In re Guardianship of Dixon

CLARK, C. J.

Tbe clerk of the Superior Court, after citation to J.

W.

Dixon, guardian of Eoberta Dixon, and upon Ms answer filed, removed him from his guardianship upon the ground that he had failed to file his account as guardian, and, further, because said guardian claimed an interest in the property adverse to his ward. On appeal to the judge this order was reversed, and the ward, Eoberta 0. Dixon, appealed to this Court, prosecuting said appeal through her guardian ad litem, appointed by the court by consent.

. It is found by the judge upon facts admitted, that Eobert A. L. Carr executed a deed to his daughter, the mother of the ward, Eoberta Dixon; that in said deed, after the warranty clause, said grantor added: “I, the said E. A. L. Carr, reserving a life interest for myself and wife, Sarah A. L. Carr, in the above described land.” The grantee, the mother of said ward, and the daughter of the grantor, died first of all, then the grantor, and lastly his wife died. It was admitted that there was birth of issue of the marriage of the grantee in said deed, and J.

W.

Dixon, the guardian, contended that he was entitled to the rents and profits of said land as tenant by the curtesy, and was not accountable to said ward for said rents.

The reservation in the deed is valid, and said deed did not become effective till after the death of the grantor and his wife. It is true that the exception in favor of the grantor’s wife could not operate as a conveyance to her, but the question as to the title to rents and profits after death of the grantor and until the death of his widow is a question to be settled between their personal representatives, and in no wise concerns the guardian, J.

W.

Dixon. The sole question as to him is whether he became tenant by the curtesy of this land. His wife, having predeceased the grantor, was never seized of the premises, and upon the expiration of the particular estate by the death of Mrs. Carr, the title passed directly to Eoberta Dixon as heir at law of her mother. J.

W.

Dixon’s claim to be tenant by the curtesy is therefore unfounded. His refusal to account *28 for tbe rents and profits and bis claim to tbe rent, adverse to bis ward, were sufficient grounds to justify bis removal. Rev., 1806.

In Nixon v. Williams, 95 N. C., 103 , it was beld that to entitle a husband to curtesy in bis wife’s land, either tbe wife, or tbe husband in right of bis wife, must have bad seizin in deed, which is tbe actual possession of tbe land. In this case it is admitted that neither Dixon nor bis wife bad any possession of said land during tbe life of tbe grantor and bis wife. In Gentry v. Wagstaff, 14 N. C., 270 , it was beld that tbe bus-band acquires by marriage no estate in any land of bis wife of which neither be nor bis wife bad possession, and that where tbe wife’s interest in real estate is in reversion or remainder dependent on a preceding freehold estate in another, she has no seizin until tbe determination of that estate.

In Sasser v. Blyth, 2 N. C., 259 , it was beld, upon facts exactly similar to those in this case, that where a man executed a deed to bis son in fee simple, reserving a life estate, such reservation is valid. Tbe learned reporter (Judge John Haywood) appends a note that this is not a case of repugnancy, because it is “by no means inconsistent with tbe estate in fee in remainder that another should first have tbe estate for life.” Tbe rule that tbe first words in a deed and tbe last in a will control in eases of repugnant provisions does not apply. Construing tbe whole deed as written, there is here a reservation of tbe estate for tbe life of tbe grantor and bis wife, with remainder in fee to their daughter.

Blackwell v. Blackwell, 124 N. C., 269 ;

Wall v. Wall, 126 N. C., 405 . This is not like Wilkins v. Norman, 139 N. C., 41 , where an estate in fee simple was conveyed and there was a subsequent clause which conveyed tbe land to another after tbe death of tbe grantee in fee. Tbe last clause was beld repugnant and void.

In Featherstone v. Merrimon, 148 N. C., 199 , Walker, J., says: “In construing a, deed tbe Court will examine tbe entire instrument and construe it as a whole, consistent with reason and common sense, to effectuate tbe intention of tbe parties. There can be no question here -as to tbe intention of tbe grantor, which is very clearly expressed.” To tbe same effect is Trip *29 lett v. Williams, 149 N. C., 396 , in wbieb Brown, J., says 'that tbe courts will look at tbe whole instrument to ascertain its intention and will “not regard as very material in wbat part of tbe deed such intention is manifested.”

Tbe judgment of bis Honor is Eeversed.