NATURE OF TITLE TAKEN UNDER A DEVISE.

Court of Appeals for Fayette County.

#### Charles Persinger v. Willard Britton et al.

Decided, November 30, 1918.

*Devise*— Will *Not be Out Down by Subsequent Clause, When*— Limi*tation on Secondary ‘Contingent Estate*— Torrens *Registration Act Valid as to Persons in Being Who are Capable of and do Appear and Defend.*

1. Where an estate in fee simple is devised in clear and unequivocal ■terms, such estate will not be cut down or limited by a subsequent clause less conclusive.

2. Where the primary devise in fee simple takes effect upon such devisee arriving at majority and the secondary contingent estate is devised to the children of the first devisee upon his death, the latter estate will be limited to the contingency of the death of the first devisee during his minority and before >the fee simple devise becomes effective.

*Sidy & Sanderson,*for Charles Persinger.

*John Logan,*for Pha and Jonnie Davis.

*317Allread, J.

This action originated in the probate court and was one to register and quiet title, under the provisions of the land registration act. The probate court dismissed the petition for registration as to the real estate in controversy upon the ground that there was an outstanding title in favor of Pha and Jonnie Davis, daughter of John A. Davis, a devisee under the will of Benjamin R. Davis.

From this judgment an appeal was taken by the plaintiff to this court.

The case involves a construction of the following items of the will of Benjamin R. Davis:

> “Item 3. I further will and devise one half of said farm to my grandson John Davis (son of my late son James Davis) to be taken possession of by him upon his becoming of the age of majority and then to be held by him and his heirs, in fee simple, upon condition that he pay to his sister Margaret Davis (my granddaughter) the full value in money or property as she may desire, of one half of the share of said farm hereby devised to him.

> “Item 6. In case my said grandson John Davis should die before becoming of age or without children, then the half of said farm devised to him shall go to the children of my said son Nelson Davis, to be taken possession of at the same time they get possession of their half of said farm, subject however, to the same condition in regard to the payment to said Margaret as I have hereinbefore stated in regard to said John, and in ease said John shall die leaving children then it is my will that his male children inherit his portion of said farm, in preference to his female children.”

The will was executed February 2d, 1862, and was probated February 24th, 1862. John Davis mentioned in items 3 and 6 at the time of the execution and probation of the will was four years of age. He survived the testator and is still living. His estate by successive conveyance has been transferred to the plaintiff Charlés Persinger. Pha and Jonnie Davis claim an interest in the estate under item 6 as the only children and representatives of their father John Davis,

*318Benjamin R. Davis by his will disposed of his 500 acre farm. The general scheme of disposition was that his surviving son Nelson was to have possession and control of the entire farm and support the widow and unmarried daughters until the youngest of his own children and John, the minor son of James, should become of the age of twenty-one years. Subject to the provision for the support of the widow and daughters, one-half the farm was to go to the children of Nelson upon the arrival of age of the youngest. There was no limitation upon the title taken by the children of Nelson after majority.

The other half of the farm was disposed of under items 4 and 6 of the will.

The most significant fact expressed in items 3 and 6 of the ■ will is that John Davis, upon becoming of the age of majority, was to hold the estate devised in fee simple and upon condition that he pay his sister Margaret the full value in money or property of her one-half interest.

No proper construction of the will can be made without a consideration of these as the central provisions of the devise to John. ,

The testator evidently contemplated that it was probable that his death would occur before John and the other grandchildren would arrive at the age of majority. He evidently did not intend that the grandchild John should take an absolute estate during his minority and, with the possibility in view that John might die during minority .and without a representative, made provision for that contingency by creating a contingent remainder or executory devise in favor of the children of Nelson. So far we think the intention of the testator is easily ascertainable. The real difficulty arises in the concluding sentence of item 6 "and in case said John shall die leaving children, then it is my will that his male children inherit his portion of said farm in preference to his female children.”

We approach the construction of this item under a well settled rule of construction, stated in the opinion in the case of *Collins*v. *Collins,*40 O. S., 364, quoted from the case of *Thornhill*v. *Mull,*2 Clark & Finn, 22:

> *319"It is a rule of the courts, in construing written instruments, that when an interest is given or an estate conveyed in one clause of the instrument in clear and decisive terms, such interest or estate can not be taken away or cut down by raising a doubt upon the extent and meaning and application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words-of the clause giving the interest or estate.”

The testator here clearly intended to convey a fee simple estate to John upon his arriving at the age of twenty-one years. The estate was then given to him and his heirs in fee simple. These are the most comprehensive terms which a testator can use to confer an absolute and unqualified estate. *McCrea*v. *McCrea,*7 App., 351.

*Baxter*v. *Bowyer,*19 O. S., 490; *Johnson*v. *Johnson,*51 O. S., 446, and *Robins*v. *Smith,*72 O. S., 1, involved terms which imported *prima facie*an absolute estate. They did not involve terms importing clearly and conclusively an intention to grant a fee simple estate in the first taker.

To the comprehensive grant in fee simple is added the effect of the provision requiring John to purchase the half interest of his sister at its full value.

The courts have gone to the extent of holding void a limitation over after a grant of an estate in fee simple. *Hull*v. *Chisholm,*7 App., 346; *Tracey*v. *Blee,*22 C.C.(N.S.), 33; *Steuer*v. *Steuer,*8 C.C.(N.H), 71; *Widows Home*v. *Lippardt, 70*O. S., 261.

It is not necessary to go that far in the present case. The estate devised to John upon his arrival at majority being so • clearly one in fee simple, the concluding clause of item 6 must if possible be harmonized and so construed as not to divest the fee simple estate so granted.

Under the will John was not to have the estate in fee simple until he arrived' at the age of twenty-one. There were two possible contingencies which might happen in the meantime (1) John might die before arriving at majority without children, and (2), John might die before arriving at majority leaving children. The first contingency .was provided for in the con*320tingent devise to the children of Nelson. It is true that the devise to the children of Nelson was contingent upon John’s dying during minority or without issue, but we think under the terms employed in items 3 and 6 together with the general scheme of disposition in the will that the word “or” should be read “and” in harmony with the decision in the ease of *Ward*v. *Barrows,*2 O. S., 242. We think such construction is supported in the present case by a much stronger reason than in the case of *Ward*v. *Barrows,*because of the clearly expressed intention in the present will to vest an absolute estate in John upon his arriving at majority.

The other contingency which the testator, contemplated was John’s death before arriving at twenty-one years leaving children, and that contingency was evidently intended to be provided for by the concluding clause of item 6. This construction would harmonize Section 3 and Section 6. It is the only construction which can be given of the latter clause in item 6 which would not be inconsistent with and repugnant to the primary estate granted in item 3. An argument is drawn from the fact that a fee simple estate in John, when he arrives, at majority, would change the course of descent from that indicated in item 6. A grant in fee simple imports the right of the grantee to convey the estate to a stranger or permit it to descend under the statute. This is an incident to a fee simple estate and is implied in the devise in fee simple. Under the construction so given John Davis upon his arriving at the age of twenty-one took an absolute fee simple estate with a right to convey the same, and that the plaintiff, Charles Persinger who acquired the estate of John Davis of mesne conveyances,, is 'entitled to have his'estate quieted and registered under the act.

It is urged that the registry act is unconstitutional because it may be employed to destroy the estate of a person not in being. Whatever might be the 'effect of a deere'e as to a person not *in esse,*we think the statute is valid as to the parties in being and who are capable of and do appear and defend.

Decree accordingly.