Tremmel v. Kleiboldt
Citation | 75 Mo. 255 |
Parties | TREMMEL, Plaintiff in Error, v. KLEIBOLDT. |
Decision Date | 31 October 1881 |
Court | United States State Supreme Court of Missouri |
Error to St. Louis Court of Appeals.
AFFIRMED.
Finkelnburg & Rassieur for plaintiffs in error.
The estate of Louisa Kleiboldt was a life estate, with power of appointment; the contingent remainder to her heirs could only unite with her life estate, so as to give her the fee, by virtue of the rule in Shelley's case, which does not exist in Missouri. 2 Wag. Stat., § 6, p. 1351; 2 Wash. Real Prop., (4 Ed.) pp. 598, 599, top; Pendleton v. Bell, 32 Mo. 100. Even the rule in Shelley's case would not enlarge the wife's life estate into a fee, her estate for life being equitable, and the remainder, as executed by the statute, being legal. 2 Wag. Stat., § 1 p. 1350; Roberts v. Moseley, 51 Mo. 282; 1 Fearne on Rem., 51, 54; Lord Say & Seal v. Lady Jones, 3 Bro. Par. Cas. 113. There is no tenancy by the curtesy in Missouri, except as against the devisee of a married woman's legal estate. Wag. Stat., 529; Ib., p. 935, § 13. There is no tenancy by the curtesy in the separate estate of a married woman, it being one sui generis. Kimm v. Weippert, 46 Mo. 532; Gay v. Ihm, 69 Mo. 584; Jaques v. M. E. Church, 17 Johns. 548; Townshend v. Matthews, 10 Md. 251; Liptrot v. Holmes, 1 Ga. 381; Cochran v. O'Hern, 4 Watts & S. 95; Stokes v. McKibben, 13 Pa. St. 268; Clark v. Clark, 24 Barb. 581; Pool v. Blakie, 53 Ill. 495. There is no tenancy by the curtesy where the language, as in the present case, is fairly inconsistent therewith. Clark v. Maguire, 16 Mo. 302; Morgan v. Morgan, 5 Mad. Ch. 245; Marshall v. Beall, 6 How. 78; Schouler Dom. Rel., (2 Ed.) 195; 1 Wash. Real Prop., (4 Ed.) p. 169; Gause v. Hale, 2 Ired. Eq. 241; Woodcock v. Duke of Dorset, 3 Bro. C. C. 569.
Kehr & Tittman for defendant in error.
This is an action of ejectment. The plaintiff, Elizabeth Tremmel, is the wife of her co-plaintiff, Frank Tremmel, and is the daughter of the defendant, and of the defendant's deceased wife Louisa, and is sole heir at law of her mother.
On the 2nd day of January, 1871, the defendant conveyed the premises in controversy to one Gotlieb Wittler, as trustee, for the sole and separate use of his wife, Louisa. The portions of said deed which are material to the present controversy, are as follows:
The plaintiffs claim possession under a conveyance from Wittler, the trustee, to Elizabeth Tremmel, executed after the death of her mother, Louisa Kleiboldt, and the defendant claims possession as tenant by the curtesy. The circuit court held that the defendant was entitled to possession as tenant by the curtesy, and rendered judgment in his favor. The judgment of the circuit court was affirmed by the court of appeals, and the plaintiffs have appealed to this court.
It is well settled that the husband is entitled to curtesy in all estates of inheritance of which the wife dies seized, either at law or in equity. As to equitable estates, actual possession by the wife, or the receipt by her of the rents, issues and profits, or possession by a trustee for her benefit, is equivalent to legal seizin--and the limitation of such estates to the sole and separate use of the wife, will not debar the husband from curtesy, as such limitation necessarily terminates upon the death of the wife. Alexander v. Warrance, 17 Mo. 228; Baker v. Nall, 59 Mo. 265; Lewin on Trusts, 622; Watts v. Ball, 1 P. Will. 108; Parker v. Carter, 4 Hare 400; Morgan v. Morgan, 5 Mad. 408; Follett v. Tyrer, 14 Sim. 125; Appleton v. Rowley, 8 Law Rep. (Eq. Cas.) 139; Mullany v. Mullany, 4 N. J. Eq. 16; Cushing v. Blake, 30 N. J. Eq. 689. By the terms of the...
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...when the whole is given." Green v. Sutton, in its different aspects, has been approved in many subsequent cases. Thus, in Tremmel v. Kleiboldt, 75 Mo. 255, it was unanimously said of a like deed: "By the terms of the deed under consideration the entire estate was vested in the wife, and no ......
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...so far as it tends to cut down or destroy the title in fee. McDowell v. Brown, 21 Mo. 57; Green v. Sutton, 50 Mo. 186; Tremmel v. Kleibolt, 75 Mo. 255, 6 Mo. App. 549; Wead v. Gray, 78 Mo. 59, 8 Mo. App. 515; Cook v. Couch, 100 Mo. 29, 13 S.W. 80; Chew v. Keller, 100 Mo. 362, 13 S.W. 395; S......
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...thereby conveyed. Rubey v. Barnett, 12 Mo. 3; 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; Evans v. Folks, 135 Mo. 397; Cornwell v. Wulff, 148 Mo. 542; McKenzie's Appeal, 41 Conn. ......