Eckle v. Ryland

• Decision Date: 02 April 1914
• Docket Number: No. 16,473.,16,473.
• Citation: 165 S.W. 1035,256 Mo. 424
• Parties: ECKLE et al. v. RYLAND et al.
• Court: Missouri Supreme Court

165 S.W. 1035

256 Mo. 424

ECKLE et al. v. RYLAND et al.

No. 16,473.

Supreme Court of Missouri, Division No. 1.

April 2, 1914.

1. APPEAL AND ERROR (§ 1067)—QUESTIONS REVIEWABLE—IGNORING OF INSTRUCTIONS.

Where a case at law was tried to the court on agreed facts, the ignoring of requested instructions was not reversible error, since the court on appeal may on the agreed facts affirm or reverse the judgment without instructions.

2. APPEAL AND ERROR (§ 1170)—REVERSIBLE ERROR — ERRORS MATERIALLY AFFECTING MERITS.

An error to be reversible must materially affect the merits.

3. WILLS (§ 7)—PROPERTY SUBJECT TO WILL —VESTED REMAINDERS.

One taking a vested remainder under a deed on the delivery thereof may devise his interest, though he dies prior to the life tenant.

4. WILLS (§ 7)—PROPERTY SUBJECT TO WILL —CONTINGENT REMAINDERS.

One taking a contingent remainder which will become vested on the contingency that he survives the life tenant acquires an interest which is alienable, subject to the happening of the contingency; but his interest is not devisable, for a will takes effect only at the death of testator, and, in the event of his death before the death of the life tenant, no interest will pass under the will.

5. DEEDS (§ 90)—CONSTRUCTION—INTENTION OF GRANTOR.

The court, in construing a deed, must, if possible, give effect to the grantor's intention ascertained by a consideration of the instrument as a whole, the object to be subserved thereby, the circumstances surrounding the grantor, and by taking the words used in the sense indicated by the whole instrument, and giving effect to all the words and clauses in the instrument, if that be possible, and reconciling one clause with another, if that can be done, without straining the words used.

6. DEEDS (§ 129)—CONSTRUCTION—MEANING OF WORDS—HEIRS.

Ordinarily the word "heirs" in a deed is one of limitation, and not of purchase; but a deed may show by its context that the word is used as one of purchase, and equivalent to children or grandchildren.

7. DEEDS (§ 95)—CONSTRUCTION—MEANING OF WORDS—"OR"—"AND."

To ascertain and make effective the intention of a grantor, the word "or" in his deed may be read "and," or vice versa, though "or" and "and" are not interchangeable; but, when the literal reading introduces an absurdity or hardship, the one word may be used as a substitute for the other, if thereby the obvious intent is subserved, and no obscurity is introduced.

8. DEEDS (§ 133) — CONSTRUCTION — ESTATES ACQUIRED.

In case of doubt, the law favors vested estates, and an estate created by a deed should be held to vest at the earliest possible moment, unless a contrary intention is clearly manifested therein.

9. DEEDS (§ 133)—CONSTRUCTION—ESTATES ACQUIRED—"CONTINGENT REMAINDER."

A widow conveyed land to a trustee to pay the rents for the support of an imbecile child for life, and at his death to pay the rents to herself for life, and on the death of both the trust should terminate, and two-thirds of the property should go to a son and daughter equally, "or to their heirs," should they or either of them be dead, and the remaining one-third to two grandchildren as joint tenants and to their survivor for life, with the remainder to the two children and "their heirs, share and share alike in fee," and any funds in the hands of the trustee on the termination of the trust should be paid over in the same way, except that the shares of the grandchildren should be paid to them absolutely. The deed was executed in consideration of love and affection. Held, that the deed conveyed the title to the trustee during the life of the imbecile child and widow and the son, who acquired an interest in the remainder, acquired only a contingent remainder, and on his death before the death of the imbecile child his interest terminated; a contingent remainder being one whose vesting is by the term of its creation dependent on some contingency which may or may not happen within a prescribed time by reason whereof its vesting may be defeated.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Florence B. Eckle and others against Legrand Ryland and another. From a judgment for plaintiffs, defendant Coleman G. Buford appeals. Reversed and remanded, with directions.

Aull & Aull, of Lexington, for appellant. Chiles & Chiles, of Lexington, for respondent Lida M. Buford.

LAMM, J.

Partition. In the Lafayette circuit court, on May 27, 1891, Eusebia N. Buford, widow and owner, executed to one Edwards, as trustee, a deed to lands in said county and duly spread it of record. Edwards took possession, and he and a successor in trust executed the trust. As the main question hinges on whether her son, Legrand G., took a vested remainder under that deed that he could devise in case he died prior to the death of the two life beneficiaries, William M. and Eusebia N., we reproduce the deed to speak for itself, thus:

"Know all men by these presents, that for the purpose of providing for the maintenance and support of my son, William M. Buford, being of impaired mind, for life, and for the love I bear for my children and grandchildren hereinafter named, and other good considerations thereto moving, and also for and in consideration of the sum of one dollar to me in hand paid, the receipt of which I do hereby acknowledge, I, Eusebia N. Buford, widow, of the county of Lafayette and state of Missouri, have this day granted, bargained, and sold and do hereby grant, bargain, and sell unto Elisha M. Edwards, of said county of Lafayette and state of Missouri, as trustee for the purposes hereinafter mentioned, the following described real estate and property, formerly belonging to my said son, William M. Buford, being situate and lying in said county of Lafayette in the state of Missouri, to wit: The west half of the northwest quarter of section numbered one (1) and east half of the northeast quarter of section numbered two (2), both in township numbered fifty (50), and range numbered twenty-five (25); also the northwest quarter of the southwest quarter of section numbered twenty-four (24), in township numbered fifty-one (51), and range numbered twenty-five (25).

"The said Elisha M. Edwards, as trustee, to take and receive the rents, issues, and profits of said lands and premises, and, out of the same, to pay, first, the taxes that may be assessed thereon, the necessary and proper cost and expense of keeping the said premises and the buildings, fences, and other improvements thereon in good and proper repair, the costs of keeping the buildings on said property properly insured against loss by fire, storm, and other casualty, and the necessary costs and expenses of the trusteeship herein provided for, and the balance shall be, by the said trustee, kept, appropriated, and used for the proper and comfortable support, maintenance, care, clothing, and keeping of my beloved son, William M. Buford, the payment of his medical bills and his custody, if necessary, in an asylum for the insane, and for all other proper and necessary expenditure to keep my said son in comfort for and during the term of his natural life. At the death of my son, if I, the said Eusebia N. Buford, be then living, then the said trustee shall use and appropriate the net rents, issues, and profits of said land for my use, and shall pay over the same to me, for my individual use, on my death, should I survive the said William M. Buford, and, on his death, should he survive me, the said trust herein provided for shall terminate, and the title to the 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, 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 Florence I. Banks, and their heirs, share and share alike, in fee simple forever. Any funds on hand with said trustee, on the termination of this trust, is to be paid over and disposed of in the same way as is provided for the disposition of the land, except that the share of the said Ryland grandchildren therein shall be paid to them absolutely.

"To have and to hold the said real estate hereby conveyed, and all the rights, privileges, and appurtenances thereto belonging, unto the said Elisha M. Edwards, as trustee, as aforesaid, for the purposes of this trust for and during the natural life of me, the said Eusebia N. Buford, and the natural life of the said William M. Buford, as hereinbefore provided, and to my said children and grandchildren, as hereinbefore provided, and to those who take the shares and remainder in fee, and their heirs and assigns forever. The said Eusebia N. Buford hereby covenanting to and with said trustee, and said other parties, and their heirs and assigns, for myself, my heirs, executors, and administrators, to forever warrant and defend the title thereto against the lawful claims and demands of all persons whomsoever, except as against the taxes thereon for the year 1891, which said trustee is to pay out of said rents and profits.

"In testimony of all which I hereto subscribe my name and affix my seal this 27th day of May, A. D. 1891."

While William M. Buford was yet alive, Legrand G. Buford died, to wit, in October, 1909, leaving two children by his first wife, dead, and a widow, the plaintiff Lida M., and a will. The two children are the plaintiff Florence D. Eckle and the defendant Coleman G. Buford. As the two Eckles, husband and wife, and the widow, Lida M., claim under the due probate of the will of Legrand G. Buford, to the exclusion of the son, Coleman G., we let the will also speak for itself, thus:

"I, L. G. Buford, of Eldorado Springs, in the county of Cedar and state of Missouri, being of sound mind and memory, and...