3. Deeds 128-Deed construed as conveying deceased daughter's interest in remainder to surviving daughter, despite inconsistent provision; "either." wife with remainder to their two daughters, on A deed conveying a life estate to grantor's condition that, if "either or both" died without heirs of their body, the land should revert to another and his heirs, and that, if only one died without heirs, her half should be divided between the survivor and such reversioner's heirs, construed as expressing grantor's intent that if either daughter died without children her half should be divided between the survivor and the heirs of such reversioner; the words "either or," the former of which means "one of the two," being rejected as insensible when considered with the preceding and following provisions. good health at the time, and not as a breach of a contractual provision preventing its taking effect under such condition. The decision of such question is not necessary to the disposition of this case; the following cases, however, hold contrary to plaintiff's contention: Logan v. New York Life Ins. Co., 107 Wash. 253, 261, 181 Pac. 906; Packard v. Ins. Co., 72 N. H. 1, 54 Atl. 287; Metropolitan Life Ins. Co. v. Howle, 62 Ohio, 204, 56 N. E. 908; Barker v. Metropolitan Life Ins. Co., 188 Mass. 542, 545, 74 N. E. 945; Murphy v. Metropolitan Life Ins. Co., 106 Minn. 112, 113, 118 N. W. 355; Carmichael v. John Hancock Mutual Life Ins. Co., 116 App. Div. 291, 101 N. Y. Supp. 602, 604; Perry v. Ins. Co., 150 N. C. 143, 145, 63 S. E. 679, and other authorities above cited. [Ed. Note.-For other definitions, see Words We recommend that the judgment of the and Phrases, First and Second Series, Either.] Court of Civil Appeals be affirmed. 4. Deeds 97-Words repugnant to parties' intent rejected as insensible. CURETON, C. J. The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court. SHUGART v. SHUGART. A deed must be construed, if possible, so that no part shall be rejected, but words repugnant to other parts and the parties' intent will be rejected as insensible. Error to Court of Civil Appeals of Ninth Supreme Judicial District. Action by N. B. Shugart against M. L. Shugart and others. From a judgment (233 (No. 329-3685.)* S. W. 303) affirming a judgment for plaintiff, the named defendant brings error. Affirmed. (Commission of Appeals of Texas, Section B. Feb. 21, 1923.) 1. Deeds 128-Rule in Shelley's Case inapplicable, where intent, by use of words "heirs," "heirs of the body," etc., was not to comprehend whole line of succession to life holder. If grantor's intent in using the words "heirs," "heirs of the body," etc., was to comprehend the whole line of succession to the life holder, the rule in Shelley's Case applies, but if his intent was to use them in a limited, restricted, and untechnical sense, merely to designate certain persons who shall take at the life holder's death, the rule does not apply. W. A. Morrison, of Cameron, for plaintiff in error. Henderson, Kidd & Henderson, of Cameron, for defendant in error. HAMILTON, J. We adopt the statement of the case as made by the Court of Civil Appeals, which follows: "On the 19th day of July, 1877, Stokely S. Shugart executed a deed, conveying to his wife, Nancy, a life estate in 178 acres of land, with remainder to their two daughters, Artitia and Louisa (the lower half to Artitia and the upper half to Louisa), upon conditional limitation expressed in the following clauses contained in the deed, to wit: 'And in case that either or "both Artitia and Louisa Shugart should die without heirs of their body, the above and within described land shall revert to and be divided between L. C. Shugart, and his heirs; and if only one should die without heirs, her half shall be divided between the other and L. C. Shugart's heirs.' 2. Deeds 128-Rule in Shelley's Case held inapplicable; "heirs," "heirs after her," "heirs of their body." The rule in Shelley's Case held inapplicable to a deed conveying a life estate to grantor's wife with one-half in remainder to each daughter and “her heirs after her," on condition that if either or both died without "heirs of their body" the land should revert to another and his "heirs," and that, if only one died without "heirs," her half should be divided between her sister and such reversioner's "heirs"; the "Louisa survived her father, the grantor, and the mother, Nancy, the life tenant, and died in 1915, seized of the upper half of the land. No children were born to her, but she left surviving her the above-named Artitia, a full sister, and L. C. (Shugart), a half-brother, besides other legal heirs. On May 19, 1917, L. C. (Shugart) executed a deed purporting to convey to appellant, his second wife and the stepgrandmother of appellees, an undivided onehalf interest in the upper half of the land conFor other cases see same topic and KEY-NUMBER in all key-Numbered Digests and Indexes *Rehearing denied March 14, 1923. words "heirs", "heirs after her," and "heirs of their body" being used in their nontechnical sense to mean children. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Heirs; Heirs of the Body.] (248 S. W.) veyed to Louisa by the Stokely S. Shugart deed above referred to. Appellees, as the children and descendants of a deceased child of L. C. (Shugart), brought suit against appellant for an undivided one-half of said upper half of the land, making Mrs. Artitia Hill and husband defendants, and asking for partition. is hereby and herein deeded the upper half of the above-described land (89% acres) and in case that either or both Artitia and Louisa Shugart should die without heirs of their body, the above and within described land shall revert to and be divided between L. C. Shugart and his heirs, and if only one should die without heirs, her half shall be divided between the other and L. C. Shugart's heirs. * • To "The case was tried before the court without a jury, who, after hearing the evidence, rendered judgment for appellees, granting the re-have and to hold all and singular the premises lief prayed for, from which appellant alone appeals. The court made and filed his findings of fact and conclusions of law, as follows: "Findings of Fact. "N. B. Shugart, R. E. Shugart, and R. L. Hudnall, children, and Alvey, Fred, Lula May, and Griffin H. Dossey, minors, grandchildren of L. C. Shugart, deceased, by their next friend, N. B. Shugart, brought this suit in action of trespass to try title, and for damages, against M. L. Shugart, Artitia Hill and her husband, W. B. Hill, and T. H. Freeman, for title, possession, and rents for an undivided one-half interest in a tract of 89 acres of land on the Levi Taylor league in Milam county. Freeman filed a disclaimer as to title, being only a tenant. The Hills made no appearance, and M. L. Shugart filed a general demurrer and general denial. and hereditaments above mentioned, and here- "The deed was made a short time prior to "Plaintiffs in their petition allege that they and the defendant Artitia Hill are the joint owners of the land, and set forth their respective interests. Defendant M. L. Shugart claims under a deed to her from L. C. Shugart. The contest is between plaintiffs and defendant Hill on the one side and M. L. Shugart on the other. M. L. Shugart is the second wife of L. C. Shu-Jackson, and William Shugart. gart, deceased, but is not the mother or grandmother of plaintiffs. Stokely S. Shugart, father of L. C. Shugart, is the common source, and the controversy arises over the construction of the following deed from Stokely S. Shugart to his wife, Nancy, and daughters, Artitia and Louisa, and is as follows, to wit: the death of Stokely S. Shugart, and was filed for record by him on the 18th day of February, 1878. Nancy was the second wife of Stokely S. Shugart, and Artitia and Louisa were his children by her. By his first wife Stokely S. Shugart had five children, viz: L. C. Shugart, Annie Lou Brown, Texana Green, Dorothy "The State of Texas, County of Milam: Know all men by this public instrument made and entered into by and between Stokely S. Shugart of the county of Milam, state of Texas, of the first part, and Nancy Shugart and Artitia Shugart and Louisa Shugart, of the county of Milam in the state of Texas, second party, witnesseth: That for and in consideration of the natural love and affection of the party of the first part, for the party of the second part, as his wife and children, and also divers other good causes and considerations to the party of the first part, has given, granted, bargained, sold and conveyed and do hereby give, grant, bargain, sell and release first to his wife, Nancy Shugart, during her natural life, she having relinquished all claims to title in and of the estate of said Stokely S. Shugart, the following described land and premises lying and being situated in the county of Milam, state of Texas, and being a part of the Levi Taylor league on the Brazos river, to wit (field notes omitted herein) to the beginning, containing 178% acres. After the death of said Nancy Shugart to Artitia the lower half of the above survey upon which the family residence now stands * is hereby and herein deeded to said Artitia Shugart and her heirs after her, and to Louisa Shugart and her heirs after her William died before his father, and prior to the execution of "Stokely S. Shugart, died in possession of the land in controversy, and his wife, Nancy, and daughters, Artitia and Louisa, occupied the land after his death. After the death of Stokely S. Shugart, his wife married a man by the name of Oglesman. She died about 24 years ago. After her death, Artitia and Louisa took their respective tracts of land. Artitia is living, a party defendant, and has four children. Louisa married James Simms. He lived only about 8 years after their marriage, and she remained a widow and died without hav ing child or children and never had any children. She had possession of her tract of land up until her death, about 5 years ago, which was before the execution of the deed by L. C. Shugart to M. L. Shugart. "In 1917, L. C. Shugart made and delivered the following deed to his wife, M. L. Shugart defendant, which was filed for record the 21st day of May, 1917, in county clerk's office, Milam [ When the word heirs, etc., is not used in the county, to wit: large sense and to include a succession, but ""The State of Texas, County of Limestone: is used in a peculiar and restrictive sense, Know all men by these presents, that I, L. C. and is intended merely to designate certain Shugart, of the county of Limestone, state of Texas, for and in consideration of the love and persons, who, at the death of the holder of affection I have for my wife, Mrs. M. L. Shu- the life estate, may answer to that descripgart, and for other good and valuable consid- tion, the rule does not apply. So that it is erations, have granted, given and conveyed and only necessary first to determine the intenby these presents do grant, give and convey tion of the grantor in a deed or of the testaunto the said Mrs. M. L. Shugart, of Limestone tor in his will. If that intention, as shown county, Texas, all that said lot or parcel of by the instrument, is, by the use of the land described as follows: My undivided one- words "heirs, heirs of the body," etc., to half interest in and to 89 acres of land, a part comprehend the whole line of succession to of the Levi Taylor grant situated in the county the life holder, then the rule applies. But of Milam, state of Texas, the said 89 acres being described by metes and bounds in a deed if that intention, as revealed by the instrufrom Stokely S. Shugart to Nancy Shugart, ment, was not to use such words in their Artitia Shugart and Louisa Shugart of date full and proper sense and to include the July 18, 1877. * The land hereby con- whole of the grantor's or testator's inheritable veyed being the same undivided interest in said blood, "but was to use the word 'heirs' in a 89 acres of land which I inherited from my de-limited, restrictive, and untechnical sense," ceased sister, Louisa Shugart. * "Conclusions of Law. "I conclude that the deed from Stokely S. Shugart to his wife, Nancy, and his daughters, Artitia and Louisa Shugart, conveyed a life estate to Nancy and an estate in fee simple, upon conditional limitation to the daughters, Artitia and Louisa. The words 'heirs' and the words 'heirs of their body' in the deed, are therein used in a restricted and nontechnical sense, and mean children. Louisa having died without child or children, her tract passed in fee simple, one-half to Artitia Hill and the other half to the plaintiffs, children and grandchildren of L. C. Shugart." Plaintiff in error appealed, and the Court of Civil Appeals affirmed the judgment of the trial court. 233 S. W. 303. [1] The only questions presented in the case arise as to the proper construction of the provisions of the deed above quoted. It is strongly contended by the plaintiff in error that the rule in Shelley's Case is applicable to the terms of the deed under consideration. The rule in Shelley's Case has been stated to be as follows: "When a person takes an estate of freehold, legally, or equitably, under a deed, will, or other writing, and in the same instrument, there is a limitation, by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons, to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate." 4 Kent. 215. then the rule in Shelley's Case does not apply. The principles governing the application of the rule are more fully discussed in the case of Crist v. Morgan, 245 S. W. 659, recently decided by Section B of the Commission of Appeals. [2] We think the deed reveals clearly the intention of the grantor to use the words "heirs after her," "heirs of the body," and "heirs" in a restrictive sense, and to mean children. The land could not have been "divided between L. C. Shugart and his heirs" if the word heirs had been used in the technical sense, because L. C. Shugart could have no heirs, in that sense, while he was living. One-half of it could not have been "divided between the other and L. C. Shugart's heirs" until after his death, if the word heirs had been used in the technical sense, for the same reason. Therefore, the word "heirs" must have been used in each of those instances, in its nontechnical sense to mean children. Since it is clear to us that the word "heirs" means children, for the reasons above indicated, we think the same meaning was intended by the words "heirs after her" and "heirs of their bodies," and that "children" was meant by the use of the terms in each instance, respectively. Therefore, applying the principles governing the application of the rule in Shelley's Case, as herein before set out, it is clear that the rule is not applicable to the terms of the deed under consideration. [3] It is apparent that the provision "and in case that either or both Artitia and Louisa Shugart should die without heirs of That rule is a conclusion of law applicable their body the above and within described to an intention, by a grantor or maker of a land shall revert to and be divided between will, by the use of the words "heirs of the L. C. Shugart and his heirs," and the provibody" or other words of inheritance to com- sion "and if only one should die without prehend the whole line of heirs to the holder heirs her half shall be divided between the of the life estate. When upon consideration other and L. C. Shugart's heirs" are reof the whole instrument, such an intention is pugnant. The word "either," as used in the discovered, the rule applies as a matter of first provision, means "one of the two." law and without further consideration. Hence, that provision, if all the words in it (248 S.W.) be given full force, would mean "in case, expressed in the preceding portion of the that one of the two or both Artitia and deed, that the children of each of his daughLouisa Shugart should die without heirs of ters should have the portions granted them their body the above and within described respectively and annulling the second clause land shall revert to and be divided between wherein the grantor again clearly expressed L. C. Shugart and his heirs." But the the intention that "if only one should die second proposition is: "And if only one without heirs her half shall be divided should die without heirs her half shall be between the other and L. C. Shugart's heirs." divided between the other and L. C. Shugart's [4] We think the intent of the grantor, as heirs." It is impossible to reconcile these revealed by the deed, was that, in the event two provisions, as they stand, because they one of the two daughters should die without prescribe different dispositions of the land children, while the other was still living, her upon the same contingency-the death of half should be divided between the other only one of the two, Artitia and Louisa. and L. C. Shugart's heirs. These conclusions cannot be reached without rejecting the words "either or" as insensible. They are not insensible when considered inde If however we can gather from the whole deed which of these two clauses was really intended, it is our duty to declare it and let it have effect. In the second clause it is pendently of the other parts of the deed. clearly and definitely stated that "if only They are insensible when considered with one should die without heirs her half shall the other provisions of the deed above quoted. be divided between the other and L. C. The courts always give effect to every part Shugart's heirs." This clause could take effect of a deed, if it is possible, consistent with the only in the event the other should be living rules of law. The rule of law is that a deed at the time the one should die without heirs. must be construed, if possible, so that no However, that is the status in this case. It part shall be rejected. If this cannot be is clear from this clause, when considered done they then examine and see if there is alone, that the grantor wanted the property enough of the consistent and intelligible of the one of the two daughters who should portions of the same to give effect to the die without heirs divided between the other intention of the parties; and, if so, they and L. C. Shugart's heirs. reject what is repugnant to the general intention of the deed, or to any particular intention of the party. Presbrey v. Presbrey, 13 Allen (Mass.) 283; Bent v. Roberts, 137 Mass. -We think the portion of the deed preceding, as well as the second clause above quoted, show an intent contrary to that expressed in the first clause. The preceding portion referred to is "the lower or southern or central division is hereby and herein deeded to the said Artitia Shugart and her heirs after her, and to Louisa Shugart and her heirs after her is hereby and herein deeded the upper half of the above described land." We have already determined that the words "heirs after her" as used there, mean children. From this it is clear that the grantor desired that the children of each of the daughters should have her portion of the land. Then it is not reasonable to suppose that he intended to take the portion deeded to one from her children, if the other died without children. Such would be the result if the first clause be given effect to the exclusion of the second clause. 192. "Where there are any words in a deed that evidently appear repugnant to the other parts of it, and to the general intention of the parties, they will be rejected as insensible; for words are not the principal things in a deed, but the Cruise on Real Property, vol. 4, title 32, c. 20, intent and design of the parties." Greenleaf's § 25; Crowley v. Swindles, Vaugh. 173. Therefore we think that the words "either or" should be rejected as insensible when considered in the light of the whole instrument, and that it should be held upon the death of Louisa that her half of the land should be divided between her sister, Artitia, and L. C. Shugart's children. We recommend that the judgment of the Court of Civil Appeals be affirmed. All parts of the deed are in harmony, if we eliminate the words "either or" from the first CURETON, C. J. The judgment recomclause. This must be done, or else we must mended in the report of the Commission of give effect to the first clause as it stands, Appeals is adopted, and will be entered as thereby denying the grantor's intention as the judgment of the Supreme Court. and to perpetually enjoin the city and its offiCITY OF WACO v. AMICABLE LIFE INS. cers from demanding or collecting any part CO. (No. 321-3672.) * of the tax under said assessment. The dis (Commission of Appeals of Texas, Section B. trict court upon a trial before the court Feb. 28, 1923.) 1. Taxation 387-Tax-free government securities not taken into account in estimating total value of insurance company's assets. Tax-free government securities cannot be taken into account in estimating the total value of an insurance company's assets under Rev. St. art. 4764, 2. Taxation 387-Reserve of Insurance company not asset. For the purposes of taxation under Rev. St. art. 4764, a reserve of a life insurance company is not an asset, but a liability; but, if the amount of that reserve is invested in a trust fund, the fund is, of course, an asset, though even in such case the fund is not exempt from taxation unless expressly made so by statute. 3. Taxation-387- Reserve deducted from gross value of insurance company's property. Rev. St. art. 4764, does not exempt any fund or assets of a company from taxation as constituting a reserve fund, but, on the contrary, specifically denominates the reserve a debt, and authorizes a deduction of that debt from the gross value of the company's prop erty. 4. Municipal corporations 966(5)-Mortgage bonds deposited by insurance company with state treasurer taxable in city. Mortgage bonds deposited by insurance company with the state treasurer are subject to taxation in the city where the company is domiciled. 5. Appeal and error 1082 (2) - Action of Court of Civil Appeals not reviewed unless raised in application for writ of error. The Supreme Court is not permitted to review action of the Court of Civil Appeals where the question is not raised in application for writ of error. without a jury granted the relief prayed for, and the Court of Civil Appeals affirmed this judgment. 230 S. W. 698. The assessment complained of was made under R. S. art. 4764, which reads as follows: "Insurance companies incorporated under the laws of this state shall hereafter be required to render for state, county and municipal taxation all of their real estate as other real estate is rendered; and all of the personal property of such insurance companies shall be valued as other property is valued for assessment in this state in the following manner: From the total valuation of its assets shall be deducted the reserve. being the amount of the debts of insurance companies by reason of their outstanding policies in gross, and from the remainder shall be deducted the assessed value of all real estate owned by the company and the remainder shall be the assessed taxable value of its shall not be required to pay any occupation or personal property. Home insurance companies gross receipt tax." The findings of the trial court, which are copied in full in opinion of the Court of Civil Appeals, and which are based upon unconrelative to the assets and liabilities of comtroverted evidence, show the following facts plaining company: The real estate of the company, which consisted of a 22-story office building at Waco, was valued at $926,652.97. The personal property of the company amounted to $2,287,780.26. Its gross assets, real and personal, were $3,214,432.33. Included in its personal assets, and consequently in its gross assets, were United States government bonds and certificates of indebtedness amounting to $906,050, which were admittedly exempt from state taxation under federal laws. The real estate of the company was assessed for taxation in Waco Error to Court of Civil Appeals of Third at $589,650. The legal reserve of the comSupreme Judicial District. Suit by the Amicable Life Insurance Company against the City of Waco. From a judgment of the Court of Civil Appeals (230 S. W. 698) affirming a judgment for the plaintiff, the defendant brings error. Af In order to secure pany was $1,631,754.06. the benefits of R. S. art. 4749, the company some years prior to 1919 had deposited with the State Treasurer assets to the amount of $1,000,000. This was done by conveying to the Treasurer in trust its real estate at a valuation of $882,000, and depositing with the Treasurer $118,000 in mortgage bonds. Street, Willis & Coston, of Waco, for plain- The trial court held that the tax-free governtiff in eror. firmed. ment securities of the company should be de O. L. Stribling, of Waco, for defendant in ducted from its gross assets, and that the error. mortgage bonds deposited with the State Treasurer were not subject to taxation by MCCLENDON, P. J. The Amicable Life the city of Waco. If these deductions are Insurance Company, a domestic life insur- made, it is manifest that the assessed value ance corporation, domiciled at Waco, McLen- of the company's real estate, plus its reserve, nan county, Tex., brought this suit against exceeded the total value of its assets and the city of Waco and its taxing officers to left no remainder subject to personal propcancel an assessment upon its personal property tax under article 4764. The Court of erty for the year 1919 amounting to $557,600, Civil Appeals did not consider the question For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes *Rehearing denied March 28, 1923. |