Givens v. Ott
| Decision Date | 12 July 1909 |
| Citation | 121 S.W. 23,222 Mo. 395 |
| Parties | MARTHA E. GIVENS et al., Appellants, v. CHRISTIAN OTT, JR |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. C. O. Tichenor, Special Judge.
Affirmed.
John N Southern and Hughes & Whitsett for appellants.
(1) The deed from James Chambers and wife to the Board of Publication of the Cumberland Presbyterian Church of Nashville Tennessee, was inoperative to convey the title of the land in controversy to the grantee therein named for the following reasons: (a) Because the deed was not delivered in the lifetime of the grantor. This fact was found by the trial judge, and is unappealed from, and unexcepted to, and is therefore conclusive as to defendant. Huey v. Huey, 65 Mo. 689; Standiford v. Standiford, 97 Mo. 231; McCune v. Goodville, 102 S.W. 997; Sneathen v Sneathen, 104 Mo. 201; Allen v. DeGroot, 105 Mo. 442; White v. Pollock, 117 Mo. 467; Williams v. Latham, 113 Mo. 165. (b) The deed is limited to take effect in the future. It in express terms provides that it shall not take effect until after the death of the grantor and his wife. This makes it invalid. 3 Washburn on Real Estate, p. 266; 9 Am. and Eng. Ency. Law (2 Ed.), 103; Welsh v. Foster, 12 Mass. 93; Marden v. Chase, 32 Me. 329; Murphy v. Gabbert, 166 Mo. 596; Miller v. Holt, 68 Mo. 584; Sneathen v. Sneathen, 104 Mo. 202; 1 Devlin on Deeds, sec. 309. (c) The grantee was a religious corporation and could not take the title to this land under the Constitution of Missouri. Art. 2, sec. 8, Constitution of Missouri. No general law has been passed prescribing "such real estate as may be held for church edifices, parsonages and cemeteries." Therefore, a religious corporation can hold the title to no property in this State. (2) The only other title the Board of Publication of the Cumberland Presbyterian Church of Nashville, Tennessee, could claim was under the two deeds from Margaret Chambers; one conveying the reversion (after the termination of her life estate) which she never owned or claimed, and which in the very deed she recited already belonged to the Board of Publication; the other a deed to her life estate in consideration of an annuity. It follows that the Board of Publication never had any title to convey to defendant. (3) The deed of Margaret Chambers in February, 1901, was not an execution of the power in the will of James Chambers, and therefore conveyed no title to defendant, beyond a life estate (if it be she still retained that by reason of the incapacity of the Board of Publication to take title), and she was dead before the institution of this suit. It is not an execution of the power under the will. Owen v. Ellis, 64 Mo. 77; Owen v. Sweitzer, 51 Mo. 320; Donaldson v. Allen, 182 Mo. 646; Pease v. Pilot Knob Iron Co., 49 Mo. 124; Littleton v. Addington, 59 Mo. 275. (4) This land did not go to Mrs. Chambers by the residuary clause of the will. (5) There was no equitable conversion of this land to personal property under the will and a reconversion to real estate by the deeds from Mrs. Chambers and the trustees of the Cumberland University to defendant; for the following reasons: 1. Because there was no conversion, until the sale under the power, which never took place. 2. Because there was no act, by both of the beneficiaries, electing to take the land during any time when the power could have been exercised. 3. Because both the beneficiaries, under the power, renounced the benefits, under the power, as evidenced by their deeds, and acts. Mrs. Chambers by her deeds, and the University, declining to accept the terms of the donation, until after the close of the estate, and then by deed disclaiming any interest. 4. Because the power was revoked by the donor of the power, during his life, by his deed, conveying the land to his wife and Board of Publication. The fact that the deed was not delivered does not prevent it from operating as a revocation of the power. 5. Because the acts of Mrs. Chambers and the University show that neither of them contemplated a taking of the land in moieties, in lieu of allowing a sale and dividing the proceeds. (6) The Statute of Limitation can not be applied for the following reasons: 1. The possession of a life tenant is not and cannot be adverse to the remainderman. Rothwell v. Jameson, 147 Mo. 601; Shumate v. Snyder, 140 Mo. 77. 2. The Statute of Limitation cannot apply where the possession is consistent with the title claimed. Howell v. Jump, 140 Mo. 441. 3. Where the land is in the possession of one who purchased the widow's right of dower therein, the Statute of Limitation does not begin to run in his favor or against the owner of the title, until dower is assigned or the widow dies. And the owner's action in ejectment for the recovery of the property is not barred until ten years after the widow's death, if dower had never been assigned. Osborn v. Weldon, 146 Mo. 185; Reed v. Lowe, 163 Mo. 519. (7) The power in the will was given to the wife of testator as executrix, and not as donee of special power. Harding's Adms. v. Wiseiger, 109 S.W. 890; Francisco v. Wingfield, 161 Mo. 558; Littleton v. Addington, 59 Mo. 275. (8) The rule is, if there is an interest on which the instrument can attach, it will not execute the power. 18 Ency. Law, 930; 2 Kent's Com., 34; 2 Wash. Real Property, 325; Pease v. Pilot Knob Iron Co., 49 Mo. 24; Owens v. Switzer, 51 Mo. 322. (9) (a) A power is simply collateral or naked where the power is granted a person who has no interest in the subject-matter of the power. The fact that the donee of the power may have an interest in that which is produced by the exercise of the power does not render it a power coupled with an interest. Green v. Cole, 103 Mo. 70; Schanewirk v. Hoberecht, 117 Mo. 22; Burk v. Priest, 50 Mo.App. 310; Russell v. Russell, 36 N.Y. 581. (b) A mere common law power, not coupled with an interest, is revocable by the grantor at pleasure. 22 Am. and Eng. Ency. Law (2 Ed.), 1133. (10) The will left the land to descend to the heirs, subject to be divested upon the exercise of a power. Eneberg v. Carter, 98 Mo. 647; Compton v. McMahan, 19 Mo.App. 494; Christer v. Meddis, 6 B. Mon. 35; Haggards v. Routs, 6 B. Mon. 249; Snowhill v. Snowhill, 3 Zab. 447; Hurlind v. Tuthill, Saxt. 141; Fluke v. Fluke, 1 Green Ch. 478; Morris v. Stephenson, 128 Mo.App. 338. This power was never exercised, but was revoked by the deed of both the donor and donee of the power. Deed of 29th day of June, 1876. Where the donee fails to exercise the power it leaves the title where it was on the death of the testator, in this case in the heirs at law. Evans v. Folks, 135 Mo. 397; Shouler on Wills, secs. 479, 521; 1 Jarman on Wills (2 Am. Ed.), chap. 21, sec. 1, pp. 516, 517; 4 Kent's Com., 510 and note; 4 Kent's Com. (14 Ed.), sec. 441 and note; Tongue v. Nutwell, 13 Med. 415; Massey's Appeal, 88 Pa. St. 470; Johnson v. Hallifield, 82 Ala. 123; Van Kleek v. Ref. Dutch Church, 5 Paige 611. (11) The power of sale in this case was attached to the office of executrix and expired with final settlement of the estate. Francisco v. Wingfield, 161 Mo. 557; Littleton v. Addington, 59 Mo. 275. (12) There could be no reconversion unless the parties entitled to the proceeds of the sale elected to take the land during the time when the power to sell was alive, i. e., during the executorship. Bisham's Prin. Eq., sec. 323; Hallaway v. Radcliff, 23 Beav. 163; Willings v. Peters, 7 Pa. 292; Beatty v. Byers, 18 Pa. 105. (13) The acceptance of a devise is essential to title by devise; just as much so as acceptance of title by deed. Ex parte Fuller, 2 Story 327; Brown v. Wood, 17 Mass. 74; De Freese v. Lake, 109 Mich. 421; Allison v. Smith, 16 Mich. 419.
Gates, Sea & English and Gage, Ladd & Small for respondent.
(1) The Cumberland University and Mrs. Chambers being entitled to the fund arising from the sale of the land under item three of the will, their deeds, though made at different times transferring their right, title and interest in the land to the defendant Ott, transferred to him the right to the whole fund, and being entitled to the fund he had a right to claim the land. Williams v. Lobban, 206 Mo. 399; Prentice v. Janssen, 79 N.Y. 478; Armstrong v. McKelvey, 104 N.Y. 184; Craig v. Leslie, 3 Wheat. 576; Trask v. Sturgis, 170 N.Y. 482; Baker v. Copenbarger, 15 Ill. 103; De Vaughn v. McLeroy, 82 Ga. 687; Condit v. Bigalow, 64 N. J. 504; Evans Appeal, 63 Pa. St. 183; Pomeroy's Eq. Jur. (2 Ed.), sec. 1175; 2 Jarman on Wills (Am. notes by Randolph & Talcott), p. 188; Adams Eq. (7 Am. Ed.), 137; Martin v. Andrews, 111 N.Y.S. 40. (2) Mrs. Chambers was the general residuary legatee and devisee. The words of the residuary clause are amply sufficient to carry all undisposed of property, whether real or personal, of which the testator might die seized and show conclusively that he did not intend to die intestate as to any of his property. Carr v. Dings, 58 Mo. 400; Watson v. Watson, 110 Mo. 164; Sullivan v. Larkin, 60 Kan. 545; Cogswell v. Armstrong, 2 K. & J. 227; Moffett v. Elmdorff, 152 N.Y. 475. (3) The distinction as to lapsed legacies passing, and lapsed devises not passing by a general residuary clause, pointed out in the authorities cited by appellants, has long since ceased to exist in most of the States of the Union, including Missouri. This distinction was based on the rule at common law that a will as to personal property spoke as of the time of the testator's death, and as to real estate, only as of the date of the will, but under our statute a will speaks both as to personalty and real estate as of the time of the testator's death. Liggett v. Hart, 23 Mo. 127; Mueller v. Buenger, 184 Mo. 458. Wherever similar statutes exist, it is held that lapsed devises of real...
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