Hyde v. Hopkins

• Decision Date: 25 June 1927
• Docket Number: No. 25817.,25817.
• Citation: 296 S.W. 382
• Parties: HYDE et al. v. HOPKINS et al.
• Court: Missouri Supreme Court

296 S.W. 382

HYDE et al. v. HOPKINS et al.

No. 25817.

Supreme Court of Missouri, Division No. 1.

June 25, 1927.

Appeal from Circuit Court, Carroll County; Ralph Hughes, Judge.

Suit by Henry C. Hyde and others against Margaret Hopkins, and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Jno. D. Taylor, of Keytesville, for appellants.

Lozier & Morris, of Carrollton, for respondents.

LINDSAY, C.

This is a suit to quiet title to about 360 acres of land in Chariton county, and in the second count of the petition partition is asked. The original source of title was Richard S. Hyde, who died in 1871, leaving a will disposing of the lands in controversy, and the determination of the case turns upon the construction to be given to his will.

The five plaintiffs, constituting all the heirs of Henry C. Hyde, deceased, a son of Richard S. Hyde, claimed to own each an undivided one twenty-fifth interest in said lands. The construction to be given to the will of Richard S. Hyde turns mainly, perhaps wholly, upon clauses 2 and 3 thereof, but in view of the contention made by counsel for plaintiffs, we set out clauses 1 to 5, inclusive, which are as follows:

"1st. I will and give to my wife Eliza D. Hyde the sum of four thousand dollars in money to be her absolute property and to be disposed of by her as she may see fit and I desire and direct that my executor hereinafter named shall pay over to her as soon as practicable after my decease the said sum of four thousand dollars out of the first moneys that shall come to his hands from any portion of my estate personal or real. I further will and direct that my said wife Eliza D. Hyde shall have the use and control of the all of the home tract of land together with the 77½ acres adjoining known as the `Moss tract' of land during her natural life free of any charge for rents or profits therefor.

"2d. I will unto my daughter Ann Elizabeth Hyde and to her bodily heirs all of the home tract of land together with all the improvements thereon together also with the 77½ acres of land known as `Moss tract' of land.

"3d. I will and direct that the remaining portion of my estate shall be equally divided and apportioned among my other children viz. George W. Hyde, James B. Hyde, Henry C. Hyde, Walter E. Hyde and Lucius D. Hyde.

"4th. I will and direct that in the final distribution of my estate the amounts heretofore advanced to my sons in the nature of real estate shall be duly accounted for by each of them at the price fixed upon the same at the time of each conveyance.

"5th. I will and direct that if upon the final distribution of my estate the home tract above mentioned and willed to my daughter Ann Elizabeth Hyde shall be found to be not equal in value to the amount received by each of my sons the difference shall be made up equal to her by them and I further direct and will that if the same shall be found to be greater in value than the portion received by them, I desire and direct the whole amount willed to her and herein mentioned and described shall belong to her as willed."

The case was tried and submitted upon an agreed statement of facts, and the Judgment was in favor of defendants.

The events shown following the probate of the will of Richard S. Hyde in 1871, and other facts necessary to be considered, are as follows: Eliza D. Hyde, widow of Richard S. Hyde, accepted the terms of the will. Ann Elizabeth Hyde, mentioned in clause 2, and the five sons of Richard S. Hyde mentioned in clause 3, were all living at the time of his death, and were his only children and heirs at law.

In 1873, the five sons mentioned in clause 3 of the will, including Henry C. Hyde, the father of plaintiffs, for an expressed consideration of $8,300, conveyed to their sister, Ann Elizabeth Hyde, by a general warranty deed with the usual covenants of warranty, all of their interests at law or in equity in and to the land in controversy. Thereafter the status of the land and of the children of Richard S. Hyde, deceased, remained unchanged until the year 1904, when said Henry C. Hyde, one of the grantors in said warranty deed, died intestate, leaving the plaintiffs as his only heirs at law. Four years later, in January, 1908, Ann Elizabeth Hyde died, leaving a will by which she devised the land to defendant Margaret Hopkins, subject, however, to certain claims and interests of certain other parties, who were made defendants. Ann Elizabeth Hyde left no heirs of her body, having lived and died single and unmarried.

The contention of counsel for plaintiffs is that the deed made to Aim Elizabeth Hyde by her five brothers was wholly ineffectual so far as concerned Henry C. Hyde, the father of plaintiffs, who died before the death of Ann Elizabeth Hyde. The argument on behalf of defendants is that the five sons of Richard S. Hyde, under the third clause of the will, were contingent remaindermen; that the third clause of the will devised to them the estate in reversion of Richard S. Hyde to said land, an interest which they, including said Henry C. Hyde, could and did convey; and that the interest of Henry C. Hyde was never divested, but became absolute, because Ann Elizabeth Hyde died without heirs of her body, and that she, having taken under the deed to her the interest in reversion, and dying without heirs of her body, her will passed to defendants the fee to the whole. The use of the words "bodily heirs" in the third clause limited the estate given to Ann Elizabeth Hyde to a life estate. Miller v. Ensminger, 182 Mo. 195, 81 S. W. 422; Clarkson v. Clarkson, 125 Mo. 381, 28 S. W. 446.

The essential questions in this case are met by the decisions in Gillilan v. Gillilan, 278 Mo. 99, 212 S. W. 348, and Collins v. Whitman, 283 Mo. 383, 222 S. W. 840, the former a case en banc, the latter one in Division 2 of this Court. The nature of the instant case makes pertinent somewhat extended reference to the facts stated and the conclusions announced in those cases. In Gillilan v. Gillilan the testator, Nathan Gillilan, by the fifth clause of his will, devised the lands there in controversy to his son, George W. Gillilan, and the heirs of his body thereafter to be born, expressly excluding therefrom the then living children of said George W. Gillilan, born of an existing marriage with his wife Martha. By the ninth clause of the will, Nathan Gillilan devised the "remainder" of his estate to his two sons, said George W. Gillilan, and another son, John D. Gillilan, in equal shares. George W. Gillilan later was divorced from his wife Martha and married again. No child was born of his second marriage. He died leaving a will by which he devised all of his property to his second wife, Gratia Gillilan. At the time of the trial of that case and upon the hearing on appeal, there was pending a contest of the will of said George W. Gillilan. The ruling of the trial court, affirmed on appeal, was that the children of John D. Gillilan, deceased, took together a one-half interest in the land in controversy. The ruling as to the remaining one-half interest in that land was in the alternative, and contingent upon the result of the contest of the will of George W. Gillilan. It was held that if the will of George W. Gillilan should be adjudged valid and that he died testate, then his widow, Gratia Gillilan, would take in fee simple the undivided one-half interest in the lands in controversy; but if said will was held to be invalid and George W. Gillilan died intestate, then his two surviving children, the children of his wife Martha, took the undivided one-half interest in said land, subject to the dower and homestead rights of the widow, Gratia Gillilan. It was held that the estate remaining in Nathan Gillilan in the land specifically devised under clause 5 of his will, upon defeat of that devise for lack of heirs...