Gannon v. Pauk

• Decision Date: 18 December 1906
• Citation: 98 S.W. 471,200 Mo. 75
• Parties: GANNON et al. v. PAUK et al., Appellants
• Court: Missouri Supreme Court

98 S.W. 471

200 Mo. 75

GANNON et al. v. PAUK et al., Appellants

Supreme Court of Missouri

December 18, 1906

Appeal from St. Louis County Circuit Court. -- Hon. John W McElhinney, Judge.

Reversed and remanded (with directions).

T. K Skinker and Charles Cummings Collins for appellants.

(1) The construction put upon the Gannon will by the court in Banc should have been accepted by the trial court, and should not be accepted as controlling and the judgment in this case should be reversed so as to conform to that construction. (a) By the trial court: Bank v. Dakin, 8 Hun 431; 1 N Y. Rev. Stat. 1875, p. 93, sec. 4; p. 98, sec. 28; Constitution N. Y., art. 6; preface to 44 N. Y. Reports; Bigelow v. Tilden, 52 A.D. 390. (b) By Division No. 1 of this court: R. S. 1899, p. 94, secs. 1, 4; R. S. U.S. sec. 709; Ex parte Conrades, 185 Mo. 411; Schafer v. Railroad, 144 Mo. 170; Wilden v. McAllister, 178 Mo. 732; Rodgers v. Fire Ins. Co., 186 Mo. 248. (2) The will conferred upon the two sons, Michael, Jr., and Joseph, a fee simple, coupled with an absolute power of alienation. For this reason the devise over, under which the plaintiffs claim, is void. Or, at the least, it conferred upon the two sons a fee simple, determinable, as to each, upon his dying without issue living at the time of his death; and as they both died, leaving issue, after having conveyed the land, their issue, the plaintiffs, have no interest in the land and cannot recover. Gannon v. Albright, 183 Mo. 238; Yocum v. Siler, 160 Mo. 281; Yocum v. Parker, 67 U.S.C. C. A. 227; Yocum v. Parker, 130 F. 722; Prosser v. Hardesty, 101 Mo. 593; Chew v. Keller, 100 Mo. 370; Roth v. Rauschenbusch, 173 Mo. 592; Naylor v. Godman, 109 Mo. 550; Farrar v. Christy, 24 Mo. 453; Harbison v. Swan, 58 Mo. 147; U. S. v. More, 3 Cranch 172; Cross v. Burke, 146 U.S. 82; Adams v. Railroad, 77 Miss. 278; 2 Underhill on Wills, sec. 650; Fearne on Remainders, p. 159; 4 Kent Com., p. 274; 2 Blackstone Com., p. 173; Sherman v. Sherman, 3 Barb. 383; Mulreed v. Clark, 110 Mich. 229; McRee v. Means, 34 Ala. 377; Miller v. Macomb, 26 Wend. 229; Ferris v. Gibson, 4 Edw. Ch. 707; Faust v. Birner, 30 Mo. 417.

Henry T. Kent and James W. Williams for respondents.

(1) Joseph E. Gannon and Michael J. Gannon, Jr., the devisees under the will of Michael Gannon, Sr., of the property sued for under the fourth clause of the will, took what at common law would have been an estate tail and by the Revised Statutes of Missouri (section 4592) the estate tail so created became a life estate in Joseph and Michael with remainder in fee to their children, the plaintiffs. R. S. 1899, secs. 4592, 4593, 4594; Ellis v. Ellis, 9 East 383; Notingham v. Jennings, 1 Pr. Williams 13; Biss v. Smith, 2 H. & N. 105; 6 Ency. Laws of England, p. 166; Morgan v. Morgan, 39 L. Chy. 483; 6 New English Case Law Dig., p. 234; 1 Washburn on Real Property (4 Ed.), p. 104; 29 Am. and Eng. Ency. Law 434; Allen v. Trustees, 102 Mass. 264; Gifford v. Choate, 100 Mass. 344; Parker v. Parker, 5 Metcalf 134; Nightingale v. Burrill, 15 Pick. 104; Farrar v. Christy, 24 Mo. 468; Harbison v. Swan, 58 Mo. 147; Thompson v. Craig, 64 Mo. 312; Emerson v. Hughes, 110 Mo. 627; Goodman v. Simmons, 113 Mo. 122; Bone v. Tyrell, 113 Mo. 175; Wood v. Kice, 103 Mo. 329; Reed v. Lane, 122 Mo. 314; Frame v. Humphreys, 164 Mo. 336. (2) Where the word "heirs" by express words or natural intendment means "heirs of the body" or issue, and this is the natural construction of the will in a devise "to A. and his heirs," such a devise must be read as if to "A. and the heirs of his body" or "his issue," and an estate tail is thereby created. Preston on Estate, 473, et seq., and 528; Waddell v. Waddell, 99 Mo. 345. (3) If the act of 1845 is to be read into section 4592, Revised Statutes 1899, so as to make the words "dying without issue" mean issue living at the death of the ancestor -- then the "issue" is equivalent to "children" and the words "issue" or "children" are synonymous with the word "heirs" in the first clause, so the devise would be "to Michael and Joseph E. Gannon and their children," which would create life estates in Michael and Joseph with remainder in fee to the children. Cross v. Hoch, 149 Mo. 330. (4) The construction of the will in the opinion in Gannon v. Albright is inconsistent and irreconcilable with the plain language and intent of the will.

LAMM, J. Burgess and Fox, JJ., concur; Gantt, J., concurs, in second paragraph and expresses no opinion on the first; Brace, C. J., and Valliant, J., dissent; Graves, J., not having been on the bench when the case was submitted, takes no part.

OPINION

In Banc

LAMM J.

-- This is a suit in ejectment, brought by certain grandchildren of Michael J. Gannon, deceased, to recover possession of certain lots in Zephyr Heights Addition to the town of Kirkwood, in St. Louis county, Missouri, fronting on Webster avenue, College avenue, Clay avenue and Idlewild place, and certain lots in Buena Vista Heights, fronting on Midway avenue -- all said lots being part of the east half of the northwest quarter of section 12, township 44, range 5, and which said latter tract is the same land described in the fourth clause of the will of Michael J. Gannon, Sr., presently to be considered.

The answer admitted possession, denied all other allegations in the petition and furthermore specifically pleaded in bar a title by adverse possession.

At the trial the court held the Statute of Limitations ran against one plaintiff, Fannie Zoehringer, and as to her interest (an undivided one-sixth) the judgment was for defendants. The facts upon which the judgment against Mrs. Zoehringer was based are unquestioned and that judgment remains unchallenged.

As to the remaining five-sixths interest in the land, the court felt itself in bonds, that is, constrained by the mandate of Division One sent down in Gannon et al. v. Pauk et al., 183 Mo. 265, 83 S.W. 453, and accordingly rendered judgment in favor of plaintiffs. From that judgment, defendants appeal.

Ouster is laid as of October 15, 1900. Michael J. Gannon, Sr., is the common source of title. He died in 1870, testate, a resident of Belleville, St. Clair county, Illinois, seized of a large estate in Illinois and Missouri and leaving a widow and numerous children. The will bears date December 23, 1869, and contains nine clauses -- all of them complicated. The fourth and eighth clauses alone concern us, and read as follows:

"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 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. . . .

"Eighth. It is my will that none of my real estate herein devised be sold until the youngest in each bequest and devise respectively becomes of lawful age, and that until such time or times my executrix in such capacity shall lease the same to the best advantage and collect the rents and income therefrom and out of the proceeds shall first pay all taxes and assessments lawfully made on said real estate; and, secondly, pay to those heirs which are of lawful age their share proportionately of the rent due them under this will on said real estate; thirdly, keep and maintain my minor heirs and children, clothe and feed them. And I enjoin upon her, my executrix, to see that my minor children receive a good English education."

One group of plaintiffs are the children of the devisee, Michael J. Gannon, Jr., mentioned in the aforesaid fourth clause. Another group of plaintiffs are the children of Joseph E. Gannon, mentioned in the same clause.

The case was tried on an agreed statement of facts, and thereby it stood admitted that, as between the parties, the defendant Pauk and those under whom he claimed had been in open notorious, exclusive and adverse possession of the premises for a period of ten years continuously next before the filing of the suit. The further stipulation was entered into and produced at the trial, viz.: "It is agreed and stipulated that whatever title to property sued for was vested in Michael J. Gannon, Jr., and Joseph E. Gannon by virtue of the will of Michael J. Gannon, Sr., has been conveyed by mesne conveyances to the defendant Gustav Pauk. It is agreed that Michael J. Gannon, Jr., died on or about the 15th day of May, 1887, leaving as his only children and heirs at law Fannie Gannon now intermarried with Gustavus Zoehringer." (Here follows the names and ages of the other children of Michael J. Gannon, Jr.) "It is further agreed that Joseph E. Gannon died on or about August 15, 1893; that he left as his only children and heirs at law, Eugenia Gannon, who has since intermarried with Gustavus Peterson, and who is now twenty-six years of age." (Here follows the names and ages of the other children of Joseph E. Gannon.) It was further agreed that plaintiffs were the only children of Michael J. Gannon, Jr., deceased, and Joseph E. Gannon, deceased, and that no children born to them had died leaving descendants, and that the plaintiff, the Mississippi Valley Trust Company, was curator of certain minor plaintiff...