Hale v. Audsley

• Decision Date: 28 May 1894
• Citation: 26 S.W. 963,122 Mo. 316
• Parties: Hale et al. v. Audsley, Appellant
• Court: Missouri Supreme Court

26 S.W. 963

122 Mo. 316

Hale et al. v. Audsley, Appellant

Supreme Court of Missouri, First Division

May 28, 1894

Appeal from Carroll Circuit Court. -- Hon. E. J. Broaddus, Judge.

Reversed and remanded.

Charles R. Pattison for appellant.

(1) From consideration of the whole of said will, taken together in its general scope and design, said testator entailed all real property he owned at the date of his will, and entailed all real property acquired after the date of said will (except the one-third (1-3) interest in the Latham farm, by him owned at the date of his will), and that, at the time of the execution of the contract, read in evidence, for the sale of real estate to defendant, these plaintiffs did not then have the indefeasible estate in fee in said premises, and have not since acquired any title thereto; therefore, in this case, plaintiffs are not entitled to recover, or have said contract specifically performed. Luckett v Williamson, 31 Mo. 54; Luckett v. Williamson, 37 Mo. 389. (2) A title free from reasonable doubt may be forced upon an unwilling purchaser, but a purchaser is not bound to take a doubtful title, and the court will not enforce a doubtful title. As said by Chief Justice Gibson in Gans v. Renshaw, 2 Pa. St. 34, adopting the language of the Master of the Rolls in Sedgwick v. Hargrave, 2 Ves. Sr. 59, the title of the vendor must be, like Caesar's wife, not only pure, but unsuspected. (3) If there is any reasonable chance that the nephews and nieces of the testator, or the heirs of the body surviving of said grandchild, or that any third person may raise a question against the defendant's title after the completion of the contract, the court will consider this a circumstance which renders the bargain a hard one for the defendant, and one which it will not, in the exercise of its discretion, compel defendant to execute. Seeman v. Vawdrey, 16 Ves 390; Edwards v. McLeay, 2 Swanst. 287.

J. W. Sebree for respondents.

(1) The will is to be construed by its terms and with reference to the circumstances surrounding the testator at the date of its execution. Reinders v. Koppelman, 94 Mo. 338; Shumate v. Bailey, 110 Mo. 411. (2) The intention of the testator, as gathered from the will and attendant circumstances, is to control in the construction of the instrument and this general intent, when thus determined, will control, even as against particular clauses, which, if construed separately, might conflict with such general intention. Watson v. Watson, 110 Mo. 164; Carr v. Dings, 58 Mo. 400. (3) It is settled law in this state that after acquired real property will pass by the will where such appears to be the intention of the testator. Liggat v. Hart, 23 Mo. 127.

OPINION

Black, P. J.

On the twenty-fifth of July, 1891, plaintiffs J. B. Hale and Lelia Hale sold to defendant Audsley a tract of land containing about one-hundred and sixty acres at $ 27.50 per acre. The defendant paid $ 500 before and after taking possession; and this is a suit to enforce a vendor's lien for the balance of the purchase price. The defense is a defect in the title to the undivided one-sixth. Whether there is such a defect depends upon the construction to be given to the third and fifth paragraphs of the last will of Charles Sterne, the material parts of which will are as follows:

"In the second place I give, bequeath and devise to my wife Sarah J. Sterne, to hold and enjoy for and during her natural life, my home place where I now reside, to wit (describing a parcel of ten acres) and at her death it is my will, wish and desire, and I hereby devise the same to my grandchild, Leolelia Henry Hale Herndon, and the heirs of her body, to hold and enjoy the same, to her sole and separate use free from any contract, control or liability of any husband she may hereafter marry." Provision is then made for the support of the wife of the testator and he bequeaths to her for her life the household and kitchen furniture.

"In the third place I hereby will, grant, bequeath and devise unto my said grandchild Leolelia Henry Herndon, and heirs of her body, the following described real estate (describing about seven-hundred acres) to hold and enjoy the same to her sole and separate use, and free from any control, contract or liability, of any husband she may hereafter marry; and I further will and devise to my said grandchild and the heirs of her body, any and all other real estate, I may now have or hereafter may acquire, wherever situated, to hold and enjoy to her like sole and separate use, and alike free from any contract, control or liability of any said husband she may hereafter at any time marry." Subject to the provisions before made for his wife he bequeaths his personal property to his said grandchild "to hold and enjoy absolutely and without qualification."

"In the fifth place, I also will, give and devise unto my said grandchild, an undivided interest of one-third in what is commonly called the...