McMillan v. Farrow
| Decision Date | 17 July 1897 |
| Citation | 41 S.W. 890,141 Mo. 55 |
| Parties | McMillan, Administrator, v. Farrow, Administrator, Appellant |
| Court | Missouri Supreme Court |
Appeal from Crawford Circuit Court. -- Hon. C. C. Bland, Judge.
Affirmed.
A. U Farrow, F. H. Farris and J. T. Woodruff for appellant.
(1) The absolute and unrestricted power of disposition given the first taker of an estate unlimited, creates in such person a fee, and a limitation to another is void, as being repugnant to the first grant. 2 Blackstone, 164; Rubey v Barnett, 12 Mo. 6; Norcum v. D'Oench, 17 Mo. 118; Allen v. Claybrook, 58 Mo. 131; English v. Beehle, 32 Mo. 186; Hazel v. Hagan, 47 Mo 277; Green v. Sutton, 50 Mo. 186; State ex rel. v. Tolson, 73 Mo. 320; Tremmel v. Kleibolt, 75 Mo. 255; Wead v. Gray, 78 Mo. 59; Cornwell v. Orton, 126 Mo. 355; Fullenwider v. Watson, 14 N.E. 571; Allen v. Craft, 9 N.E. 919; Bryne v. Weller, 33 S.W. 421; Howard v. Carusi, 109 U.S. 1089. (2) At common law certain words of inheritance were required in a deed to create a fee simple estate. Leitensdorfer v. Delphy, 15 Mo. 168. But in cases of wills no particular words were ever necessary. 6 Am. and Eng. Ency. Law, p. 876. Under our statute the common law rule is changed, and the undoubted law now is that unless the grant is especially limited to a less estate, the presumption is that a fee is intended, and the whole estate will pass. R. S. 1889, sec. 8834. (3) In our own State from the first case, that of Rubey v. Barnett, 12 Mo. 6, to the last, that of Cornwell v. Orton, 126 Mo. 355, this court has strictly observed the rule that an unlimited grant, coupled with the unrestricted power of disposition, creates a fee. (4) The cases which hold that a life estate, given in express terms, with power of disposition added, does not amount to a fee in the first taker, are essentially different from this one, in that in all of them there is a limit to the first estate, while here there is not. Russell v. Eubanks, 84 Mo. 82; Harbison v. James, 90 Mo. 411; Lewis v. Pitman, 101 Mo. 281; Redman v. Barger, 118 Mo. 568.
Robert Walker for respondent.
(1) Sarah A. McMullin only took a life estate under the will in the estate of Alexander L. McMullin, deceased. Russell v. Eubanks, 84 Mo. 82; Harbison v. James, 90 Mo. 411; Lewis v. Pitman, 101 Mo. 281; Redman v. Barger, 118 Mo. 568; Smith v. Beil, 6 Pet. (U.S.) 68; Hamlin v. Express Co., 107 Ill. 443; Chase v. Ladd, 153 Mass. 126; Levengood v. Hoople, 124 Ind. 27. (2) A life estate need not be created in express terms. If it is the clear intention of the testator, as gathered from the full context of the will, that the first taker is but to have a life estate, then the added power of disposition will not convert the estate into one of absolute ownership. Smith v. Bell, 6 Pet. (U.S.) 68; Lewis v. Pitman, 101 Mo. 292; Giles v. Little, 104 U.S. 291; Schorr v. Carter, 120 Mo. 414; Hamlin v. Express Co., 107 Ill. 443; Wood v. Robertson, 113 Ind. 323. (3) The phrase "with full power and authority to dispose of all or any part thereof at her option," used by the testator in bestowing his gift upon his wife, is in itself indicative of intention to give the wife a life estate only, and especially so when viewed in connection with the other provisions in the will. Johnson v. Johnson, 51 Ohio St. 446; Jenkins v. Compton, 23 N.E. 1091; Walker, Adm'r v. Pritchard, 12 N.E. 336; Mansfield v. Shelton, 35 A. 271; Baker v. Thompson, 37 N.E. 751. (4) Property first given to one without words of limitation, followed by gift to another person with words of limitation, upon the death of the former, creates, as a rule, a life estate in the first taker with remainder in fee in the second taker. Jarman on Wills [5 Ed.], 288; Theobald on Wills (1876), p. 484.
This suit is prosecuted by plaintiff as administrator of the estate of Alexander L. McMullin, deceased, against the defendant H. P. Farrow, as administrator of the estate of Sarah Ann Craig, deceased, formerly Sarah Ann McMullin, widow of said Alexander L. McMullin, for the purpose of obtaining a construction of the last will and testament of said Alexander L. McMullin, deceased, and to determine which of the two administrators is entitled to the possession and control of the notes and choses in action belonging to said Alexander, for the purpose of administration. The court below found in favor of plaintiff, and that said Sarah A. Craig, formerly McMullin, the wife of the testator, took a life estate in all the property owned by the testator at the time of his death, and that Joseph McKinney took the property in remainder; that all the notes and choses in action described in plaintiff's petition were assets belonging to the estate of Alexander L. McMullin, deceased, and that plaintiff was entitled to hold and control the same for the purpose of administration. Defendant appeals.
The will is as follows:
The will was executed on the sixth day of September, 1883, and was admitted to probate in the probate court of Crawford county on the eighth day of October, 1888. The testator died October 1, 1888, after having reached the advanced age of seventy-eight years. He had accumulated personal property, money, and choses in action amounting to several hundreds of dollars, and was the owner of a large farm in Crawford county of about the same value as his personal property. He left a widow, Sarah A. McMullin, who intermarried with one W. L. Craig. Only two children were born to the testator and his wife, viz., John and Joseph McMullin, both of whom died before their father, without ever having been married. Joseph, however, left an illegitimate son named Joseph McKinney, who was about two years of age at the time of his father's death, and is the same person mentioned in the will in question. Shortly after the death of his father, Joseph McKinney was taken charge of by the testator and his wife, was kept, maintained, supported, and sent to school by them, as if he were their own child, and was taught to call his foster parents "grandpa" and "grandma."
There was no person appointed executor by the will; neither was there any administration on the estate after probate of the will. All of the property left by Alexander L. McMullin, consisting of real estate, chattels and other personal estate, including notes and choses in action, was taken charge of and managed by Sarah A. McMullin, the widow, in like manner as her own, and by her so managed until her death. The personal property consisted mainly of notes, and at the time of McMullin's death all of such notes were made payable to Alexander L. McMullin. On the twenty-sixth day of September, 1890, the widow, Sarah A., married said Craig.
The widow, after McMullin's death, collected some of the outstanding notes, and then again in turn loaned out such collections on notes, which were made payable to herself as Sarah A. McMullin, until after her marriage to Craig, then they were made payable to her as Sarah A. Craig. She died on the twenty-sixth day of September, 1892. Upon her death letters of administration upon the estate, with the last will and testament annexed, of Alexander L. McMullin, deceased were by the probate court of Crawford county, Missouri, on the tenth day of October, 1892, granted to the plaintiff, T. J. McMillan, who duly qualified as such administrator, and is now acting as such. Said McMillan, after duly qualifying as such administrator of McMullin's estate, took charge of all of said notes and choses in action as part of the assets belonging to the estate of Alexander L. McMullin, deceased. ...
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