Yocum v. Siler

• Decision Date: 19 February 1901
• Citation: 61 S.W. 208,160 Mo. 281
• Parties: YOCUM et al., Appellants, v. SILER et al
• Court: Missouri Supreme Court

61 S.W. 208

160 Mo. 281

YOCUM et al., Appellants, v. SILER et al

Supreme Court of Missouri

February 19, 1901

[Copyrighted Material Omitted]

Appeal from Platte Circuit Court. -- Hon. Wm. S. Herndon, Judge.

Affirmed.

James H. Chinn and J. E., J. F. & R. H. Merryman for appellants.

(1) The rule in Shelley's case has long since been abrogated, and is no longer considered as authority in construing deeds and wills. Riggins v. McClelland, 84 Mo. 33; Tesson v. Newman, 162 Mo. 195. (2) Revised Statutes 1889, sec 8836, reduces all estates in fee-tail to a life estate in the first taker, as a life tenant, and the fee in the remainderman. (3) In the interpretation of a will, the intention of the testator is the polar star, and in searching after the intention, the whole will must be read together, and effect given to every clause of it, and words used are to be understood in the sense indicated by the entire instrument. Chiles v. Bartleson, 21 Mo. 344; Morrison v. Thistle, 67 Mo. 598. (4) In construing this section, the word "absolutely," preceding the words, "the northwest quarter," etc., is to be understood, from the context of the whole will, to mean that William Franklin Yocum should hold and enjoy a life estate in the property, free from the claim of all persons during his life. This is manifest from the latter part of the sentence. Harbison v. James, 90 Mo. 411; Russell v. Eubanks, 84 Mo. 83; Bean v. Kenmuir, 86 Mo. 666; Schorr v. Carter, 120 Mo. 416.

James W. Coburn for respondents.

(1) Testator devised an absolute estate to his son William F. Yocum, who had the legal right to dispose of it by deed. (2) No life estate was either expressly or impliedly devised to William F. Yocum. (3) No estate tail can be created by implication. 4 Kent (9 Ed.), 274, p. 303. A gift over after the definite failure of issue does not confer an estate-tail. 29 Am. and Eng. Ency. of Law, p. 385-386; I Jarman Wills (5 Ed.), 555, 561. Even had there been an express life estate to William F. Yocum, an estate in the issue could not be implied. 1 Jarman Wills (5 Ed.), 557, 561. (4) There can be no remainder after a fee. State ex rel. v. Tolson, 73 Mo. 320; Rubey v. Barnett, 12 Mo. 6; Allen v. Claybrook, 58 Mo. 131; 2 Redfield on Wills, 277; Wead v. Gray, 78 Mo. 59; Schorr v. Carter, 120 Mo. 414; Munro v. Collins, 95 Mo. 33; Cornwell v. Orton, 126 Mo. 355; Rothwell v. Jamison, 147 Mo. 602; Cornwell v. Wulff, 148 Mo. 542; Giffird v. Choate, 100 Mass. 343; Howard v. Carusi, 109 U. S. (West), 575; Roberts v. Lewis, 104 U. S. (West), 945; Hood v. Dawson (Ky.), 33 S.W. 75; Haight v. Pine, 39 N.Y.S. 511; Ewing v. Barnes (Ill.), 40 N.E. 325; Banzer v. Banzer (N. Y.), 32 N.Y.S. 803; Mitchell v. Littsburg, etc., Co. (Penn.), 31 A. 37; Shaw v. Erwin, 19 S.E. 499. (5) The most that appellants could claim is that the estate devised was a defeasible fee -- defeasible on W. F. Yocum's dying without leaving issue alive at his death -- but as there were legitimate children of his, living at his death, there was no defeasance. Newsom v. Holesapple (Ala.), 15 So. Rep. 644.

GANTT, J. Burgess, C. J., Robinson, Brace and Valliant, J. J., concur; Sherwood, P. J., and Marshall, J., dissent in separate dissenting opinions.

OPINION

In Banc

GANTT J.

This is an action in ejectment by plaintiffs to recover of defendants the northwest quarter of section 7, township 53, range 35, said lands lying in Platte county, Missouri. The judgment in the circuit court was for defendants, and plaintiffs appeal.

The petition is in the usual statutory form, and the answer is a general denial.

The case was tried upon the following agreed statement of facts and the will of George W. Yocum, deceased, upon part of plaintiffs, and the evidence offered by defendants.

Agreed Statement of Facts.

"It is agreed by and between the parties hereto that George W. Yocum is the common source of title and that he died in September, 1854, leaving a will, which was duly probated in the probate court of Platte county.

"That Susan Siler is in possession of one hundred acres of the land in controversy, and that William S. Kenney and Lucinda Kenney, his wife, are in possession of the remaining sixty acres of the land in controversy, and were at the time of the institution of this suit.

"That J. W. Turner is in possession, as tenant of Susan Siler, of the one hundred acres, and was at the time of the institution of this suit.

"It is agreed and stipulated that William F. Yocum, in his lifetime, with his wife, for a valuable consideration, by warranty deed dated September 15, 1858, conveyed all the land in controversy to William J. Norris, which deed is recorded in deed book "O," page 170, of Platte county, Missouri.

"And that William J. Norris, by warranty deed, conveyed the same land to Samuel Alexander, which deed is recorded in deed book "T," page 240, of the records of Platte county, Missouri.

"And that Samuel Alexander conveyed said lands, by warranty deed, to Elias Siler, which deed is recorded in deed book "1," page 462, of Platte county, Missouri.

"That Elias Siler is dead, and the defendants are the widow and heirs of said Elias Siler, together with J. W. Turner as tenant of Mrs. Siler, who is also in possession of the one hundred acres of land under Mrs. Siler.

"That it is further agreed that the plaintiffs are the legitimate issue of William Franklin Yocum and were living at the date of William F. Yocum's death, and were the only children of said William Franklin Yocum living at the time of his death.

"It is admitted that William Franklin Yocum died on the twenty-second day of February, 1892.

"That the rental value of the land in controversy is $ 400 a year.

"That William Franklin Yocum was married the twenty-first day of February, 1854, and that the plaintiffs are the legitimate issue and children of such marriage.

"It is admitted that John W. Yocum is forty-three years of age; that Oscar M. Yocum is forty years of age; and James Yocum is thirty-eight years of age."

Plaintiff offered in evidence the will of George W. Yocum.

The only part of said will affecting this case is paragraph five which is as follows:

"5. To my well-beloved son, William Franklin Yocum, my natural son, I bequeath absolutely the northwest quarter of section seven of township fifty-three and range thirty-five, the place I now reside on in Platte county, Missouri, subject forever to the reservation for my burial place, made in clause two of this will, and, further, with the express understanding and restriction, namely, that if my said son dies without legal issue, descendants of his, legitimate issue of his, said lands shall pass to Susan Evans, wife of Joseph B. Evans; Marina Botts, wife of Thomas Botts; Elzira Botts, wife of William Botts, my nieces; to Elizabeth Frame, my sister, wife of John Frame, and to George, son of my brother, Stephen Yocum, and Jane Yocum, wife of Milford Yocum, deceased, my sister, in equal parts."

Defendants offered in evidence a deed from Samuel Alexander to Elias Siler dated thirtieth day of March, 1871, for all the land in controversy, duly acknowledged and recorded in the office of the recorder of deeds of Platte county, book 13, page 455.

Plaintiffs objected to the introduction of said deed for the reason that it is immaterial, incompetent and irrelevant, and because, under the terms of the will, William Franklin Yocum acquired only a life estate in the premises and did not acquire the title in fee simple, and therefore his deed to Norris could not affect the title acquired by plaintiffs, the legitimate issue of said William F. Yocum at the time of his death; and plaintiffs object to the introduction of any evidence of title derived through said William Franklin Yocum by deed, for the same reasons.

Which objections were overruled by the court and exception duly taken, and the deed read in evidence.

Defendants offered in evidence the will of Elias Siler, deceased, dated October 28, 1890, which was duly probated, devising said lands to Susan Siler for life, and at her death to the defendants other than Turner.

Defendants objected to said will for the reason that it was incompetent and irrelevant, and for the same reason set out in the objection to said deeds.

The objections were overruled and exceptions duly taken, and said will read in evidence.

Plaintiffs offered the following declaration of law, viz.:

"The court declares the law to be that under the will of George W. Yocum, deceased, William Franklin Yocum only took a life estate in the real estate described in the will and in the petition, and that the plaintiffs are entitled to the possession of the land sued for, and judgment should be entered for them for such possession."

Which was refused by the court and exception duly taken.

We are called upon to construe the meaning of the fifth clause of the last will of George W. Yocum, as above set out. Did the testator intend thereby to give his son, William F. Yocum, a fee simple estate in the lands mentioned in said item, and if so, are there any unbending, rigid rules of law which will compel us to disregard such manifest purpose on his part and hold that he only gave him a life estate?

This will was executed in 1853 and probated in 1854. The statute of wills of 1845, then in force, and still the law of this State, required "all courts and others concerned in the execution of last wills to have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them." [R S. 1845, sec. 51, p. 1086.] This is also a general canon for the construction of wills irrespective of the statute. By the words "bequeath absolutely," he unquestionably intended to devise to his said son his...