Gannon v. Pauk

• Decision Date: 17 March 1904
• Citation: 83 S.W. 453,183 Mo. 265
• Court: Missouri Supreme Court
• Parties: GANNON et al. v. PAUK et al.<SMALL><SUP>*</SUP></SMALL>

83 S.W. 453

183 Mo. 265

GANNON et al. v. PAUK et al.^*

Supreme Court of Missouri, Division No. 1.

March 17, 1904.

WILLS — CONSTRUCTION — ESTATE TAIL — STATUTES — LIFE ESTATE WITH REMAINDER IN FEE.

1. Sess. Acts 1815-16, p. 32, abolished estates tail, and Rev. St. 1825, p. 216, and Rev. St. 1899, § 4592, provide that in cases where by the common law or the statute law of England any person might become seised in fee tail of any lands, etc., he shall have only a life estate, and the remainder in fee simple shall pass to the person next in line; and Rev. St. 1899, § 4593, provides that where a remainder in lands shall be limited to take effect on the death of any person without heirs or without issue, or on failure of issue, the word "heirs" or "issue" shall be construed to mean heirs or issue living at the death of the person named as ancestor. Testator devised lands to his two sons, and to their heirs and assigns forever, and provided that the same should not be sold before the younger of the two should become of lawful age, and that, should either of them die without issue, the survivor, his heirs and assigns, should take the part bequeathed to the son so dying, and that, in the event both should die without issue, then testator's surviving heirs should take. Held that, by the use of the word "heirs" in connection with the word "issue," testator created what would have been at common law or by the statute de donis an estate tail, or, Rev. St. 1899, § 4593, not being applicable to an executory devise, even if the estate was a fee simple in the first instance, it was cut down to a fee tail by the clause declaring that in case of the death of both sons without leaving issue the estate was to revert to the heirs of testator — the failure of issue referred to being an indefinite failure of issue — and hence, under section 4592, the two sons took a life estate, with remainder in fee to their children.

Appeal from Circuit Court, St. Louis County; J. W. McElhinney, Judge.

Suit by Ed. Gannon and another against Gustave Pauk and others. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

Henry T. Kent and Jas. W. Williams, for appellants. T. K. Skinker and Chas. C. Collins, for respondents.

VALLIANT, J.

This is a suit in ejectment. Michael J. Gannon, the common source of title, died in 1870, leaving a will devising the land in question to his two sons, Michael and Joseph, in the following words: "Fourth. I give, devise and bequeath 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 eighty (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." It is stipulated that whatever title Michael J. Gannon, Jr., and Joseph E. Gannon took under the will, was conveyed by them, and has passed by mesne conveyances to the defendant Gustave Pauk. Michael J., Jr., died in 1887, leaving children living at the time of his death, and Joseph E. died in 1893, also leaving children living at the time of his death. These children of Michael J., Jr., and Joseph E. are the plaintiffs in this suit.

The decision in the case will turn on the construction to be given to the clause in the will above quoted. The plaintiffs contend that the estate devised was what by the common law would be an estate tail, which, under our statute, is reduced to an estate for life in the first taker, with the remainder in fee to the next in line. The defendants contend that the estate devised to the two sons of the testator was a fee determinable as to each upon his dying without issue living at the time of his death, and, as both died leaving issue, after having conveyed the land, the contingency on which the fee was to determine never occurred, and the estate became absolute. The trial court took the defendants' view of the case, and entered judgment accordingly, from which judgment the plaintiffs appeal.

If the first sentence of this clause was all there was of it, there could be no question about it. In language more expressive of a purpose to give an absolute fee than necessary, the testator makes the devise in the first sentence, and concludes it with a period. Whether by the use of the words "and unto their heirs and assigns forever" the testator intended to emphasize a purpose to give an absolute fee is a question that we can answer only after reading the whole clause, perhaps the whole will. The mere use of such words unnecessarily does not always indicate such a purpose. In fact, it not unfrequently suggests a lack of knowledge of words necessary to express a given purpose. It often evinces a lack of confidence of the writer in the force of the words previously used, and for that reason casts a doubt on their meaning. One who knows his own purpose and knows how to express it is less liable to multiply his words than one less informed. The consequence is that when we see words unskillfully used, especially technical words, we are less certain of the meaning intended than we would be if the words were used with skill. That is the reason that we are required, when we come to construe a will, to give less force to the forms of expression than we do in construing some other instruments, and to gather, if we can, in spite of the sometimes inappropriate use of technical words, the real purpose of the testator. The words "I give, devise and bequeath unto my two sons, Michael J. Gannon, Jr., and Joseph E. Gannon, * * * my farm lying and being in the county of St. Louis," etc., were sufficient, if left alone, to carry a fee simple to the devisees. If that was the design of the testator, then the addition of the words "and unto their heirs and assigns forever" really gives no force to the preceding sentence, and only suggests that the testator was not sure as to the meaning of the words already used, or even of the words unnecessarily added. Those words in this will are just as apt to an estate tail, if that was the intention, as they are to an estate in fee, if that was the intention. The word "heirs," expressed or implied, is as essential to the creation of an estate tail as of an estate in fee simple; the only difference being that in the one particular heirs must be indicated, while in the other general heirs is meant. Did the testator intend to give his sons an absolute fee, or a fee determinable upon the death of both without issue, or did he intend to create a fee tail?

It is not contended by the respondents that the testator intended to give an absolute fee, but the argument is that having granted an estate in fee, and conferred with it the power of absolute disposal of the property, an absolute estate was thereby created, and the attempted limitation over was void. The legal principle announced in that proposition is correct, and the authorities cited by the learned counsel sustain it. "If, therefore, there be an absolute power of disposition given by the will to the first taker (as if an estate be devised to A. in fee, and if he dies possessed of the property without lawful issue, the remainder over, or remainder over the property which he, dying without heirs, should leave, or without selling or devising the same), in all such cases the remainder over is void as a remainder, because of the preceding fee; and it is void by way of executory devise because the limitation is inconsistent with the absolute power of disposition expressly given or necessarily implied by the will." 4 Kent, Com. (14th Ed.) p. 270; 2 Washb. R. P. (6th Ed.) 667; Yocum v. Siler, 160 Mo. 281, 61 S. W. 208; Roth v. Rauschenbusch, 173 Mo. 582, 73 S. W. 664, 61 L. R. A. 455.

To apply that doctrine to this will, however, we would have to assume, first, that the estate devised to the first takers was an estate in fee simple, which is one of the main points in dispute; and, second, that the language of the will expressly or by necessary implication confers an absolute power of disposal of the property on the two sons. Passing for the present over the first point, let us see if the power of disposition is expressly or by implication conferred.

Taking the text just quoted, wherein the rule is correctly stated, we see that the power of disposition referred to is not that which might be implied as an attribute of the estate granted, but, in order to have the effect of cutting off the executory devise, it is a power given by the will in addition to the estate. A power of disposition is implied in every grant of a fee simple, yet the power so implied will not render void an otherwise valid executory devise, but when the fee is granted, and, besides that, the power of disposition is added, then there can be no limitation over. There is no such added power in this will. The most that can be claimed for the language used in reference to that point is that it indicates that the testator understood that the power to sell was incident to the estate already granted, and he aimed to restrict that power. The language is: "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." There is therefore no such power of disposition given in addition to the estate given as would render void an attempted executory devise. If it is a determinable estate by the words of its own creation, it has not been made absolute by...