Thomas v. . Bunch

73 S.E. 899, 158 N.C. 175, 1912 N.C. LEXIS 15

• Court: Supreme Court of North Carolina
• Decided: February 28, 1912
• Status: Published

Opinion

AlleN, J.

The right of the widow of Charles B. Bunch to dower or .to a homestead depends on the estate and interest in her husband at the time of his death.

■ If there was an outstanding life estate, there was no seizin in him which would entitle her to dower (Houston v. Smith, 88 N. C., 313; Barnes v. Raper, 90 N. C., 190; Redding v. Vogt, 140 N. C., 562); nor was he entitled to a homestead in the remainder (Murchison v. Plyler, 87 N. C., 79; Stern v. Lee, 115 N. C., 427); and it is only in the contingency that the husband is the owner of a-homestead at the time of his death, leaving a widow but no children, that the exemption from debts inures to her benefit. Const., Art. X, sec. 5.

The decision of this appeal depends, therefore, on the construction of the deed from Asa Cooper and S. A. Cooper to Charles B. Bunch, and if, by correct interpretation, a life estate is reserved therein to- S. A. Cooper, the widow of Bunch would not be entitled to dower or a homestead, because S. A. Cooper was living at the time of the death of Bunch, and his estate would be in remainder.

It is true that under the modern rule of construction, little importance is attached to the position of the different clauses in a deed, and the courts look at the whole instrument, without reference to formal divisions, in order to ascertain the intention of. the parties. Gudger v. White, 141 N. C., 512; Featherstone v. Merrimon, 148 N. C., 205; Triplett v. Williams, 149 N. C., 396; Real Estate Co. v. Bland, 152 N. C., 231; but rules of construction can only be resorted to when the meaning is doubt ful, and each and every part of tbe deed must be given effect, if tbis can be done by any fair or reasonable construction. Davis v. Frazier, 150 N. C., 451.

Language of similar import and almost identical with that in the deed before us was -considered in the case of In re Dixon, 156 N. C., 26, and it was there held that the grantee took an estate in remainder after the death of the husband and the wife. In this deed the language is, “and a life estate is hereby reserved by said Asa Cooper and S. A. Cooper, his wife,” and in the deed in the Dixon case, “I, the said R. A. L. Carr, reserving a life interest for myself and wife, Sarah A. L. Carr, in the above described land,” and it was said in the latter case: “The reservation in the deed is valid, and said deed did not become effective till after the death of the grantor and his wife”; and again: “Construing the whole deed as written, there is here a reservation of the whole for the life of the grantor and his wife, with remainder in fee to their daughter.”

If there is any difference in the meaning of the clauses in the two deeds, there is stronger reason for saying that the deed in this case conveys an estate in remainder to the grantee, because in the deed in the Dixon case the husband alone was the grantor, and a life interest was reserved, while in this the husband and wife are the grantors, with the reservation of a life estate.

The provision for support is in consideration of the conveyance of the remainder, and the clause of forfeiture was inserted to compel performance of the- obligation.

We conclude that a life estate was reserved to Asa Cooper and S. A. Cooper, and that Charles B. Bunch was, at the time of his death, the owner of an estate in remainder, the said S. A. Cooper being then alive, and that the widow of said Bunch is not entitled to dower or a homestead therein.

Affirmed.