Norman v. Horton

• Decision Date: 15 March 1939
• Docket Number: 35543
• Citation: 126 S.W.2d 187,344 Mo. 290
• Parties: Mattie E. Norman, Hattie H. Warren, Laura E. Logan, Earl L. James, Elmer James and Grace James, Respondents, v. Annie M. Horton and Celeste Clauser, Appellants, Mary L. Penfield and the unknown consorts, devisees, donees, legatees, alienees, immediate, mesne and remote, voluntary or involuntary grantees of John Stephen Herriman, Codefendants
• Court: Missouri Supreme Court

126 S.W.2d 187

344 Mo. 290

Mattie E. Norman, Hattie H. Warren, Laura E. Logan, Earl L. James, Elmer James and Grace James, Respondents, v. Annie M. Horton and Celeste Clauser, Appellants, Mary L. Penfield and the unknown consorts, devisees, donees, legatees, alienees, immediate, mesne and remote, voluntary or involuntary grantees of John Stephen Herriman, Codefendants

No. 35543

Supreme Court of Missouri

March 15, 1939

Appeal from Hannibal Court of Common Pleas; Hon. Edmund L Alford, Judge.

Affirmed.

Mahan Mahan & Fuller and Ben Ely for appellants.

(1) The future interest in the land here in suit given by the deed of 1883 to the "heirs at law of said John Herriman" was a reversion and not a remainder. Keller v Keller, 338 Mo. 731, 92 S.W.2d 157; Akers v. Clark, 184 Ill. 136, 56 N.E. 296; Alexander v. De Kermal, 5 Ky. L. Rep. 384; Loring v. Elliott, 16 Gray, 568; King v. Dunham, 31 Ga. 746; Kellett v. Shepard, 139 Ill. 433, 28 N.E. 751, 34 N.E. 254; Barber v. Brundage, 63 N.Y.S. 347; Tiffany, Real Property (1912 Ed.), sec. 114; Challis, Real Property (3 Ed.), 237; Leake, Law of Property in Land (2 Ed.), 124; 23 R. C. L. 1100. (2) A reversion, being a vested interest, is always subject to grant and capable of being devised; it passes by intestate succession upon the death of the reversioner without a will. Hyde v. Hopkins, 317 Mo. 587, 296 S.W. 382; Gillian v. Gillian, 278 Mo. 99, 212 S.W. 348; Tiffany, Op. Cit., sec. 115; 9 R. C. L. 65; 16 Am. Jur. 795; Simms, Fifty Years of Future Interests, 50 Har. Law Rev. 749. (3) Even though the estate created in the "heirs at law of said John Herriman" by the deed of 1883 be, as contended by respondents, a contingent remainder and not a reversion, still it was from the very moment of the death of said Herriman and before the death of the life tenant, alienable by inter vivos grant, devisable, and in case of the death of a remainderman who had not granted his interest away during life and who died without a will, it would descend by descent cast under our statute of descents. Godman v. Simmons, 113 Mo. 122; Brown v. Fulkerson, 125 Mo. 400; Bradley v. Goff, 243 Mo. 103; Collision v. Wabash Ry. Co., 275 S.W. 965; Amer. Law Inst., Future Interests Restatement, secs. 164, 165; Fern, Contingent Remainders, 366; Doe d. Perry v. Jones, 1 H. Blk. 30; Jones v. Perry's Lessee, 3 Term Rep. 88; Morse v. Proper, 82 Ga. 13; Loring v. Arnold, 15 R. I. 428; Havens v. Seashore Land Co., 47 N.J.Eq. 365; Heard v. Reed, 169 Mass. 216; Myers v. McClurry, 129 Md. 112, 98 A. 491; Hollowell v. Manley, 179 N.C. 262, 102 S.E. 386; DuBose v. Kell, 105 S.C. 89, 89 S.E. 555; Mohn v. Mohn, 148 Iowa 288, 126 N.W. 1127; Young v. Young, 89 Va. 675, 23 L. R. A. 642; 23 R. C. L. 576; 16 Am. Jur. 796; Landers v. Brown, 254 S.W. 14; Fitzgerald v. Davis, 248 Ill. 42, 119 N.E. 911; Drury v. Drury, 271 Ill. 336, 111 N.E. 140; Buck v. Lantz, 49 Md. 439; Rosenwog v. Gould, 131 Md. 209, 101 A. 665; Weaks v. Guerin, 200 N.Y.S. 367. (4) Where a grantor or devisor creates an estate less than a fee simple absolute in someone else and then limits the rest of the fee to the right heirs of the grantor, or devisor, the decisions are uniform in holding that unless there is some particular compelling reason for a contrary construction the expression "right heirs" or "heirs at law" must be taken to mean the persons who are heirs at the very moment of the ancestor's death, and not those persons who are his heirs as of the determination of the particular estate. Evans v. Rankin, 44 S.W.2d 644; Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947; Irwine v. Ross, 98 S.W.2d 763; Kellett v. Shepherd, 109 Ill. 433, 28 N.E. 75; Whall v. Converse, 146 Mass. 345, 15 N.E. 660; State Street Trust Co. v. Sampson, 228 Mass. 411, 117 N.E. 832; Minote v. Tappan, 122 Mass. 535; Allison v. Allison, 101 Va. 537, 44 S.E. 904; (a) This rule applies even though the life tenant be one of the heirs at the time of the death of the devisor or grantor and hence included in the call of reversioners or remaindermen. People v. Camp, 286 Ill. 511; Abbott v. Bradstreet, 3 Allen, 587; Harrison v. Harrison, 54 Reprint, 273; Urquhart v. Urquhart, 60 Reprint, 239. (b) Nor is the use of the adverb "then" in the words of the grant or devise sufficient to take the case out of the general rule since this word is usually used as meaning "in that event" rather than as an adverb of time. Chism's Admr. v. Williams, 29 Mo. 295; Chew v. Keller, 100 Mo. 368; Dunbar v. Simms, 283 Mo. 362; Childs v. Russell, 11 Met. 16; Himmel v. Himmel, 294 Ill. 557, 128 N.E. 614; In re Fitzpatrick's Estate, 233 Pa. 33, 81 A. 815; Harrington v. Hart, 1 Cox Ch. Cas. 131; Ware v. Rowland, 41 Reprint, 1088; Cable v. Cable, 51 Reprint, 874.

Chapman & Chapman for respondents.

(1) The basic rule in construction of deeds and wills is the intention of parties. Keller v. Keller, 92 S.W.2d 157; Eckle v. Ryland, 256 Mo. 424. (2) In construing a deed the whole instrument should be looked to for the purpose of ascertaining the parties' intent, and such intent given effect if agreeable to the rules of law. Waldermeyer v. Loebig, 121 S.W. 75; Shaw v. Bank, 23 S.W.2d 20; Eckle v. Ryland, 256 Mo. 424. (3) The intention of the grantor, as gathered from the four corners of the instrument, is now the pole star of construction. That intention may be expressed anywhere in the instrument and in any words, the simpler and plainer and better, that will impart it; and the court will enforce it no matter in what part of the instrument it is found. Keller v. Keller, 92 S.W.2d 160; Utter v. Sidman, 170 Mo. 284. (4) The provision or stipulation in the deed following the description manifests the intention of the grantors. (5) This deed created a contingent remainder in the alternative or "double" aspect. Tevis v. Tevis, 259 Mo. 19; Hill v. Hill, 264 Ill. 219, 106 N.E. 262; Thom v. Thom, 101 Md. 456, 61 A. 193; Schapiro v. Howard, 113 Md. 360; 7 A. 58; 18 C. J., sec. 289, pp. 309, 310; 23 R. C. L., secs. 12, 96, 97, pp. 487, 551, 552; Heard v. Read, 169 Mass. 216; Irvine v. Ross, 92 S.W.2d 763; 2 Minor Institutes, p. 384. (6) A remainder is contingent when the person or persons to whom or the event upon which it is limited to take effect is uncertain. Owen v. Eaton, 56 Mo.App. 563; Slocum v. Siler, 160 Mo. 281; Byrne v. France, 131 Mo. 639; Eckle v. Ryland, 256 Mo. 451. (7) Where there is a gift, grant or devise to a class of an estate which is postponed pending the termination of a prior estate, those members of the class, and those only, take who are in existence at the time the prior estate is terminated. Farmer v. Reed, 166 N.E. 498. (8) The word "only" is a word of exclusion or limitation. When used in a deed, it has a well defined meaning to restrict or limit the title or tenure. West Texas Utilities v. Lee, 26 S.W.2d 457. (9) The word "only" is a limiting term which qualifies the words with which it is grammatically connected. It is synonymous with the word "solely" or equivalent to the phrase "and nothing else." Moore v. Stevens, 106 So. 901. (10) The word "revert" is not used in the technical sense of reversion, but in the sense of "pass to" or "go to." Simmons v. Gunn, 157 S.E. 573; Goerlitz v. Molowesta, 8 N.Y.S. 833; Warrum v. White, 86 N.E. 859; Brown v. Guthery, 130 S.E. 836; Johnson v. Askey, 60 N.E. 76; Beatty v. Trustees, 39 N.J.Eq. 453; In re Briggs Estate, 186 Cal. 351, 199 P. 322; Mastellar v. Atkinson, 94 Kan. 279, 146 P. 367. (11) The word "then" in the stipulation or provision denotes when the remainder to the heirs of John E. Herriman is to vest, and the settled construction is that it relates to the last antecedent, the death of the first taker and not the death of the grantor. Chism's Admr. v. Williams, 29 Mo. 296; Westbrook v. Pomeyn, 29 F. 732; Den v. Scheneck, 8 N. J. L. 29; Jackson v. Chew, 12 Wheat. 153; Hughes v. Sayler, 1 P. Wms. 534; Fearne, Remainders, 358; Sinnickson v. Snicker, 14 N. J. L. 53. (12) A conveyance by a contingent remainderman during the life tenant's life passes no title when the remainderman does not survive the life tenant. In other words, the remainderman must survive the life tenant to pass the title to his purchaser. Edward Herriman did not survive Mrs. Curd, the life tenant, and his grantee, his wife, or her grantees received nothing by his grant. Commerce Trust Co. v. Foulds, 273 S.W. 229; Donaldson v. Donaldson, 311 Mo. 223; Godman v. Simmons, 113 Mo. 122; Callison v. Wabash Ry., 275 S.W. 965; Shee v. Boone, 295 Mo. 224; White v. McPheeters, 75 Mo. 286.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

This review turns on the title to a certain lot in Hannibal, Marion County, Missouri. The basic issue presented is as of what date are the heirs at law of John Herriman, the common source of title, to be determined for the purpose of vesting title under the following provisions of a deed, dated February 14, 1883, from said Herriman and wife to Celeste B. Curd:

"The object and intention of said parties of the first part is, by this deed, to convey to the said Celest -- B. Curd, only a life estate or interest in and to the above described Real Estate with Remainder over to the heirs-of-her Body, legally begotten -- but should the said Celest -- B. Curd die without Bodily Heirs, as aforesaid, surviving her, then the title to the above described Real Estate, at her death, shall revert to and vest absolutely in the Heirs-at-law of the said John Herriman, one of the said parties of the first part herein."

The deed designated "Celeste B. Curd, wife of William B Curd, during her natural life, and at her death, Remainder to the heirs of her Body, legally begotten, Party of the Second Part." The recited consideration was "love and affection" and "one dollar." The...