Hall v. Stephens

• Citation: 65 Mo. 670
• Parties: HALL, PLAINTIFF IN ERROR v. STEPHENS.
• Decision Date: 31 October 1877
• Court: United States State Supreme Court of Missouri

65 Mo. 670

HALL, PLAINTIFF IN ERROR

v.STEPHENS.

Supreme Court of Missouri.

October Term, 1877.

Error to Cass Circuit Court.--HON. FOSTER P. WRIGHT, Judge.

A. Comingo and Hall & Givan for plaintiff in error.

1. The devise to Hiram Stephens and his family, transmitted the legal title in the land to said Stephens. The attempted devise is void for uncertainty. Arthur v. Weston, 22 Mo. 378. Bequests to a “family” have often been held void. Harland v. Trigg, 1 Brown, Chanc. Cases, 142; Doe v. Joinville, 3 East 172. For stronger reasons a devise should be held void, if attended with the same degree of uncertainty.

2. If the devise to the “family” in this case is void for uncertainty, it follows that parol testimony showing who constituted the family of Hiram Stephens, at the time of the testator's death, was incompetent. The word family implies an entire household, husband, wife, children, domestics--in a word, all who live on the same premises in subjection to one head. Unless the generally accepted signification of the word, as used in the codicil, is restricted in order to avoid an absurdity that would result from this construction, the devise in this case would have been as beneficial to the servants and slaves of Hiram Stephens, had he had any at the death of the testator, as it could have been him.

3. Barns v. Patch 8 Ves. 604, and Wood v. Wood 3 Hare 65 were cases of bequests not devises.

R. O. Boggess for defendant in error.

1. The family consisted of the father, mother and six children and they all took under the codicil. Bouv. Law Dic.; Webster's Dic.; 2 Sto. Eq. §§ 1062, 1065 b, 1065 c, 1065 d, 1071, 1072. Whaley v. Whaley 50 Mo. 577; Woods v. Woods, 1 Mylne & Cr. 401; MacLerath v. Bacon, 5 Ves. Jr. 159; Whiting v. Whiting, 4 Gray 236; Cosby v. Ferguson, 3 J. J. Mar. 264.

2. It was proper to admit extraneous evidence to show who composed the family of Hiram Stephens when the codicil was made and when the testator died. Broom's Legal Max. (6 ed.) 599, 602; Hamilton v. Pitcher, 53 Mo. 334; 1 Green Ev. § 287, note 1; Ib. 289, note 6; Yantis v. Yourie, 10 Mo. 669; Cox v. Beltzhoover, 11 Mo. 142; King v. Tempel, 48 Mo. 71; Scott v. Bailey, 23 Mo. 140; Garrett v. Ferguson, 9 Mo. 125; Musser v. Johnson, 42 Mo. 74; Kronenberger v. Hoffner, 44 Mo. 185; Orrick v. Bower, 29 Mo. 210.

3d. Hiram Stephens and his wife took one-seventh of the land embraced in the codicil, as tenants by entireties, while the six children took the other six-sevenths thereof as tenants in common. Freeman on Co-ten. and Part. secs. 63 to 76. Doe. ex dem. Ross v. Garrison, 1 Dana 35; Rogersv. Grider, 1 Dana 243; Banton v. Campbell, 9 B. Mon. 594; Gibson v. Zimmerman, 12 Mo. 385; Garner v. Jones, 52 Mo. 68; Wag. Stat. 1352 § 12.

4th. Hiram Stephens had no interest in the land which was vendible under execution against him. 12 Mo. 385; 52 Mo. 68; Wannall v. Kem, 51 Mo. 150; 2 Wag. Stat. 935 Sec. 14; Rorer on Judicial Sales §§ 549, 800; Chandler v. Cheney, 37 Ind. 408; Freeman Coten. and Part. secs. 63 to 76.

SHERWOOD, C. J.

“I, Benjamin Stephens, of Boone county, Kentucky, having made a codicil to my former will, I now make this additional one: I give to Hiram Stephens and family, the tracts of land I have lately purchased of Coughenour & Finney; and further, it is my wish, and I appoint and constitute John Brady as my lawful agent over said lands, to be managed for their benefit; and I forbid the sale of said lands without orders from me or my agent;” are the words which gave origin to the present action of ejectment. Since the cause came here on error, the original defendant, Hiram Stephens, has died; that fact has been suggested to plaintiff, and the present defendants, wife and children of the decedent, waiving sci fa, which otherwise would have issued, have entered herein, by consent, their voluntary appearance. April 14, 1855, is the date of the codicil. The testator died a few days thereafter. The plaintiff's claim is based on a sale under special execution in 1869, the attachment having been levied January 1st, 1866, on the property in suit as that of the former defendant, and judgment rendered October 4th of the year last aforesaid. The trial court adjudged to recover the undivided one-eighth of the premises in controversy. The plaintiff, however, claims that the recovery should have been for the whole tract, while for the defense it is insisted that judgment should have gone for defendants. As will be hereafter seen, the whole question hinges upon the proper force and effect of the codicil, considered with reference to certain statutory provisions.

1. DEVISE: family.

1. After no little research, the opinion is entertained that not only did the person named become the recipient of the fee, but that his wife and children became partakers therein also. In Wylde's case (6 Co. 16) it was ruled that a devise to one and his children, the latter living at the date of the will, carried an estate in joint tenancy. 2 Redf. L. W. 14. In re Terry's will, (19 Beav. 580), it was held that the word “ family,” is “ children,” unless some circumstance, either in the will or in the situation of the parties, prevent such construction, Sir John Romilly, M. R., remarking: “I think it a safe rule to follow the ordinary import of words as used in ordinary conversation.” In that case the children were orphans, and consequently no question arose as to whether the word “family” possessed a sufficiently comprehensive significance to include also parents. In Barnes v. Patch, 8 Ves. 604, the words “remainder of my estate to be equally divided between A's and B's families,” were held to embrace the respective children of those families to the the exclusion of the parents, B having pre-deceased the testator. The context of the will, as well as the words themselves, would seem to have warranted the given construction.

In Exrs. of White v. White, 30 Vt. 338, where the will gave to the son of the testator “$1,500 for the support of himself and family, and for no other purpose,” it was held that the word “family” would include the wife and children of the testator's son. The intention of the testator, it is agreed on all hands, should be the pole star by which courts should steer in construing devises, subject, however, to a certain degree of control, owing to technical rules and the intrinsic force of technical expressions. 4 Kent, 537. In the absence of technical terms, the general rule as expressed in all cases regarded reliable, undoubtedly is: 1. That words must have their ordinary, popular signification, technical terms excepted, unless, in the context, or subject-matter of the will, something clearly and unequivocally indicates a different use. 2. Where words are capable of a natural, and also a secondary and unusual meaning, preference is to be given to the former method of interpretation. 2 Sto. Eq. Jur. § 1074 b. Proceeding, no doubt, on this sensible theory, where the bequest was to “cousins” simpliciter, it was held, in the absence of anything explanatory of the meaning of the testator, that only first cousins, there being those answering that description, were intended; the Lord Chancellor (Lord Cranworth), after a good deal of examination and discussion at the bar, remarking: “I think that if a testator says no more than he gives to ‘cousins,’ he must be taken to mean first cousins. That will be a practical construction, and one by which the parties entitled, will be readily ascertained; it coincides, too, with ordinary experience, for when a person speaks of cousins he generally means first cousins, the children of an uncle or aunt.” Stoddart v. Nelson, 6 D. G. M. & G. 68. Whereupon Mr. Justice Story remarks: “It seems to us this view, as a general exposition of the difficulty, is extremely satisfactory.” 2 Sto. Eq. Jur. § 1065 c.

In the English courts, bequests to the family of one have frequently been held void for uncertainty. Harland v. Trigg, 1 Brown Ch. Cas. 142; Doe v. Joinville, 3 East 172; Robinson v. Waddelow, 8 Sim. 134. But that line of decision is not so common as formerly, and it is said in English works, 2 Jarm. on Wills, 87 (Ed. 1861): “It should seem that a gift to the family, either of the testator himself, or of any other person, will not be held void for uncertainty, unless there be something special creating that uncertainty. The subject-matter and the context of the will are to be taken into the account,” and the bequest upheld, if it can be fairly made out what the testator intended by the word family. 2 Redf. L. W. 71, § 5. In Doe v. Smith, 5 M. & Selw. 126, where the devise was “the interest of all my land property * * * to my wife; * * * after the demise of my wife, to my wife, to my brother, W. R., during his natural life, * * * and after his decease unto my sister C's family, to go in heirship forever,” it was held, in an action of ejectment, that the estate passed in entirety to the eldest son and heir of C. There are other English cases of this sort, where bequests to a family have been held as presumptively intended for the heirs of such family. Counden v. Clerke, Hob. 29; Chapman's Case, Dyer 333 b.; Wright v. Atkyns, 17 Ves. 255; Griffiths v. Evan, 5 Beav. 241. This is doubtless attributable in the main to the law of primogeniture and the policy of the law incident to keeping landed estates in a particular line at descent. 2 Redf. L. W. 72. But as we have in this country no law of primogeniture, and as all estates descend to all the children in equal division, it would seem to follow that were the same line of argument pursued as in England, by parity of reasoning, children would take here in response to the word family, in like manner as the heir at law does in that country, as the legal exponent of that term. In Wright v. Atkyns, 1 Turn. & Russ. 143, Lord Eldon, when speaking of the English rule of construction just noticed, whereby heir at law and “my family” were held convertible terms, says: “The court in its...