Dunbar v. Sims
| Citation | 222 S.W. 838,283 Mo. 356 |
| Parties | FANNIE DUNBAR et al., Appellants, v. CHARLES T. SIMS et al |
| Decision Date | 25 June 1920 |
| Court | United States State Supreme Court of Missouri |
Appeal from Ralls Circuit Court. -- Hon. W. T. Rayland, Judge.
Affirmed.
Mahan Smith & Mahan and M. L. Farres for appellants.
(1) The will, as clearly expressed on the face thereof, shows a definite intention by the testator that the title was not to be vested in the children until the death of the executrix for he says: "And at her death I will and devise, that all my real estate shall go and vest absolutely in fee in my seven children equally, share and share alike." Buxton v. Kroeger, 219 Mo. 224; St. Louis B. L Assn. v. Fuller, 182 Mo. 93; Hardy v. Clarkson, 87 Mo. 171; Tesson v. Newman, 62 Mo. 198; Taylor v. Adams, 93 Mo.App. 277; Emmerson v. Hughes, 110 Mo. 627. (2) Silas E. Sims, by his will, did not intend that the title to the real estate, should vest prior to the time when it would be known that the executrix who had power to sell, had not sold the land, for until her death it could not be known who would have the land, whether the children, and which ones, or some other person, to whom the executrix might convey the land. Hardy v. Clarkson, 87 Mo. 171; Taylor v. Adams, 93 Mo.App. 277; Preston v. Brant, 96 Mo. 552, 15 Am. St. 128; Marard v. Pavey, 128 Ill. 430, 15 Am. St. 120; Olney v. Hull, 21 Pick. 311; Thomas v. Luddington, 104 Mass. 193; 13 Cyc. 647; Warne v. Vorge, 258 Mo. 162. (3) There was no present capacity to convey an absolute title to the remainder in the children any time prior to the death of Mary E. Sims, the executrix, and none of them question that her deed to the Atlas Portland Cement Company carried the title. She alone had "the present capacity to convey an absolute title to the remainder." Tiedeman on Real Propery, sec. 397, and note; Buxton v. Kroeger, 219 Mo. 224; Buxton v. Runn, 219 Mo. 278. (4) A conveyance of an undivided fractional part is quite a different thing from "all right, title and interest." None of the parties plaintiff undertook to convey any particular undivided portion, or any funds arising from a sale of the lands. Johnson v. Johnson, 170 Mo. 34; Llewellyn v. Llewellyn, 122 Mo.App. 467; Llewellyn v. Lewis, 163 S.W. 545. (5) The deeds under which defendants claim the funds of the sale to the Atlas Portland Cement Company, of the parts of plaintiffs, gave them no right thereto. There were no attempted assignments of any real estate converted into personalty, or of any distributive share of the plaintiffs in the estate of their father. Llewellyn v. Llewellyn, 122 Mo.App. 467; Johnson v. Johnson, 170 Mo. 34; Llewellyn v. Lewis, 163 S.W. 545. (6) By the words of the grant, "all the right, title and interest," the conveyance was only coextensive with the grant, and was not a conveyance of a one-seventh, or any particular part, or interest, and not a warranty, as to any further assurances. Butcher v. Circle, 60 Mo. 140; Gibson v. Chouteau's Heirs, 39 Mo. 536; Bogy v. Schaub, 13 Mo. 365; Pell v. Jackson, 11 Wend. 110; Bradford v. Wolfe, 103 Mo. 397; Wilson v. Fisher, 172 Mo. 21.
J. O. Allison and T. E. Allison for respondents.
(1) The will clearly creates a life estate in his widow, with power of sale, and vested the remainder in fee to his seven children named in the will. Waddell v. Waddell, 99 Mo. 338; Jones v. Waters, 17 Mo. 587; Aubuchon v. Bender, 44 Mo. 566; Byrne v. France, 131 Mo. 639; Jefferson v. Tendall, 167 Mo. 218; Roberts v. Crune, 173 Mo. 572; Gannon v. Albright, 183 Mo. 238; Edgar v. Emerson, 235 Mo. 552; Gates v. Silbert, 157 Mo. 254; Warne v. Gorge, 258 Mo. 162; Chew v. Kellar, 100 Mo. 362. The chief case relied on by appellants is the case of Buxton v. Kroeger, 219 Mo. 224. In that case the title did not vest in the children until ten years after the youngest of them should become of age, and then only in such of them as were then living. In the case at bar there can be no uncertainty as to the persons who are to take in remainder, because the testator specifically named them. (2) Vested or contingent remainders are determined not by the uncertainty of enjoying the remainder, but by the uncertainty of the vesting of the estate; the uncertainty of the persons who are to take in remainder. Rodney v. Landon, 104 Mo. 257; Emmerson v. Hughes, 110 Mo. 630; Cross v. Hock, 149 Mo. 332; Shoer v. Carter, 120 Mo. 409; Harbison v. James, 90 Mo. 411; Chew v. Keller, 100 Mo. 362. Where words of futurity are used in creating a remainder, they will be held to refer to the time of enjoyment, rather than to the time of vesting the title. Tindall v. Tindall, 167 Mo. 226; Chew v. Kellar, 100 Mo. 368. (3) The power of sale will not convert a life estate into a fee. Roth v. Rauschenbusch, 173 Mo. 582; Romjue v. Randolph, 166 Mo.App. 87. (4) However, if it were true, which is the contention of the appellants, that the will created a contingent remainder in the children, even then their interests were alienable by quitclaim deeds. Lackland v. Nevins, 3 Mo.App. 335; Goldman v. Simmonds, 113 Mo. 122; White v. McPheeters, 75 Mo. 286; Brown v. Fulkerson, 125 Mo. 400; R. S. 1909, sec. 2787. The deeds of the plaintiffs, even if construed as quitclaim deeds, being for valuable consideration, as expressed in the deeds, conveyed their interests in the land to the grantees therein. In White v. McPheeters, supra, it was held that a contingent remainder would pass by execution sale. It would certainly pass by quitclaim deed.
RAILEY, C. White and Mozley, CC., concur.
RAILEY C. --
This action was brought in the Circuit Court of Ralls County, Missouri, for the partition of the real estate described in petition; and for an accounting of the rents, profits and money alleged to have been received by defendants.
Silas E. Sims died in Ralls County, in 1907, the owner of above mentioned real estate, leaving a will. He left surviving him his widow, Mary E. Sims, and his children, Charles T. Sims, Enoch Sims, Luther Sims, George Edward Sims, Lee Roy Sims, Arch Sims, and Fannie Dunbar. Fannie Dunbar, Lee Roy Sims and George Edward Sims, are plaintiffs herein, and Charles T. Sims, Enoch Sims, Luther Sims and Arch Sims are defendants.
On March 25, 1909, plaintiff George E. Sims, and wife, executed and delivered to defendant Archie Sims, their warranty deed for the expressed consideration of $ 800, conveying all their right, title and interest in and to the real estate described in petition.
On February 10, 1909, plaintiff Lee Roy Sims, and wife, executed and delivered to defendant Charles T. Sims, their quitclaim deed, for the expressed consideration of $ 625, conveying all their right, title and interest in said land.
On October 18, 1909, plaintiff Fannie Dunbar executed and delivered her warranty deed to defendant, Archie Sims, for the expressed consideration of $ 1,500, conveying to him all of her right, title and interest in said land.
Afterwards, on July 2, 1910, said Mary E. Sims, under the power vested in her by the will of her husband, sold, by deed duly executed, a right of way fifty feet wide across said land for $ 3,500, to the Atlas Portland Cement Company, a corporation. It appears from the evidence, that neither of the plaintiffs herein received any part of said $ 3,500.
The widow, Mary E. Sims, died April 24, 1917.
The will of Silas E. Sims, was executed on the -- day of February, 1907. It was offered in evidence, and contains five separate paragraphs. Number 1 provides for the payment of his debts, etc.; paragraph 2 gave to the widow, absolutely, all of his personal property, subject to the payment of his debts; paragraph 4 named his wife, Mary E. Sims, as executrix, with the direction and request, that she be not required to give bond. The third and fifth paragraphs, read as follows:
"Item Third: I will and devise all of my real estate to my wife, Mary E. Sims, for and during her natural life, and at her death, I will and devise that all my real estate shall go and vest absolutely in fee, in my seven children, namely, Charles T. Sims, Enoch Sims, George Edward Sims, Luther Sims, Lee Roy Sims, Arch Sims, and Fannie Dunbar, equally share and share alike.
"Item Fifth: I will and direct that my said executrix, Mary E. Sims, shall have power, and I hereby give her power and authority to sell and convey any or all of my real estate as she may see fit and proper, and make good and perfect title to the same in fee simple to the purchaser and to make distribution of the proceeds of such sale among my said children and herself," etc.
The deeds heretofore mentioned, from plaintiffs to Archie Sims, and Charles T. Sims, were duly recorded in Ralls County, Missouri.
On March 5, 1918, the trial court found the issues in favor of defendants, and entered its decree accordingly. Plaintiffs, in due time, filed motions for a new trial, and in arrest of judgment. Both motions were overruled, and the cause was duly appealed by them to this court.
I. There is practically no dispute over the facts in this case as heretofore set out. It is contended by appellants that the children of testator acquired no vested interest as remaindermen in the real estate aforesaid, prior to the death of the widow, Mary E. Sims, on April 24, 1917; and that, by reason thereof, the plaintiffs had no interest in their father's estate, which was the subject of conveyance, at the time they executed their respective deeds to Archie and Charles T. Sims. This contention does not appeal to us as being sound. On the contrary, we are decidedly of the opinion, that upon the death of testator, in 1907, his widow, Mary E. Sims, by virtue of paragraphs three and five of the will aforesaid, became vested with a life estate, in the real estate in controversy, with...
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