Miner's Appeal

The opinion of'the Court was delivered, May 11th 1869, by Williams, J.

This case received a very attentive and patient hearing in the court below. The able and satisfactory report of the master, and the elaborate and exhaustive opinion of the learned judge, sustained and fortified as their positions are by the numerous authorities to which they have referred, render it unnecessary for us to travel over the same ground, or to cite any cases in support of the conclusion to which we have come. The only question in the case arises upon the construction of the plaintiff’s deed to the defendant for the land of which she seeks an account of the rents and profits. If the deed conveyed all her interest in the land she has no foundation for her bill, but if it conveyed only her interest as widow in the estate of her deceased husband, then she may be entitled in part to the relief which she seeks. What then was the interest intended to be conveyed by her deed ?

Was it her whole interest or estate in the land, or only her in *287 terest as widow under the Intestate Act? And how is this question to he determined ? By reference to the deed alone, or by the light shed upon it by surrounding circumstances ? The appellant’s counsel contend that it must be determined by the language of the deed itself, without the aid of extrinsic evidence, and they insist that there is no ambiguity in the language, or repugnance between the several parts or clauses of the deed, and that a disinterested reader, unacquainted with the circumstances of the parties, and their relations to the subject of the grant, would come to the conclusion, from the face of the deed itself, that it was intended to convey only the grantor’s interest as the widow of'her deceased husband. It is undoubtedly true, that any one reading the deed under the circumstances supposed, would come to the conclusion that it was the intention of the grantor to convey her interest as widow in the estate of her deceased husband, for such intent is expressly declared; but it is not so clear that he would come to the conclusion that this was the only interest intended to be conveyed. Would he not be in doubt, whether the clause immediately preceding the one describing her interest as widow, was not intended to define and describe another interest, separate and distinct from her interest as widow ? And would he not come to the conclusion that the deed was intended to convey all her interest whatsoever in the land, with as little doubt as he would, that it was intended to convey her interest as widow ? He might be in doubt, whether the grantor had any other interest than her interest as widow; but if she had, would he have any doubt that it was intended to be conveyed ? If any conclusion is clearly and certainly deducible from the deed itself, it would seem to be that it was the intention of the grantor to convey all her estate and interest in thedand of whatsoever nature; and that it was an estate of freehold for and during the term of her natural life, that was intended to be conveyed. The only doubt that can possibly arise, is in regard to the quantum of her life estate, whether it comprehended the whole land, or embraced only an undivided part or portion thereof. When, therefore, the plaintiff alleges that she had a life interest in the land not intended to be conveyed, she is setting up a claim apparently in opposition to her own deed. The deed, primé, facie, conveys all her interest. And when she avers, as the foundation of her title to the relief which she seeks, that upon the death of her husband she became entitled for life to one-third of the land as his widow, and that upon the death of her two children she became entitled to a life estate in the residue, and that the deed was intended to convey only her estate as widow, and not the life estate which she inherited from her children, we are compelled to read the deed with reference to these extrinsic facts, and cannot rightly shut our eyes to the light which they afford. The grantee does not need the aid of these facts in order to show that the grantor has no *288 interest in the land. The deed itself is primá facie evidence that she no longer has any estate or interest therein : but she needs the aid of these extrinsic facts, for they constitute the very foundation of her claim, and she cannot advance a single step in opposition to her deed without disclosing them and invoking their aid. We must, therefore, interpret the deed in the light shed upon it by these extrinsic facts which she is compelled to disclose. Let us then read it with the help which they afford, and see whether it was intended to convey the whole, or only a part of her interest in the land. At the date of the deed, the grantor had a life estate in the whole land, as widow and heir of her children; and it is, perhaps, not very material to the inquiry, whether, or not, her interest as widow had merged in her freehold estate for life, as surviving parent. In .contemplation of law and in point of fact she was seised of a life estate in the whole property, “ nothing less, nothing more, nothing else.” Perhaps her interest as widow might be regarded for some purpose, as separate and distinct from her life estate as surviving parent, if necessary to the ends of justice; but both these interests constituted but one life estate or freehold in the land. Was this life estate then conveyed ? The subject of the grant as described in the premises is: “ All her estáte, right, title, interest, claim and demand whatsoever, in and to all that certain piece or parcel of land, &c.” These words are broad and comprehensive enough to embrace and-include every possible right, interest or claim which she may have had in the land, whenever or however derived. And there is nothing in the habendum proper, inconsistent with or repugnant to the description of the subject of the grant, as contained in the premises. The habendum is in these words: “ To have and to hold the premises hereby granted, with the appertenances unto the said Jesse Thomas, his heirs, executors, administrators and assigns, to his and their use for and during the natural life of the said Julia E. Miner.” If the deed had stopped here, could there be any possible doubt as to its meaning or construction ? Would it not convey her whole interest in the land as clearly as it could possibly be conveyed by human language ? Nor is any doubt thrown upon the subject of the grant by the clause which immediately follows: “ The interest hereby conveyed, being an estate of freehold for arid during the natural life of the said Julia E. Miner.” The doubt, if any, as to the extent of the interest conveyed arises out of the succeeding clause: “ And being all the interest of her the said Julia E. Miner, in the estate of the said Samuel O. Miner, deceased, as his widow, of, and in, and to the premises above described.” Was this last clause, as the appellant’s counsel contend, intended to limit and define the interest mentioned in the preceding clause and to be synonymous with it ? In other words, were the two clauses intended to describe the same identical interest ? Or do they refer to distinct and separate in *289 terests, and were they both intended to embrace her whole interest in the land — the first, the interest which she took as surviving parent; and the second, her interest as widow ? If the first clause refers to her interest as widow, it is not only tautological, but it does not afford the least aid in defining or individuating that interest. If both clauses were intended to refer to the same interest, then the particle “ and,” by which they are connected, instead of expressing the relation of addition as ordinarily used, signifies, to wit, that is, or namely. To give it this meaning, and to construe the two clauses as synonymous, would render them inconsistent with the description of the subject of the grant as contained in the premises; but giving to the particle connecting the two clauses its usual meaning, and construing the two clauses as descriptive of the two estates or interests which the plaintiff took in the land as surviving parent and widow, or of the titles by which they were derived, they are not only consistent, but in perfect harmony with the description of the subject of the grant as set forth in the premises. We agree with the counsel that these clauses cannot properly be considered a part of the habendum, and we think it is immaterial, whether they are to be considered as a part of the description of the subject of the grant, and to be read as if inserted in the premises, or as a recital of the title, by which the estate or interest intended to be conveyed, was derived. Regarded either way, they are not repugnant to the description in the premises, nor do they limit or restrict the subject of the grant to the plaintiff’s interest as widow. Can there then be any doubt as to the real meaning and proper construction of the deed ? It is signed and sealed by the grantor alone. If there be any ambiguity in the language, or doubt as to its meaning, it is to be construed most strongly against her. But can there be any doubt as to her intent ? If there be, we have the right to call to our aid the surrounding circumstances, and the acts of the parties at the time and subsequent to the transaction, in order to ascertain their intention. If the grantor intended to convey only her interest as widow, why does she give, grant, bargain, sell, assign and convey unto the grantee, his heirs, &c., all her estate, right, title, interest, claim and demand whatsoever, in and to all the land described in the deed ? If it was the intention to convey only her interest as widow, why was not that interest expressly and specifically described in the premises ? And why was a part of her interest described as all her estate whatsoever in the land ? Why should the' grantee, who had acquired the whole estate in remainder, purchase merely the grantor’s interest as widow ? Why leave in her an interest which would entitle her to the possession of the undivided two-thirds, if not the whole land ? And if the grantor only inr tended to convey her interest as widow, why did she deliver to the grantee the possession of all the land described in the deed? There *290 can be but one answer to these questions, and that is, that she sold and intended to convey all her interest or estate in the land as widow and surviving parent. The court below was, therefore, clearly right in dismissing the plaintiff’s bill.

Decree affirmed at the cost of the appellant.