Morris v. Ulbright
| Decision Date | 14 November 1977 |
| Docket Number | No. 59938,59938 |
| Parties | Logan M. MORRIS, Appellant, v. Dorothy A. ULBRIGHT et al., Respondents. |
| Court | Missouri Supreme Court |
Alan E. South, Kansas City, for appellant.
Robert M. Hill, Richmond, for respondents.
This is an action to quiet title to land.
On March 8, 1947, Lina A. Ulbright and Frank O. Ulbright, her husband, executed a deed which conveyed the property in question to Logan Mitchell Ulbright "and his bodily heirs." The natural son, and only child, of Logan Mitchell Ulbright was Logan M. Ulbright, Jr. On October 4, 1950, Marion V. Morris and Ruby N. Morris adopted Logan M. Ulbright, Jr. and his name was changed to Logan Marion Morris.
Linda A. Ulbright and Frank O. Ulbright are deceased.
On February 9, 1964, the heirs of Lina A. Ulbright conveyed to T. B. Alspaugh and Sara Jane Alspaugh.
On February 12, 1972, Logan Mitchell Ulbright died.
On January 24, 1973, the Alspaughs conveyed to Dorothy A. Ulbright and Ralph C. Ulbright.
Logan Marion Morris is plaintiff and claims title under the deed executed March 8, 1947. Dorothy A. Ulbright and Ralph C. Ulbright are defendants and claim title under the deed executed January 24, 1973.
The trial court entered summary judgment in favor of defendants. Plaintiff appealed to the Kansas City District of the Court of Appeals where the judgment of the trial court was reversed. The case was then transferred to this Court, by order of this Court, and will be decided here "the same as on original appeal." Mo.Const. Art. V, § 10.
The parties agree that the deed of March 8, 1947, created an estate tail; that under the deed and Section 442.470, RSMo 1969, the first taker (Logan Mitchell Ulbright) took a life estate; and that the heir of the body (Logan M. Ulbright, Jr. Logan Marion Morris) took a contingent remainder in the fee. Davidson v. Davidson, 350 Mo. 639, 167 S.W.2d 641 (1943). It is not seriously disputed that had Logan M. Ulbright, Jr., not been adopted on October 4, 1950, he would have taken in fee simple absolute upon the death of Logan Mitchell Ulbright on February 12, 1972. Defendants contend, however, that because of the provisions of Section 453.090, RSMo 1969, the adoption of plaintiff on October 4, 1950, "acted to remove the Plaintiff from the bloodstream of his natural father Logan Mitchell Ulbright and with no exception ceased and determined all rights and duties between Plaintiff and his natural father."
Section 453.090, RSMo 1969, provides that when a child is adopted in accordance with the provisions of Chapter 453, "all legal relationships and all rights and duties between such child and his natural parents * * * shall cease and determine."
The essential question in this case then becomes: Does plaintiff's interest, if any, in the land derive from Lina A. Ulbright and Frank O. Ulbright (grantors in the deed of March 8, 1947) or is plaintiff's interest, if any, one of inheritance from his natural father Logan Mitchell Ulbright (life tenant under the deed of March 8, 1947)? If the latter, plaintiff's interest was cut off by the adoption. If the former, it was not.
In 1 H. Tiffany, The Law of Real Property § 48 at 70 (3rd ed. 1939), we find the following:
"On the death of a tenant in tail, the land passes to the next heir of the body of the original donee; but such heir, though he takes because he is the heir of the body, takes not by descent, but as a substituted purchaser from the original donor, per formam doni, as it is expressed * * *."
This proposition finds express support in Pollock v. Speidel, 17 Ohio St. 439, 49 Am.Dec. 467 (1867) and implied support in Davidson v. Davidson, supra, and Byrd v. Allen, 351 Mo. 99, 171 S.W.2d 691 (1942). See also 31 C.J.S. Estates § 21, at 47 (1964).
In addition, Section 442.490, RSMo 1969, provides that when a remainder shall be limited to the heirs of the body of a person to whom a life estate is given, the remaindermen who qualify as heirs of the body "shall be entitled to take as purchasers in fee simple, by virtue of the remainder so limited in them." (Emphasis ours).
Accordingly, we are of the opinion that plaintiff derived his title as purchaser under the deed from Lina A. Ulbright and Frank O. Ulbright and not by inheritance from his natural father. Grimes v. Rush, 355 Mo. 573, 197 S.W.2d 310 (1946). We hold that his interest in the land was not extinguished by the adoption and provisions of § 453.090, supra, because his interest in the land does not derive from his natural father.
The judgment is reversed and the cause remanded.
FINCH, J., dissents in separate dissenting opinion filed.
The principal opinion concludes that the essential question for determination is whether plaintiff takes his interest, if any, as purchaser from Lina A. Ulbright and Frank O. Ulbright, grantors in the deed of March 8, 1947, or whether he takes by inheritance from his natural father who was the life tenant under said deed. It correctly concludes that one who qualifies as an heir of the body takes his interest by purchase and not by inheritance, 1 but, in my view, this conclusion is not determinative of the issues before us.
The principal opinion simply assumes that under § 442.490 2 plaintiff qualified as an heir of the body. 3 Such an assumption, in my view, is contrary to the plain language of § 442.490, which provides:
"Where a remainder shall be limited to the heirs, or heirs of the body, of 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 heir or heirs of the body of such tenant for life shall be entitled to take as purchasers in fee simple, by virtue of the remainder so limited in them." (Emphasis supplied)
The statute does not purport to identify who shall take the property as a purchaser. On the contrary, the statute expressly conditions the vesting of the estate by purchase to those who may be identified as the heir or heirs of the body of the life tenant.
The majority opinion, in paraphrasing the above emphasized portion of the statute, apparently recognizes that only "the remaindermen who qualify as heirs of the body 'shall be entitled to take as purchasers . . .' " but it contains no analysis of how the plaintiff herein satisfies the express condition precedent of meeting the description "heir of the body" at the death of the life tenant in tail. The opinion correctly concludes that the plaintiff's interest (if any) would not derive by inheritance from his natural father but it overlooks the fact that the identity of the one to take the property by purchase under the deed can only be determined by reference to the existing legal relationship (heir of the body) to the life tenant at the time of the life tenant's death.
I believe the essential question before the court is whether the plaintiff was the heir of the body of Logan Mitchell Ulbright when he (Ulbright) died. Resolution of this question necessarily involves an examination of our cases construing § 442.470, 4 the entail statute, and the impact of § 453.090, 5 the "consequences of adoption" statute, on the interest of a remainderman thereunder.
The parties do not question that the limitation in this conveyance to "Logan Mitchell Ulbright and his bodily heirs" would have created a fee tail at common law. By virtue of § 442.470, this limitation vested Logan Mitchell Ulbright with a life estate and created a remainder to those persons to whom the estate tail would, on the death of the first grantee in tail, pass according to the course of the common law. However, this remainder is not vested, but is a contingent remainder of the "fourth class," the contingency existing as to persons not ascertained at the time the grant is made. Grimes v. Rush, 355 Mo. 573, 575, 197 S.W.2d 310, 311 (1946). Thus, the effect of § 442.470 is that a conveyance to one and his or her bodily heirs carves out of the grantor's fee simple estate a life estate in the first taker and a contingent remainder in those qualifying as bodily heirs on the death of the first taker, while the fee or reversion remains in the grantor, his assigns, heirs or devisees pending determination of the original grant at its vesting or falling in for want of takers as bodily heirs of the grantee for life. Mattingly v. Washburn, 355 Mo. 471, 476, 196 S.W.2d 624, 626 (1946); Davidson v. Davidson, 350 Mo. 639, 642, 167 S.W.2d 641, 642 (1943).
In determining the identity of those qualifying as a "bodily heir," it must be noted that the word "heir" is one of technical legal significance. It is defined in Black's Law Dictionary (4th ed. 1951) as: "the person appointed by law to succeed to the estate in case of intestacy." 6 An "heir of the body" is a subclass of "heir" i. e., "an heir begotten or borne by the person referred to . . . ." In Missouri, the phrase has been held to mean "an heir begotten of the body; a lineal descendant." Clarkson v. Hatton, 143 Mo. 47, 56, 44 S.W. 761, 762 (1898). The Restatement of Property § 306 (1936) provides:
"When a limitation is in favor of the 'heirs of the body' of a designated person, or is in other words of similar import, then, unless a contrary intent of the conveyor is found from additional language or circumstances, the persons so described are the lineal descendants of the designated ancestor who under the applicable local law would succeed to the property if such ancestor died owning the property and intestate . . . ." (Emphasis supplied)
It has long been recognized in this state that the law of inheritance is a creature of statute. In re Cupples Estate, 272 Mo. 465, 473, 199 S.W. 556, 558 (1917). Furthermore, ...
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