Davidson v. Davidson

• Decision Date: 04 January 1943
• Docket Number: 38096
• Parties: Ralph A. Davidson v. Hal Todd, Claude E. Huntington, Dora Hendren, Augustus Kincaid, Verdie McIntosh, Paul Kincaid, Irene Olds, Billie Wade, Dora Wear, Lizzie Wymore, Roy P. Kincaid, Lulu Hudson Barnes, William Campbell Davidson, Etta Davidson, James C. Davidson, and Ella Davidson, and Etta Davidson, Administratrix of the Estate of Ernest E. Davidson, Ida Davidson, Fannie Straine, Vena Mae Brown, Vester Steele Davidson, Mollie E. Thompson, Bertha George, Joseph A. Davidson, Otis L. Davidson, John Davidson, Charles Davidson, Minnie Davidson, Joseph Davidson, Ella M. Stunz, an Individual Doing Business as the E. A. Stunz Lumber Company, Assignee of Forest Davidson, National Commercial Bank, Liberty, Missouri, E. Kemper Carter, William B. Waters, Trustee, Soper J. Taul, Administrator of the Estate of James Franklin Kincaid; and the unknown heirs, devisees, donees, alienees, immediate, mesne and remote, of Andrew C. Davidson, of Florinda Davidson Hudson, of Joseph Kincaid, of John Kincaid, son of said Joseph Kincaid, of John Kincaid Davidson, of Alexander Steele Davidson, and of James A. Davidson, brother of said Andrew C. Davidson, and of each and every one of them, Respondents, Mary Belle Davidson, Appellant
• Court: Missouri Supreme Court

167 S.W.2d 641

350 Mo. 639

Ralph A. Davidson v. Hal Todd, Claude E. Huntington, Dora Hendren, Augustus Kincaid, Verdie McIntosh, Paul Kincaid, Irene Olds, Billie Wade, Dora Wear, Lizzie Wymore, Roy P. Kincaid, Lulu Hudson Barnes, William Campbell Davidson, Etta Davidson, James C. Davidson, and Ella Davidson, and Etta Davidson, Administratrix of the Estate of Ernest E. Davidson, Ida Davidson, Fannie Straine, Vena Mae Brown, Vester Steele Davidson, Mollie E. Thompson, Bertha George, Joseph A. Davidson, Otis L. Davidson, John Davidson, Charles Davidson, Minnie Davidson, Joseph Davidson, Ella M. Stunz, an Individual Doing Business as the E. A. Stunz Lumber Company, Assignee of Forest Davidson, National Commercial Bank, Liberty, Missouri, E. Kemper Carter, William B. Waters, Trustee, Soper J. Taul, Administrator of the Estate of James Franklin Kincaid; and the unknown heirs, devisees, donees, alienees, immediate, mesne and remote, of Andrew C. Davidson, of Florinda Davidson Hudson, of Joseph Kincaid, of John Kincaid, son of said Joseph Kincaid, of John Kincaid Davidson, of Alexander Steele Davidson, and of James A. Davidson, brother of said Andrew C. Davidson, and of each and every one of them, Respondents, Mary Belle Davidson, Appellant

No. 38096

Supreme Court of Missouri

January 4, 1943

Appeal from Clay Circuit Court; Hon. James S. Rooney Judge.

Reversed.

John C. Loos for appellant.

(1) The deed in question did not convey the whole estate that Andrew C. Davidson had in the land, but conveyed only a life estate to John R. Davidson, with remainder unto those who might be the heirs of his body at his death. Sec. 3498, R. S. 1939; Davis v. Austin, 156 S.W.2d 903, 348 Mo. 1094. (2) The said John R. Davidson, grantee in said deed, having no heirs of his body at the time of the execution of the deed capable of taking the fee title, the reversionary fee title to the land remained in Andrew C. Davidson, the grantor, subject to be divested out of him if said life tenant should have heirs of his body surviving. Gillilan v. Gillilan, 278 Mo. 99, 212 S.W. 348; Stockwell v. Stockwell, 262 Mo. 671, 172 S.W. 23; Collins v. Whitman, 282 Mo. 383, 222 S.W. 840; Hobbs v. Yeager, 263 S.W. 225; Hyde v. Hopkins, 317 Mo. 587, 296 S.W. 382; Lewis v. Lewis, 136 S.W.2d 66, 345 Mo. 816; Davis v. Austin, 156 S.W.2d 903, 348 Mo. 1094; Lankford v. Lankford, 159 S.W.2d 264, 348 Mo. 1170; Baxter v. Bryan, 123 Ky. 235, 94 S.W. 683; Coots v. Yewell, 95 Ky. 367, 25 S.W. 597, 26 S.W. 179; Pinkney v. Weaver, 216 Ill. 185, 74 N.E. 714, affirmed in 115 Ill.App. 582; 18 C. J., p. 310, sec. 292 (8); 23 R. C. L., "Remainders," secs. 55-57, pp. 518-520; 4 Kent's Commentaries (14th Ed.), p. 257; Copenhaver v. Pendleton, 155 Va. 463; 2 Blackstone, Comm. (Lewis, 1900 Ed.), 175. (3) On the death of Andrew C. Davidson, intestate, in October, 1896, this reversionary fee title descended to John R. Davidson, grantee in the deed, who was his sole and only heir-at-law, subject to be divested if he was survived by an heir of his body. (a) Davis v. Austin, 156 S.W.2d 903, 348 Mo. 1094; Lewis v. Lewis, 136 S.W.2d 66, 345 Mo. 816; Hobbs v. Yeager, 263 S.W. 225; Collins v. Whitman, 283 Mo. 383, 222 S.W. 840; Hyde v. Hopkins, 317 Mo. 587, 296 S.W. 382; Pinkney v. Weaver, 216 Ill. 185, affirmed in 115 Ill.App. 582; 2 Blackstone, Comm., 110, 113; 4 Kent's Comm. (14th Ed.), p. 257; 1 Tiffany on Real Property (2nd Ed.), p. 89; Tiedeman on Real Property (3rd Ed.), sec. 50, p. 60; 1 Kerr on Real Property, p. 520; 21 C. J., p. 1036, sec. 236 (D); Baxter v. Bryan, 123 Ky. 235, 94 S.W. 683; Coots v. Yewell, 95 Ky. 367; (b) King v. Wurts, 227 Ky. 705; 15 Words & Phrases (Permanent Ed.), p. 194; Condry v. Coffey, 163 Tenn. 508. (4) When John R. Davidson died in January, 1939, intestate, leaving no heirs of his body surviving him, his title became absolute; and leaving no father or mother, brothers or sisters, or their descendants, his widow, Mary Belle Davidson, became the owner of the fee title to the land; and plaintiff is not entitled to maintain partition. Sec. 306, R. S. 1939; Long v. Conrad, 42 S.W.2d 357.

Lawson & Hale for respondents.

(1) In construing a deed, the whole instrument should be looked to for the purpose of ascertaining the party's intent, and such intent given effect if it does not conflict with any positive rule of law. Eckle v. Ryland, 256 Mo. 424; Triplett v. Triplett, 332 Mo. 870; Leeper v. Leeper, 147 S.W.2d 660. (2) The intention of the grantor, as gathered from the four corners of the instrument, is now the polestar of construction. That intention may be expressed anywhere in the instrument and in any words, the simpler and plainer the better, that will impart it; and the courts will enforce it no matter in what part of the instrument it is found. 16 Am. Jur., pp. 534, 535, secs. 171-172; Leeper v. Leeper, 147 S.W.2d 660; Keller v. Keller, 338 Mo. 731; Norman v. Horton, 344 Mo. 290. (3) The deed in question created a contingent remainder in the alternative with a double aspect; first, in the bodily heirs of John Davidson, and, second, in default of such bodily heirs, in the collateral heirs of grantor, Andrew C. Davidson. Norman v. Horton, 344 Mo. 290; Eckle v. Ryland, 256 Mo. 424; Tevis v. Tevis, 259 Mo. 19. (4) A remainder is contingent when the person or persons to whom or the event upon which it is limited to take effect is uncertain. Sullivan v. Garesche, 229 Mo. 496; Norman v. Horton, 344 Mo. 290. (5) The word "revert" is not used in the technical sense of reversion, but in the sense of "pass to" or "go to." Norman v. Horton, 344 Mo. 290; Mastallar v. Atkinson, 94 Kan. 279. (6) The facts that John Davidson was the sole descendant of Andrew C. Davidson and that the deed provided that in no event should the land be liable for any indebtedness of John Davidson negatives the idea of a reversion in grantor. Restatement of the Law of Property, Comment K, sec. 308, pp. 1715-16; Eckle v. Ryland, 256 Mo. 424; Norman v. Horton, 344 Mo. 290.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Partition. Ralph Davidson instituted the action against Mary Belle Davidson and others on the theory he and the defendants, except said Mrs. Davidson, held all the right, title and interest in and to certain real estate as or through collateral heirs of one Andrew C. Davidson. Mrs. Davidson disputed said allegations of ownership, asserted a fee simple title in herself, and denied the right of the others to partition. The trial court found against Mrs. Davidson, decreed partition and Mrs. Davidson appealed.

The principal facts are in the wording of a deed from Andrew C. Davidson to his son John Davidson (also known as John R. Davidson), the deceased husband of Mrs. Davidson, appellant. On June 24, 1882, the father, as "party of the first part," deeded the real estate involved to the son, as "party of the second part." The recited consideration was "one dollar" and "love and affection." The grant was "unto said party of the second part and the heirs of his body." The habendum was: "unto the only proper use, benefit and behoof of the said party of the second part and the heirs of his body forever. The said premises to revert to the grantor herein or become part of his estate, in the event of the death of said party of the second part without heirs of his body. The said real estate shall not be liable in any manner for any debt, obligation or demand of any nature contracted by the said party of the second part; nor shall the rents, issues or products thereof be subjected to the payment of any obligation due by said party of the second part, but the same shall be free from any and all claims against the said party of the second part." This was followed by the testimonium and signature. At that time John Davidson was unmarried and about eighteen years of age. According to the record, Andrew C. Davidson had two children in addition to his son John, but each of said children died leaving no surviving descendant. In October, 1896, Andrew C. Davidson died, intestate, leaving as his sole and only heir his said son, John Davidson. John Davidson, subsequent to June 24, 1882, married. He never had any children. He died January 11, 1939, intestate, without heirs of his body, leaving surviving his widow.

The words of inheritance and procreation in the deed -- "unto said party of the second part and the heir of his body" -- created an estate tail. ^[1] Under Sec. 3498, R. S. 1939 (then Sec. 3941, R. S. 1879), this estate tail was converted into an estate for life in the first taker, with the remainder in fee to the person to whom the estate tail would, on the death of the first taker, pass according to the course of the common law. Consequently, under the above quotation from this inter vivos conveyance and said statute the first taker took a life estate; the heirs of his body took a contingent remainder ^[2] in the fee, and, pending the vesting of said contingent remainder, the reversion, ^[3] the fee, remained in the grantor.

"The intention of the grantor, as gathered from the four corners of the instrument, is now the pole star of construction. That intention may be expressed anywhere in the instrument, and in any words, the simpler and plainer the better, that will impart it; and the court will enforce it no matter in what part of the instrument it is found." Utter v. Sidman, 170 Mo. 284, 294, 70 S.W. 702, 705. See Leeper v. Leeper, 347 Mo. 442, 447, 147 S.W. 2d 660, 662[3], citing cases; 16 Am. Jur., p. 532, Sec. 168, p. 570, Sec. 237; 26 C. J. S., p. 324, Sec. 83.

What intent did the grantor manifest by the subsequent provisions to the effect that the premises were "to revert to the grantor herein or become part of his estate" in the event of the death of the first taker without heirs of his...