Aldridge v. Aldridge

• Decision Date: 28 March 1907
• Parties: ALDRIDGE et al., Appellants, v. ALDRIDGE et al
• Court: Missouri Supreme Court

101 S.W. 42

202 Mo. 565

ALDRIDGE et al., Appellants, v. ALDRIDGE et al

Supreme Court of Missouri, First Division

March 28, 1907

Appeal from Schuyler Circuit Court. -- Hon. Nat. M. Shelton, Judge.

Reversed and remanded.

Higbee & Mills for appellants.

(1) The instrument executed by Charles Aldridge is plainly testamentary in its provisions and passed no present interest. It was expressly made subject to the payment of his debts, plainly meaning his debts at his death. Murphy v Gabbert, 166 Mo. 596; Dozier v. Toalson, 180 Mo. 546; Griffin v. McIntosh, 176 Mo. 392; Crocker v. Smith, 94 Ala. 295, 16 L. R. A. 576; Bigley v. Souvey, 45 Mich. 370, 8 N.W. 98; Pinkham v. Pinkham, 55 Neb. 729, 76 N.W. 411; Carleton v. Cameron, 54 Tex. 77; 1 Dev. Deeds (2 Ed.), sec. 309; vol. 2, secs. 854, 855; Babb v Harrison, 9 Rich. Eq. 111, 70 Am. Dec. 203; Sartor v. Sartor, 39 Miss. 760; Reed v. Hazelton, 37 Kan. 321. (2) "The true meaning of the maker, whether to part with the title at once or on his death, must be gathered from the entire paper." It gives to his wife all the live stock that he may own at his death. This includes all that he then owned or might thereafter own. It implies a power of disposition. All the property is reserved for the payment of debts owing at his death, and only so much of the estate as remains after the payment of debts can pass by the terms of the instrument. The provisions, taken all together clearly characterize the instrument as a will. Crocker v. Smith, 94 Ala. 295, 16 L. R. A. 576; Leaver v. Gauss, 62 Iowa 314; Tuttle v. Raish, 116 Iowa 331; In re Lautenschlager's Estate, 80 Mich. 285; Sperber v. Balster, 66 Ga. 317; Barnes v. Stephens, 107 Ga. 436; Cunningham v. Davis, 62 Miss. 366, 29 Am. and Eng. Ency. Law (1 Ed.), 148; Watkins v. Dean, 18 Tenn. 321; 2 Devlin Deeds (2 Ed.), sec. 855.

C. C. Fogle & Sons, C. M. York and Rolston & Frank for respondents.

(1) As to the construction of a deed, the intention of the grantor, when ascertained, must control unless it violates some known principle of law. Hunter v. Patterson, 142 Mo. 310; Walton v. Drumtra, 152 Mo. 489; Railroad v. Frowein, 163 Mo. 1; Speed v. Railroad, 163 Mo. 111; Linville v. Greer, 165 Mo. 380. (2) The intention of the grantor is to be gathered from the whole of the instrument and circumstances surrounding it. Dobbins v. Edmonds, 18 Mo.App. 315; Long v. Timms, 107 Mo. 512; Dunaway v. Day, 163 Mo. 415; Utter v. Sidman, 170 Mo. 294; Lakeman, Ex'r, v. Railroad, 36 Mo.App. 371. (3) All parts of an instrument should be considered in gathering its meaning and its full intent effectuated. McCullock v. Holmes, 111 Mo. 445; St. Louis v. Wiggins Ferry Co., 88 Mo. 615; Devlin on Deeds, secs. 836, 850; 13 Cyc. 605. (4) A deed with conditions subsequent conveys a title which becomes absolute upon the happening of said conditions, although the title was to revert upon the failure of said conditions. Mead v. Ballard, 7 Wall. 290; Withers v. Jenkins, 14 S.C. 597. (5) The law favors vested estates and if there is a doubt as to whether the estate is vested or contingent the law will declare it vested. Tiedeman on Real Property, sec. 401; Collier's Will, 40 Mo. 287; Chew v. Keller, 100 Mo. 368. (6) Courts are not at liberty to disregard the construction put upon an instrument by the acts of the parties. Hunter v. Patterson, 142 Mo. 310; Jones v. DeLassus, 84 Mo. 545; Belch v. Miller, 32 Mo.App. 387; Patterson v. Camden, 25 Mo. 13; Moser v. Lower, 48 Mo.App. 85; St. Louis Gaslight Co. v. St. Louis, 46 Mo. 121. (7) The granting clause in a deed unlimited passes the fee. Walton v. Drumtra, 152 Mo. 501. (8) In this case the title is to revert to the grantor, if the wife dies first. If a husband makes a deed to his wife and her heirs, with certain conditions in the deed, one of which was that if the husband survives the wife the land should revert to him in fee simple, it was held a good deed and the condition a subsequent one and valid. F. U.S. of N. A. v. Boland, 29 N.E. 524; Long v. Timms, 107 Mo. 512; Pollard v. Bank, 4 Mo.App. 408; 6 Cyc. 645; Jones, Law of Real Property in Conveyances, secs. 630, 631; Smith v. Harrington, 4 Allen 566; Church v. Grant, 3 Gray 142; Owen v. Field, 12 Mass. 90. (9) An instrument executed conformably to the statute, which is to operate and which does operate to pass any estate during the lifetime of the grantor, even though the absolute enjoyment thereof is postponed until after the grantor's death, is a deed and not a will. Devlin on Deeds, sec. 853; Wall v. Wall, 64 Am. Dec. 147; Spencer v. Robbins, 5 N.E. 726, 106 Ind. 580; Dozier v. Toalson, 79 S.W. 420; Wilson v. Carrico, 40 N.E. 50; Willis v. Willis, 4 Mass. 135; Cates v. Cates, 135 Ind. 292; Seal v. Pierce, 83 Ga. 787; White v. Hopkins, 80 Ga. 154; Bunch v. Nick, 50 Ark. 367; Shackleton v. Sebre, 86 Ill. 616; Wall v. Wall, 30 Miss. 91; Wyman v. Brown, 50 Me. 139; Abney v. Moore, 106 Ala. 131; Lattamer v. Lattamer, 174 Ill. 418; Wyn v. Wyn, 112 Ga. 214; Ward v. Ward, 104 Ky. 857; Knowlson v. Fleming, 165 Pa. St. 10; Deifendorf v. Deifendorf, 132 N.Y. 100; Nicholas v. Emery, 109 Cal. 322. (10) Whenever a deed conveys a present interest it is irrevocable and operates as a conveyance, although the grantor retains a lifetime interest and the possession of the land. 1 Jones on R. P. in Conveyances, secs. 526-527; vol. 2, sec. 1232; 27 S.W. 23; Spencer v. Robbins, 5 N.E. 726; Matter of Probate of Will of Frederick Diez, 50 N.Y. 88; Allen v. Gabbert, 166 Mo. 596; Kelley v. Shimer, 53 N.E. 233; secs. 900, 906, R. S. 1899; Devlin on Deeds, sec. 309 A. (11) The $ 10 mentioned in the consideration clause is put there to give validity to the instrument as a deed. Wall v. Wall, 64 Am. Dec. 150; 27 S.W. 23. (12) The gift of the personal property mentioned in the deed has no effect on it as a deed. Christman v. Wyatt, 26 S.E. 601; Wall v. Wall, 64 Am. Dec. 153. (13) But if the reverting clause is void on account of being repugnant to the granting clause, then the deed conveyed the fee, subject to the life estate of the widow. Cornwall v. Wulff, 148 Mo. 542; Ward v. Ward, 1 Martin (N. C.) 28; In re Young, 11 R. I. 636; Green v. Sutton, 50 Mo. 192. (14) Under our Statute of Uses, section 4596, Revised Statutes 1899, an estate of freehold or inheritance may be made to commence in the future by deed in like manner as by will. Wilson v. Carrico, 40 N.E. 50; Sablesdowsky v. Arbuckle, 50 Minn. 475, 140 Ind. 533; Smith v. Brisson, 90 N.C. 284; Christman v. Wyatt, 26 S.W. 759; Spencer v. Robbins, 5 N.E. 728.

VALLIANT, P. J. Woodson, J., not sitting.

OPINION

VALLIANT, P. J.

Suit under section 650, Revised Statutes 1899, to quiet title to one hundred and twenty acres of land in Schuyler county. Charles Aldridge, the common source, died intestate February 19, 1903, leaving a widow, ten children and two grand-children who (except the widow and one son, Charles L.) are parties to this suit.

A short while before his death Charles Aldridge executed a document purporting to convey the land in question to his wife for life, remainder to his son Charles L.; after his death those two conveyed their title, whatsoever it was, to Lewis M. Starbuck, who is a defendant in this suit and he now claims the land through those deeds.

The point on which the case turns is the inter-pretation to be placed on the document above mentioned executed by Charles Aldridge in his lifetime; if that document is construed to be a deed of conveyance the defendant Starbuck's title is valid; if, however, it is construed to be only an ineffectual effort at making a testamentary disposal of the land then Starbuck's claim is invalid, except as to the shares of the widow and one of the heirs, and therefore the plaintiffs are entitled to their respective shares as heirs at law of their father and grandfather.

The document to be construed is as follows:

"This indenture, made on the 10th day of January, A. D. one thousand nine hundred and three by and between Charles Aldridge of Schuyler county, Missouri, party of the first part, and Amelia J. Aldridge, life tenant, and Charles L Aldridge, remainderman of the county of Schuyler, in the State of Missouri, party of the second part.

"Witnesseth, that the said party of the first part, in consideration of the sum of love and affection, and ten dollars, to him paid by the said parties of the second part, the receipt of which is hereby acknowledged, does by these presents grant, bargain and sell, convey and confirm unto the said parties of the second part, their heirs and assigns, the following described lots, tracts or parcels of land, lying, being and situate in the county of Schuyler and State of Missouri, to-wit:

"The northeast quarter of the southwest quarter and the northwest quarter of the southeast quarter of section three, and the northeast quarter of the southwest quarter of section ten, all in township sixty-four, range fourteen, on this condition however, that if I, the said Charles Aldridge outlive the said Amelia J. Aldridge the land reverts back to me in fee. That if I should die first then the said Amelia J. Aldridge shall have this land for her lifetime for her use and support and at her death said land to go in fee to Charles L. Aldridge my son. In connection with this I give to my wife the said Amelia J. Aldridge all my live stock to go to her at my death.

"To have and to hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in anywise apper-taining, unto the said parties of the second part, and unto their heirs and assigns forever; the said Charles Aldridge hereby covenanting that he is lawfully seized of an indefeasible estate in fee in the premises herein conveyed; that he has good right to...