Griffin v. Nicholas

• Decision Date: 21 December 1909
• Citation: 123 S.W. 1063,224 Mo. 275
• Parties: EDWARD C. GRIFFIN et al., Appellants, v. ELLEN NICHOLAS et al
• Court: Missouri Supreme Court

123 S.W. 1063

224 Mo. 275

EDWARD C. GRIFFIN et al., Appellants, v. ELLEN NICHOLAS et al

Supreme Court of Missouri

December 21, 1909

Appeal from Jasper Circuit Court. -- Hon. Hugh Dabbs, Judge.

Affirmed.

Shannon & Shannon and Elvin Swarthout for appellants.

(1) The court erred in permitting the defendants, Ellen Nicholas and Thomas R. Nicholas, to testify, the plaintiffs having objected to their testimony on the ground that they were parties to the transaction, or cause of action, in controversy while the other party, Mrs. Burlingame, was dead. Looker v. Davis, 47 Mo. 145; Angell v Hester, 64 Mo. 142; Sitton v. Shipp, 65 Mo 297; Ring v. Jamison, 66 Mo. 424; Hisaw v Sigler, 68 Mo. 449; Bradley v. West, 68 Mo. 73; Wood v. Mathews, 73 Mo. 477; Hughes v. Isreal, 73 Mo. 538; Meier v. Thieman, 90 Mo. 433; Leeper v. Taylor, 111 Mo. 312; Teats v. Flanders, 118 Mo. 660; Curd v. Brown, 148 Mo. 95; Miller v. Slupsky, 158 Mo. 643; Patton v. Fox, 169 Mo. 97; Smith v. Smith, 201 Mo. 546. (2) Where the power of sale conferred on a life tenant depends upon a contingency, it can be exercised only upon the happening of the contingency. Thus under a power to sell in fee simple, and use the proceeds for maintenance and support in case of need, the life tenant does not take an absolute power of sale at his will and pleasure but has merely a power of sale dependent upon the contingency that he should need, and a purchaser from him is bound to ascertain whether the contingency authorizing the sale has happened. 22 Am. and Eng. Ency. Law (2 Ed.), p. 1156; Scheidt v. Crecelius, 94 Mo. 322; Williams v. Berry, 8 How. (U.S.) 495; Hull v. Culver, 34 Conn. 403; Fleming v. Meills, 182 Ill. 464; Warren v. Webb, 68 Me. 133; Larned v. Bridge, 17 Pick. (Mass.) 339; Stevens v. Winship, 1 Pick. (Mass.) 318. (3) A life estate expressly created will not be converted into a fee, absolute or qualified, or into any other form greater than a life estate, by inference or implication or any language which falls short of a positive provision. The result will not be attained by reason of there being coupled with the devise a power of disposition or control, however general and extensive. 30 Am. and Eng. Ency. Law (2 Ed.), p. 750; Bryant v. Christian, 58 Mo. 98; Brant v. Virginia Coal Co., 93 U.S. 326; Sheldon v. Rose, 41 Conn. 381; Lewis and Palmer, 46 Conn. 454; Mansfield v. Sheldon, 67 Conn. 390; Kennedy v. Alexander, 21 App. Cas. (D. C.) 424; Griffiths v. Griffiths, 192 Ill. 632; Baldwin v. Norford, 117 Iowa 72; Glover v. Reid, 80 Mich. 228; Gadd v. Stoner, 113 Mich. 678; Murford v. Dieffenbacker, 54 Mich. 593. (4) The Missouri cases go further and hold that where a devise is made in general terms, and no express limitation to the life of the devisee appears, the addition of an absolute power in the devisee to dispose of the property does not create an estate in fee simple, if the subsequent provisions of the will disclose an intention to give only a life estate to the devisee. McMillan v. Farrow, 141 Mo. 55; Harbison v. James, 90 Mo. 411; Muro v. Collins, 95 Mo. 33; Cross v. Hoch, 149 Mo. 325; Russell v. Eubanks, 84 Mo. 83; Cornwell v. Wulff, 148 Mo. 542; Walton v. Drumatra, 152 Mo. 489. (5) Where a power of disposal accompanies a bequest, or devise, or conveyance of a life estate in property, the power of disposal is only co-extensive with the estate given, unless there are other words indicating that a larger power was intended. 22 Am. and Eng. Ency. Law, p. 1126; Brant v. Coal and Iron Co., 93 U.S. 327; Riggins v. McClellan, 28 Mo. 23; Turner v. Timberlake, 53 Mo. 377; Corby v. Corby, 85 Mo. 382; Gavan v. Allen, 100 Mo. 298; Henderson v. Blackburn, 44 Am. Rep. 780; Miller v. Potterfield, 19 Am. St. Rep. 919; Giles v. Little, 104 U.S. 201. (6) The will devising to his wife "all the balance and residue of my estate" "to have and to hold and enjoy for and during her natural life, with full power to make such disposition thereof as may be necessary for her own comfort and support," and providing that "after the death of my wife, then all of my estate is hereby willed to Ann Kendrick to have and to hold during her natural life," and "after the death of said Ann Kendrick . . . then all the balance and residue of my estate I hereby will to my nieces," etc., should not be construed to confer a power upon the widow to sell the fee of any of the real estate. Munro v. Collins, 95 Mo. 35; Schorr v. Carter, 120 Mo. 412; Smith v. Bell, 6 Pet. (U.S.) 68; Bramell v. Cole, 136 Mo. 210. (7) The words "remainder" and "balance and residue of my estate" do not imply a power of sale. Munro v. Collins, 95 Mo. 41; Schorr v. Carter, 120 Mo. 409; Bramell v. Cole, 136 Mo. 212. (8) At most this will only confers a life estate with a limited power of sale. 30 Am. and Eng. Ency. Law (2 Ed.), p. 740; In re Mallory's Estate, 127 Mich. 121; Gad v. Stow, 113 Mich. 690; Owen v. Switzer, 51 Mo. 322; Evans v. Folks, 135 Mo. 397; Underwood v. Cave, 176 Mo. 1; Scheidt v. Crecelius, 94 Mo. 322. (9) A third party acquiring by gift or fraud, the property of an estate, from the life tenant, holds the same and the fruits thereof as a trustee for the remaindermen. Johnson v. Johnson, 51 Ohio St. 446; Shibla v. Ely, 2 Halstead (N. J. Ch.) 181. (10) Where the income and the personal property of an estate are sufficient to support the widow, who is given by the will of her husband a life estate with power to dispose of property for her support, a conveyance by her cannot be supported. Minot v. Prescott, 14 Mass. 496; Parks v. American Home Missionary Society, 62 Vt. 19; Murford v. Dieffenbacker, 54 Mich. 593. (11) Where a devisee is given power to dispose of property "if necessary for her own comfort and support," the comfort is equivalent to the word support. Peckham v. Lego, 57 Conn. 553.

Thomas & Hackney for respondents.

(1) The trial court did not err in permitting Ellen Nicholas and Thomas Nicholas to testify on the trial of this cause. "The contract or cause of action in issue and on trial" was not the contract between Mrs. Burlingame and Ellen and Thos. Nicholas nor the deed made in pursuance of that contract. The defendants in their answer alleged and the plaintiffs in their reply admitted the contract and the execution of the deed. No person claiming any right under Mrs. Burlingame is questioning the deed. Her heirs are not parties to this suit. The plaintiffs claim that the deed was made without authority and was fraudulent as to them. The plaintiffs are not seeking to avail themselves of any right secured to Mrs. Burlingame by the deed or the consideration agreed to be paid thereby for the property, but on the contrary are claiming rights antagonistic to the rights claimed and asserted by her under the will and deed. This suit is not upon the contract evidenced by the deed and its recitals, and, hence, that contract in the meaning of the statute is not in issue and on trial. Plaintiffs' rights lie wholly dehors that contract and outside of the mutual stipulations of the parties to the contract and deed and depend upon showing that it was made without authority. Stam v. Smith, 183 Mo. 464. But even if Ellen and Thos. Nicholas were not competent witnesses, still the admission of their testimony was harmless error as the contract was admitted by the pleadings and every feature touching its performance was abundantly shown by the testimony of other witnesses. (2) The power to dispose of refers to all of his estate which shall remain after the payment of his debts. Hence, the deed executed by Mrs Burlingame, January 15, 1903, conveyed the fee simple title to the property in controversy in this suit and not her life estate only. St. L. & V. Ass'n v. Fueller, 182 Mo. 93; Boyer v. Allen, 76 Mo. 500; Pendleton v. Bell, 32 Mo. 100; Jecko v. Kaussig, 45 Mo. 167; Garland v. Smith, 164 Mo. 1; Gavin v. Allen, 100 Mo. 297; Johnson v. Battelle, 125 Mass. 453; Barker v. Clark, 72 N.H. 334; Swarthout v. Ranier, 143 N.Y. 499; Yetzer v. Brisse, 190 Pa. St. 346; Henhauser v. Decker, 38 N.J.Eq. 426; Bishop v. Remple, 11 Ohio St. 277; Stroud v. Morrow, 7 Jones L. (N. C.) 463; Shaw v. Hussey, 41 Me. 495; Boyer v. Allen, 76 Mo. 500. (b) The will in this case on its face shows that it was the intention of the testator that the whole corpus of the property should be disposed of by his wife when necessary for her comfort and support. (3) Under the terms of the will the widow had absolute power to dispose by deed of all or any part of the real estate devised to her, when it became necessary to her own comfort and support; and she having found it necessary for her comfort and support, and in good faith, executed the deed to the property in controversy, the same is valid and binding and vested in the defendant the title in fee simple to the same. Hazel v. Hagan, 47 Mo. 277; Richardson v. Richardson, 80 Me. 585. (4) The testator having given his wife all of his property during her natural life and also having given her the power to sell any of said property when necessary for her own comfort and support, she was made the judge as to when it became necessary for her comfort and support; and the defendants herein having acted upon her contract and conveyance and in good faith nursed, cared for and comforted her and provided for her during her lifetime, are purchasers of the property for a valuable consideration, the very highest known to the law, and said conveyance cannot be called in question. Berg v. Moreau, 199 Mo. 416; Allen v. Herlinger, 219 Pa. 56; Scott v. Scott's Exrs., 2 Bush (Ky.) 147; Paxton v. Bond, 15 S.W. 875; Hosman v. Willett, 107 S.W. 344; Matthews v. Capshaw, 109 Tenn. 480; Bunner v. Storm, 1 Sandf. Ch. 357; 2 Perry on Trusts (4 Ed.), secs. 507, 511; Doran v. Pifer, 164 Pa. St. 430. (5) By the terms of the will, the widow...