McNeer v. Patrick

• Decision Date: 17 May 1913
• Docket Number: 17,187
• Citation: 142 N.W. 283,93 Neb. 746
• Parties: LAWRENCE E. MCNEER ET AL., APPELLANTS, v. ROBERT PATRICK ET AL., APPELLEES
• Court: Nebraska Supreme Court

142 N.W. 283

93 Neb. 746

LAWRENCE E. MCNEER ET AL., APPELLANTS, v. ROBERT PATRICK ET AL., APPELLEES

No. 17,187

Supreme Court of Nebraska

May 17, 1913

APPEAL from the district court for Pawnee county: JOHN B. RAPER JUDGE. Affirmed.

AFFIRMED.

George J. Humbert, J. C. Dort and Tibbets, Morey & Fuller, for appellants.

Story & Story and Burkett, Wilson & Brown, contra.

FAWCETT J. BARNES, SEDGWICK and HAMER, JJ., not sitting.

OPINION

FAWCETT, J.

This suit was instituted in the district court for Pawnee county by the sons and only heirs at law of Lavinia W. McNeer, deceased, to establish their title to and to recover the possession of the north half of the southeast quarter and the south half of the northeast quarter of section 34, township 2, range 11, in said county. From a decree dismissing their action and cross-action, they prosecute this appeal.

The controlling question in the case is the construction to be given to a deed executed by Watts Parker, the father of Lavinia (Mrs. McNeer), August 30, 1872, to lands in the state of Kentucky. Lavinia had become the wife of A. D. McNeer seven months prior to the execution of the deed by her father. The deed was as follows:

"This indenture, made this 30th day of August, 1872, between Watts Parker of Jefferson county, Kentucky, of the first part, Reuben E. Parker of county and state aforesaid, of the second part, and John Q. Irwin of county of Ballard and state aforesaid of the third part, trustee for Lavinia W. McNeair (wife of A. D. McNeair) of Jefferson county, Kentucky, witnesseth, that the said Watts Parker for and in consideration of the sum of eight thousand five hundred dollars in hand paid to him as follows, viz., five thousand dollars by the said Reuben E. Parker and three thousand five hundred dollars by the said Lavinia W. McNeair the receipt of all of which is hereby acknowledged by the said Watts Parker, hath and doeth hereby grant, bargain, sell and convey unto the said second and third parties (certain lands therein described), to have and to hold the said three tracts or parcels of land to said Reuben E. Parker and John Q. Irwin in the following proportions and conditions, namely, to the said Reuben E. Parker 7-12ths thereof for himself, his heirs and assigns forever, and the remaining 5-12ths thereof is conveyed to said John Q. Irwin in trust for the sole and exclusive use and benefit of the aforesaid Lavinia W. McNeair and her heirs forever.

"It is expressly understood that the said Lavinia shall use and occupy said five-twelfths of said land hereby intended to be conveyed to her and said Reuben E. Parker are tenants in common in the proportions aforesaid; that is, 7-12ths to said Reuben E. and 5-12ths to Lavinia W., and should she and her said trustee, John Q. Irwin, at any time think it would be to the interest and benefit of the said Lavinia W. to sell her interests in the above described three tracts of land they, the said John Q. and Lavinia, shall have the same to the purchaser or purchasers, provided nevertheless that the purchase money received therefor shall be reinvested in real estate such as said John Q. and Lavinia W. may select, and the land so purchased shall be conveyed to and held by a trustee for the use and benefit of said Lavinia on the same terms and conditions that the land herein and hereby conveyed to John Q. as trustee is held, to have and to hold the same in the proportions aforesaid; that is, 7-12ths to the said Reuben E. and 5-12ths to John Q., trustee, as aforesaid, as tenants in common with covenants of general warranty."

Subsequently, by deeds from each to the other, the regularity of which is not questioned, the lands covered by the deed of Mr. Parker were partitioned. Thereafter, in accordance with the provisions of the deed for sale and reinvestment, Lavinia and her husband, Andrew, acting as her trustee (Mr. Irwin being then deceased), sold her interest in the Kentucky land and reinvested the proceeds in the Pawnee county land. The Pawnee county land was conveyed to Andrew McNeer, husband of Lavinia, as trustee, by a deed containing the terms and conditions of the original deed from Mr. Parker. In 1886 Lavinia and Andrew McNeer were divorced, and a few months later Andrew married another woman. On October 16, 1888, Lavinia sold and conveyed the land to one Miller, from whom it passed by mesne conveyances to defendant Robert Patrick. On June 28, 1908, Lavinia died without having remarried.

The decision of this case rests upon the construction to be given to the deed of Mr. Parker in 1872, the question being: By that deed, did Lavinia take a life estate only, with remainder to her children, or did she take an estate in fee simple? That is to say, did the language of the deed, "for the sole and exclusive use and benefit of the aforesaid Lavinia W. McNeair and her heirs forever, " give her children a vested interest in remainder in the property conveyed? The district court held that the terms of the deed to Irwin in trust for the sole and exclusive use and benefit of Lavinia and her heirs forever, and the subsequent deed of partition from Reuben, "created a trust estate for the sole and separate use and benefit of Lavinia W. McNeer, and that she became the cestui que trust to the fee simple title, and that the word 'heirs' as used in the deeds was merely a technical word of inheritance; and not a word of purchase, as to said Kentucky lands." The court made the same finding as to the word "heirs" in the deed to the Pawnee county land, and further found that the deed from Lavinia to Miller, made in October, 1888, after she had been divorced from her husband, conveyed a fee simple title to Miller; and that the subsequent deed from Miller to McAllister and from McAllister to defendant Patrick conveyed to the latter a fee simple title. In accordance with the findings, the decree dismissed the action of plaintiff and the cross-action of his two brothers at their cost.

The lands in controversy having been purchased with the proceeds derived from the sale of the Kentucky land, under the terms of the deed from her father, we think the rights of Mrs. McNeer, under her deed to the Pawnee county land, must be determined by the laws of Kentucky, and the decisions of the supreme court of that state construing the same, at the time the deed from Mr. Parker was executed. Upon the trial certain sections of the statutes of Kentucky of 1873, and a number of decisions from the supreme court of that state, were introduced in evidence. Section 1, art. II, ch. 52, p. 518, provides: "Marriage shall give to the husband, during the life of the wife, no estate or interest in her real estate, including chattels real, owned at the time, or acquired by her after marriage, except the use thereof, with power to rent the real estate for not more than three years at a time, and receive the rent." Section 17, art. IV, ch. 52, p. 532, provides: "Separate estates and trust estates conveyed or devised to married women, may be sold and conveyed in the same manner as if such estates had been conveyed or devised absolutely, if there be nothing in the deed or will under which they are held forbidding the same, and if the trustee and husband unite with the wife in the conveyance. But her interest shall be the same in the proceeds as it was in the estate." Section 7, art. I, ch. 63, p. 585, provides: "Unless a different purpose appear by express words or necessary inference, every estate in land created by deed or will, without words of inheritance, shall be deemed a fee simple, or such other estate as the grantor or testator had power to dispose of." Section 8, art. I, ch. 63, p. 585, provides: "All estates heretofore or hereafter created, which, in former times, would have been deemed estates in tail, shall henceforth be held to be estates in fee simple; and every limitation on such an estate shall be held valid, if the same would be valid when limited upon an estate in fee simple."

Appellants contend that the word "heirs" in the Parker deed should be construed as a word of purchase, because it is the only word in the deed to show where the grantor intended the fee to go after the life use of Lavinia McNeer should have terminated; that effect must be given to the intention of the grantor. The trouble with appellants' contention is there is nothing whatever in the deed under consideration which in any manner limits the use of Mrs. McNeer to the term of her life. Those words, or words akin to them, are not to be found in the deed. The deed recites that it is an indenture between the grantor, of the first part, the son Reuben, of the second part, and ...