Jackson v. Littell

• Decision Date: 14 July 1908
• Parties: ABIGAIL JACKSON et al., Appellants, v. ARCHIBALD V. LITTELL
• Court: Missouri Supreme Court

112 S.W. 53

213 Mo. 589

ABIGAIL JACKSON et al., Appellants, v. ARCHIBALD V. LITTELL

Supreme Court of Missouri, Second Division

July 14, 1908

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Reversed and remanded (with directions).

J. N. & A. C. Southern for appellants.

(1) If the testator devise a fee simple or generally to the first taker with an absolute power of disposal in him, and there is neither by express words or implication a mere life estate created in the first taker, all subsequent grants in the will must fail, because repugnant to the first grant and because it conflicts with a settled rule of law. Roth v Rauschenbush, 173 Mo. 592; Grace v. Perry, 197 Mo. 564; Green v. Sutton, 50 Mo. 186; Gannon v Pauk, 200 Mo. 75. (2) The title to the real estate conveyed by the deed would be valid, even though in construction of the will from the "four corners" the estate devised to Catharine Littell should be held to have been a life estate, because there was a power of sale or conveyance by deed added, and it is not denied that such deed was executed by Catharine Littell and delivered to all the plaintiffs. This doctrine is sustained by all the authorities.

John W Clements for respondent.

(1) There is no principle of law more fully established in this State than that "the cardinal rule in the interpretation of a will is that the intention of the testator as gathered from the whole instrument shall control." McMillan v. Farrow, 141 Mo. 55. And that the intention of the testator "is not to be gathered from single words, passages or sentences, but from a consideration of the whole instrument taken together in its general scope and design." Russell v. Eubanks, 84 Mo. 82; Turner v. Timberlake, 53 Mo. 371; Gaines v. Fender, 57 Mo. 342; Smith v. Hutchison, 61 Mo. 83; Allison v. Chaney, 63 Mo. 279; Long v. Timms, 107 Mo. 512; Watson v. Watson, 110 Mo. 164; Murphy v. Carlin, 113 Mo. 112; Redman v. Barger, 118 Mo. 568; Lewis v. Pitman, 101 Mo. 281; Munro v. Collins, 95 Mo. 73; Harbison v. James, 90 Mo. 411; Bean v. Kennuir, 86 Mo. 666; Smith v. Bell, 6 Peters 68; Anderson v. Hall and Crawford v. Hall, 80 Ky. 91. The intention of the testator, Archibald Littell, deceased, as gathered from the entire will, unquestionably was to give his wife, Catharine Littell, only a life estate therein, coupled with the power of sale, with the remainder over to the devisees named in the will and in the proportions named in the will. (2) "The power of sale, or disposal superadded to a life estate, if not exercised does not enlarge the life estate into a fee; and in such case the remainder over is valid and at the death of the life tenant takes effect in the remainderman." Harbison v. James, 90 Mo. 411; Ruby v. Barnett, 12 Mo. 3; Reinders v. Koppelmann, 68 Mo. 482; Russell v. Eubanks, 84 Mo. 83. (3) Nor is it necessary that the life estate be created in express terms. If it is the clear intention from the whole will that the first taker is to have but a life estate, then the added power of disposition will not convert the estate into one of absolute ownership. Lewis v. Pittmann, 101 Mo. 281; Redman v. Barger, 118 Mo. 568; Russell v. Eubanks, 84 Mo. 82; Schorr v. Carter, 120 Mo. 409. (4) The widow, Catharine Littell, in the exercise of her "privilege of selling or conveying by deed," given her by the terms of the will of testator, was in a sense the trustee of the remaindermen, and as such trustee it was her duty to exercise good faith. Rose v. McHose's Executors, 26 Mo. 590; Burford v. Aldredge, 165 Mo. 419; Underwood v. Cave, 176 Mo. 1.

GANTT, J. Fox, P. J., and Burgess, J., concur.

OPINION

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 statement 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, seized 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, Missouri, 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.

"'Witnesses: John Stonehouser.

C. C. Latimer.

"'Archibald Littell, (Seal.)'

"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 one hundred and twenty-one acres of the northeast quarter of section six, township forty-nine, and range 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 seized 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.

"4th. 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.

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

"6th. That Catharine Littell, at the time of the execution of the deed and the probate of the will, August 10th, 1903, was about eighty-two 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 fifty-seven years and raised a family of eight children, the plaintiffs and defendant, the youngest being a daughter, Lucinda, aged about forty years, living at home and unmarried."

In an instruction given by the court of its own motion, it construed the said will as follows:

"Under...