Miller v. Ensminger

• Decision Date: 31 May 1904
• Citation: 182 Mo. 195,81 S.W. 422
• Parties: MILLER et al. v. ENSMINGER et al.
• Court: Missouri Supreme Court

81 S.W. 422

182 Mo. 195

MILLER et al. v. ENSMINGER et al.

Supreme Court of Missouri, Division No. 2.

May 31, 1904.

WILLS—ESTATE TAIL.

1. A will, after making a gift to testatrix's daughter, provided, "I give * * * to my son, M., and his bodily heirs, forever," certain real and personal property, and then provided that, if either of the children should die without leaving a surviving bodily heir before receiving its share of testatrix's estate, such share should descend to the surviving child and its bodily heirs, forever. Held, that the estate devised to M. was a fee tail, which, under Rev. St. 1855, §§ 5-7, was a life estate, with remainder in fee to his children living at his death.

Appeal from Circuit Court, Marion County; D. H. Eby, Judge.

Action by May Emma Miller and others against Henry Ensminger and others. Judgment for plaintiffs. Defendants appeal. Affirmed.

W. M. Boulware, for appellants. Jno. W. Matson, for respondents.

FOX, J.

This appeal is from a judgment rendered in the circuit court of Marion county in an action of ejectment by the plaintiffs against the defendants. Plaintiffs, with the exception of John W. Matson, are the surviving children of Frederick Miller, and their title is based upon the provisions of the last will of Mrs. Mary Conroy. Matson claims by deed from the other plaintiffs one-third interest of the land in controversy. Defendants claim title through Frederick Miller, plaintiffs' ancestor.

It is conceded by counsel representing all the parties to this controversy that there is but one question for solution, and that is the character of estate devised to Frederick W. Miller by the provisions of the will of Mrs. Conroy. The proper interpretation of this will being the only question before us, it is appropriate to reproduce it. It is as follows, omitting the conclusion:

"I, Mary Conroy, of the county of Marion, in the state of Missouri, being now of sound and disposing mind and memory, do make and publish this as and for my last will and testament.

"Item First. It is my will that after my death the expenses of my funeral and last sickness and all my just debts be fully paid.

"Item Second. I will, order, and direct that after the payment of the expenses of my funeral and last sickness, and all my just debts, there is next to be paid to my son, Frederick W. Miller, the sum of two hundred dollars, being the amount of money he deposited with me for safe-keeping.

"Item Third. I give and bequeath to my daughter, Henrietta F. V. Brawner, and to her bodily heirs, forever, the one undivided half of lot six, in block twenty, in the city of Palmyra, in Marion county, Missouri, and also the one undivided half of any other real or personal property of which I may die possessed, including money on hand and debts that may be due or to become due to me at the time of my death, that may remain after the payment of the debts and expenses referred to in the first and second items hereof.

"Item Fourth. I give and bequeath to my son, Frederick W. Miller, and his bodily heirs, forever, the one undivided half of lot six, in block twenty, in the city of Palmyra, in Marion county, Missouri, and also the one undivided half of any other real or personal property of which I may die possessed, including money on hand and debts that may be due or to become due to me at the time of my death, which may remain after the payment of the expenses and debts referred to in the first and second items hereof.

"Item Fifth. If either of my aforesaid children should die without leaving a surviving bodily heir or heirs, before receiving its share or interest in my estate herein bequeathed to it, or any part thereof, then and in that case I order and direct that said interest or share, or such part thereof as it may not have received, shall descend to and vest in my surviving child and its bodily heirs, forever; it being my wish and intention, after the payment of my debts and the expenses hereinbefore referred to, that the remainder of my estate of every description shall be equally divided between my two aforesaid children, and that if either should die childless before receiving its share of my estate, or any part thereof, that its share, or such part as it may not have received, shall descend to and vest in my surviving child or its bodily heirs, forever.

"Item Sixth. I hereby constitute and appoint Alexander W. Rush, of Marion county Missouri, executor of this my last will and testament, with full power and authority to execute and carry the same into effect."

Upon the submission of this cause to the trial court, judgment was rendered in favor of the plaintiffs. From this judgment this appeal was prosecuted, and the record is now before us for review.

Opinion.

The proposition before us, as disclosed by this record, is sharply and concisely presented. It is this: Appellants contend that the provisions of this will, correctly interpreted, devised to Frederick W. Miller an absolute estate; hence defendants' title, which emanated from him, is the true legal title, and that they were entitled to recover in this action. On the other hand, respondents contend that the estate devised to Miller by the will was a fee tail, which under the statute was a life estate, with remainder in fee to his children living at the time of his death, and that they were the surviving children of Miller; hence they are entitled to recover. This is the proposition confronting us, and from a fair and reasonable interpretation of the law applicable to it we must find its solution. The subject involved in this dispute is one about which volumes have been written, and, should we undertake to review all that has been said touching it, would require a volume to approach anywhere near the accomplishment of the task. We must be content with a brief review of the leading cases applicable to the interpretation of the provisions of this will.

Mrs. Conroy died in February, 1863. Hence the law in force at the time of her death must control in the interpretation of this will. As applicable to the question before us, sections 5, 6, and 7, Rev. St. 1855, were in force at the date of the death of Mrs. Conroy. Section 5 simply had the effect of creating out of such devises as under the statute of 13 Edw. I (called the statute of entails) would have been an estate in fee tail an estate for life. Sections 6 and 7 made the following provisions:

"Sec. 6. Where a remainder in lands or tenements, goods or chattels, shall be limited, by deed or otherwise, to take effect on the death of any person without heirs, or heirs of his body, or without issue, the words `heirs' or `issue' shall be construed to mean heirs or issue living at the death of the person named as ancestor.

"Sec. 7. Where a remainder shall be limited to the heirs, or heirs of the body, a person to whom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be the heirs, or heirs of the body of such tenant for life, shall be entitled to take as purchasers, by virtue of the remainder so limited in them."

Rev. St. 1855, p. 356, c. 32.

We are not left without light in the investigation and consideration of the proposition involved, for counsel on both sides of this case are to be congratulated upon the careful and able presentation of the question in their briefs before us. In the determination of this controversy we shall not be unmindful of that principle, which is fundamental in the interpretation of wills, that the intent of the testator or testatrix must be ascertained from a consideration of the entire instrument, and that intention should be given its full effect, unless it contravenes plain and settled rules of law; and it is with a clear conception of this just and fundamental principle that we approach the consideration of the proposition confronting us. Our attention will be first directed to clause 4 of this will, in which the devise is made to Miller. It provides thus: "I give and bequeath to my son, Frederick W. Miller, and his bodily heirs, forever." Then follows the designation of property, which includes the land in dispute. This presents the first question.

By the terms of that devise, what was the nature and character of estate created? In answering that question, we shall not undertake to review the cases in other jurisdictions, for, as has been well demonstrated by counsel for appellants, the authorities cannot be entirely harmonized, but will simply say, if the long and unbroken line of expression by this court on this question is to be our guide, then it is no longer an open question as to the estate created by the terms of the devise under discussion. It was an estate tail, which by disposition of the statute was an estate for life, and upon the death of Frederick W. Miller descended in fee to his children living at the time of his death. This conclusion finds support in all the cases in which this subject was before the court, commencing with the early case of Farrar v. Christy's Adm'rs, 24 Mo. 453, down to the present time. Charles v. Patch, 87 Mo. 450; Phillips v. La Forge, 89 Mo. 72, 1 S. W. 220; Wood v. Kice, 103 Mo. 320, 15 S. W. 623; Reed v. Lane, 122 Mo. 311, 26 S. W. 957; Hunter v. Patterson, 142 Mo. 310, 44 S. W. 250; Clarkson v. Clarkson, 125 Mo. 381, 28 S. W. 446. It was said by this court in Bone v. Tyrrell, 113 Mo., loc. cit. 182, 20 S. W. 796, in discussing a devise similar to the one in the case at bar, that "the grant in the devise is to Elizabeth Bone, and, standing alone, under the statute, would have been sufficient to pass the fee-simple title of the grantor to her; but this grant, being immediately limited by a habendum clause `to her and her children, heirs of her body, forever,' had the effect of passing to her only an estate in fee tail under the statute of 13 Edw. I, which under the statute of this state became an estate for life in the said Elizabeth, remainder in fee...