Clarkson v. Clarkson

• Citation: 28 S.W. 446,125 Mo. 381
• Parties: Clarkson et al., Appellants, v. Clarkson
• Decision Date: 10 December 1894
• Court: United States State Supreme Court of Missouri

28 S.W. 446

125 Mo. 381

Clarkson et al., Appellants, v. Clarkson

Supreme Court of Missouri, First Division

December 10, 1894

Appeal from Mississippi Circuit Court.

Reversed and remanded.

Russell & Deal for appellants.

(1) The deed to "John Clarkson and his bodily heirs" at common law would have created an estate tail. 1 Wash. on Real Prop., 102, 104, 105; Tiedeman on Real Prop., sec. 47; 1 Chitty's Blackstone, side pp. 109-115; Phillips v Laforge, 89 Mo. 72; Burris v. Page, 12 Mo. 358. Such estate tail was reduced by statute in force at that date to estates for life in the first grantee, with remainder in fee to his children, and, in case any of his children should die without issue, then to their heirs. R. S. 1855, p. 355 sec. 5. But John Clarkson died without issue, and at common law the title reverted to the heirs of the grantor. Tiedeman secs. 385, 387; Washburn on Real Property, secs. 737, 738. No statute had ever been passed changing the common law, where the instrument showed a clear intention to create a life estate. R. S. 1855, p. 355, sec. 2. The question, as we view it, simply reduces itself to this: Does "his bodily heirs" mean "heirs of his body?" It is a mere transposition of the language, and certainly, to the common, ordinary understanding, is an equivalent expression. The words of procreation of the body may be supplied by equivalent expressions. Coke, Litt. 20b. (2) The circumstances all conduce to strengthen the theory that a life estate was intended to be deeded. (3) The case of Donnell v. Mateer, 5 Iredell, 9 held that "bodily heirs" were words of limitation and not of purchase. This does not militate against our position, but, when properly considered, adds strength to it. The statute of that state had abolished estates tail and made all such fee-simple estates. That case grew out of a bequest of personal property, and in its opinion the court cited the following cases decided by the same court: Allen v. Pass, 4 Dev. & Bat.; Ham v. Ham, 1 Dev. & Bat. 598; Floyd v. Watson, 4 Dev. & Bat. 478. See, also, Coon v. Rice, Iredell, 217. These cases hold that "heirs of the body" are words of limitation, also; thereby, in effect, holding that these two expressions are equivalent. That case simply decided that the words, "bodily heirs," were words of limitation, which was, in effect, holding that at common law this language would have created an estate tail. At common law, words of limitation were necessary to create an estate tail, and any words which designated what class of heirs were to take as "heirs of his body," and equivalent expressions, were words of limitation. Words of purchase were not necessary to the creation of an estate tail at common law. "In the creation of an estate tail words of limitation must be used which indicate clearly what heirs are to take. The usual form of limitation is to one, and the 'heirs of his body,' but any other equivalent expression would be sufficient, provided the word 'heirs' was not omitted." Tiedeman, sec. 47; 1 Washburn on Real Prop., 104, 105. (5) If this deed conveyed to John Clarkson a life estate only, Sarah Clarkson, who held under him, could have no greater interest, and at the death of John her title expired; and these plaintiffs are entitled to recover.

W. N. Randolph, James A. Boone and Harry J. Cantwell for respondent.

Appellant makes an assignment of errors, for some of which he had not laid the proper foundation by request for instructions or findings in the trial below. The only errors assigned which should be here reviewed are those recited in motion for new trial. The appellant having elected to stand on his action of ejectment, all evidence which tended to reform the deed, or to show the intent of the grantor by oral testimony was properly excluded. Jones v. Shepley, 90 Mo. 307. James Clarkson, being a party to this suit, and his right of action being derived to him from Jabez Clarkson, who would, if living, be disqualified -- (because John Clarkson, one of the original parties to the contract in issue was dead) was incompetent to testify in his own favor. R. S. 1889, sec. 8918. And James Clarkson's testimony as to the intent of the grantor would have been incompetent under any circumstances. The remaining assignment is that the verdict of the court is without testimony to sustain it. No declaration of law and no findings of fact having been requested, the presumption is in favor of the action of the trial court, and, if the judgment of the lower court may be supported on any theory from the evidence, it should stand. Mead v. Spalding, 94 Mo. 43; Kreider v. Milner, 99 Mo. 145. The words "bodily heirs," as used in the deed, created a fee simple and not an estate tail. R. S. 1855, sec. 2, chap. 32, p. 355; Donnell v. Mateer, 5 Ired. (N. C.) 9; Mitchell v. Simpson, 10 S.W. 372. Even though the words "heirs of the body" had been used in the deed, the statute then in force destroyed the estate tail and vested the remainder in the "children" of John Clarkson, and under the word "children," an adopted child may take. R. S. 1855, sec. 5, chap. 32, p. 355; Moran v. Stewart, 26 S.W. p. 962; Fosburg v. Rogers, 114 Mo. 122. "Reversion" is odious to the policy of our laws and institutions and is not a necessary incident to the statutory estate. Washburn on Real Property, sec. 16, book 1, chap. 4.

OPINION

Black, P. J.

This is an action of ejectment brought by James Clarkson and others against Sarah Clarkson, the widow of John Clarkson, to recover about one hundred acres of land in Mississippi county. Jabez Clarkson, by a warranty deed, dated the ninth of November, 1858, conveyed the land to "John Clarkson and his bodily heirs." Jabez died in two or three days thereafter. John was a son of Jabez. John resided on the land at the date of the deed, and continued to reside thereon until 1890, at which date he died, leaving the defendant as his widow. At the date of the deed from Jabez to John, the latter had no children, and none were born to him after that date. The plaintiffs are brothers and sisters and children of deceased brothers and sisters of John Clarkson.

The record contains the following further recital: "Defendant offered in evidence a deed of adoption, by John and Sarah Clarkson, adopting Ray Conyers, dated July 11, 1887. Plaintiff objected as immaterial and the court excluded it."

The first question to be determined is, whether the words "bodily heirs," as used in this deed, created an estate tail, or a fee simple. A conveyance or devise to a person and the heirs of his body creates an estate tail. Chiles v. Bartleson, 21 Mo. 344; Phillips v LaForge, 89 Mo. 72, 1 S.W. 220; Wood v. Kice, 103 Mo. 329, 15 S.W. 623. Says Washburn: "The statute De Donis was regarded by the courts as a remedial one, and, instead of confining it to the precise cases enumerated in it, they regarded these as put by way of example." 1 Wash. on Real Prop. [5 Ed.] p. 100. The same author says: "It is, therefore, requisite, in order to create such an estate, that, in addition to the word heirs, there should be words of procreation which indicate the body from which these heirs are to proceed, or the person by whom begotten. If this is done, it may not be necessary to make use of the words 'of the body,' if, by the description, it appears that they are to be the issue of a particular person. A general limitation to a man and the heirs of his body...