76-205 Instruments; construction; intent of parties; duty of courts. - Nebraska Statutes

76-205. Instruments; construction; intent of parties; duty of courts.In the construction of every instrument creating or conveying, or authorizing or requiring the creation or conveyance of any real estate, or interest therein, it shall be the duty of the courts of justice to carry into effect the true intent of the parties, so far as such intent can be collected from the whole instrument, and so far as such intent is consistent with the rules of law. SourceR.S.1866, c. 43, § 59, p. 292; R.S.1913, § 6195; C.S.1922, § 5594; C.S.1929, § 76-109; R.S.1943, § 76-205.Annotations1. Rules of construction2. Rule in Shelley's Case3. Joint tenancy4. Life estates5. Wills6. Trusts7. Leases8. Antenuptial contracts9. Restraints on alienation10. Easement11. Condition subsequent12. Boundaries13. Deeds generally14. Miscellaneous1. Rules of constructionThe true intent of the parties will be instrumental when construing instruments creating interests in real property. Dupuy v. Western State Bank, 221 Neb. 230, 375 N.W.2d 909 (1985).This section created no peculiar rule of law but merely codifies what has always been the common law rule of construction. This section does not enlarge, limit, or modify any rule of substantive law. Sterner v. Nelson, 210 Neb. 358, 314 N.W.2d 263 (1982).This section provides a rule of construction and does not have the effect of enlarging, limiting, or modifying any rule of substantive law that existed at the time of its passage or has thereafter been created. Cast v. National Bank of Commerce T. & S. Assn., 186 Neb. 385, 183 N.W.2d 485 (1971).Where intention expressed in an instrument is obscure, resort may be had to surrounding circumstances. Gettel v. Hester, 165 Neb. 573, 86 N.W.2d 613 (1957).Intent statute does not have effect of changing substantive law. Andrews v. Hall, 156 Neb. 817, 58 N.W.2d 201 (1953).True intent must be ascertained from whole instrument. Elrod v. Heirs of Gifford, 156 Neb. 269, 55 N.W.2d 673 (1952).In the absence of anything to indicate a contrary intention, instruments executed at the same time, by the same parties, for the same purpose, and in course of the same transaction, are, in the eyes of the law, one instrument, and will be read and construed together as if they were as much one in form as they are in substance. Blum v. Poppenhagen, 142 Neb. 5, 5 N.W.2d 99 (1942); Thompson v. Jost, 108 Neb. 778, 189 N.W. 169 (1922).This section relates only to rules of construction, and does not enlarge, limit or in any way modify any rule of substantive law. Stuehm v. Mikulski, 139 Neb. 374, 297 N.W. 595 (1941).It is the duty of the court to determine from the whole instrument the true intent of the parties and to carry that intent into effect. Maxwell v. Hamel, 138 Neb. 49, 292 N.W. 38 (1940).The intention of the parties to a deed must be gathered from the whole instrument itself. Langan v. Langan, 135 Neb. 229, 280 N.W. 903 (1938).Instrument will be construed to create vested rather than contingent remainder, if possible. DeWitt v. Searles, 123 Neb. 129, 242 N.W. 370 (1932).Duty of court is to give to each word and sentence in the conveyance such significance as will carry into effect the true intent of the parties thereto. In re Darr's Estate, 114 Neb. 116, 206 N.W. 2 (1925); Moran v. Moran, 101 Neb. 386, 163 N.W. 315 (1917); Benedict v. Minton, 83 Neb. 782, 120 N.W. 429 (1909); Albin v. Parmele, 70 Neb. 740, 98 N.W. 29 (1904); Rupert v. Penner, 35 Neb. 587, 53 N.W. 598 (1892).Power of attorney with reference to real estate will be construed with respect to natural import of language thereof. Watkins v. Hagerty, 104 Neb. 414, 177 N.W. 654 (1920).What this section requires to be consistent with the general rules of law is not the construction of the instrument, but the intent of the parties. Albin v. Parmele, 70 Neb. 740, 98 N.W. 29 (1904).When by any reasonable interpretation, the granting clause and the habendum clause can be reconciled, effect must be given to both. Rupert v. Penner, 35 Neb. 587, 53 N.W. 598 (1892).2. Rule in Shelley's CaseWhere two words are used interchangeably, one of which indicates limitation and the other purchase, the one which indicates purchase must be accepted, and the one indicating limitation must be considered as descriptio personae. Salmons v. Salmons, 142 Neb. 66, 5 N.W.2d 123 (1942).Though granting clause in a deed, if considered alone, would convey fee, it may be shown that by construing the whole instrument in order to give effect to expressed intention of parties that life estate only was conveyed. Reuter v. Reuter, 116 Neb. 428, 218 N.W. 86 (1928).If will contains language coming within rule in Shelley's Case, the intent statute does not control. Sutphen v. Joslyn, 111 Neb. 777, 198 N.W. 164 (1924).Devise for life with remainder to lawful heirs vests fee. Myers v. Myers, 109 Neb. 230, 190 N.W. 491 (1922).Rule in Shelley's Case is not abrogated by statute requiring court to give expressed intent of parties. Yates v. Yates, 104 Neb. 678, 178 N.W. 262 (1920).On rehearing, statement in original opinion that intent statute partially abrogates rule in Shelley's Case is withdrawn. Moran v. Moran, 101 Neb. 386, 163 N.W. 315 (1917), remanded on rehearing 101 Neb. 390, 163 N.W. 1071 (1917).Use of word heirs will not defeat the emphatically expressed intent of testator, and convert what he plainly designed as a life estate into a fee. Albin v. Parmele, 70 Neb. 740, 98 N.W. 29 (1904).3. Joint tenancyPrior to passage of the Uniform Property Act, a conveyance by one spouse to another direct could not create joint tenancy. Stuehm v. Mikulski, 139 Neb. 374, 297 N.W. 595 (1941).Where deed shows mutual agreement to create estate of survivorship, court must apply rule as evidenced by conveyance. Arthur v. Arthur, 115 Neb. 781, 215 N.W. 117 (1927).Right to create title in real estate by joint tenancy, with right of survivorship clearly expressed, has never been abridged in this state. Sanderson v. Everson, 93 Neb. 606, 141 N.W. 1025 (1913).4. Life estatesUnder intent statute, devise of property to wife for her own use and benefit and at her death all property remaining to children conveyed a life estate only, with power to dispose of and use the principal only so far as might be reasonably necessary for her support. Annable v. Ricedorff, 140 Neb. 93, 299 N.W. 373 (1941).Where will devised to son life use of property, without power to mortgage or sell, a mortgage executed by son was void. Nebraska Nat. Bank v. Bayer, 123 Neb. 391, 243 N.W. 115 (1932).Deed conveying land to grantee for life, remainder in fee simple to the heirs begotten of the body of said grantee, creates a life estate in grantee only. Yates v. Yates, 104 Neb. 678, 178 N.W. 262 (1920).It was obvious from context that word heirs was used as equivalent to children, and grantees received life estates. Grant v. Hover, 103 Neb. 730, 174 N.W. 317 (1919).Devise was construed to convey a life estate to A with remainder over to his wife and children, even though the provisions of first part of will, if it stood alone, would be sufficient to devise an estate in fee simple. Kluge v. Kluge, 103 Neb. 534, 172 N.W. 756 (1919).5. WillsA patent ambiguity in a will must be removed by interpretation of the intention of the testator as found within the four corners of the will. Gaughen v. Gaughen, 172 Neb. 740, 112 N.W.2d 285 (1961).Intent is determined from language of will, and does not include an entertained but unexpressed intention. Dunlap v. Lynn, 166 Neb. 342, 89 N.W.2d 58 (1958).Court will place itself in the position of testator in construing will. Bodeman v. Cary, 152 Neb. 506, 41 N.W.2d 797 (1950).Court must give effect to true intent of testator. Olson v. Lisco, 149 Neb. 314, 30 N.W.2d 910 (1948).Statutory law designates rule for construing or interpreting wills. In re Estate of Lewis, 148 Neb. 592, 28 N.W.2d 427 (1947).Bequest of all interest in and to the Hub Bar conveyed interest in bank deposit of the business conducted under that name. In re Estate of Zents, 148 Neb. 104, 26 N.W.2d 793 (1947).It is the duty of the court to give effect to the true intent of the testator so far as it can be collected from the whole will, if such intent is consistent with rules of law. Lacy v. Murdock, 147 Neb. 242, 22 N.W.2d 713 (1946).Testator did not intend fee simple title to pass. Hulse v. Tanner, 142 Neb. 406, 6 N.W.2d 618 (1942).In construing a will, court is required to give effect to true intent of testator, if possible. Baldwin v. Baldwin, 140 Neb. 823, 2 N.W.2d 23 (1942).In the construction of a will, court is required to give effect to the true intent of the testator so far as it can be collected from the whole instrument, and in this connection, circumstances relating to the will may be considered. Martens v. Sachs, 138 Neb. 678, 294 N.W. 426 (1940).In construing wills, the court must not give undue weight to a single clause but must construe instrument as a whole to ascertain true intent of testator. Graff v. Graff, 136 Neb. 543, 286 N.W. 788 (1939).In construing will, court may consider circumstances relating to will to aid in determining and giving effect to testator's intent. Lehman v. Wagner, 136 Neb. 131, 285 N.W. 124 (1939).Court in construing a will must first ascertain the intent and purpose of testator as disclosed by language of will and then give effect thereto if not contrary to law. Prudential Ins. Co. v. Nuernberger, 135 Neb. 743, 284 N.W. 266 (1939).Intention of testator controls in construction of a will, if it is consistent with rules of law. Woelk v. Luckhardt, 134 Neb. 55, 277 N.W. 836 (1938).A provision of a will which directs the sale of real estate for the payment of certain legacies operates as an equitable conversion effective at death of testator. In re Estate of Hunter, 132 Neb. 454, 272 N.W. 318 (1937).Four warranty deeds executed by testator together with his will, were construed together in light of surrounding circumstances and showed clear intent of testator that certain sons should receive no further part of inheritance. Blochowitz v. Blochowitz, 130 Neb. 789, 266 N.W. 644 (1936).The intent of testator is to be ascertained from a liberal interpretation and comprehensive view of all the provisions of the will. Lancaster County Bank v. Marshel, 130 Neb. 141, 264 N.W. 470 (1936).This section applies to construction of wills. In re Estate of Zimmerman, 122 Neb. 812, 241 N.W. 553 (1932).Rules of law in this section does not mean rules of construction in conflict with testator's intent. Court will ascertain intent and, if lawful, enforce it without regard to canons of construction. Peters v. Northwestern Mut. Life Ins. Co., 119 Neb. 161, 227 N.W. 917 (1929), 67 A.L.R. 1311 (1929).Statute is applicable alike to wills, deeds and contracts to convey. Heiser v. Brehm, 117 Neb. 472, 221 N.W. 97 (1928); Reuter v. Reuter, 116 Neb. 428, 218 N.W. 86 (1928).Intent of testator, as gathered from will as whole, controls in construction of same if no rule of law is violated. Reuter v. Reuter, 116 Neb. 428, 218 N.W. 86 (1928); Krause v. Krause, 113 Neb. 22, 201 N.W. 670 (1924).Cases involving construction of wills devising real estate are applicable to construction of deeds. Arthur v. Arthur, 115 Neb. 781, 215 N.W. 117 (1927).Will was construed to devise to testator's wife estate without limitation, except if she died without issue, one-half of property remaining unconveyed by her passed to testator's brothers and sisters. In re Darr's Estate, 114 Neb. 116, 206 N.W. 2 (1925).Testator's will did not vest devisee with power to devise realty by will. Krause v. Krause, 113 Neb. 22, 201 N.W. 670 (1924).No particular words or conventional forms of expression are necessary to make testamentary disposition. The court will place itself in testator's position, ascertain his will and enforce it. Weller v. Noffsinger, 57 Neb. 455, 77 N.W. 1075 (1899).6. TrustsWill was construed to have created ten-year trust, child acquiring defeasible estate in trust and trust income, which interest upon child's death passed to remaining children. Hulse v. Tanner, 142 Neb. 406, 6 N.W.2d 618 (1942).Where owner of property gratuitously transfers it and properly manifests an intention that transferee should hold it in trust, but the trust fails, transferee holds the property upon a resulting trust for transferor or his estate, unless the transferor properly manifested an intention that no resulting trust should arise or the intended trust fails for illegality. In re Estate of Mooney, 131 Neb. 52, 267 N.W. 196 (1936).Where property is devised to trustee, with direction to the trustee to use his judgment and discretion as to time of sale of property, it is contrary to intent of testator to permit involuntary partition. Heiser v. Brehm, 117 Neb. 472, 221 N.W. 97 (1928).7. LeasesThe purpose of rules of construction are to arrive at and give effect to the intention of the parties from a review of the entire instrument, rather than to select particular words for the purpose of interpreting a particular provision. Leases are construed from the four corners of the instrument to arrive at the true intention of the parties. B Town, Inc. v. Albright, 209 Neb. 819, 311 N.W.2d 908 (1981).The intent of the parties to a lease is to be determined from the whole instrument and is controlling if consistent with rules of law. Omaha Country Club v. Dworak, 186 Neb. 336, 183 N.W.2d 264 (1971).In construing ninety-nine year lease, court must give effect to intention of parties as gathered from entire instrument, if consistent with law. Towle v. Morrell, 129 Neb. 398, 261 N.W. 827 (1935).Section applies to construction of lease for term of five years. Wattles v. South Omaha Ice & Coal Co., 50 Neb. 251, 69 N.W. 785 (1897).8. Antenuptial contractsThe intent of parties to an antenuptial agreement was that, upon the death of one party, the property vest absolutely in the survivor subject to the claims of creditors. Neneman v. Rickley, 110 Neb. 446, 194 N.W. 447 (1923).Conditions and circumstances surrounding antenuptial contract should be considered. Tiernan v. Tiernan, 107 Neb. 563, 186 N.W. 369 (1922).9. Restraints on alienationWhere the owners of an interest in real property convey the same but by agreement contained in the instrument of conveyance retain an interest in the premises such interest will support the imposition of a restriction on alienation where it is reasonably necessary to protect the interest retained. Majerus v. Santo, 143 Neb. 774, 10 N.W.2d 608 (1943).A devise of real estate to a designated person and his heirs forever without power to sell, mortgage or otherwise encumber, vests a fee simple estate in the person designated, the restraints on alienation being void. State Bank of Jansen v. Thiessen, 137 Neb. 426, 289 N.W. 791 (1940).Creditors of grantee are required to take notice of reservations made by grantor in deed placed of record. McGuire v. Stimbert, 129 Neb. 383, 261 N.W. 685 (1935).10. EasementPurchaser of land burdened with open visible easement is charged with notice. Arterburn v. Beard, 86 Neb. 733, 126 N.W. 379 (1910).Words with appurtenances are not necessary to pass an easement appurtenant to land. Smith v. Garbe, 86 Neb. 91, 124 N.W. 921 (1910).Use of roadway under naked license cannot ripen into prescriptive right. Bone v. James, 82 Neb. 442, 118 N.W. 83 (1908).Where contract of conveyance by fair construction of the whole instrument gives notice of an easement permanent in its nature, such as right-of-way of railroad company, purchaser takes title subject to such easement. Schafroth v. Ross, 289 F. 703 (8th Cir. 1923).11. Condition subsequentCounty substantially complied with condition subsequent imposed by deed with respect to erection and maintenance of court house. Brooks v. Kimball County, 127 Neb. 645, 256 N.W. 501 (1934).When land is devised upon condition subsequent, heirs of testatrix can maintain action to recover property upon failure of devisee to comply with the condition attached to gift within a reasonable time. Marble v. City of Tecumseh, 103 Neb. 625, 173 N.W. 581 (1919).12. BoundariesFixed monuments govern both courses and distances in field notes. Hurn v. Alter, 80 Neb. 183, 113 N.W. 986 (1907); Knoll v. Randolph, 3 Neb. Unof. 599, 92 N.W. 195 (1902).13. Deeds generallyEach word and provision of a conveyance of oil and mineral rights must be given effect. Bulger v. McCourt, 179 Neb. 316, 138 N.W.2d 18 (1965).Deed will not be construed to create an estate upon condition unless language to that effect is so clear as to leave no room for other construction. Majerus v. Santo, 143 Neb. 774, 10 N.W.2d 608 (1943).Instruments executed at same time are to be construed together. Blum v. Poppenhagen, 142 Neb. 5, 5 N.W.2d 99 (1942).An undelivered deed may be incorporated in a will by reference, if the terms of the will, assisted by the surrounding circumstances, are sufficient to identify the deed and to show the intention of giving effect to it. In re Estate of Dimmitt, 141 Neb. 413, 3 N.W.2d 752 (1942).Deed to grantee and then to her children did not limit estate to grantee for life. Aynes v. Bantz, 114 Neb. 226, 206 N.W. 754 (1925).Deed was sufficient to convey all the interest of wife in the premises. Watkins v. Harrison, 110 Neb. 439, 194 N.W. 435 (1923).Upon breach of covenants in deed, right of action accrues at once. Webb v. Wheeler, 80 Neb. 438, 114 N.W. 636 (1908).Deed to half unsubdivided quarter section conveys quantitative half. Kirkpatrick v. Schaal, 77 Neb. 661, 110 N.W. 730 (1906).14. MiscellaneousWhile intent statute does not have the effect of changing substantive law, it is declaratory of a rule of construction long adopted by the Supreme Court. Bauer v. Bauer, 180 Neb. 177, 141 N.W.2d 837 (1966).Assignment of school land lease did not obligate assignee to pay irrigation taxes. Beltner v. Carlson, 153 Neb. 797, 46 N.W.2d 153 (1951).Covenant against encumbrances does not run with land. Sears v. Broady, 66 Neb. 207, 92 N.W. 214 (1902).Upon a conveyance subject to encumbrance, no personal obligation is imposed on grantee. Lexington Bank v. Salling, 66 Neb. 180, 92 N.W. 318 (1902).Deed absolute in form may be a mortgage. Decker v. Decker, 64 Neb. 239, 89 N.W. 795 (1902); Riley v. Starr, 48 Neb. 243 67 N.W. 187 (1896).Assumption by grantee to pay mortgage is binding. Garneau v. Kendall, 61 Neb. 396, 85 N.W. 291 (1901); Martin v. Humphrey, 58 Neb. 414, 78 N.W. 715 (1899).Description by metes and bounds passes land, though not of acreage stated. Pohlman v. Evangelical Lutheran Trinity Church, 60 Neb. 364, 83 N.W. 201 (1900).Reservation in deed cannot create title in stranger. Burchard v. Walther, 58 Neb. 539, 78 N.W. 1061 (1899).