Foote v. Sanders

• Decision Date: 31 October 1880
• Citation: 72 Mo. 616
• Parties: FOOTE v. SANDERS et al., Appellants.
• Court: Missouri Supreme Court

72 Mo. 616

FOOTE

v.SANDERS et al., Appellants.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

AFFIRMED.

Heren, Vories, Vineyard & Woodson for appellants.

1. The testator charged his wife with the payment of his debts and committed to her care and charge the rearing, as she thought proper, of their six infant children. It is not reasonable to conclude that he would impose these important charges upon her without providing any fund or means except a life estate in his property. The imposition of these charges raises a power to sell. Jackson v. Martin, 18 John. 30; Jackson v. Bull, 10 John. 148; 2 Wend. 14; Jackson v. Merrill, 6 John. 185 ; Schermerhorne v. Schermerhorne. 6 John. Ch. 70.

2. The devise is not to the wife for her use during her life or widowhood, and then to his children, but to her during her natural life or widowhood, “and then what remains” to his children. These words clearly imply a power to dispose absolutely. Turner v. Timberlake, 53 Mo. 371; Hazel v. Hagan, 47 Mo. 277; Ramsdell v. Ramsdell, 21 Me. 288; Harris v. Knapp, 21 Pick. 413.

3. Mrs. Hunt's deed carried the fee. Ricard v. Williams, 7 Wheat. 59; Blagge v. Miles, 1 Story, 427; Conklin v. Egerton, 21 Wend. 430; Newton v. Bronson, 13 N. Y. 593; Owen v. Ellis, 64 Mo. 77; Campbell v. Johnson, 65 Mo. 439.

4. The deed was intended by the grantor to convey the title in fee, and was so understood by the grantee. The grantee paid in good faith the full market value of the land at the time of purchase. That the plaintiffs have received the benefit of the purchase money, is not even questioned, and is manifest from the proof. Having enjoyed the fruit of the conveyance for thirty years, they should be compelled to do justice by making a good title to the land, if defendants have not already such title. Newton v. Bronson, 13 N. Y. 591; Olney v. Eaton, 66 Mo. 563.

Willard P. Hall for respondents.

HENRY, J.

This suit was instituted to quiet title to to certain real estate in Andrew county, Missouri. The plaintiffs are children and heirs of one James C. Hunt deceased, and the defendants claim the land under a conveyance made by Diana A. Hunt, his widow, to one Abbott.

The controversy arises on the construction of the will of said James C. Hunt, who died in the state of North Carolina, seized of the land in this State, which is in litigation in this suit The will was as follows:

In the name of God, amen. I, James C. Hunt, being weak in body, but of sound mind, do make this my last will and testament:

Item 1st. I will that all my just debts be paid, of which there are but few.

Item 2nd. I give and bequeath unto my beloved wife, Diana A. Hunt, all my estate, both real and personal, during her natural life or widowhood, and what then remains to be equally divided among my children, viz: Leonidas Hunt, Cynisca Hunt, George Bowen Hunt, James Martin Hunt, Elvira Bryan Hunt, and Susan Clemens Hunt.

Item 3rd. I will that my wife raise my children as she thinks proper.

Item 4th. I will that my wife, Diana A. Hunt, be my executrix of this my last will and testament, this 28th day of June, 1847.

1. WILL: personal charge on devisee for life: devise of “what remains” after life estate.

The appellants contend first, that, by the will, Diana A. Hunt took a fee simple estate in the land, or second, if not at least a life estate with power to dispose of it in fee simple.

In support of the first proposition, they rely upon the doctrine that when the will imposes a charge, or trust on the person of the devisee, it creates a fee.

That doctrine has no application when a life estate is expressly devised, but only where an estate is given without words of limitation.

Chancellor Kent in Jackson v. Bull, 10 John. 151, states the doctrine thus: “Where the charge is upon the estate, and there are no words of limitation, the devisee takes only an estate for life; but where the charge is on the person of the devisee, in respect of the estate in his hands, he takes a fee, on the principle that he might otherwise be a loser.” This distinction will be found in all the cases on the subject. It was announced by Lord Mansfield in Frogmorton v. Holyday, 3 Burrows 1624, in which he said that “the devisee without words of limitation, can take an estate for life only,” but if a personal charge be made upon him, “let the sum charged upon the devisee be ever so small, it shall give a fee.” But in this case, there was no personal charge upon Diana A. Hunt. The first item of the will does not charge her personally with the payment of his debts, or any part of them; and the third item, so far from imposing a personal pecuniary charge upon her, leaves it to her to raise the children as she thinks proper. That is certainly too indefinite to create a personal charge upon the devise

There is more plausibility in the second position, that she took under the will a life estate with power to sell and convey.

There are adjudications in Maine and Massachusetts, and elsewhere, which favor the doctrine contended for by appellants: Ramsdell v. Ramsdell, 21 Me. 288; Scott v. Perkins, 28 Me. 22; Shaw v. Hussey, 41 Me. 495; Harris v. Knapp, 21 Pick. 413; Paine v. Barnes, 100 Mass. 470. They hold that from the words “whatever shall remain,” the implication is inevitable, that the first taker had a power to make such disposition.

On the other hand, in Smith v. Bell, 6 Peters 74, a gift to a wife of all the testator's personal estate, with an absolute power of disposal expressly given, with a proviso, that the remainder, after her decease, should go to his son, was held by the Supreme Court of the United States to be inoperative as to the power of sale, that the wife took a life estate only, and the son a vested remainder. C. J. Marshall delivered the opinion of the court, and used this language: “These words give the remainder of the estate, after his wife's decease, to the son, with as much clearness as the preceding words give the whole estate to the wife.” “The limitation in remainder shows that in the opinion of the testator, the previous words had given only an estate for life.”

The position of the court in that case was that the words “the remainder after her decease” qualified and limited the estate personally given, while here it is contended that they enlarge an express life estate into an absolute fee simple estate, or, at least, give an absolute power of sale. Smith v. Bell was followed by the Supreme Court of the United States in the recent case of Brant v. Va. Coal & Iron Co., 93 U. S. 332. But without committing ourselves to the extreme doctrine announced in those cases; (in fact the contrary has been held by this court in Owen v. Ellis, 64 Mo. 77; Campbell v. Johnson, 65 Mo. 439, and Owen v. Switzer, 50 Mo. 322,) we think they meet and answer the extreme views urged here, which find support in the adjudications of the highly respectable courts of Maine and Massachusetts.

It is a question of intention, and the intention of the testator, to be ascertained by taking and construing all parts of the will together, controls in...