Long v. St. Louis Union Trust Co.

• Decision Date: 03 March 1933
• Docket Number: 30020
• Citation: 57 S.W.2d 1071,332 Mo. 288
• Parties: Mary L. Long, Daniel R. Long and Lillian Long, Minors, by their Guardian, Mary L. Long, Appellants, v. St. Louis Union Trust Company, a Corporation, and the Curators of Central College, a Corporation
• Court: Missouri Supreme Court

57 S.W.2d 1071

332 Mo. 288

Mary L. Long, Daniel R. Long and Lillian Long, Minors, by their Guardian, Mary L. Long, Appellants, v. St. Louis Union Trust Company, a Corporation, and the Curators of Central College, a Corporation

No. 30020

Supreme Court of Missouri

March 3, 1933

Appeal from Circuit Court of City of St. Louis; Hon. Moses N Sale, Judge.

Affirmed.

R M. Nichols for appellants.

(1) The construction of deeds and wills are governed by the same rule. Walton v. Drumtra, 150 Mo. 489; Yocum v Siler, 160 Mo. 281; Armor v. Fry, 226 Mo. 673; Driskill v. Ashby, 259 Mo. 7; Johnson v. Frank, 260 Mo. 442. (2) The apparent further limitation, "if she shall die before marriage, or without leaving any child or children her surviving, then she shall enjoy the estate during her natural life only, after the determination of the life estate in said property, shall pass to and vest in the St. Louis Union Trust Company," is void, for the reason that the limitation is after the fee-simple title had fully vested in Mary Margaret Lewis (now Long) and her two children. Weed v. Gray, 78 Mo. 59; Chew v. Keller, 100 Mo. 362; Gannon v. Albright, 183 Mo. 238; Papin v. Piednoir, 205 Mo. 521; Jackson v. Little, 213 Mo. 598; Gibson v. Gibson, 239 Mo. 490; In re McClelland Estate, 257 S.W. 808. (3) The words "give, grant, alien, convey and confirm." The words "said remainder in fee . . . intended to be conveyed to said Mary Margaret Lewis . . . is the full remainder in fee." The words, "she shall have a child or children, then the remainder in fee shall vest in her and said child or children, in equal shares, share and share alike, absolutely, and in fee simple forever." The claimed clause of defeasance, "if she shall die before marriage, or without leaving any child or children her surviving, then she shall enjoy the said estate during her natural life only," when contrasted with the absolute gift, as culled from the language preceding, would be insufficient to cut down the absolute estate when it appears that she has married and has had children. Green v. Sutton, 50 Mo. 186; State ex rel. v. Tolson, 73 Mo. 320; Wead v. Gray, 78 Mo. 59; Chew v. Keller, 100 Mo. 378; Cornwell v. Orton, 126 Mo. 355; Cornwell v. Wulf, 148 Mo. 542; Yocum v. Siler, 160 Mo. 281; Roth v. Rauschenbusch, 173 Mo. 582; Gannon v. Albright, 183 Mo. 238; Seiver v. Woodson, 205 Mo. 202; Papin v. Piednoir, 205 Mo. 521; Jackson v. Littell, 213 Mo. 589.

Wilfley, Williams & Nelson for respondents.

(1) The rule for the construction of deeds is that the intention of the parties is to be ascertained by considering all the provisions of the deed, as well as the situation of the parties, and then to give effect to such intention, from the whole instrument. Devlin on Deeds (2 Ed.) sec. 836; Walter v. Drumtra, 152 Mo. 489; Long v. Timms, 107 Mo. 519; McCullock v. Holmes, 111 Mo. 447. (2) An estate may be created in fee, subject to defeasance, when the clear and unequivocal language of the deed indicates such intention of the grantor. Sevier v. Woodson, 205 Mo. 202; Sorenson v. Boorman, 297 S.W. 70; Lockney v. Campbell, 189 S.W. 1174. (3) When an instrument conveys a defeasible fee, with limitation over in favor of another, upon contingency of the death of the grantee "without having been married or having married shall die without leaving any child or children surviving her," the estate cannot finally be determined until the death of said grantee. Lockney v. Campbell, 189 S.W. 1174; Brown v. Tuschoff, 235 Mo. 458; Collier v. Archer, 258 Mo. 389; Gannon v. Pank, 200 Mo. 75; Yocum v. Siler, 160 Mo. 281; Gannon v. Albright, 183 Mo. 238.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

This case comes to the writer on reassignment. It is an action to determine title to certain real estate in the city of St. Louis. The decision depends upon the construction of the following deed:

"This Indenture, made this Ninth day of June, A. D., 1909, by and between Edward Unwin, single, of the City of St. Louis, State of Missouri, as party of the First Part, and Martrom D Lewis, Mary Margaret Lewis, the St. Louis Union Trust Company and Central College located at Fayette, Missouri, as parties of the Second Part,

"Witnesseth That the said party of the First Part, in consideration of the sum of One Dollar to him in hand paid, and other good and valuable considerations, the receipt whereof is hereby acknowledged, does by these presents Give, Grant, Alien, Convey and Confirm unto the said parties of the Second part all the right, title and interest of the said party of the First Part in and to then (the) property hereinafter described, in the proportions and upon the limitations and conditions, however, hereinafter expressed.

"The estate herein and hereby conveyed to the said Martrom D. Lewis, one of the said parties of the Second Part, is a full and complete life estate in and to the said property during the natural life of the said Martrom D. Lewis, with full power in him to possess, use, occupy and enjoy all and singular the said property and estate during and until the full end and term of his natural life, with the right during his said natural life to take and possess himself of all and singular the rents, issues and profits arising therefrom, and from every part thereof; and he shall have the right and full power to incumber the fee of the said property and estate with lease or leases the term or terms of which may extend beyond the natural life of the said Martrom D. Lewis, and which lease or leases may contain such agreements, covenants and conditions as may be deemed meet and proper by the said Martrom D. Lewis, and the lessee or lessees of said property, or of any part thereof.

"The said rents, issues and profits of the said lease or leases, and said leasehold estates, however, after the death of the said Martrom D. Lewis, shall follow the remainder or remainders of said property, upon the same conditions, limitations and covenants herein expressed as limiting the same.

"The said remainder in fee of said property subject to the said reservations, conditions and limitations hereby created, and upon which said remainder in fee is hereby conveyed and intended to be conveyed to the said Mary Margaret Lewis, one of the said parties of the Second Part is the full remainder in fee, after the determination of the life estate of the said Martrom D. Lewis, of, in and to the following described real estate, situated in the City of St. Louis, in the State of Missouri, particularly described and bounded as follows, to-wit: (here follows description of real estate conveyed).

"Subject to defeasance, however, in the event the said Margaret Lewis shall die before being married, or if she shall marry, die without leaving any children her surviving.

"To Have and To Hold the said remainder in fee, as aforesaid, together with all the rights, privileges, appurtenances and immunities thereunto belonging or in anywise appertaining, subject to the said life estate of the said Martrom D. Lewis and his power to encumber the fee of said property by lease or leases, as hereinbefore provided, to the said Mary Margaret Lewis; but upon the following conditions and limitations: If she shall have a child or children, then the said remainder in fee shall vest in her and said child or children in equal shares, share and share alike absolutely and in fee simple forever. But if she shall die before marriage, or without leaving any child or children, her surviving, then she shall enjoy the said estate during her natural life only and after the determination of the life estate in said property of said Martrom D. Lewis, and upon her death the remainder in fee simple absolute to said property, including the lessor's rights in any lease or leases with which said Martrom D. Lewis shall have encumbered the fee of said property for a term or terms continuing beyond the death of the said Martrom D. Lewis and Mary Margaret Lewis, shall pass to and vest in the St. Louis Union Trust Company of the City of St. Louis, Missouri, absolutely; but subject to the following conditions and limitations as to said St. Louis Union Trust Company, and with the powers and duties hereinafter prescribed for it:

"As soon as practicable after the death of both the said Martrom D. Lewis and Mary Margaret Lewis, in the event the latter shall have died without having been married, or having married shall die without leaving any child or children surviving her, said St. Louis Union Trust Company shall sell the property above described in fee simple absolute, including any lessor's rights existing therein or against the same on account of a lease or leases made by the said Martrom D. Lewis, and pay the proceeds of the sale thereof to Central College, located at Fayette, Missouri, upon the condition and requirement that the said Central College shall place the amount thereof on the Treasurer's books of said College to the credit and as a part of the permanent endowment of said College, and more particularly and especially of the Martrom D. Lewis Memorial Fund; the income from which shall be used in aiding worthy young men, who will equip themselves to enter the Methodist Ministry, in obtaining an education, thus qualifying themselves for good service in their Lord and Master's Vineyard; but the principal of which said memorial fund shall be kept intact and be invested and reinvested by the proper authorities of said College, so as to yield income which can be used in the education of worthy young men as above provided.

"The investment and reinvestment of the principal of said fund to be in safe secure conservative investments, so as to run as little danger as practicable of impairing or losing the principal of said fund;...