Brown v. Rogers

• Decision Date: 10 December 1894
• Citation: 28 S.W. 630,125 Mo. 392
• Parties: Brown et al., Appellants, v. Rogers et al. [*]
• Court: Missouri Supreme Court

28 S.W. 630

125 Mo. 392

Brown et al., Appellants, v. Rogers et al. ^[*]

Supreme Court of Missouri, First Division

December 10, 1894

Appeal from Jackson Circuit Court. -- C. O. Tichenor, Esq., Special Judge.

Affirmed.

H. C McDougal and C. F. Moulton for appellants.

(1) In the construction of wills, the intention of the testator ascertained from the language employed, is the controlling guide of courts. Redman v. Barges, 118 Mo. 568; Shumate v. Bailey, 110 Mo. 415. The rule governing the construction of common law conveyances is not applicable to the construction of executory devises. Inglis v Harber, 3 Pet. (U.S.) 117. (2) In the devises to his six daughters, Jacob Johnson parted with his entire interest in the estate conveyed. Green v. Sutton, 50 Mo. 192; Lessee v. Thompson, 6 Ohio St. 480; Wilkins v. Smith, 7 T. R. 555; Ewing v. Shannahan, 113 Mo. 193; McCudack v. Holmes, 111 Mo. 445. After a conveyance of the fee, remainders could not exist. Chew v. Keller, 100 Mo. 368. (3) In executory devises, when the fee passes on the death of the testator to the devisees, the fee so aliened is termed a qualified, base, determinable, or conditional fee, awaiting the happening of the contingency. Jackson v. Waldrom, 13 Wend. 192; Patterson v. Ellis, 11 Wend. 277. (4) An executory devise was created by this will. 4 Kent. [9 Ed.], 308; Moffat v. Strong, 10 John. 16; Cutter v. Daughty, 23 Wend. 513; Wilkins v. Lyon, 2 Cow. R. 333; Patterson v. Ellis, 11 Wend. 280, 292; Roe v. Jeffry, 7 T. R. 589; Jackson v. Anderson, 16 John. 382; Naylor v. Godman, 109 Mo. 543; Pells v. Brown, Cro. Jac. 590; Fordick v. Cornell, 1 John. 440; Barnitz v. Casey, 7 Cranch, 456; Abbott v. Essex Co., 18 How. (U.S.) 212, are only a few of the authorities on this branch of the law. (5) An executory devise can not be aliened nor destroyed by any legal form during the period of its fixed existence. Moffat v. Strong, 10 John. 17; Jackson v. Bull, 10 John. 21; Myer v. Craig, 1 Bus. L. 169; Fearne on Executory Devises by Powell, 56; 4 Kent [9 Ed.], side p. 266; Allen v. White, 16 Ala. 181; Sanders on Uses and Trusts, 204; Southerland v. Cox, 3 Dev. 394; Edwards v. Varrick, 5 Denio. 664; Fearne on Remainder, 459; 2 Preston on Abstract, 119; and this though all mankind had joined in the conveyance. 4 Kent [9 Ed.], side p. 266. (6) The devise to Clarinda Johnson did not lapse under the term of the will, though her death preceded that of her father. Faust v. Birna, 30 Mo. 414; Martin v. Lachasse, 47 Mo. 593; Norris v. Begea, 13 N.Y. 273; Eaton v. Starn, 18 N.H. 320; Goddard v. Goddard, 18 Pa. St. (7) On the question of the transmissibility of the executory devise, where the devisee dies, before the happening of contingency, upon which the devise is limited, we cite: Barnitz v. Casey, 7 Cranch. 456; Cas. Temp. Talb. 117; Goodright v. Searle, 2 Wils. 29; Fearne on Remainders, 459. (8) It is essential that the plaintiff have title to an undivided interest in the land which he seeks to have partitioned. Freeman on Cotenancy and Part., sec. 432; Arnett v. Bailey, 60 Ala. 439; Belvew v. Jones, 56 Miss. 342; Soulten v. Alward, 34 Me. 153; Russell v. Bearly, 72 Ala. 196; Forder v. Davis, 38 Mo. 115. (9) There should have been service of process on appellants in person in the partition proceedings, who at that time were minors. Sec. 8, Wag. Stat. p. 1004; Smith v. Davis, 27 Mo. 298; Shaw v. Gregoire, 41 Mo. 412; Railroad v. Nelson, 62 Mo. 588.

Gates & Wallace for respondents.

(1) The estate devised to each of the daughters of Jacob Johnson was at common law an estate tail. The first illustration of an estate tail given by the text-books and law dictionaries is "a conveyance or devise to a person and the heirs of his body." 1 Washburn, Real Property [5 Ed.], book 1, chap. 4, pp. 98 to 105 and 108; Tiedeman, Real Property, chap. 4, sec. 47; Black's Law Dictionary, p. 435; Rapalje's Law Dictionary, p. 462. So defined by this court. Wood v. Kice, 103 Mo. 329, 333; Emerson v. Hughes, 110 Mo. 627, pp. 630, 631; Godman v. Simmons, 113 Mo. 122, 127; Chiles v. Bartleson, 21 Mo. 344; Phillips v. La Forge, 89 Mo. 72; Reed v. Lane, 26 S.W. 957. (2) After the statute De Donis an estate tail could be limited, in remainder after an estate tail. Tiedeman, Real Prop., ch. 12, sec. 398, and authorities there cited; also ch. 11, sec. 385; Washburn, Real Prop. [5 Ed.], book 2, ch. 4, pp. 585 to 593, and ch. 7, sec. 1, p. 747. (3) This is what the testator intended and attempted to do. If the intention of the testator was contrary to the rules of law, then the law must prevail. Farrar v. Christy, 24 Mo. 453, 471; Harbison v. Swan, 58 Mo. 147, 152, 154. (4) The life estate of the daughter, Clarinda, having determined at her death, January 25, 1851, the fee simple title as to the lands in section 34, was vested at that date in her five sisters and her brother, Gordon. All these were parties to the partition suit of 1857. The land was sold under these proceedings, and thus the entire estate passed from the heirs of Jacob Johnson. Plaintiffs never had or acquired under Jacob Johnson's will, any title or interest in these lands. R. S. 1855, p. 1116, sec. 35; Owsley v. Smith, 14 Mo. 153; Forder v. Davis, 38 Mo. 108; Holladay v. Langford, 87 Mo. 577; Bobb v. Graham, 89 Mo. 200; Hart v. Steedman, 98 Mo. 452; Akers v. Hobbs, 105 Mo. 127, 133; Beckner v. McLinn, 107 Mo. 289.

OPINION

Macfarlane, J.

This is a suit in ejectment to recover possession of the following lands, viz.: The west half of the southwest quarter of section 34, and the southeast quarter of the southeast quarter of section 33, all in township 50, range 32, in Jackson county. The suit was commenced September 22, 1890.

It was agreed that Jacob Johnson was the common source of title. He died testate in 1851, leaving one Gordon P. Johnson and six daughters, Clarinda, Catherine, wife of Daniel C. Woodall, Eliza, wife of Abraham Buford, Amanda, wife of Castleman, Mary Jane, afterwards wife of Richard Kirby, and Julia, afterwards wife of James McCormick. By his will, under separate paragraphs, he devised to each of his children certain described land. The devise to his son was in fee, but to each of his said daughters it was to her "and the heirs of her body." The said southeast quarter of the southeast quarter was by the seventh paragraph devised to his daughter "Mary Jane and the heirs of her body," and the said west half of the southwest quarter was by the eighth paragraph devised to his daughter Clarinda, "and the heirs of her body."

The final paragraph of the will was as follows: "Finally, it is my will and desire, that should any of my heirs above named die without issue of their body, that the property bequeathed to such heirs shall be equally divided between my then surviving heirs, the same to vest absolutely in them and the heirs of their body; except my son Gordon P. Johnson, who, it is my will, shall take his share absolutely himself."

The son Gordon P. died without issue, June 29, 1863. Clarinda died, without issue, on the day of her father's death. Eliza Buford died November 11, 1860, leaving four children, viz.: William, born February 19, 1851; John, born June 20, 1853; Rowena (now wife of James F. Brown), born June 5, 1855; Elizabeth (now wife of John C. Blakely), born March 11, 1858, who are the plaintiffs in this action. Julia Ann, who intermarried with James McCormick, died February 14, 1864, leaving two children then living, viz.: Gertrude, who died in infancy, prior to 1871, and the other, viz.: Wm. W. McCormick, died single and unmarried on the twenty-first day of November, 1888. Amanda Castleman, who afterwards married Anderson, died April 11, 1867, without issue. Mary Jane Kirby died September 30, 1870, without issue. Catherine Woodall died May 20, 1889, without issue.

Both parties to the suit claim title through the will. Plaintiffs are the sole surviving grandchildren of the testator. Defendants claim as purchasers under judgments and orders of sale in partition, made after the death of the said Clarinda and Mary Jane, and by virtue of adverse possession. All the surviving heirs of the said Clarinda and Mary Jane, including the plaintiffs, who are the children of Eliza Buford, deceased, were made parties to these partition suits. Objection is made to the manner in which plaintiffs, who were then minors, were made parties to some of these suits, but the proceedings are conceded to have been sufficient to give the purchasers color of title, and the adverse possession of the defendants, and their grantors, has been sufficient to give them the absolute title of the interest of plaintiffs, if the land was at the time subject to partition.

The question here is what estate passed under the will and to whom. Plaintiffs claim that, reading the separate, special paragraphs of the will, in connection with the final one, an executory devise was created, under which the entire estate finally passed to them as the sole surviving children of the devisees of the testator and a partition of the land, being in contravention of the will, could not be made.

As we do not think the will created an executory devise, it will be unnecessary to determine whether the land would have been subject to partition had one been created.

There can be no doubt that each separate paragraph of the will which makes devises to the daughters of the testator, created what would have been, under the English statutes of entails an estate in fee tail. The exact words necessary to create such an estate were used. If there had been no other provision of the will, the statute of this state concerning entails, in in force at the death of the testator, would have immediately converted the estate tail into one for life only in the devisee, with remainder...