Jackson v. Littell

• Decision Date: 14 July 1908
• Parties: JACKSON et al. v. LITTELL.
• Court: Missouri Supreme Court

112 S.W. 53

213 Mo. 589

JACKSON et al. v. LITTELL.

Supreme Court of Missouri. Division No. 2.

July 14, 1908.

1. WILLS — CONSTRUCTION — CONFLICTING PROVISIONS.

While the cardinal rule in the interpretation of a will is that the intention of the testator as gathered from the whole instrument shall control, it is also the settled law that, when the words of a will at the outset clearly indicate a disposition in the testator to give the entire interest, use, and benefit of the estate devised absolutely to the first donee, that estate will not be cut down by subsequent or ambiguous words inferential in their intent.

2. SAME — ESTATES CREATED — FEE SIMPLE— "HEIRS AND ASSIGNS."

While the words "heirs and assigns" are not necessary in Missouri to create a devise of a fee simple, they are necessary at common law.

3. SAME.

Where an estate is devised to one and his heirs and assigns forever, and there is added either by express words or by plain implication an absolute power of alienation, a limitation over is void.

4. SAME.

By his will testator devised to his wife, her heirs and assigns, forever, all his property, with privilege of selling, and directed that at her death each of his daughters should have a certain sum, also directing that at the death of his wife, or at any time when she might arrange to relinquish her interest in the property, the same should revert to testator's son, after his daughters should have received their portion. Held, that the wife took a fee-simple estate in the property, with full power to sell and convey it.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Abigail Jackson and others against Archibald V. Littell to construe a will. From the judgment, plaintiffs appeal. Reversed and remanded, with directions.

J. N. & A. C. Southem, for appellants. John W. Clements, for respondent.

GANTT, J.

This is an action begun in the circuit court of Jackson county to construe the last will and testament of Archibald Littell, deceased. The case was tried upon the following agreed state of facts:

"Plaintiffs and defendant by their respective attorneys hereby stipulate and agree as follows:

"(1) That Archibald Littell died on the ____ day of July, 1903, testate, seised and possessed of the real estate described in the petition, leaving as his heirs and devisees his widow Catharine Littell and his children, the plaintiffs and defendant in the above-entitled cause.

"(2) The said decedent made and executed his last will and testament, which was on the 10th day of August, 1903, duly admitted to probate in the probate court of Jackson county, Mo., at Independence, a true copy of which is as follows:

"`Realizing the uncertainty of life, I, Archibald Littell of the county of Jackson, and state of Missouri, make this my last will and testament while in possession of sound mind and memory, this the 6th day of March, in the year of our Lord, one thousand eight hundred and eighty-first. I give, devise and bequeath to my beloved wife, Catharine Littell, her heirs and assigns, forever, all of my property, real and personal of what nature and kind soever and wherever the same shall be at the time of my death, with privilege of selling or conveying by deed.

"`Second. I bequeath that at the death of my wife, Catharine, my four daughters, Sarah E. Long, Abigail Jackson, Martha King, and Mary E. Mulford shall each have five dollars and my three daughters, Rebecca Chiddix, Rachel Chiddix and Lucinda Littell each shall have two hundred dollars.

"`Third. It is also my will and desire that at the death of my wife or at any time she may arrange to relinquish her interest in said property, the same may revert to my son, Archibald V. Littell, after my daughters shall have received each their portion as stipulated in the second section of my will.

"`Fourth. It is my will that my wife shall be executrix of this my last will and testament. My will is also that my said wife shall not be required to give any bonds or security to the judge of the probate court for the faithful execution of the duties of executor.

                  "`[Signed]     Archibald Littell. [Seal.]
                  "`Witnesses:   John Stonehouser
                             "`C. C. Latimer.'
                

"(3) That on the 10th day of August, 1903, the widow of decedent, the said Catharine Littell, executed her warranty deed to the plaintiffs and defendant, purporting to convey to them the land in controversy as specified in said deed, a true copy of which is as follows:

"`Warranty Deed. This indenture made on the 10th day of August, 1903, by and between Catharine Littell, widow of Archibald Littell, deceased, of the county of Jackson, state of Missouri, party of the first part, and Sarah E. Long, Abigail Jackson, Martha King, Mary E. Mulford, Rebecca Chiddix, Rachel Chiddix, Lucinda Littell, and Archibald V. Littell, of the county of Jackson, state of Missouri, parties of the second part, witnesseth: That the said party of the first part in consideration of one dollar and natural love and affection to her paid by the said parties of the second part, the receipt of which is hereby acknowledged, does by these presents grant, bargain and sell, convey and confirm unto the said parties of the second part, their heirs and assigns, the following described tracts and parcels of land lying being and situated in the county of Jackson. state of Missouri, to wit: All the west (121) one hundred and twenty-one acres of the northeast quarter of section (6) six, township (49) forty-nine, and range (29) twenty-nine, except one acre in the northwest corner thereof grantor reserving a life estate to herself in said property, the remainder in fee in said real estate is to vest in said grantees, the same being children of the grantor, as tenants in common, share and share alike, except that on a partition of the same the following parties shall receive the following amounts respectively, before the remainder is divided equally between said grantees, viz. Lucinda Littell, four hundred dollars, and Rachel Chiddix, Rebecca Chiddix and Archibald Littell, two hundred dollars each. To have and to hold the premises aforesaid, with all and singular rights, privileges, and immunities thereto belonging, or in any wise appertaining unto the said parties of the second part and unto their heirs and assigns, forever, the said grantor hereby covenanting that she is lawfully seised of an indefeasible estate in fee in the premises herein conveyed: That she has good right to convey the same; that the said premises are free and clear from any incumbrance done or suffered by her, or those under whom she claims, and that she will warrant and defend the title in the said premises unto the said parties of the second part and unto their heirs and assigns, forever, against the lawful claims and demands of all persons whomsoever. In witness whereof, the said party of the first part has hereunto set her hand and seal the day and year first above written.

                                 Catharine Littell.   [Seal.]
                

"`Deed acknowledged on August 10th, 1903. Recorded August 10th, 1903, in Book 246, at page 246, recorder's office, Independence, Missouri.'

"(4) That the personal property of said estate was not more than the widow was entitled to under the statutes, and that none of the real estate will be needed to pay debts of the testator.

"(5) That the real estate described in the petition was all the real estate owned by decedent at the time of his death.

"(6) That Catharine Littell at the time of the execution of the deed and the probate of the will, August 10, 1903, was about 82 years of age and physically in feeble health; that said Catharine Littell and the testator, Archibald Littell, deceased, lived together as husband and wife for about 57 years and raised a family of eight children, the plaintiffs and defendant, the youngest being a...