Hull v. Calvert

• Decision Date: 31 December 1920
• Citation: 226 S.W. 553,286 Mo. 163
• Parties: DANIEL F. HULL et al., Appellants, v. SMITH CALVERT et al., Appellants
• Court: Missouri Supreme Court

226 S.W. 553

286 Mo. 163

DANIEL F. HULL et al., Appellants, v. SMITH CALVERT et al., Appellants

Supreme Court of Missouri

December 31, 1920

Appeal from Clark Circuit Court. -- Hon. N. M. Pettingill, Judge.

Reversed and remanded (with directions).

T. L Montgomery for plaintiffs.

(1) The intent of the testator controls in the disposition of real and personal property under the law and a life estate may be created by implication even though a power of disposition may be given by the testator and the remainder (if such) will not be void. Walton v. Drumtra, 152 Mo. 489; Bean v Kemmur, 86 Mo. 670; Burnett v. Burnett, 244 Mo 491; Mumro v. Collins, 95 Mo. 41; Lewis v. Pitman, 101 Mo. 293; McMillan v. Farrow, 141 Mo. 62; Barmell v. Cole, 136 Mo. 213; Garland v. Smith, 164 Mo. 16; Buford v. Aldridge, 165 Mo. 425; Armor v. Frey, 226 Mo. 667; Romjue v. Randolph, 166 Mo.App. 87. (2) The cases apparently relied upon by defendants in their printed argument filed in this cause have been distinguished, criticised and in some instances overruled, in more recent adjudications of this court. Gibson v. Gibson, 229 Mo. 490; Threlkeld v. Threlkeld, 238 Mo. 459; Dickerson v. Dickerson, 211 Mo. 483; Frieman v. Maxwell, 262 Mo. 23. (3) At the death of Oscar before his mother the entire estate, both real and personal, merged into one, an executory devise and vested in the Hull heirs, not the Calvert heirs.

J. A. Whiteside and J. W. Powell for defendant.

(1) The will of Samuel Hull gave to his son, Oscar G. Hull, the fee in the lands devised. Text writers and a long line of well-considered cases in the courts of this and other states affirm this contention. The doctrine that a remainder of any kind, under whatever name, whether it be called a remainder, an executory devise or some other name, cannot be engrafted on a fee is the well-established law of this State. Where the fee is once given, it cannot be, in any way, cut down or limited by subsequent vague and general expressions, or upon any conjecture or contingency. Sevier v. Woodson, 205 Mo. 214; Small v. Field, 102 Mo. 127; Reinders v. Koppelmann, 68 Mo. 400; Rubey v. Barnett, 12 Mo. 3; Norcum v. D'Oench, 17 Mo. 98; Green v. Sutton, 50 Mo. 186; Roth v. Rauschenbusch, 173 Mo. 594; Evans v. Folks, 135 Mo. 403; Henderson v. Calhoun, 183 S.W. 584; Page on Wills, secs. 667-668; Thompson on Wills, sec. 281, last part; Washburn, Real Property (2 Ed.), secs. 693-4; Underhill on Wills, secs. 358, 689; Schureler on Wills, sec. 478, last part; Gannon v. Albright, 183 Mo. 247; Gannon v. Pauk, 200 Mo. 79. (2) In the Hull will the granting clause to Oscar G. Hull is a distinct sentence. Is is in clear and concise language. There can be no doubt as to its meaning -- "To him and his heirs and assigns forever." After thus devising the fee in this strong and positive language, the testator, in a separate sentence, attempts to limit the fee in language so vague and uncertain, so ambiguous, as to leave us to guess what he intended. Whom did the testator mean to designate by "The Hull Heirs?" Did he mean the Oscar G. Hull heirs, or his own collateral heirs? This language is too vague, indefinite and uncertain to in any way limit or cut down the fee so plainly and unmistakably devised in the first sentence of the devise. Howard v. Howard, 184 S.W. 993; Small v. Field, 102 Mo. 127; Middleton v. Dudley, 183 S.W. 443; Sevier v. Woodson, 105 Mo. 202-214; Yocum v. Siler, 160 Mo. 287; Gannon v. Pauk, 200 Mo. 96. "The doctrine of the Yocum case has become a rule of property and should be adhered to." Cox v. Jones, 229 Mo. 63; Wells v. Fuchs, 226 Mo. 97; Sevier v. Woodson, 205 Mo. 202. (3) On the death of Samuel Hull his son, Oscar G. Hull, immediately became the absolute owner in fee simple of the land given him by the will, and the title having once vested in him the land belonged to him and his heirs and assigns forever. Henderson v. Calhoun, 183 S.W. 584; Small v. Field, 102 Mo. 104; Howard v. Howard, 184 S.W. 993; 40 Cyc. 1585. (4) Mary C. Hull and Oscar G. Hull held the personalty as tenants in common. Lemmons v. Reynolds, 170 Mo. 227; Rodney v. Landau, 104 Mo. 251. A limitation in an adjoining clause will not apply to personal property in another clause unless expressly stated, but the personalty will bo absolutely. 40 Cyc. 1612. A general absolute gift will not be cut down to the life estate by a limited separate gift in other property. Ibid, 1613. There is no limitation of the personal property under the terms of the will. The same was bequeathed to Mary C. Hull and Oscar G. Hull in equal parts without any limitation whatever. Settles v. Shafer, 229 Mo. 561.

OPINION

In Banc.

BLAIR J.

The disposition of this appeal depends upon the construction of the will of Samuel Hull, which reads thus:

"In the name of God, Amen. I, Samuel Hull, of Jefferson Township, Clark County, the State of Missouri, do therefore make, ordain, publish and declare this to be my last will and testament; that is to say:

"First, after all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give, bequeath and dispose of as follows, to-wit:

"To my beloved wife, Mary C. Hull, the east half of the northwest quarter and sixty acres off of the west end of the north half of the southwest quarter and ten acres off of the north end of the east twenty of the north half of the southwest quarter, all being in Section Eleven, Township Sixty-six, Range Eight, west, in Clark County, Missouri, and the following, to-wit:

"The west half of the northwest fourth of the northeast quarter of Section Twenty-one, all in said township, county and State. The above said Mrs. Hull is to have and to hold all the above said lands during her natural lifetime and at her death go to my son Oscar G. Hull. All the remainder of my real estate for which I hold deeds, I give, will and bequeath to my son Ocsar G. Hull, him and his heirs and assigns forever. And in case of the death of my son Oscar G. Hull, previous to that of his mother, and him dying without issue, or leaving a child who is his lawful heir, his mother M. C. Hull shall hold all his part of the estate in the same manner and form as she holds her own, and at her death the entire estate to go to the Hull heirs. And I hereby appoint Mary C. Hull executrix of this, my last will and testament; and said executrix is to hold all the personal property jointly for the benefit of herself and her son Oscar G. Hull, and to dispose of it as she may think best for the benefit of both, and when Oscar G. Hull becomes of age he shall receive one-half of all the personal property and money they have at that time belonging to the estate and all money due the said testator from any association to which he belongs shall be considered and held as personal property; and it is my last will and testament that my wife, Mrs. M. C. Hull, shall not be required to give bond as executrix of this estate."

It is stipulated: that Samuel Hull died March 11, 1878, seized of the land described in the will and personalty appraised at $ 1456.41; that on final settlement a balance of $ 1110.70 was due the estate; that Samuel's widow, Mary C., and one son, Oscar G., survived him and are the devisees named in the will; that Oscar G. was fourteen year of age at the time of his father's death; that he lived on the land with his mother until April 10, 1892, when he died, aged twenty-eight; that "he never married, nor had any child or children;" that after Oscar attained his majority, in 1882, Mary C. paid to him the proceeds of one-half of Samuel Hull's personalty, in the sum of $ 780.40, and took his receipt; that thereafter Oscar purchased a seven-eighths interest in sixty acres of land other than that described in Samuel's will; that Mary C. Hull married J. C. Wilson in 1891; that no children were born of this marriage; that Wilson died in 1914, and Mary C. died October 1, 1916; that Mary C. managed and used the real estate and personalty left by Samuel Hull, except the one-half paid over to Oscar in 1885, until her death, and took all the real and personal property of Oscar after his death; that plaintiffs and the minor defendants are the brother and the surviving descendants of other brothers and sisters of Samuel Hull and are his heirs, and that the other defendants are the devisees under the will of Mary C. Wilson, formerly Mary C. Hull, and claim the property in question as such; that the personal property in Mary C's. hands at her death amounted to many thousands of dollars.

The evidence shows that Samuel Hull died of consumption and that prior to Samuel's death Oscar, the son, while bright and dutiful, was not physically strong. Oscar's death, in 1892, was due to the same disease which carried off his father.

The judgment gave plaintiffs the one hundred and seventy-acre tract and gave defendants all other property in suit. Both plaintiffs and defendants on the trial claimed all the property, real and personal, mentioned in the above statement. Both appealed from the judgment.

I. Plaintiffs take the position that they take the land, described in the will of Samuel Hull, by virtue of an executory devise limited upon the fee Oscar G. Hull would have taken had he not died without issue or child surviving him. Defendants are of a different opinion.

It is earnestly insisted by defendant's counsel that the limitation upon which plaintiffs rely is void by way of an executory devise because Oscar G. Hull, they contend, was vested with an absolute power of disposition, destructive of such a limitation. Their argument, as we understand it, runs thus: (1) that with respect to both tracts devised by Samuel Hull, the words of the will in the devises to Oscar, in the first instance, are adequate,...