Norman v. Horton, 35543.

Citation126 S.W.2d 187
Decision Date15 March 1939
Docket NumberNo. 35543.,35543.
PartiesMATTIE 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.
CourtUnited States State Supreme Court of Missouri
126 S.W.2d 187
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.
Division Two, March 15, 1939.

[126 S.W.2d 188]

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. Supp. 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; Collison 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 Atl. 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 Atl. 665; Weaks v. Guerin, 200 N.Y. Supp. 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 Atl. 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 Atl. 193; Schapiro v. Howard, 113 Md. 360; 7 Atl. 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. Supp. 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 Pac. 322; Mastellar v. Atkinson, 94 Kan. 279, 146 Pac. 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 Fed. 732; Den v. Scheneck, 8 N.J.L. 29; Jackson v. Chew, 12 Wheat. 153; Hughes v. Sayler, 1 P...

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