Emmerson v. Hughes

• Decision Date: 20 June 1892
• Citation: 19 S.W. 979,110 Mo. 627
• Parties: Emmerson, by Curator, v. Hughes et al., Appellants
• Court: Missouri Supreme Court

19 S.W. 979

110 Mo. 627

Emmerson, by Curator, v. Hughes et al., Appellants

Supreme Court of Missouri, First Division

June 20, 1892

Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

Thomas Shackleford, W. R. Gist and Draffin & Williams for appellants.

(1) Under the deed conveying the land to "Mary R. Godman for and during her natural life, and with remainder to the heirs of her body," her children living at the date of the deed took a vested remainder, and the conveyance executed by the said Mary R. Godman and her children passed the title in fee to the parties through whom defendants claim. Chiles v. Bartleson, 21 Mo. 344; Phillips v. La Forge, 89 Mo. 72; Jones v. Waters, 17 Mo. 587; Rodney v. Landau, 104 Mo. 587; Waddell v Waddell, 99 Mo. 338; 2 Leading Cases in American Law of Real Property, 273; Lehndorf v. Cope, 13 N.E. 505; 1 Greenleaf's Cruise on Real Property, p. 227; Farrar v. Christy, 24 Mo. 453; Harbison v. Swan, 58 Mo. 147; McDaniel v. Allen, 64 Miss. 417. (2) The law favors vested estates, and no remainder will be construed to be contingent, which may, consistently with the intention be deemed vested. Jones v. Waters, 17 Mo. 587; Chew v. Keller, 100 Mo. 362. (3) The statutes -- now section 8838 and section 8911 of the revision of 1889 -- were enacted for the same purpose, that of abolishing the rule in Shelley's case. The former was enacted in 1845 to abolish the said rule in reference to deeds, and the latter in 1825 for the same purpose in reference to wills. Riggins v. McClellan, 28 Mo. 23, 29. The section in reference to wills declares that such a devise shall vest an estate for life only in such devisee, and remainder in fee simple in such children. The two sections being intended to accomplish the same result, if the language under consideration in a devise would, under the statute in reference to wills, be construed to create a vested remainder in the children of the life-tenant, the statute in reference to deeds ought not to be held to give a different effect to the same language.

Samuel Boyd for respondent.

(1) The deed from O'Bannon to Mary R. Godman did not vest any interest whatever in Mrs. Emmerson. While she was an heir apparent, she having died before her mother -- the life-tenant -- could not be one of the "heirs of the body of her mother, Mary R. Godman. There is nothing in the language of the deed which indicates that the words, "heirs of her body," were used in any other than their ordinary legal signification -- lineal descendants in succession. (2) The rule in Shelley's case is not in force in this state, and the deed from O'Bannon created a contingent remainder. Person v. Newman, 62 Mo. 199; Aubuchon v. Bender, 44 Mo. 566; Emison v. Whittlesey, 55 Mo. 255; Delassus v. Gatewood, 71 Mo. 371; Richardson v. Wheatland, 7 Met. 169; 2 Leading Cases on American Law of Real Property, 321; Tiedeman on Real Property, 345, and note; R. S. 1889, sec. 8838.

Black J. Barclay, J., absent.

OPINION

Black, J.

This is an action of ejectment to recover the undivided one-fifth of about two hundred acres of land. The suit was brought against Charles H. Hughes, who was the tenant of H. C. Simmons. Simmons appeared and was made a defendant upon his own motion. The cause was tried upon agreed facts, from which it appears that Elizabeth O'Bannon and her husband, by their deed, dated the twenty-sixth of October, 1868, conveyed the land to "Mary R. Godman for and during her natural life, and with remainder to the heirs of her body," habendum "to have and to hold the premises hereby conveyed unto the said Mary R. Godman during her natural life, then to the heirs of her body and assigns forever."

At the date of this deed, Mary R. Godman had six children living. It is agreed that she had then reached such an age as to render future issue impossible. She, her husband and the six children executed and delivered deeds conveying all their interest in the land, and the defendant Simmons claims title under these deeds. After the execution and delivery of these deeds by Mary R. Godman, her husband and the six children, one of the children died without issue, and another one, a daughter, married Henry S. Emmerson. Mrs. Emmerson died in February, 1880, leaving the plaintiff as her only child, and Mary R. Godman died in 1888, leaving two sons and two daughters and the plaintiff, her grandson, as her only heirs-at-law.

The case turns upon the construction of the deed to Mary R. Godman. If the plaintiff's mother took a vested remainder by that deed, then he cannot recover, for in that event his mother's deed conveyed that interest; but if she took a contingent remainder only then he is entitled to recover.

The cases of Chiles v. Bartleson, 21 Mo. 344, and Phillips v. La Forge, 89 Mo. 72, 1 S.W. 220, to which we are cited, show that a devise or conveyance of land to one and the heirs of his body creates an estate in fee tail at common law, and that the statute converts that estate into a life-estate in the first taker, remainder in fee simple to the persons to whom the estate tail would go on the death of the first grantee. The section of the statute to which reference is here made is section 5, chapter 32 Revised Statutes, 1845, enlarged and extended by section 4, page 442, General Statutes, 1865, and now section 8836, Revised Statutes, 1889. But...