Nichols v. Robinson

• Decision Date: 28 March 1919
• Docket Number: No. 19909.,19909.
• Citation: 211 S.W. 14
• Parties: NICHOLS et al. v. ROBINSON et al.
• Court: Missouri Supreme Court

211 S.W. 14

NICHOLS et al. v. ROBINSON et al.

No. 19909.

Supreme Court of Missouri, Division No. 1.

March 28, 1919.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

Action by Effie Nichols and others against Idella Robinson and another. Judgment for plaintiffs, and defendants appeal.' Affirmed.

Wilson Cramer, of Jackson, for appellants. L. M. Henson, of Poplar Bluff, and Mozley & Woody, of Bloomfield, for respondents.

GRAVES, J.

This is a companion case of Effie Nichols et al. v. Louis Robinson, 211 S. W. 11, No. 19908, just decided. From that case the pertinent facts can be gathered. The Martin Asher homestead discussed in the other case was composed of 108 acres, which 108 acres covered lots 10, 11, and 14. The case just decided covered lots 10 and 11. This case covers lot 14. The pleadings are the same. The points urged are the same, except there is one additional one urged in this case. As to the points ruled in the Louis Robinson Case, the ruling here should follow that case.

In this case it is urged that, although it be granted that the widow of Martin Asher did not take the fee to the 108 acres of land, and although it be granted that the will of Martin Asher was duly probated (both of which matters we ruled in the Louis Robinson Case), yet they urge that there can be no recovery against the defendant Idella Robinson in this case. This on the theory that the will of Martin Asher gave Elizabeth Asher, wife of the son, A. P. Asher, a life estate in the land; that Rachel Cook, the mother of the plaintiffs, was the only surviving child of Elizabeth Asher; and that she by warranty deed conveyed all the three lots to Idella Robinson, which deed estops her children from now asserting title.

The will provides:

"I give and devise to Elizabeth Asher, wife of my son A. P. Asher, and the heirs of her body, all of my real estate."

It is further conceded that Elizabeth Asher, the grantee in the will, outlived her daughter, Rachel Cook, the mother of plaintiffs. Elizabeth Asher conveyed her interest, as also did Rachel Cook, as stated above. The questions are whether or not Rachel Cook had any interest to convey, and whether or not these plaintiffs, who were the only living representatives of Elizabeth Asher at the time of her death, are estopped by the deed of their mother, which deed was made prior to the death of Elizabeth Asher.

Plaintiffs do not take by descent, but take under the will of Martin Asher. They were, at the death of Elizabeth Asher, "the heirs of her body," within the terms of the will and the law. By section 2872, R. S. 1909, which was last amended in 1865, there is fixed a life estate in Elizabeth Asher, under the language of the will.

Then by section 2874, R. S. 1909, the heirs of Elizabeth Asher's body, were such as were in existence at the date of her death, and they take as purchasers in fee simple per force of the statute, under this will. This statute converts an estate tail into a life estate for the first taker, with a contingent remainder to the persons designated as "heirs of her body." The contingency is created by force of the fact that under the statute the "heirs of her body" cannot be determined until the death of the life tenant. The statute says:

"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."

The time for determining who were the "heirs of the `body" of Elizabeth Asher was her death. Living persons have no heirs. They may have heirs apparent, but not heirs. Rachel Cook was such an heir of her mother, Elizabeth Asher. She was a contingent remainderman; her title being contingent upon her surviving the mother. This she did not do, and she was not and could not be an heir at the death of the mother. At the death of Elizabeth Asher, these plaintiffs...