Byrd v. Allen

• Decision Date: 08 September 1942
• Docket Number: No. 38036.,38036.
• Parties: A.R. BYRD, JR., SALLIE HUNTER BYRD, CLAIRE BYRD DRESBACK, ELIZABETH BYRD BAYLOR, C.O. BYRD, E.R. BYRD and JOSEPH HUNTER BYRD, Appellants, v. JOSEPH H. ALLEN and IRMA ALLEN, His Wife, THOMAS B. ALLEN and JUANITA ALLEN, His Wife, and FRANCES VIOLA HOUCK HOUSER and NORWIN HOUSER, Her Husband.
• Court: Missouri Supreme Court

171 S.W.2d 691

A.R. BYRD, JR., SALLIE HUNTER BYRD, CLAIRE BYRD DRESBACK, ELIZABETH BYRD BAYLOR, C.O. BYRD, E.R. BYRD and JOSEPH HUNTER BYRD, Appellants, v. JOSEPH H. ALLEN and IRMA ALLEN, His Wife, THOMAS B. ALLEN and JUANITA ALLEN, His Wife, and FRANCES VIOLA HOUCK HOUSER and NORWIN HOUSER, Her Husband.

No. 38036.

Supreme Court of Missouri.

Division Two, September 8, 1942.

Rehearing Denied, March 25, 1943.

Motion to Transfer to Banc Denied, June 7, 1943.

Appeal from New Madrid Circuit Court. — Hon. Louis H. Schult, Judge.

AFFIRMED.

Drake Watson and Giboney Houck for appellants.

(1) The devise in paragraph four of the Joseph Hunter will to Jennie Houck for life, then to the issue of her body, and on failure of same then to Sallie Byrd, created a contingent remainder in Sallie Byrd. 2 Blackstone's Commentaries (Christian's Ed.), chap. 11, p. 163; Nichols v. Robinson, 277 Mo. 483, 211 S.W. 14. Such a remainder is generally described as an alternative contingent remainder, or a contingent remainder with a double aspect. Fearne's Essay on Contingent Remainders (Third Ed.), chap. 2, pp. 160-1, also chap. 6, pp. 292-3; 4 Kent's Commentaries (11th Ed.), p. 227. (2) The defendants are not entitled to the defenses they plead because they are based on the family settlement which they introduced and which is illegal, is a conspiracy of joint tort-feasers, co-adventurers, and brands the parties thereto and those claiming thereunder with unclean hands. United States v. Pan American Petroleum Co., 55 Fed. (2d) 753; Roberts v. Criss, 266 Fed. 296, 11 A.L.R. 698; Gray v. Clements, 296 Mo. 497, 246 S.W. 940. (4) And that illegality the courts act upon when they first discover it, regardless of how discovered, and without pleading it. White v. McCoy Land Co., 101 S.W. (2d) 763; 13 C.J., p. 446, sec. 382. (5) Defendants are bound by their own construction of the Joseph Hunter will and, as expressed in the purported family settlement, to the effect that it created a life estate in Jennie Houck with a contingent remainder to the issue of her body and on failure of same, then to Sallie Byrd. Hoppock v. Gaines, 284 S.W. 191; Lorton v. Trail, 216 S.W. 54; Aetna Ins. Co. v. Hyde, 34 Fed. (2d) 185; State ex rel. v. C. & A.R. Co., 265 Mo. 646, 178 S.W. 129. (6) The deed from Sallie Byrd to Jennie Houck was of no legal force because (a) It was part of an effort of the devisees to alter the will of the testator, Joseph Hunter, while taking under said will. They cannot at the same time renounce and take under the will, and having taken under the will said deed and all their acts inconsistent with the terms of the will are void. Hobbs v. Henley, 186 S.W. 981; Utermehle v. Norment, 197 U.S. 40, 25 Sup. Ct. 291, 49 U.S. 655, 3 Am. Cas. 252. (b) Said deed was never executed, and the evidence so establishes. (c) The life tenant Jennie Houck died without bodily issue in 1937, after the death of the contingent remainderman, Sallie Byrd, grantor, in 1919. Emmerson v. Hughes, 110 Mo. 627, 19 S.W. 979; Godman v. Simmons, 113 Mo. 122, 20 S.W. 972; Commerce Trust Co. v. Foulds, 221 Mo. App. 317, 273 S.W. 229. (7) At common law the devise in question created a contingent remainder in fee tail which under the statute was converted to a life estate in the first taker, remainder in fee simple to those who would at common law take at the happening of the contingency, to-wit: death of Jennie Houck, i.e. these plaintiffs. Sec. 2872, R.S. 1909; Sec. 3498, R.S. 1939; Fearne's Essay on Contingent Remainders (Third Ed.), chap. 10, p. 448; Barnitz's Lessee v. Casey, 7 Cranch, 456; Stockwell v. Stockwell, 262 Mo. 671, 172 S.W. 23; Welsh, Admr., v. Woodbury, Admr., 144 Mass. 542, 11 N.E. 762; 4, Comyn's Digest (4th Ed.), p. 12 (Title Estate, sub-head Issue in Tail; How He Takes); Landers Invest. Co. v. Brown, 300 Mo. 348, 254 S.W. 14, 30 A.L.R. 908. (8) A contingent remainder may be conveyed under the law of this State. Kay v. Politte, 344 Mo. 805, 129 S.W. (2d) 863, 122 A.L.R. 1145. (9) But the deed conveys only a chance. Callison v. Wabash Ry. Co., 219 Mo. App. 271, 275 S.W. 965; 21 C.J. 984. (10) And such a deed is defeated and becomes just an empty piece of paper by death of the grantor prior to the happening of the contingency and by the death of Sallie Byrd in 1919, prior to the death of Jennie Houck without issue of her body in 1937, said Sallie Byrd deed, assuming it was not invalid for any other reason, became, because of the grantor's prior death, of no legal effect. Stockwell v. Stockwell, 262 Mo. 671, 172 S.W. 23; Emmerson v. Hughes, 110 Mo. 627, 19 S.W. 979; Godman v. Simmons, 113 Mo. 122, 20 S.W. 972; Clark v. Sires, 193 Mo. 502, 92 S.W. 224; Vance v. Humphreys, 219 Mo. App. 498, 241 S.W. 91; Schee v. Boone, 295 Mo. 212, 243 S.W. 882; Nichols v. Robinson, 277 Mo. 483, 211 S.W. 14; Donaldson v. Donaldson, 311 Mo. 208, 278 S.W. 686; Bank of Brumley v. Windes, 314 Mo. 206, 282 S.W. 696; Golladay v. Knock, 235 Ill. 412, 85 N.E. 649, 126 Am. St. Rep. 224; 33 Am Jur., sec. 150, p. 617. (11) Contingent remainders are of two general classes — limited and general. Romjou v. Randolph, 166 Mo. App. 87, 148 S.W. 185. (12) The contingent remainder here considered in Sallie Byrd, i.e., whether there would ever exist in said contingent remainderman the right to take the estate, it being uncertain as to whether Jennie Houck would ever have issue of her body and that uncertainty only becoming certain by the death of Jennie Houck in 1937 without said issue, Sallie Byrd if living at the happening of the contingency, would then have taken, but she having died leaving lineal issue, these appellants, take on the happening of the contingency the same interest she would have then taken. Sec. 2870, R.S. 1909; Sec. 3496, R.S. 1939; Stockwell v. Stockwell, 262 Mo. 671, 172 S.W. 23; Barnitz's Lessee v. Casey, 7 Cranch, 456; Fearne's Essay on Contingent Remainders (Third Ed.), chap. 10, p. 448. (13) These appellants take by purchase said undivided one-third of the lands described in the petition. They take under the terms of the Joseph Hunter will and not by descent from their mother. Sec. 2874, R.S. 1909; Sec. 3500, R.S. 1939; Payne v. Payne, 119 Mo. 174, 24 S.W. 781; Winget v. Gay, 28 S.W. (2d) 999, 325 Mo. 368; Stockwell v. Stockwell, 262 Mo. 671, 172 S.W. 23. (14) Defendants defense of estoppel, laches and limitation, is not well taken because the life tenant, Jennie Houck, died in 1937, and in 1938 appellants sought their rights and received a letter from one of the principal defendants, Joseph H. Allen, with reference thereto. Appellants had no right to assert right of ownership until death of the life tenant. Souder v. Kitchens, 124 S.W. (2d) 1137; Williams v. Reed, 37 S.W. (2d) 537; Bradley v. Goff, 243 Mo. 95, 147 S.W. 1012. (15) The intention of the testator was that Sallie Byrd's children should take in the event she predeceased the contingency, to-wit: death of Jennie Houck, life tenant without issue of her body, and this court will listen first to the intent of the testator gathered from the will and all surrounding facts and will carry out that intent. Dameron v. Lanyon, 234 Mo. 627, 138 S.W. 1; Schneider v. Kloppert, 193 S.W. 834, 270 Mo. 289.

Joseph H. Allen, James M. Reeves, H.C. Blanton and Norwin D. Houser for respondents.

(1) The devise consisted in a life estate to Jennie Houck with an alternative or substantial contingent remainder over to (a), the bodily heirs of Jennie Houck, but in the event Jennie Houck die without bodily heirs, then (b), one-third to Sallie Byrd. Sec. 3499, R.S. 1939; 23 R.C.L., p. 552, secs. 96, 97; 69 C.J., sec. 1660, p. 583; 23 R.C.L., p. 487, sec. 12; 21 C.J., p. 988, sec. 140; 18 C.J., p. 309, sec. 289; 69 C.J., pp. 635, 637, secs. 1725, 1727; 2 Jarman on Wills (6th Ed.), p. 1391; Page on Wills, p. 1844; Donaldson v. Donaldson, 311 Mo. 208; Hartnett v. Langan, 282 Mo. 471; Eckle v. Ryland, 256 Mo. 424; Tevis v. Tevis, 259 Mo. 19; Cox v. Jones, 229 Mo. 53; Arnold v. Wells, 131 So. 400; Cowman v. Classen, 144 Atl. 367; In re Fields' Estate, 143 Atl. 280; Norman v. Horton, 126 S.W. (2d) l.c. 190; Golladay v. Knock, 85 N.E. 649, 235 Ill. 412; In re Coot's Estate, 234 N.W. 141. (2) It is the nature of a contingent remainder that it is not descendible. 23 R.C.L., pp. 517-18; Page on Will, p. 1847; 2 Washburn on Real Property (5th Ed.), sec. 223; Payne v. Payne, 119 Mo. 174; Williams v. Reid, 37 S.W. (2d) 537; Hauser v. Murray, 256 Mo. 58; DeLassus v. Gatewood, 71 Mo. 381; Hartnett v. Langan, 282 Mo. 471; Stockwell v. Stockwell, 262 Mo. 671; Dickerson v. Dickerson, 211 Mo. 483, 110 S.W. 700; Sullivan v. Sullivan, 229 Mo. 496; Vance v. Humphries, 210 Mo. App. 498; 26 C.J.S., p. 991, sec. 1; Lewis v. Lewis, 136 S.W. (2d) l.c. 70; Keller v. Keller, 92 S.W. (2d) l.c. 161. (3) Purchase relative to the acquisition of title is described as any other means of acquiring title than by descent. 26 C.J.S., p. 991, sec. 1. (4) The will was drawn by and under the advice and counsel of a lawyer and member of the bar, which fact suggests that testator was thoroughly acquainted with the force and legal effect of his devise. Hanssen et ux. v. Karbe, 115 S.W. (2d) 109. (5) The will itself is complete in its disposition and creates life estates, remainders, fee simple devises and trusts, establishes the executor, provides for residuary clause and disposes of personal property and cash bequests. There is no extrinsic or intrinsic evidence that testator intended otherwise than the omission of appellants in disposition of said remainder to Sallie Byrd. Therefore, it is submitted that neither from any evidence of intention otherwise than expressed by the testator, nor by any possible construction of the will, can the said appellants be construed as purchasers of the one-third contingent remainder of their mother, Sallie Byrd. 69 C.J., p. 165, sec. 1191; Brock v. Dorman, 98 S.W. (2d) 672; Hanssen et ux. v. Karbe, 115 S.W. (2d) l.c. 117; Gunn v....