Middleton v. Dudding

• Decision Date: 09 February 1916
• Docket Number: No. 17290.,17290.
• Parties: MIDDLETON et al. v. DUDDING et al.
• Court: Missouri Supreme Court

183 S.W. 443

MIDDLETON et al. v. DUDDING et al.

No. 17290.

Supreme Court of Missouri. In Banc.

February 9, 1916.

Rehearing Denied March 1, 1916.

Appeal from Circuit Court, Pike County; B. H. Dyer, Judge.

Ejectment by Bessie Middleton and others against Charles Dudding and others, with answer seeking to quiet defendants' title. Judgment for plaintiffs, and defendants appeal. Reversed and remanded, with directions to enter a decree quieting defendants' title against plaintiffs.

J. O. Allison, of New London, Jack Briscoe, of Lewistown, Mont., J. S. Gatson, of Vandalia, and H. Clay Heather and Charles T. Hays, both of Hannibal, for appellants. J. O. Barrow, of Vandalia, for respondent Middleton. David H. Robertson, of Mexico, Mo., and R. B. Caldwell, of Kansas City, for other respondents.

BOND, J.

This is an action of ejectment for 120 acres of land. The case turns on the correct construction of the will and codicil thereto of William E. McCune, who died on the 20th of January, 1906, without issue, but leaving a widow. The will of the testator was made January 2, 1900, and is to wit:

"Will of William E. McCune."

"I, W. E. McCune, of the ...... of ...... in the county of Audrain and state of Missouri being of sound mind do make and publish this my last will and testament.

"First, I will and bequeath to my wife Annie E. McCune, as her absolute property, all of my real estate and personal property. All of my bonds, bank stock and deeds of trusts and notes and all other property which I may possess at my death. I hereby appoint Annie E. McCune, my wife, Administrator of my estate and that she be not required to give bond.

                  "This the 2nd day of January, 1900
                                "[Signed] Wm. E. McCune
                  "Witnesses
                   "W. F. Pritchett
                   "T. S. Manning."
                

On April 15, 1902, the testator attached a codicil to the above will which, as far as material is, to wit:

"And I further state, should my wife Annie die without a will or having disposed of the above property, one-half of property shall go to Bessie Watkins known as Bessie McCune, and I appoint J. R. S. McCune to control Bessie's property until she is twenty-one years of age and in case of Bessie's death without issue said property revert to J. R. S. McCune and the other half to the children of said J. R. S. McCune by his second wife."

Plaintiffs in this case are the persons mentioned in the codicil and the defendants are the heirs at law of the widow and devisee mentioned in the will, and in their answer claimed title in fee and prayed it be quieted against the plaintiffs. The foregoing facts were shown in the pleadings and a stipulation filed, which recited, further, to wit:

"(10). That the sole issue in this case is the construction to be placed upon the will of said William E. McCune, deceased, and the right to the possession of the property described in plaintiff's petition, and the title to said land.

"(11). That neither said William E. McCune nor said Annie E. McCune left any issue or descendants.

"(12). That Annie E. McCune died without having made any disposition of said land, but in possession thereof."

The case was tried by the court, and a decree rendered for plaintiff, from which defendants fully appeal.

II. A devise of property in general terms, without descriptive or qualifying words denoting the character and extent of the estate conveyed, may be converted into a life estate by other words, expressions, or clauses necessarily implying that the estate first granted is for the life only of the devisee, with a remainder thereafter to other persons. Burnet v. Burnet, 244 Mo. loc. cit. 499, 148 S. W. 872, et cases cited; Walton v. Drumtra, 152 Mo. loc. cit. 507, 54 S. W. 233; Gibson v. Gibson, 239 Mo. loc. cit. 506, 144 S. W. 770. This for the reason that in such devises the intention to create a life estate in the first taker may be shown either by express terms or tantamount terms. In the latter instance the words employed must be unambiguous, and must exclude any other construction than an intention to create a life estate only in the first taker, with a limitation over or a remainder thereafter. This is the settled law of this state, and is the correlative of the immemorial rule that a devise of a fee in terms, or by words necessarily describing an absolute estate, cannot be annulled except by later language in the will, which expressly or by necessary implication, arising from words equally as clear and conclusive as those in granting the fee, cuts down the previous grant of the fee. Lemp v. Lemp, 264 Mo. 533, 175 S. W. loc. cit. 621, et cases cited. Cornet v. Cornet, 248 Mo. loc. cit. 234, 154 S. W. 121. Gannon v. Albright, 183 Mo. 252, 81 S. W. 1162, 67 L. R. A. 97, 105 Am. St. Rep. 471; Roth v. Rauschenbusch, 173 Mo. loc. cit. 586, 73 S. W. 664, 61 L. R. A. 455; Yocum v. Siler, 160 Mo. loc. cit. 288, 61 S. W. 208; Kelly v. Hogan, 71 App. Div. 343, 76 N. Y. Supp. 5; Trustees v. Harris, 62 Conn. 93, 25 Atl. 456. The two rules are simply counterparts of each other, and have been established in every well-considered case in this state, all of which have been collated and considered in both banc and division in the cases cited supra, and further reference to them would be simply supererogatory.

A will and a codicil thereto are one instrument (Wells v. Fuchs, 226 Mo. 97, 125 S. W. 1137), and its meaning in the absence of any latent ambiguity, must be gathered from the words contained within its four corners (Brown v. Tuschoff, 235 Mo. loc. cit. 456, 138 S. W. 497). The intention of the testator, thus ascertained, when not opposed to any rule of law or principle of policy, constitutes his will, and must be enforced. In determining the intention of the testator, in cases where the language of the will is the only data to which they can look, the courts do not seek to find the motive in the mind of the testator, except by what he has said in the will. If, therefore, the words of the will under recognized canons of construction evince a specific lawful intention, the courts cannot substitute for this interpretation of the legal meaning of the terms employed a different motive or intention, based on mere conjecture or supposition as to what was in the mind of the testator, but not disclosed by the legal effect of his language. Jarman on Wills (5th Ed.) p. 700.

With these legal postulates in mind, let us examine the will and codicil as an entirety, to determine what was the lawful intention of the testator, judged by an interpretation of his language according to the standards of the law. In the body of the will the maker, having no descendants, devised his entire estate, specifically describing it, to his wife "as her absolute property" and duly signed the instrument. More than two years thereafter he attached a codicil to his will, using this language:

"`And I further state should my wife Annie die without a will or having disposed of the above property, one-half shall go to Bessie Watkins * * * and the other one-half to' certain children of one of his brothers."

The above-quoted language of the will and codicil is free from any possible uncertainty or ambiguity. The words are short, simple, and direct, and impossible to be misunderstood. By the grant in the will proper the estate was devised in words affirmatively denoting the highest form of tenure known to the law. An "absolute estate" is a fee simple; for if it were anything less, it could not be "absolute" for that term is thus defined: "Free from limit, restriction, or qualification." And among these illustrations of its meaning are the following: "Absolute ownership; absolute gift." Webster's New International Dictionary.

It is not, nor could it be, claimed, that the first devise in the above terms was not as complete a grant of a fee simple as if those words had been used. No clearer definition of a fee-simple estate could be given than that it is one where the "absolute property" is vested in the grantee. In fact the expressions "fee simple" and "absolute property" are convertible and interchangeable or definitions each of the other. Lemp v. Lemp, 264 Mo. 533, 175 S. W. loc. cit. 621, supra.

Having thus, by descriptive words, and not by mere inference from general terms, devised his entire estate to his wife, did the testator by his codicil revoke his grant? Of course he did not in express terms. But the argument is that the subsequent language of the codicil is inconsistent with the previous devise in fee, and therefore affords an inference that the testator intended to cut it down to a life estate. The answer to this is that if a mere inference, so arising, is strong and clear enough to have that effect (which we do not decide), still the words of the codicil are not in a legal or logical sense inconsistent with the prior devise in fee.

So far from presenting any repugnancy, the codicil explicitly recognizes the entire estate, and absolute power of disposing thereof is vested in the wife of the testator, for it only purports to create a limitation over in the event the wife shall die "without a will or having disposed of the above property," thus in the clearest manner conceding her unrestricted power to alien the estate during her life and after her death. The unlimited power to convey or will away property are the essential attributes of an estate in fee. To concede the right in a grantee to exercise these functions is to concede a fee simple in such grantee. It is apparent, therefore, that the very language of the codicil disproves of any legal intention to cut down the prior fee. This disposes adversely of respondents' contention. For the rule, as has been shown, is that a fee, once created in terms or by words defining a fee, can only be extinguished by subsequent words as clear, strong, and unequivocal as those which devised the fee. This the codicil fails to do. By the greatest stretch of construction it simply shows the testator wished to dispose of a fee...