Landers Investment Company v. Brown
| Citation | 254 S.W. 14,300 Mo. 348 |
| Parties | LANDERS INVESTMENT COMPANY v. DELLA BROWN, LAURA M. SCOTT, TARSIA M. SHORT, LINDER MIDDLEWORTH, TARSIA HOUSTON, E. N. FERGUSON, Administrator of Estate of ELIZABETH M. SITTLER, E. N. FERGUSON, Ancillary Administrator of Estate of BLANCHE SITTLER CRANE, and JAMES L. CRANE; JAMES L. CRANE, Appellant |
| Decision Date | 31 July 1923 |
| Court | United States State Supreme Court of Missouri |
Appeal from Greene Circuit Court. -- Hon. Guy D. Kirby, Judge.
Affirmed.
A. S Cowden and Mann & Mann for appellant.
(1) The direction in the lease that after the death of Lizzie M Sittler and Blanche Sittler the rent shall be paid to the heirs of Lizzie M. Sittler is void because it is an attempt to make a gift testamentary in character and the instrument is not executed under the formalities required by our law in the execution of wills. There was never a delivery of the gift in the lifetime of the donor. In re Soulard's Estate, 141 Mo. 642; Murphy v. Gabbert, 166 Mo 601; Griffin v. McIntosh, 176 Mo. 392; Aldridge v. Aldridge, 202 Mo. 565; Terry v. Glover, 235 Mo. 551; Miller v. Holt, 68 Mo. 584; Headington v. Woodward, 214 S.W. 963; Priester v. Hohlock, 75 N.Y.S. 405. (2) The said provision in the lease directing the rent after the death of Blanche Sittler, if construed to be a direction to pay to the respondents, is void for the further reason that the direction to pay such rents to respondents is a mere voluntary assignment or gift, to take effect in the future, and without any consideration moving from the respondents who are not parties to said lease, and without any obligation on the part of the said Lizzie M. Sittler to make such or any provision for them. Vantage Mining Co. v. Baker, 170 Mo.App. 471; Matlack v. Kline, 216 S.W. 329. (3) The respondents claiming to be the heirs of Lizzie M. Sittler after the death of Blanche Sittler could not have maintained a suit against the lessee for the recovery of this rent by claiming that the contract for the payment of rents after the death of Blanche was made for their benefit, because there was no consideration moving from them to the donee Lizzie M. Sittler, nor was she under any obligation to provide for them in this or any other manner. They were not privy to the consideration. It is necessary in order to create the necessary privity that Lizzie M. Sittler should have owed to respondents some obligation or duty, legal or equitable, which would give them a just claim before they could sue on the contract or claim the fund. Burton v. Ruth, 196 Mo.App. 459; School Dist. v. Works, 147 Mo. 580; Lumber Co. v. Banks, 136 Mo.App. 44; Devers v. Howard, 144 Mo. 678; St. Louis v. Von Phul, 133 Mo. 565; People v. Manning, 264 Mo. 581; Carpenter v. Realty Co., 103 Mo.App. 480; Uhrich v. Surety Co., 196 Mo.App. 111. (4) We know that the rule is that the mere fact that an instrument postpones the enjoyment of the subject-matter until after the death of the grantor is not decisive that the instrument is testamentary in character. The test is whether the maker intended the instrument to have no effect until after the maker's death, or whether he intended to transfer some present interest. If some interest vests at once although the enjoyment is postponed, the instrument is not a will and it is revokable. 28 C. J. 624, par. 11 E. The mere intention to give in the future, however well shown, gives rise to no obligation which the law will recognize or enforce. 28 C. J. 627, sec. 19; Tille v. Roever, 159 Mo.App. 115; Tygard v. McComb, 54 Mo.App. 85. (5) A gift to take effect after the donor's death, the donor in the meantime retaining control and dominion over the property is a testamentary devise. 28 C. J. 648, sec. 43. The gift is not a vested remainder. It did not convey the present right to the future enjoyment of the rents. There was no gift save in the direction to pay or distribute the rent at a future time. Stevens v. Carol, L. R. A. 1918 E. 1105, and note under heading "The General Rule" and cases cited in footnote 22; Owen v. Eaton, 56 Mo.App. 568; Sullivan v. Sullivan, 56 N.E. 116. (6) The word "heirs" as used in the lease means heirs of Lizzie M. Sittler at her death. Stokes v. Van Wyck, 3 S.E. 387; Desloge v. Tucker, 196 Mo. 587; Brown v. Banks, 66 Mo.App. 431; Rand v. Butler, 48 Conn. 293; McConnell v. Stewart, 48 N.E. 201. (7) At the time of the execution of the lease in question Blanche Sittler was twenty-seven years old and childless. It was therefore entirely possible that at the death of Blanche the heirs of Lizzie M. might not then have been upon the happening of that event the respondents, but could well have been a grand-child of the said Blanche, and the lease in so far as it attempts to reserve the rent to the heirs of Lizzie M. who were not her heirs at her own death but who would be her heirs at the death of Blanche would violate the rule against perpetuities. While the policy of the law is against clogging the free alienation of estates it is an imperative, unyielding rule of law, first, that no estate can be given to the unborn child of an unborn child, and the limitation in order to be valid must be so made that the estate not only may but must vest in possession within the prescribed period. If by any possibility the vesting may be postponed beyond this period the limitation will be void. Lockridge v. Mace, 109 Mo. 162; Rand v. Butler, 48 Conn. 293.
George W. Goad, John Schmook and Argus Cox for respondents.
(1) It is conceded that a lease for ninety-nine years is a valid instrument and may be executed by any one owning real estate upon which the lease is to apply. The right to execute the lease carries with it the right to provide in the lease who shall collect the rent for the full term of the lease. The only exception being that it cannot take the place of a will or violate the rule of law against perpetuities. (2) It is the constant desire of the law to uphold a contract rather than destroy it; to effectuate the intention of the parties and not to defeat it. The deed or contract and every provision in it must be made operative if it is possible to do so. 13 Cyc. 604; Peter v. Byrne, 175 Mo. 243; Hubbard v. Whitehead, 221 Mo. 681; Horn v Gartman, 1 Fla. 89; Roberts v. McYntire, 64 Maine, 362. (3) A lease for ninety-nine years or for any other number of years is personalty. Orchard v. Stone Co., 225 Mo. 433; Mining Company v. Baker, 170 Mo.App. 468. (4) A remainder over a life estate in personalty may be created and passed by deed. Green v. Whaley, 271 Mo. 654. (5) A lease for ninety-nine years, or for any other length of time, short or long, which provides to whom the rent is to be paid after the death of the lessor, is not testamentary. Green v. Whaley, 271 Mo. 654; Simms v. Brown, 252 Mo. 58; Christ v. Kuehne, 172 Mo. 118; Wright v. Cartwright, 97 Eng. 315; Horn v. Gartman, 1 Fla. 63; Longworthy v. Chadwick, 13 Conn. 42; Nichols v. Emery, 109 Cal. 323. (6) If Mrs. Sittler had taken this lease with the provision that all the rent should be paid to her, and then executed a deed containing the same provisions as this lease it would have been valid. Buxton v. Kroeger, 219 Mo. 224; Horn v. Gartman, 1 Fla. 63; Nichols v. Emery, 109 Cal. 323. (7) What can be done by the deed in the manner above indicated can be done by a suitable provision in the lease itself. Wright v. Cartwright, 97 Eng. 315. (8) The consideration for any valid contract is a consideration for every provision that may lawfully be inserted in the contract by the parties executing it. Crone v. Stinde, 156 Mo. 262. (9) It is not necessary, as contended by appellant, that the party making the contract must owe some duty, either legal or equitable, to the third party in order to make a contract made for the benefit of a third party binding. If one of the objects of the contract is to secure a benefit to the third party and the benefit goes to him directly by a direct provision of the contract and not merely in an incidental way as a result of some provision intended, primarily, for the benefit of another, it is binding and may be enforced by the third party although he may be an entire stranger to it and furnish no part of the consideration and although neither of the parties executing the contract owes him any duty, either legal or equitable, to provide for him in the contract. Crone v. Stinde, 156 Mo. 262; Bank v. Chick, 170 Mo.App. 343. If a contract be made for the benefit of several persons it is not necessary for each to furnish part of the consideration. The consideration may all be furnished by one of the parties for whose benefit the contract is made and the contract will be valid as to all of them. Elmer v. Campbell, 136 Mo.App. 100. (11) This lease does not violate the rule of law against perpetuities. The remainder in this lease passed immediately after the end of a life in being when the lease was executed and hence passed before the expiration of the time limit fixed by the rule against perpetuities. Deacon v. Trust Co., 271 Mo. 695; Elsea v. Smith, 273 Mo. 412; Cox v. Jones, 229 Mo. 66; Walters v. Dickman, 274 Mo. 185; Gates v. Seibert, 157 Mo. 254. (12) In determining who is meant by the term heirs as applied to those who are to take after the death of both Lizzie M. Sittler and her daughter Blanche, it is necessary to first determine how and when they take....
To continue reading
Request your trial