Green v. Sutton
| Decision Date | 31 March 1872 |
| Parties | EZRA GREEN et al., Appellants, v. JONATHAN K. SUTTON et al., Respondents. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
Daniel Dillon, for appellants.
I. Nancy A. Green under this deed took a life estate only, with certain specified powers. ( a) The entire deed must be construed together, and effect given to every part of it if possible. (Smith v. Bell, 6 Pet. 68; Wager v. Wager, 1 Serg. & R. 374; Pryor v. Quackenbush, 29 Ind. 475; Siegwald v. Siegwald, 37 Ill. 430; Richardson v. Palmer, 38 N. H. 218; Bogy v. Gibson, 28 Mo. 479.) ( b) The deed, taken as a whole, shows that it was not the intent to give the entire property to Nancy A. Green absolutely, but, on the contrary, to give her but a life estate with certain powers. The deed will be construed so as to give effect to this evident intent, if possible to do so without violating any established rule of law. (Smith v. Parkhurst, 3 Atk. 136; Goodtitle v. Bailey, Cowper, 600; Bridge v. Wellington, 1 Mass. 227; Pray v. Pierce, 7 Mass. 384; Frost v. Spalding, 19 Pick. 446; Barnes v. Haybarger, 8 Jones, Law, 76; Chamberlain v. Cram, 1 N. H. 64; Jackson v. Meyers, 3 Johns. 395; Peyton v. Ayres, 2 Md. Ch. 64; Brannan v. Musick, 10 Cal. 105; Hagan's Heirs v. Welcker, 14 Mo. 177; Jecko v. Taussig, 45 Mo. 167.)
II. Defendants say that a life estate not having been expressly given Nancy A. Green, the power of disposition given to her converted her estate into an absolute fee. This rule, relied on by defendants, does not apply for at least three reasons: First, because the rule applies only in cases where the instrument shows it to have been the intent to give the first taker the fee. It is a rule of presumed intent. (Rubey v. Barnett, 12 Mo. 7; Burwell's Ex'r v. Anderson's Adm'r, 3 Leigh, 356; Cooke v. Husbands, 11 Md. 507; Ide v. Ide, 5 Mass. 504.) Secondly, the rule requires that the power of disposition be an unlimited one to dispose of the property at mere will and pleasure, as one might do with his own property. In all these cases the court will see that the power was of the unconditional character above mentioned. Thirdly, the rule is applicable to wills only and not to deeds. (1 Sugd. Pow. 121.) It will be observed that all the cases above referred to, in which the rule was held to apply, were cases of wills. ( a) Our statute (Wagn. Stat. 1351, § 2) does not affect this case, as it does not apply where the intent to pass a less estate than a fee is necessary implied in the terms of the grant. ( b) If these were legal estates, the deed should be construed as giving Nancy A. Green a life estate with a power, and the intent of the parties carried out. But this was a conveyance by bargain and sale, and the legal title was vested in the trustee in fee, and equitable estates only given to the beneficiaries. .) For the purpose of carrying out the intent of the parties, courts of equity, in dealing with equitable estates, adopt a more liberal rule of construction than courts of law can in dealing with legal estates. (Watk. Descents, 168; Hayes' El. Com. Law, Eq. & Tr. Est. 7; 1 Fearne Cont. Rem., 4th Am. ed., 90, 124, 144, 445; 4 Kent, 303-4; Bagshaw v. Spencer, 2 Atk. 570; Brailsford v. Heyward, 2 Desauss. 293. ( c) Defendants say that if the deed conveyed to Nancy A. Green a life estate only with a power, the limitation to the heirs of Henry S. Green cannot be sustained, for the reason that their interest was a contingent remainder which did not vest at or before the termination of the particular estate. It is not necessary in trust estates that contingent remainders should vest at or before the termination of the particular estate.
III. If it be held that Nancy A. Green took a fee, it was a defeasible one in the equitable estate. Even if this was a case where the use was executed by the statute of uses, the limitation to the heirs of Henry S. Green should be upheld as a shifting use. (Fearne Cont. Rem. 274-6; Crabbe R. P. 493-8, 53 Law Lib.; Williams R. P., 3d Am. ed., 267 et seq.; 4 Kent, 396-7; 2 Washb. R. P. 574-8.) But, as we have seen, this is not a case of a use executed, but a trust; i. e., a use not executed by the statute. As a trust estate it would seem that there is no difficulty in sustaining the limitation to the heirs of Henry S. Green, even supposing Nancy A. Green to have taken the fee. ) Trusts are substantially what uses were before the statute of uses. The only rule which it is positively forbidden to violate in creating them is the one against perpetuities. .)
A. H. Bereman, for respondent.
The estate created in Nancy A. Green by the deed was a fee simple.
1. If Mrs. Green had conveyed in her lifetime, or bequeathed the real estate, she would have disposed of the fee. (Pendleton v. Bell, 32 Mo. 100; Jecko et al. v. Taussig, 45 Mo. 167.)
2. A life estate will not be inferred; to create it the deed should have expressly declared it. In this deed no life estate is mentioned. (Rubey v. Barnett, 12 Mo. 7.)
3. The jus disponendi, or right of alienation, conferred upon Mrs. Green, implies an absolute property in fee simple in her estate. .)
4. If the first taker of an estate, not expressly declared to be for life, have the right of disposal he takes a fee, and any limitation over is void.
5. Mrs. Green having the right of disposal at her pleasure, was not restricted or restrained to any particular modes or uses, and therefore had a fee. (Pendleton v. Bell, supra; Co. Litt. 223 a; Kimm v. Weippert, 46 Mo. 532.)
6. If the intent of the parties is to be considered, then the controlling, leading intent was to create a separate estate for the married woman; and the subsequent intent to dispose of it for her, in case she failed, shall be rejected, as contravening the well-known rules of law.
7. If Mrs. Green took only a life estate, with a power of disposal, then the deed creates an entail; and then, by the statute in force at that time (R. C. 1855, ch. 32, § 5), the entail estate was broken up, and the estate was cast upon her heirs by the statute, and not upon the heirs of the husband.
8. The limitation over to the heirs of Henry S. Green was void because, at the death of Mrs. Green, there were no persons in being answering to the description. Her husband being alive, he had no heirs-- nemo est haeres viventis--and the title did not remain in abeyance. .)
9. At the death of Mrs. Green there was no right of equity in these plaintiffs, as they were not then heirs of Henry S. Green; and the right of entry being gone, the remainder was gone. (Fearne on Rem. 289, ch. 3.)
10. This trust estate, being a mere creature of the courts, and an evasion of the statute of uses, ceased at the death of Mrs. Green, when the necessity for it ceased, namely, that of creating her separate estate; and it vested, eo instanti, in some one, and did not vest in plaintiffs.
This is an action of ejectment for possession of land situated in the city of St. Louis. The case was submitted on the pleadings and an agreed statement of facts, which are briefly as follows: On the 10th day of June, 1856, Wm. A. Pendleton and Mary A., his wife, bargained and sold the property in question to George Harrington in fee, ...
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