Harbison v. Swan

• Decision Date: 31 October 1874
• Citation: 58 Mo. 147
• Parties: LOUISA HARBISON, et al., Plaintiffs in Error, v. CHARLES SWAN, Defendant in Error.
• Court: Missouri Supreme Court

58 Mo. 147

LOUISA HARBISON, et al., Plaintiffs in Error,

v.CHARLES SWAN, Defendant in Error.

Supreme Court of Missouri.

October Term, 1874.

Error to Cape Girardeau Circuit Court.

Louis Houck, for Plaintiffs in Error.

I. Under our statute of 1825, the remainder of Harriet's fee tail estate can vest in no other person than one who by the course of the common law would be an heir to her estate tail, had the estate not been destroyed. In other words, the statute does not reach a case where the first grantee has no issue. The statute means that the heir of the first taker shall have the absolute fee simple. Now since Harriet had no issue, and according to the course of the common law the estate devised to her would pass to her issue, and in default thereof to the blood of VanHorn, we maintain that the defendant, Swan, cannot claim her estate by virtue of the Van Horn devise.

II. It will be claimed that under the will Juliet and Harriet each had only a life estate, and that the fee to Juliet's share vested in Harriet, and the fee to Harriet's share in Juliet, subject to be divested by the birth of issue; in other words, that VanHorn's devise raised cross-remainders, and in support of this view of the case, respondent will cite Farrar vs. Christy, (24 Mo., 467). But if the position assumed be correct, that the whole fee was granted to the several devisees, no cross-remainder can arise. While at the time of the execution of the deed in Farrar vs. Christy, neither Edmund nor Howard Christy had heirs, at the time of Van Horn's death Juliet had issue. Certainly it cannot be said that the remainder of Juliet's share vested in Harriet, because it vested in Nathan Swan--Juliet's son. It is evident that the case at bar is not one of cross-remainders. Hence, the Farrar vs. Christy case is not in point.

Nalle & Sanford, for Defendant in Error.

I. The estates tail created by the will were destroyed by the act of Feb. 14, 1825, and the life estate vested in each, to the portion of the realty bequeathed them, while the remainder in fee simple absolute to Juliet's portion vested in Harriet, and the remainder in fee simple absolute to Harriet's portion vested in Juliet, subject to be divested in each instance by the birth of issue. (Statutes Mo., 1825, 45, 55, 65, &c. 1 Hill. Real Prop., p. 504, § 17; 4 Cruse's Dig., p. 379; 2 Wash. Real Est., p. 233; Farrar vs. Christy, 24 Mo., 467.)

II. The birth of issue to Juliet divested Harriet of the fee to the portion bequeathed to Juliet. (Farrar vs. Christy, supra.)

III. At the death of Juliet, Harriet dying without issue, also, the whole estate vested in the only child of Juliet, and at the death of this child descended to his father, this defendant Swan.NAPTON, Judge, delivered the opinion of the court.

The controversy in this case grew out of certain provisions in the will of Nathan VanHorn, the plaintiffs and defendant being his descendants, and both claiming under the same provisions. These provisions of the will and the facts agreed on, present the only question in the case.

The agreed facts are, that Nathan VanHorn made his will on April 13, 1846; that he died sometime in January, 1852; that his will was duly probated, etc. Juliet and Harriet VanHorn, his daughters, (he had other daughters and sons) were at the date of making the will, unmarried. Juliet was after wards, and before the death of her father, married to the defendant, Chas. Swan. When her father's will took effect, that is, on his death, there was living as her issue from her marriage with defendant, their son, Nathan Swan. Juliet died on or about March 19, 1852. Sometime in September of this year (1852) the son, Nathan, died, without issue and intestate, and the defendant, his father, is the sole surviving representative of said Nathan Swan.

Harriet VanHorn, after the making of the will, was married, but had no issue, and died about the year 1868, intestate, and her husband is dead.

The real estate in controversy consists of the two tracts of land devised to Juliet and Harriet, by the aforesaid will of their father, Nathan VanHorn. The defendant is in possession of the whole tract, and obtained possession of Harriet's part after her death.

The plaintiffs are the descendants of Mary VanHorn (subsequently Harbison) and of Clarissa VanHorn, who married Dickerson. They, Mary and Clarissa, were sisters of Harriet and Juliet. There is no question of the title of Nathan VanHorn at the time of his death, and the rights of the parties depend on the construction of two clauses in his will, which are as follows:

Fifth. “I give and bequeath to my daughter Harriet the north half or division of my tract of land as will appear by a plat of the survey made by Aaron Snider on the 25th and 26th March 1840, which north division contains 320.53 acres as will appear by reference to the plat of survey. Also an account of advances made her, as will appear by reference to said account.”

Sixth. “I give and devise to my daughter Juliet VanHorn the south part of the aforementioned survey made by Aaron Snider on the 25th and 26th days of March, 1840, which south part includes my plantation, except the one hundred acres off the south end of this part of the survey, devised to my daughter Delia. The residue of this part of the survey contains 325.41 acres. I also devise to Juliet an account of advances made her, as will appear by reference to the account; and in the event of the death of my daughter Harriet or my daughter Juliet without issue, the part devised to the one deceased to descend to the survivor, and in the event of the death of both without issue, then it is my will that the aforesaid parcels of land shall descend to the heirs of my daughter Mary and the heirs of my daughter Clarissa, to be equally divided among them when they become of age.”

In order to show the views of the plaintiffs and defendant, in regard to the construction of this will, we copy the instructions asked on either side.

For plaintiffs the court was asked to say: 1st. “That the heirs of Mary and Clarissa were seized in fee in remainder, respectively, of the portions of land devised to Juliet and Harriet. 2d. That upon the death of Nathan Swan, son of Juliet, Harriet, as the survivor, was entitled to said Juliet's share, as bequeathed to said Juliet by said Nathan VanHorn, and that the said Harriet having died without issue, the said Louisa Harbison, Wm. P., Virginia, etc. (descendants of Mary and Clarissa) are entitled to the possession. 3d. Said Juliet and Harriet, under said will, were respectively seized of a life estate, and the remainder was by said will vested in the heirs of Mary and Clarissa, subject to be divested by the birth of issue, and since no issue was born to said Harriet, the real estate devised to said Harriet, the fee of which was vested in the heirs of said Mary and Clarissa, was never divested, and the said Harbison, etc., heirs of Mary and Clarissa are entitled to the possession, etc. 4th. The limitation over to the heirs of Mary...