Brown v. Tuschoff

• Decision Date: 20 June 1911
• Citation: Brown v. Tuschoff, 235 Mo. 449, 138 S.W. 497 (Mo. 1911)
• Parties: BROWN et al. v. TUSCHOFF.
• Court: Missouri Supreme Court

138 S.W. 497

235 Mo. 449

BROWN et al. v. TUSCHOFF.

Supreme Court of Missouri, Division No. 2.

June 20, 1911.

1. WILLS (§ 487)—CONSTRUCTION—EVIDENCE TO AID CONSTRUCTION.

Where the body of a will is unambiguous, it must be interpreted without aid of extraneous evidence, which can only be considered when the terms of the will are of doubtful import, and then only to explain its latent meaning; such evidence not being receivable under any circumstances to contradict or alter plain terms used in their ordinary sense.

2. WILLS (§ 547)—CONSTRUCTION—SHARE OF SURVIVOR.

A clause of a will included in a single sentence, providing that two grandchildren named should be entitled to lots 1 and 2, subject to the life estate of a third person devised by a previous clause, and that the two grandchildren should be entitled to lot 4, acquired by testatrix in a manner stated, and that they should also be entitled to the remainder of testatrix's estate, and, in case either of the grandchildren should die leaving no heirs, the other should be entitled to it all, the limitation over contained in the last phrase applied to the first two devises in the clause as well as to the third.

3. WILLS (§ 506)—CONSTRUCTION—DESIGNATION OF DEVISEE—"HEIRS"—"ISSUE."

Where a will, after a devise to two persons, provides that, in case either should die leaving no heirs, the other shall be entitled to all, and the will as a whole shows a fixed purpose to devolve the entire estate upon these two devisees to the exclusion of all other direct descendants of the testatrix, the word "heirs" in the limitation over will be construed as meaning "issue" or direct descendants of the persons named; the words "heirs" and "issue" being convertible when such a construction is necessary to carry out the paramount intent of the testatrix.

4. WILLS (§ 443)—CONSTRUCTION—INTENTION OF TESTATOR.

The paramount intent of the testatrix, once ascertained, controls all expressions tending to show a subordinate purpose, and expressions of a secondary intent will be construed so as to harmonize with the carrying out of the primary intent.

5. WILLS (§ 602)—CONSTRUCTION—ESTATES CONVEYED—DEFEASIBLE FEE.

Where a will, after a devise to two persons, provides that, in case either should die leaving no heir, the other should be entitled to it all, and the will as a whole shows a fixed purpose to devolve the entire estate on these two devisees, each received a defeasible fee with a limitation over in favor of the other on the contingency of death without issue or direct descendants.

6. REFORMATION OF INSTRUMENTS (§ 45)— EVIDENCE—SUFFICIENCY.

In an action to reform a deed in statutory form, except that the warranties of the habendum clause were stricken out, evidence held to authorize a finding that the scrivener was the common agent of both parties, and that the use of the statutory deed for one of the conveyances in a voluntary partition was an inadvertence contrary to the intention of both parties to the contract.

7. PARTITION (§ 9)—ACT OF PARTIES—OPERATION AND EFFECT.

The conveyances between the parties to an amicable partition neither create any new title nor carry any warranties.

8. VENDOR AND PURCHASER (§ 242)—RIGHTS OF PURCHASERS—BONA FIDE PURCHASER.

Where there was substantial evidence that one bought property with actual knowledge that the deed to the vendor in the statutory form was intended to be only a quitclaim deed for the partition of the land, there was no error in finding that he was not an innocent purchaser for value without notice; that defense being an affirmative one which must be proven as well as pleaded.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by Gaines M. Brown and others against C. D. B. Tuschoff. From a judgment for plaintiffs, defendant appeals. Affirmed.

The plaintiff (a person of unsound mind, suing by his guardian) sues to reform a deed, and joins a count in ejectment for the property described in the deed. The action is against the surviving husband of Louie Brown, who died childless about 18 months after her marriage to defendant.

The evidence tended to prove: That the maternal grandmother of plaintiff and of his deceased sister, Louie Brown, died in 1901, having first made and published the following will:

"Know all men by these presents that I, Diza Wills, of the county of Cape Girardeau and state of Missouri, being of sound and disposed mind, do make and publish this my last will, thereby revoking any other by me made.

"First, at my death I give to my grandson's Lucius Brown's heirs, to wit, his widow, Martha Brown, and child, Alva O. Brown, five dollars.

"Second, at my death my son-in-law, Marcus Brown, shall be entitled to enjoy during his natural life and receive the benefits of lots one (1) and two (2), as set out in the report of the commissioners appointed to make partition among the heirs of John Wills, deceased, and purchased by me at the sheriff's sale of land in said partition suit at the August term of the circuit court of Cape Girardeau county, in said state of Missouri.

"Third, at my death and after all of my just debts is paid, and a suitable tombstone erected at my grave and all other expenses paid, my two grandchildren, Loue and Gaines M. Brown, shall be entitled to said lots one (1) and two (2), subject to the life estate of Marcus Brown as above set forth, and said Loue and Gaines M. Brown shall also at my death be entitled to lot four (4), as shown in said commissioner's report, as aforesaid, and purchased by me at said sheriff's sale at the time and place aforesaid, and they said Loue and Gaines M. Brown shall also be entitled to the remainder of my estate of whatsoever kind it may be at my death, and in case either one (Loue or G. M.) should die leaving no heirs, the other shall be entitled to it all.

"Fourth, I do appoint Loue and Gaines M. Brown as executors of this my last will, or in case they do not wish to act, they or either of them shall be empowered to choose some one to act as executor.

"In witness whereof, I have hereunto set my hand and seal, this 10th day of March A. D. 1892.

                      her
                                 "Diza X Wills. [Seal.]
                                       mark
                "Atts: John Bonney."
                

That the life tenant of lots 1 and 2 referred to in said will died before this suit; that after his death the plaintiff (not being then non compos) and his sister, Louie Brown (then unmarried), took the judgment of three disinterested persons as to the value of said lots, and executed mutual deeds, prepared by one of said persons, for the severance of their ownership of said lands; that the deed from the plaintiff to his sister was in form a statutory conveyance, except that the warranties of the habendum clause were stricken out. The evidence tends to show that this happened because the scrivener had only one blank quitclaim and was compelled to use a blank statutory form for the other deed, and that he thought he had converted this into a quitclaim by simply erasing the warranties contained in the habendum clause. The evidence tends to show that the parties to the deeds (plaintiff and his sister) were informed of this; that they intended to execute two partition deeds; that plaintiff was an unlearned man and relied wholly upon the statements of the draftsman that he was making a quitclaim deed to his sister; that, subsequent to this partition, the sister, Louie Brown, married the defendant, and on the day of her marriage conveyed to him her portion of the partitioned land and other land; that defendant had notice as to the previous partition and exchange of deeds between plaintiff and the said Louie Brown; that defendant paid no substantial consideration for the deed to him; that his wife died without issue in 1905.

The trial court, to whom both counts of the petition were submitted, rendered judgment for plaintiff, correcting his deed to his sister so as to make it a quitclaim and not a...