50 S.W. 786 (Mo. 1899), Cross v. Hoch

Citation:50 S.W. 786, 149 Mo. 325
Opinion Judge:MARSHALL, J.
Party Name:Cross et al., Appellants, v. Hoch et al
Attorney:Chester H. Krum, M. B. Jonas and J. P. Vastine for appellants. R. H. Stevens, Geo. W. Wolff and John W. McElhinney for respondents.
Case Date:April 14, 1899
Court:Supreme Court of Missouri

Page 786

50 S.W. 786 (Mo. 1899)

149 Mo. 325

Cross et al., Appellants,


Hoch et al

Supreme Court of Missouri, First Division

April 14, 1899 [*]

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel, Judge.

Reversed and remanded (with directions).

Chester H. Krum, M. B. Jonas and J. P. Vastine for appellants.

(1) The intention of the testator is plain. He devises to Sarah Cross a life estate, and to her heirs (children) the remainder in fee simple. Kinney v. Mathews, 69 Mo. 520; Bean v. Kenmuir, 86 Mo. 666; Chiles v. Bartleson, 21 Mo. 344; Blake v. Stone, 27 Vt. 477; Coursey v. Davis, 46 Pa. St. 25; Baxter v. Bowyer, 19 Ohio St. 490; Smith v. Bell, 6 Pet. 68; Carr v. Estill, 16 B. Mon. (Ky.) 309. (2) The devise to Sarah Cross was "subject to the trust, care and control of my son, Turner Maddox for her use." The legal title was therefore in Turner Maddox during her lifetime, which negatives the theory of a fee simple or determinable fee in her with power of disposition. Morrison v. Thistle, 67 Mo. 596; Tesson v. Newman, 62 Mo. 198; Clark v. Maguire, 16 Mo. 302; Froggatt v. Wardell, 3 De Gex and S. 685. (3) The words "her heirs," as used by the testator, in connection with the devise to Sarah Cross, not being necessary under the statute in 1844 to convey an estate in fee simple (R. S. 1835, sec. 2, p. 119, in force when the will was executed; same section in R. S. 1889, sec. 8834), and being used by the testator nevertheless, but only in connection with the devise to Sarah Cross, and not in connection with the other devises in the will to his sons and daughters, evidently were intended to mean "the children" of Sarah Cross; and will be held to mean "her children" when necessary to carry out the clear intention of the testator. Maguire v. Moore, 108 Mo. 267; Waddell v. Waddell, 99 Mo. 338; Haverstick's Appeal, 103 Pa. St. 394; Bland v. Bland, 103 Ill. 12. (4) "Children," as mentioned in the will, means children living at the death of the ancestor of appellants. R. S. 1889, sec. 8837; Naylor v. Godman, 109 Mo. 543. (5) In a will a testator may use the word "children" as meaning heirs of the body. 2 Wash. Real Prop. (5 Ed.) 654; Tyler v. Moore, 42 Pa. St. 389. (6) If such construction should be held, then the devise to Sarah Cross and her heirs, is a fee tail, and under our statute of 1835, Sarah Cross would take the life estate and her children the remainder in fee simple absolute. R. S. 1835, sec. 5, page 119; Carr v. Estill, 16 B. Mon. (Ky.) 309. (7) The rule in Shelley's case in so far as it relates to wills was abolished in this State in 1825. R. S. 1825, sec. 18, p. 794; Muldoon v. White, 67 Mo. 471. (8) The case under the stipulation is determinable solely by the intention of the testator, which is to be gathered within the "four corners" of the will. Regard being had to this obvious rule of determination, the judgment should be reversed and judgment for appellants rendered in this court to the extent of the recovery indicated by the record. R. S. 1889, sec. 8916; Schorr v. Carter, 120 Mo. 409; Carr v. Estill, 16 B. Mon. (Ky.) 309; Tiedeman Real Prop., sec. 415.

R. H. Stevens, Geo. W. Wolff and John W. McElhinney for respondents.

(1) The intention of the testator was to give to Mrs. Sarah Cross a fee simple estate. The devise is in the appropriate terms therefor -- to her "and her heirs." There is no express limitation "for her natural life" or to that effect; and there is no remainder created to take effect "at her death" or "after her death," from which such limitation can be implied. Words creating a fee can not be cut down except by words as affirmatively strong. Small v. Field, 102 Mo. 125; Balliett v. Veal, 140 Mo. 187; Chew v. Keller, 100 Mo. 369; Mercier v. Mo. Riv., etc., Co., 54 Mo. 506. The decisions favoring a life estate, in such cases, are based upon an express limitation for life, or an implied limitation by a further disposition to take effect at the death of the first taker. Schorr v. Carter, 120 Mo. 409; Chiles v. Bartleson, 21 Mo. 344; Harbison v. James, 90 Mo. 411; Munro v. Collins, 95 Mo. 33; Redman v. Barger, 118 Mo. 568; McMillan v. Farrow, 141 Mo. 63; Bean v. Kenmuir, 86 Mo. 666. (2) The proviso that "the property here devised to Sarah Cross shall be subject to the trust, care and control of my son Turner Maddox for her use," does not indicate any intention to limit the estate for life. It recognizes that "the property" is "here devised to Sarah Cross," as in fact it was, and by the words "for her use," makes her the beneficial owner, as well as the legal owner. No estate or ownership is given to or vested in Turner Maddox. He has no title. If anything, he has a mere duty or power. The essential elements of a trust are lacking. 2 Wash. on Real Prop. (5 Ed.) 488; Perry on Trusts (4 Ed.), secs. 7, 13 and 20; Corby v. Corby, 85 Mo. 388; In re Hawley, 104 N.Y. 261. This proviso fails to define or declare any trust, or to prescribe any duties. It may have been an attempt to create an equitable separate estate, for the sole use of Mrs. Cross. It is ineffectual, because it fails to show any intent to exclude the rights of the husband, which must be clearly expressed or necessarily implied. No legal title is given to Turner Maddox. If it were given, there is nothing to prevent the use from being executed under the statute of uses. Leete v. Bank, 141 Mo. 580; Richardson v. DeGiverville, 107 Mo. 422; Hart v. Leete, 104 Mo. 315; Halferty v. Scearce, 135 Mo. 433; Hill on Trustees (Am. notes), 657; Perry on Trusts (4 Ed.), secs. 649, 650 and 651. But if it were effectual to create a separate estate, it would not limit the estate of Mrs. Cross to her lifetime. The land was hers although subject to a trust. Patrick v. Blair, 119 Mo. 105; Small v. Field, 102 Mo. 104; Turner v. Shaw, 96 Mo. 22; Pitts v. Sheriff, 108 Mo. 110. And such trust, if it had been created, would have been executed by the statute of uses at the termination of coverture, upon the death of the husband in 1877, and become thenceforth a legal estate. Roberts v. Moseley, 51 Mo. 282; Pitts v. Sheriff, 108 Mo. 110; Pugh v. Hayes, 113 Mo. 432. (3) The words "her heirs," in the devise to Mrs. Cross, are words of limitation, indicating an intention to pass a fee simple. They are not necessary for that purpose, but are technically apt and proper, and as such are still in common use and recognized by the courts as appropriate terms for that purpose, and are considered words of limitation, unless the will clearly shows that they are used to designate a new class of beneficiaries. Chew v. Keller, 100 Mo. 369; Emmerson v. Hughes, 110 Mo. 627; Mercier v. Mo. Riv., etc., Co., 54 Mo. 506; Redman v. Barger, 118 Mo. 568; Fanning v. Doan, 128 Mo. 330; Jarboe v. Hey, 122 Mo. 341; Clarkson v. Clarkson, 125 Mo. 385. (4) By the words "die without children," the time of such death referred to is during the period before the time when the estate devised should take effect in possession, that is before the death of Mrs. Maddox, widow of the testator, who was given a life estate in all the property. The will provides "that the bequests hereinbefore made are not to take effect until after the death of my wife." Prosser v. Hardesty, 101 Mo. 593; Naylor v. Goodman, 109 Mo. 551; Ferguson v. Thomasson, 9 S.W. 714; Thackston v. Watson, 84 Ky. 206; Binney v. Richardson, 5 Dana (Ky.), 424; Pool v. Benning, 9 B. Mon. (Ky.) 623; Presley v. Davis, 62 Am. Dec. 398. (5) The devise here to Mrs. Cross created a vested fee simple estate, subject to be defeated in case of her death without children, and with an executory devise over to her sisters upon such contingency. The contingency having become impossible by her death leaving children, her estate became absolute and indefeasible. 2 Wash. on Real Prop. (5 Ed.) 740; Prosser v. Hardesty, 101 Mo. 597; Bullock v. Seymour, 33 Conn. 293.


[149 Mo. 330] MARSHALL, J.

Ejectment for land in St. Louis county.

The plaintiffs, Eugene Cross and Emma Ashbrook, are the only children of Sarah Cross, who was a daughter of Stephen Maddox. Their grandmother, Sarah Maddox, died about the year 1866, and their grandfather, Stephen Maddox, died in 1844. Their mother, Sarah Cross, died in 1895, and their father, Bryan Cross, died in 1877. These plaintiffs sue in ejectment for certain land in St. Louis county. The answer admits the possession of the premises by defendants, and then interposes a general denial.

The case was tried in the circuit court on the following stipulation, and the will of Stephen Maddox.


"It is agreed and stipulated by the parties hereto that the interpretation of the will of Stephen Maddox, deceased, probated and filed in the probate court, then of the county of St. Louis and now of the city of St. Louis, on the 2d day of August, 1844, is the basis of the rights of the parties hereto to the land in plaintiff's petition described; and if said will...

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