Gannon v. Albright

• Citation: 183 Mo. 238,81 S.W. 1162
• Parties: GANNON et al. v. ALBRIGHT.
• Decision Date: 07 June 1904
• Court: Missouri Supreme Court

81 S.W. 1162

183 Mo. 238

GANNON et al. v. ALBRIGHT.

Supreme Court of Missouri.

June 7, 1904.

WILLS — CONSTRUCTION — "DYING WITHOUT ISSUE" — ESTATES TAIL.

1. Though, by statute, the word "heirs" is no longer necessary to the creation of a fee, its use in a devise to testator's sons and their heirs does not indicate a purpose not to grant a fee.

2. A will gave land to testator's two sons, their heirs and assigns, forever, and stated it to be testator's will that the land should not be sold until the younger of the sons should become of age, and that, if either of them should die without issue, the testator's surviving heirs should take the property. Fee tails were abolished by statute in 1816, and Rev. St. 1899, §§ 4592, 4593, declare that, where by common law any person might become seised in fee tail, such person shall have only a life estate, and that the words "dying without issue" should be construed to mean dying without issue living at the death of the person." Held, that the sons took a fee; the word "heirs" not being used as "heirs of the body," and the statute, despite the abolition of estates tail, requiring that the words "dying without issue" be not construed as creating an estate tail.

Brace, Marshall, and Valliant, JJ., dissenting.

In Banc. Appeal from Circuit Court, St. Louis County.

Action by Edward Gannon and others against William Albright. From a judgment for plaintiff, defendant appeals. Affirmed.

T. K. Skinker, for appellant. Henry T. Kent, for respondent.

GANTT, J.

This is an action of ejectment. Michael J. Gannon is the common source of title to the lot in suit. Upon the construction of the fourth clause of the will of Michael J. Gannon the rights of both sides to this controversy depend. The said clause is in these words: "Fourth. I give, devise and bequeathe unto my two sons, Michael J. Gannon, Jr., and Joseph E. Gannon and unto their heirs and assigns forever, my farm lying and being in the County of St. Louis and State of Missouri which lies in the southern limits of Kirkwood, containing 80 acres be the same more or less. It is my will that the same shall not be sold, at least not before the younger of the two, that is Joseph E. Gannon becomes of lawful age; and should either of them die without issue, then the survivor, his heirs and assigns to take, own and have the part and portion hereby bequeathed to the one so dying. And in the event both should die without leaving any issue, then it is my will that my surviving heirs (with the exception of my son, John T. Gannon who has had his share) shall have such property like and like." Following the cardinal rule of construction, it is our duty to ascertain, if possible, the intention of the testator, and in so doing mere technical rules must yield to the obvious intent and purpose of the testator. Among the more important canons of construction that have uniformly found favor in this court is the rule that, when the words of a will at the outset clearly indicate a disposition by the testator to give the entire estate absolutely to the first donee or devisee, the estate will not be cut down to a less estate by subsequent or ambiguous words inferential in their intent. Small v. Field, 102 Mo. 104, 14 S. W. 815. There are some propositions in the construction of this will that are, or ought to be, free of doubt. First, by the words, "I give, devise, and bequeathe to my two sons, Michael J. Gannon Jr., and Joseph E. Gannon and unto their heirs and assigns forever, my farm," etc. In the absence of qualifying words or subsequent limitation, a fee simple absolute was given to these two sons to the tract in question. This is so by the most rigid technical rules of the common law, and everywhere recognized by the English and American courts, and, unembarrassed by technical rules and refinements, the ordinary man would unhesitatingly say that this was the plain meaning of the testator. On this proposition we are all agreed, and, indeed, it is not seriously controverted by counsel. It is true that it is urged that these words, "and unto his heirs and assigns forever," were not necessary, since our statute has dispensed with the use of the word "heirs" in conveying or devising an estate of inheritance, and it is argued that by the use of these unnecessary words the testator evinces a lack of confidence in the force of the words previously used, and for that reason casts a doubt on their meaning. We are unable to concur in such a view. While it is true that our statute no longer requires the word "heirs" to pass a fee simple, the use of these words in no manner casts any doubt upon the intention of a grantor or devisor who uses them to grant or devise a fee simple. It is doubtful whether any competent or skillful conveyancer ever dispenses with them in conveying a fee. Why should the use of words so long approved, and so absolutely necessary at common law to effectuate such a purpose, indicate a different purpose merely because the statute permits other and less words to have the same effect. Notwithstanding our statute has dispensed with the word "heirs" in devising a fee, this court has often commended its use. In Chew v. Keller, 100 Mo., loc. cit. 370, 13 S. W. 395, Judge Black, speaking for this court, held that the words "to them and their heirs forever" created a fee simple; saying: "Stronger language could not have been used to show and disclose a purpose and intent to confer upon Levin Baker and the other named persons an absolute and unconditional fee. The estate is given `to them and their heirs forever.' This expression, though unnecessary to create a fee, is an appropriate one for that purpose, and that the word `heirs' is here used in its ordinary legal sense as one of limitation only cannot be doubted." When, in addition to the words, "unto them and their heirs forever," the testator adds the significant words "and assigns," it seems to us that, instead of suggesting a doubt of his intention, no more suitable language could have been chosen by Michael Gannon to give his said sons an absolute fee simple, and they emphasize his intention to give them his whole estate in said tract. Wolfer v. Hemmer, 144 Ill. 554, 33 N. E. 751. Neither does the use of the word "bequeathe" in any manner weaken the force of the other words. "Bequeath" has been judicially construed by many of the ablest courts of their country to be synonymous with "devise" when used with reference to a gift of real estate. Dow v. Dow, 36 Me. 211; Laing v. Barbour, 119 Mass. 523, and cases cited. In this court it has been so held. Shumate v. Bailey, 110 Mo. 411, 20 S. W. 178; Yocum v. Siler, 160 Mo. 281, 61 S. W. 208. In Greendow v. Verdon, 1 Cases in Chancery, 74, before Sir W. P. Wood, Vice Chancellor, the gift was to his son, John Verdon, and to his heirs and assigns, forever, and from and after the death of John without issue, then over to the surviving legatees. The Vice Chancellor said: "There are several points about this will which do not admit of question. First, there is clearly an estate in fee simple limited to John Verdon, for the limitation is not merely to him and his heirs, but to his heirs and assigns, forever. The first limitation here being not only to the son `and his heirs,' which has often been restrained to a particular line of heirs, but the limitation is in the largest words, `to him, his heirs and assigns, forever.' I could not rely upon those words alone, but, as they are used, and I have to consider whether or not the estate so limited is cut down to an estate tail, I have to construe the effect of those words upon the subsequent gift on the death of John Verdon without issue." After reviewing many English cases, the Vice Chancellor summed up as follows: "The answer to this special case must be that under the will of John Verdon, John Verdon, the son, took an estate in fee simple, subject to be defeated by an executory devise in the event of his dying without issue living at the death of the last surviving legatee, and, there being issue living at that period, the estate in fee became absolute." These views sufficiently indicate our opinion that the first sentence of the fourth clause of the will clearly and in unambiguous language devised a fee in this tract to the two sons. So that we must reject the argument that a fee simple was not created by these words.

But it is argued with great earnestness by counsel that, while these words standing alone might be sufficient to create a fee simple, yet, when considered in connection with the subsequent words of the will, they in fact create a fee tail. Let us consider, then, the words "unto them and their heirs and assigns forever" with the subsequent clauses of this fourth item of the will. Did the testator intend to give his said two sons an absolute fee or a fee defeasible upon the death of both without issue, or did he intend to create an estate tail? Two views are maintained by defendant. The first is that by the gift of an absolute fee in most appropriate language in the first instance, and understanding and intending thereby that they had the absolute power of aliening the land thus devised to them, when he added the clause, "it is my will that the same shall not be sold, at least not before the younger of the two, Joseph E. Gannon, becomes of age," he gave and intended to give an additional power to sell when Joseph reached his majority. Keeping in mind, as we do, that he had already granted an estate to them, to which the power of sale attached as a necessary incident, and that he understood that he had done so, and that it was therefore his intention to do so, the clause restraining the sale until Joseph arrived at age must be construed and read as if he had said, "I give my said sons full power to sell and convey said land when Joseph, the younger of the two, becomes of lawful age." To our minds it seems absolutely clear that he understood he had already granted them a fee...