Jecko v. Taussig

• Decision Date: 31 October 1869
• Parties: JOSEPH JECKO, Trustee of Caroline C. Hume, and CAROLINE C. HUME, Respondents, v. WILLIAM TAUSSIG, Appellant.
• Court: Missouri Supreme Court

45 Mo. 167

JOSEPH JECKO, Trustee of Caroline C. Hume, and CAROLINE C. HUME, Respondents,

v.WILLIAM TAUSSIG, Appellant.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

Taussig & Kellogg, for appellant.

I. Respondent is not entitled to equitable relief by a decree for specific performance. (31 N. Y. 91; McLean v. white, 5 Maine, 178.)

II. Without the clause authorizing a conveyance in fee, the deed would undoubtedly create an estate in remainder in the heirs

of the bodies of John F. and Caroline Hume, who would take as purchasers as well at common law as under our statute. The rule in Shelley's case would not apply, even if the statute were not in force. (2 Washb. on Real Prop., last ed., 556, 575, note 4; Webster v. Cooper, 14 How. 500; Gen. Stat. 1865, ch. 108.)

III. An estate in fee is not by any means necessarily an estate in fee simple absolute, and the right to convey in fee does not necessarily give the right to convey an estate in fee simple absolute. (Preston on Estates, 479 et seq.; 1 Washb. on Real Prop. 51-2, 62-4; id. 444 et seq.)

Jecko & Hospes, for respondents.

CURRIER, Judge, delivered the opinion of the court.

This is a proceeding in the nature of a petition in equity for the specific enforcement of a contract to purchase real estate. The suit is amicable, and the facts of the case are all agreed.

The points presented for adjudication involve the construction of a deed from S. D. Barlow and wife, to the plaintiffs, who, as the grantees therein, are described as “Joseph Jecko, trustee of Mrs. Caroline C. Hume, wife of John F. Hume, and Caroline C. Hume.” The habendum clause of the deed is in the words following: “To have and to hold the same (the premises described in the deed) to the said Joseph Jecko and his successors in trust--in trust, however, for the following uses and purposes, viz: for the use, occupation, and benefit of said Caroline C. Hume, free from all control and power of disposition or encumbrance on the part of her husband, John F. Hume; to be sold and conveyed in fee, mortgaged or rented, as she, the said Caroline C. Hume, may in writing direct; and the proceeds, issues, and rents to be paid to her or her order, without the interference or control of her husband, or any one claiming under or through him. The object and purpose being to invest said Caroline C. Hume with said property and its improvements and appurtenances, subject to her sole use and occupation, without interference from any person, with the limitation only which is hereby made a condition of the trust herein created to-wit: that in case of the death of the said Caroline C. Hume, or her husband, John F. Hume, the said property shall at once vest in and belong to the children of the bodies of said John F. Hume and Caroline C. Hume, subject to a life interest in said Caroline C. Hume, should she be the survivor, and their heirs; and the said Joseph Jecko, or his successor in trust, shall, in that case, hold said property for their benefit, or convey the same upon their written order, or that of their legal guardian.”

The original statement shows that Mr. and Mrs. Hume had two children, the issue of their marriage, living at the date of said deed, and that they are still living, as is also said John F. Hume, who joins his wife and her trustees in the execution of the deed tendered to the defendant in execution on their part of the contract of sale. There are no provisions in the other parts of the deed affecting the construction to be placed upon the habendum clause recited above. The question presented is, does this deed vest in the grantees therein an inheritable estate in fee simple? or, in other words, does it vest in them such an estate, and give them such power and dominion over the granted premises during the lifetime of John F. Hume, that they may at any time during that period, by an appropriate deed, alien and convey the same in fee simple absolute?

The deed authorizes a conveyance in “fee.” Much stress is laid upon the distinction which is supposed to exist between an estate in “fee” and an estate in “fee simple absolute.” It is urged that a right to convey in “fee” does not necessarily give the right to convey in “fee simple absolute.” The distinction in question may have once existed and had...