Dozier v. Toalson

• Decision Date: 10 February 1904
• Parties: DOZIER v. TOALSON.
• Court: Missouri Supreme Court

79 S.W. 420

180 Mo. 546

DOZIER v. TOALSON.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

DEEDS—CONSTRUCTION—ESTATE CONVEYED— RESERVATIONS—CURTESY—SEISIN.

1. Where a warranty deed to defendant's wife, after the granting clause, excepted and reserved the rents and profits of the land during the grantor's natural life, and the grantor occupied the property until after the grantee's death, the grantee was never seised of an estate in possession, so as to entitle her husband to curtesy in the property.

2. Where a warranty deed, after the granting clause, reserved the rents and profits of the land to the grantor for life, it took effect on delivery, and conveyed to the grantee a vested remainder in fee, subject to an intermediate life estate in the grantor, and was, therefore, not objectionable as a testamentary instrument not properly executed.

Appeal from Circuit Court, Audrain County; E. M. Hughes, Judge.

Action by Lutie M. Dozier against F. G. Toalson. From a judgment in favor of defendant, plaintiff appeals. Reversed.

J. C. V. Karnes and W. W. Fry, for appellant. P. H. Cullen, for respondent.

MARSHALL, J.

This is a suit for partition of lot 8 in block 5 of Clark's Addition to the city of Mexico. The facts are these: On December 26, 1891, Julia E. Maus, a widow, owned the property, and that day she conveyed it to her daughter, Elizabeth Allensworth Maus, by a general warranty deed, which, however, in the granting clause recited, "excepting and reserving the uses, rents and profits of said lands and appurtenances during my natural life," and in the habendum clause recited, "Subject to the above limitation of my life." At that time Mrs. Maus was in possession of the property, and remained in possession thereof and enjoyed the use, rents, and profits during her life. Thereafter, on February 14, 1892, Elizabeth Allensworth Maus, the grantee, was lawfully married to the defendant, F. G. Toalson. A child was born alive of that marriage on June 12, 1893, but died on June 17, 1893. After the marriage the daughter and her husband lived with the mother upon the premises, each contributing to the household expenses. In April, 1894, Elizabeth Allensworth Toalson died, intestate, leaving no descendants, but her mother and her sister, the plaintiff, survived her. After her death Mrs. Maus continued to reside on the premises, and enjoyed the rents and profits. Dr. Toalson, the defendant, her son-in-law, continued to live in the house with her, contributing to the household expenses. On July 31, 1894, Mrs. Maus conveyed an undivided one-fourth interest in the premises to Dr. Toalson, the granting clause reciting, "Excepting that the said Julia E. Maus doth reserve a life estate therein, and this deed to go into full effect at her death, and she will continue to pay taxes thereon during her life estate." On August 18, 1894, Mrs. Julia E. Maus further conveyed to Dr. Toalson a portion of said lot 30½ feet from east to west by 31½ feet from south to north, lying in the northeast corner of the lot, on which the deed recites he was then engaged in building a house and doctor's office. In June, 1901, Mrs. Julia E. Maus died intestate, leaving as her only heir the plaintiff herein, and on August 1, 1901, she instituted this action. The case was tried before the court without a jury, and judgment was entered giving to Dr. Toalson an estate by the curtesy in the whole property for life, and also a fee-simple estate to one-half of the portion conveyed to him by the deed of August 18, 1894, on which he had built an office, and also a fee-simple estate to one-fourth of the balance of the lot, and giving to the plaintiff a fee-simple estate to the one-half of the portion on which the doctor had built his office, and also a fee-simple estate to three-fourths of the balance of the lot; all of the fee-simple estates, however, to be subject to the estate by curtesy. From this judgment the plaintiff appealed. Error was assigned to the ruling of the trial court allowing the defendant an estate by the custesy.

The plaintiff claims that Mrs. Maus retained a life estate to the land, and that she conveyed only a remainder in fee simple to her daughter, and that, as the daughter died before the mother, the daughter was never seised of an estate in the land during the coverture, and therefore her husband is not entitled to an estate by the curtesy. The plaintiff further claims that the conveyance from Mrs. Maus to her daughter is not a deed, but is a testamentary disposition of the property, and as such is void, because it was not properly executed. On the other hand, the defendant claims that the reservation in the deed from Mrs. Maus to her daughter did not create a life estate in the mother, and hence the daughter was seised of an estate in the land during the coverture, and therefore, the other requisites being present, the defendant is entitled to an estate by the curtesy; and the defendant differentiates between a reservation and an exception in a deed.

Minor's Institutes, vol. 2, p. 103, thus defines "curtesy": "When a man takes a wife seised during the coverture of an estate of inheritance, legal or equitable, such as that the issue of the marriage may by possibility inherit it, as heir to the...