Eckle v. Ryland

• Decision Date: 02 April 1914
• Citation: 165 S.W. 1035,256 Mo. 424
• Parties: FLORENCE B. ECKLE, WALTER B. ECKLE, FLORENCE I. BANKS and LIDA M. BUFORD v. LEGRAND RYLAND and COLEMAN G. BUFORD; COLEMAN G. BUFORD, Appellant
• Court: Missouri Supreme Court

165 S.W. 1035

256 Mo. 424

FLORENCE B. ECKLE, WALTER B. ECKLE, FLORENCE I. BANKS and LIDA M. BUFORD v. LEGRAND RYLAND and COLEMAN G. BUFORD; COLEMAN G. BUFORD, Appellant

Supreme Court of Missouri, First Division

April 2, 1914

Appeal from Lafayette Circuit Court. -- Hon. Samuel Davis, Judge.

Reversed and remanded (with directions).

Aull & Aull for appellant.

(1) In the interpretation of contracts, whether it be deed or other written instrument, the proper construction of the instrument must be sought from the entire deed, and not merely from any particular part of it. Dickerson v. Dickerson, 211 Mo. 496; Buxton v. Kroeger, 219 Mo. 245; Williamson v. Brown, 195 Mo. 336; Gibson v Bogy, 28 Mo. 478; Orr v. Rode, 101 Mo. 396; McCullock v. Holmes, 111 Mo. 447; Meyer v Christopher, 176 Mo. 594; Utter v. Sidman, 170 Mo. 284; Turner v. Timberlake, 53 Mo. 371; Allison v. Chaney, 63 Mo. 279; Walton v Drumtra, 152 Mo. 489; Armor v. Frey, 226 Mo. 646. Rules of interpretation, formerly adhered to with much strictness, have been changed, modified and abandoned, when, in their modern application, they have been found hostile to the end the courts struggle to attain, which is, to give effect to the grantor's intention, and, to effect that intention being the paramount rule they read the whole instrument, and, if possible, give effect and meaning to all its language. Bean v. Kenmuir, 86 Mo. 671; Russell v. Eubanks, 84 Mo. 86; Feller v. Lee, 225 Mo. 332; Utter v. Sidman, 170 Mo. 284. (2) The remainder, under the provisions of the deed, is a contingent remainder, or, under some of the decisions, a vested remainder defeasible on condition subsequent. Death of Legrand G. Buford before the termination of the trust, or, happening of the contingency, defeated the same, if construed to be so vested. Dickerson v. Dickerson, 211 Mo. 497; Emerson v. Whittlesey, 55 Mo. 258; Maguire v. Moore, 108 Mo. 274; DeLassus v. Gatewood, 71 Mo. 381; Jones v. Waters, 17 Mo. 589; Aubuchon v. Bender, 44 Mo. 560; Rodney v. Landau, 104 Mo. 251; Emmerson v. Hughes, 110 Mo. 630; 2 Washburn, Real Prop. (6 Ed.), secs. 1555-1580; Manice v. Manice, 43 N.Y. 380; Edwards v. Hammond, 3 Lev. 132; Doe v. Moore, 14 East, 601; Blanchard v. Blanchard, 1 Allen (Mass.), 223. (3) As the title was not to vest in Florence L. Banks and Legrand G. Buford until the death of William M. Buford and grantor, Eusebia N. Buford, and then only in such of them as were alive at that time, the remainder was necessarily contingent. Dickerson v. Dickerson, 211 Mo. 483; Buxton v. Kroeger, 219 Mo. 231; Tiedeman on Real Prop. (2 Ed.), secs. 396-397-403; Emison v. Whittlesey, 55 Mo. 254; DeLassus v. Gatewood, 71 Mo. 381; Rodney v. Landau, 104 Mo. 257; Emerson v. Hughes, 110 Mo. 630; Maguire v. Moore, 108 Mo. 267; Owen v. Eaton, 56 Mo.App. 563; Taylor v. Adams, 93 Mo.App. 277; Aubuchon v. Bender, 44 Mo. 560; Olney v. Hull, 21 Pick. (Mass.) 311; Thomson v. Ludington, 104 Mass. 193; Denny v. Kettel, 135 Mass. 138; Colby v. Duncan, 139 Mass. 398; Hunt v. Hall, 37 Me. 363; Buck v. Paine, 75 Me. 582; Tillman v. Davis, 95 N.Y. 24; Whitesides v. Cooper, 115 N.C. 570; White's Tr. v. White, 86 Ky. 602; Starr v. Willoughby, 218 Ill. 485; Schaeffer v. Schaeffer, 54 W.Va. 681; 1 Preston on Estate, pp. 36-74; 2 Washburn on Real Prop. (6 Ed.), secs. 1526-1575; Sullivan v. Garesche 229 Mo. 506; Rinquist v. Young, 112 Mo. 25; Wombles v. Young, 69 Mo. 117. Where the remainder is limited to a person not ascertained by the terms of the instrument, the remainder is contingent. Buxton v. Kroeger, 219 Mo. 224. A contingent remainder is one whose vesting, or taking effect in interest, is, by the terms of its creation, made to depend upon some contingency which may never happen at all, or may not happen within a requisite time, by reason whereof its capacity of vesting, or taking effect in interest, may be forever defeated. 2 Washburn on Real Property (6 Ed.), sec. 1555; Dickerson v. Dickerson, 211 Mo. 488-9; 2 Black. Comm. 169; 2 Minor, Institutes, p. 337; Fearne's Remainders, 116-17. (4) Under many authorities, because the courts favor vested remainders, such a remainder is determined to be vested, subject to be defeated or divested on condition subsequent -- the death of Legrand G. Buford before the termination of the trust. If so determined to be vested, it was defeated, or divested, by the death of Legrand G. Buford prior to the termination of the trust. Manice v. Manice, 43 N.Y. 380; 2 Washburn, Real Prop. (6th Ed.), p. 517, sec. 1544; Buck v. Paine, 75 Me. 583; 4 Kent, Com. (13 Ed.), secs. 203, 204; Blanchard v. Blanchard, 1 Allen (Mass.), 223; Price v. Hall, L. R. 5 Eq. 399; Doe v. Cunningham, 6 Wall. 458; Harvey v. McLaughlin, 1 Price, 264; Roome v. Phillips, 24 N.Y. 463; Paterson v. Ellis, 11 Wend. 259; Everett v. Everett, 29 N.Y. 76; 2 Redfield, Wills, 592-641; 1 Jarman, Wills, 767; Gilman v. Reddington, 24 N.Y. 16; Inches v. Hill, 106 Mass. 575; Roper on Legacies, 571; Linton v. Laycock, 33 Ohio St. 128; Doe v. Moore, 14 Eas. 604; 1 Tiffany, Real Prop., sec. 120; Kane v. Gott, 24 Wend. 641; Collins v. Collins, 40 Ohio St. 353; Tillman v. Davis, 95 N.Y. 17; Harbert v. Cauthorn, 100 Va. 651; Rood v. Hovey, 50 Mich. 395; Elwood v. Plummer, 78 N.C. 392; Clanton v. Estes, 77 Ga. 352; Bigley v. Watson, 98 Tenn. 353. (5) There may be two concurrent fees, by way of remainder; one as a substitute for the other and to take effect in case the prior one fails to vest in interest. Alternative remainders, remainders on a contingency with a double aspect, or remainders on a double contingency. 1 Fearne, Remainders, pp. 373-4; City of Peoria, 101 Ill. 616; Dunwoodie v. Reed, 3 Serg. & R. 452; Loddington v. Kime, 1 Ld. Raym. 203; Goodnight v. Dunham, Dougl. 265; Doe v. Burnsall, 6 T. R. 30; Hennessey v. Patterson, 85 N.Y. 91; Doe v. Fonnereau, 2 Dougl. 505; Cooper v. Hepburn, 15 Gratt. (Va.) 558-9; Walker v. Lewis, 90 Va. 582; Allison v. Allison, 101 Va. 556, 63 L. R. A. 920; 2 Minor on Real Prop., sec. 737; 16 Cyc. 650; 2 Washburn, Real Prop. (6 Ed.), sec. 1575. (6) There was clearly no intention to vest any title to the real estate in the children at the date of the execution of the deed. The well settled purpose, of which the grantor was extremely watchful, was to keep the property in the family for her children, or, if they be not living at the termination of the trust, in the grandchildren, and heirs, and to withhold title and control until the termination of the trust. Buxton v. Kroeger, 219 Mo. 245; Bean v. Kenmuir, 86 Mo. 670; Armor v. Frey, 226 Mo. 646. (7) The heirs, Coleman G. Buford and Florence B. Eckle, take as purchasers, under the deed of Eusebia N. Buford, who gave to them the estate in remainder, by way of substitution for, and not by descent through, the deceased father, L. G. Buford. Dickerson v. Dickerson, 211 Mo. 496; Woerner, Am. Law of Adm., p. 902; Williams on Executors (Perkins Ed.), p. 1193; Clark v. Cordis, 86 Mass. 480; Cushman v. Horton, 59 N.Y. 149; Tillman v. Davis, 95 N.Y. 24. (8) The words "heirs" will be construed as child, or children, when necessary to carry out the clear intention of the grantor, whether the instrument be deed or will. Roberts v. Crume, 173 Mo. 579; Haverstick's Appeal, 103 Pa. St. 394; Waddell v. Waddell, 99 Mo. 345; 4 Kent, Com. (13 Ed.), 419; 3 Washburn, Real Prop. (6 Ed.), sec. 1565; Warn v. Brown, 102 Pa. St. 347. A devisee is not an heir, and under the provisions of the deed the widow and husband of Florence B. Eckle were not heirs but devisees.

Chiles & Chiles for respondent Lida M. Buford.

(1) We agree with appellant that in the construction of this deed of trust every part must be considered and the meaning must be ascertained from the entire deed from its four corners, as this court has often said. In analyzing the deed it is to be noted that all parties taking a beneficial interest in the property are doubly identified, that is, by name as well as description; the life tenants, William M. Buford, son, and Legrand Ryland and Buford Ryland, grandchildren, and the remaindermen, "my other children," Legrand G Buford and Florence I. Banks. In those parts where the names are not repeated, apt reference is made by the use of the terms "said children and grandchildren" and "said other parties." Rines v. Mansfield, 96 Mo. 399. (a) The consideration for making the deed, outside of the ample provision for the support of the insane son, William M. Buford, is stated to be "the love I bear for my children and grandchildren hereinafter named." Those so named are her children, William M. Buford, Legrand G. Buford and Florence I. Banks, and her grandchildren, Legrand Ryland and Buford Ryland. The other four grandchildren, including appellant, were not named. No other grandchild was contemplated by Mrs. Buford and even the two grandchildren named were cut off with a mere life estate in the share represented by their mother; much less were unnamed grandchildren provided for. (b) Eusebia N. Buford in this deed did "grant, bargain and sell" to the trustee, E. M. Edwards, the land, to take and receive its rents and profits and pay out same as stated, during the life of William M. Buford and Eusebia N. Buford, should she survive him, without any power of alienation, and on his death the trust shall terminate "and the title to said real estate and property shall go to and vest in my two other children, Legrand G. Buford and Florence I. Banks, one third each, or to their heirs should they or either of them be dead," (still without providing for her other grandchildren as appellant claims she did) and "the remaining one third shall vest in my two grandchildren, Legrand Ryland and Buford Ryland as joint tenants and to their survivor for life, with the remainder to my two other children, Legrand G. Buford and ...