Tremmel v. Kleiboldt

Citation75 Mo. 255
PartiesTREMMEL, Plaintiff in Error, v. KLEIBOLDT.
Decision Date31 October 1881
CourtUnited 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.

HOUGH, J.

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: “To have and to hold the same, with all the rights, privileges and appurtenances thereto belonging, or in anywise appertaining, unto him, the said party of the second part, his heirs and assigns forever. In trust, however, to and for the sole and separate use, benefit and behoof of the said Louisa Kleiboldt, wife of Theodore Kleiboldt; and the said Gotlieb Wittler, party of the second part, hereby covenants and agrees to and with the said Louisa Kleiboldt, that he will suffer and permit her, without let or molestation, to have, hold, use, occupy and enjoy the aforesaid premises with all the rents, issues, profits and proceeds arising therefrom, whether from sale or lease, for her own sole use and benefit, separate and apart from her said husband, and wholly free from his control or interference, or from his debts, in such manner as she may think proper, and that he will at any and all times hereafter, at the request and direction of the said Louisa Kleiboldt, expressed in writing signed by her or by her authority, bargain, sell, mortgage, convey, lease, rent, convey by deed of trust for any purpose, or otherwise dispose of said premises or any part thereof, and will pay over the rents, issues, profits and proceeds thereof to her, the said Louisa Kleiboldt, in such manner as she shall in writing direct or request, and that he will, at the death of the said Louisa Kleiboldt, convey or dispose of the said premises, or such part thereof as may then be held by him under this deed, and all profits and proceeds thereof, in such manner, to such person or persons, and at such time or times as the said Louisa Kleiboldt shall by her last will and testament, or any other writing signed by her or by her authority, direct or appoint, and in default of such appointment, then that he will convey such premises to her legal heirs.”

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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53 cases
  • Cornwell v. Wulff
    • United States
    • Missouri Supreme Court
    • 23 d5 Dezembro d5 1898
    ...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 ......
  • Carter v. Boone County Trust Co., 32147.
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    • Missouri Supreme Court
    • 18 d3 Março d3 1936
    ...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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    • Missouri Supreme Court
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  • Walton v. Drumtra
    • United States
    • Missouri Supreme Court
    • 5 d2 Dezembro d2 1899
    ...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. ......
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