further interest in it." The court said he "arrived at the conclusion from a study of the conditions of the deed itself. Take the first clause" (or paragraph 2) "of it: `To the said Henry Willis until the said William T. Willis shall be of lawful age.' There's a complete sentence, and of clear meaning; says itconveys the land to Henry Willis until William T. Willis arrives at lawful age. Isn't any guess work about what that sentence means; that is clear, clean cut, straight English and is readily understood."
This contains the kernel of respondents' contention as appears from the brief. It is apparent the court began its work of construction with paragraph 2 as numbered above. For reviewing this conclusion of the trial court and position of respondents' counsel the deed furnishes the principal, if not the sole, material. The several pertinent paragraphs may be considered in the order in which the deed presents them. Paragraph 1, if considered alone, very simply conveys the land to Henry and William T. Willis. The words of this paragraph, had they not been qualified, would have constituted Henry *Page 681 and William tenants in common. When the scrivener had finished penning these lines and had written in the description and raised his quill from the paper, Henry and William were tenants in common so far as the meaning of the words used up to that point was concerned. If either Henry or William is to take a less or greater interest than a tenant in common with the other, the effect of the words used in paragraph 1 must be found to be changed in subsequent language used in the deed. That it was not intended to vest a mere tenancy in common in all respects as to the whole estate is entirely clear, as all agree. Subsequent language in the deed does modify the effect of the language used in paragraph 1. The extent of that modification is to be sought in that subsequently used language. The second paragraph begins the work. By that paragraph Henry is given an interest until William, then a minor, attains his majority, or until his, Henry's, death, if he, Henry, shall die before William attains his majority. By the third paragraph, William, in case he lives until he is twenty-one, takes an estate "for and during his natural life." In case William dies before he attains his majority and Henry survives him, Henry "shall have the free and undisturbed use of the hereby conveyed premises for and during his natural life." What language in paragraphs 2 and 3 deals with anything save an estate for years, defeasible upon Henry's death before William becomes twenty-one and life estates? The trial court seems to answer, and counsel for respondents seem to concur, that the words "to the said Henry T. Willis until the said William T. Willis shall be of lawful age" conveyed theland to Henry. It seems to be reasoned from this that the words conferring a life estate upon William ought to be given a like meaning and effect and that this results in the conclusion that "when William T. Willis reached his majority then Henry Willis had no further interest in it." As a construction of the language of paragraphs 2 and 3 this is not satisfactory. The words "to the said Henry," etc., fix a definite term *Page 682 (the evidence shows about ten years), defeasible upon condition, during which the land is to be "to the said Henry." The fact that the interest set off to Henry has a definite end prescribed for it in itself shows that the language relied upon by the trial court was not intended to deal with the whole estate. It shows not an intent to "convey the land" in fee to Henry, but an intent to give him its use for a fixed term, subject to be cut short as stated. If there could be any doubt about this, it would be removed by the opening words of paragraph 4. It is necessary to hold that the court's conclusion that the opening words of paragraph 2 "conveyed" the land to Henry, in the sense used by the court, is erroneous. Paragraphs 2 and 3 construct an estate for a limited term in Henry; a life estate in Henry in case William dies during his minority and Henry survives him; and a life estate in William in case he attains his majority. In other words, these paragraphs carve what may be called a defeasible term for years and certain contingent life estates out of the fee. In no respect do they purport to deal with anything more or to dispose of the remainder or remainders in the land. It is to be kept in mind that the language in paragraph 1 was adequate to convey a fee. When the scrivener had finished paragraphs 2 and 3 he had taken up the fee apparently conveyed by the words used in paragraph 1 and had simply created the term and the life estates mentioned. At this point, therefore the remainder in the land is to be considered. Where was it? Paragraph 1 had put the whole in Henry and William, and paragraphs 2 and 3 had taken a term and certain life estates out of them so far as their apparent rights as co-tenants are concerned. Subtract the latter from the former and what is left of the remainder, or remainders is where paragraph 1 put it, i.e. in Henry and William. This is upon the assumption that we are considering the deed as it stood at the completion of paragraph 3. What then was the situation when the work of the scrivener had proceeded only that far? If the deed had gone no further in qualifying the estates, *Page 683 suppose the scrivener considered what would become of the remainder or remainders in case Henry or William or both of them died. What language in the deed as it then stood before the scrivener, on the hypothesis stated, would have given direction to the course of descent. There was none save the words used in paragraph 1. But that paragraph set up a cotenancy as to all except the estate carved out of the fee by paragraphs 2 and 3. In these circumstances and on the hypothesis stated, i.e. that the estates were to stand as defined in paragraphs 1, 2 and 3, the scrivener would know that in case of Henry's death, his heirs if any, would take one-half the remainder subject to William's life estate; if William died, his heirs, if any, would take one-half the remainder, subject to Henry's right in the use, if any remained. William was an illegitimate child of Henry's sister-in-law. His "heirs" might well fail. He was eleven years of age when the deed was made. Even Henry might die without surviving heirs, particularly if that word be understood to mean children, which, it seems, it must have meant as applied to William. In this situation what would become of one-half the fee if William died childless? Escheat? If both died leaving children, what words in the deed, as thus far construed, would have pointed out what the respective groups would take. As already shown, there is nothing in the deed which would point to the solution of this unless it is the equality first established by clause 1. With these things before him the scrivener undertook, by paragraph 4, to state the purpose of the deed. He says the purpose was to vest a life estate . . . partly in . . . Henry . . . and partly in . . . William." So far this purpose is in harmony with the construction above given the deed. The use of the land, the "life estate" has been found to have been alternately given Henry and William but not jointly at any time. The right of each was conditional, but, when it arose, exclusive. Next, the scrivener takes up the purpose respecting the remainder interest or interests. "And (to vest) the remainder of *Page 684 said estate in the heirs at the said Henry Willis or the heirs of the said William T. Willis, or their heirs and assigns of such heirs forever." As pointed out, the word heirs of William, because of his illegitimacy, meant his children. The same meaning is to be given the word in the other two clauses of the last quotation, since it is reasonable to think the word would have been used in the same sense in the same sentence. This means, too, children who survive Henry or William, or both. The language quoted is out of harmony with the construction given the deed by the trial court and by respondent. For, if the fee went to Henry's heirs if William died a minor and Henry survived him and Henry then took a life estate, and went to William's heirs in case he attained his majority and took a life estate, then the clause at the end of paragraph 4, "or their heirs and assigns of such heirs forever," is wholly superfluous and never could have had anything upon which to operate. Does not this clause mean that the remainder was intended to go to the children of Henry if William died without surviving children, and to the children of William if Henry died without surviving children, and to the heirs, half and half, of Henry and William if both left surviving children? This accords with the problem before the scrivener when he began to write this paragraph, and gives meaning to all the words used therein and explains the use of the disjunctive "or." It is true that the paragraph does not provide against the death of both Henry and William without either leaving surviving children, but in that case at the time the life estate fell in there would be no takers of the remainder under clause 4, and under clause 1 the remainder would go to the general heirs if such there were, under the usual rule. The same situation would exist in case the word heirs is construed to mean heirs instead of children. This paragraph 4 seems to make it plain that the construction given the deed by the trial court is incorrect. It indicates but does not establish that the construction suggested in the question just asked is the correct one. There is another *Page 685 paragraph which is to be considered. The habendum is "to Henry" and to "William" . . . "as above mentioned," i.e. "provided," and "the residue, remainder and reversion therein and thereof of the heirs of the same respectively and to their heirs and assigns of heirs forever." Again the three clauses appear. As before, the third of these, in so far as it purports to show the vesting of any remainder in "their heirs," is wholly useless and meaningless if the trial court's construction of the deed is adopted. It is contended the word "respectively" is to be construed to mean "alternately" and that it points to the correctness of the court's construction of paragraph 2. The unsoundness of that construction seems to appear so clearly from paragraphs 2 and 3 and the rest of the deed that it is difficult to believe this word "respectively" was intended to have the effect to require a construction so out of harmony with so much of the language used elsewhere in the deed. The word "respectively" does not mean "successively" as used in this case. No succession with respect to the remainder has been established by the deed up to that point. It is clearly applicable to the situation before the scrivener if the hypothesis suggested in connection with the preceding paragraph is adopted. If the word "respectively" is given the meaning "alternately" as contended, then in one case the whole remainder would have gone to Henry's heirs to the exclusion of those of William. In the other (the one before us) the whole would have gone to the heirs of William to the exclusion of those of Henry. In no case could it have gone to "their heirs," as several times provided. Further, on the trial court's construction, if William had attained twenty-one and had died without heirs (his illegitimacy kept in mind) would not the entire remainder have escheated? This is a possibility, in view of certain of the evidence a probability, which it is hardly to be thought the parties intended by this deed. Yet, the thing was quite probable when the deed was drawn if respondent is right in his construction of it. *Page 686
It is clear the construction given the deed is not a correct one. It is reasonably clear that the one indicated above as correct is the true construction. The statute of limitations could not run during the life tenancy of William, and no merger of the fee and life tenancy of William could be effected by a deed executed by Henry. Laches is not in this case.
The judgment should be reversed and the cause remanded with directions to enter judgment declaring appellants entitled to an undivided one-half interest in the land, and to proceed as directed in the majority opinion. Graves and Higbee, JJ., concur herewith.