Payne v. Payne

• Citation: 24 S.W. 781,119 Mo. 174
• Parties: Payne, Appellant, v. Payne et al
• Decision Date: 23 December 1893
• Court: Missouri Supreme Court

24 S.W. 781

119 Mo. 174

Payne, Appellant, v. Payne et al

Supreme Court of Missouri, First Division

December 23, 1893

Appeal from St. Charles Circuit Court. -- Hon. W. W. Edwards, Judge.

Affirmed.

John N Straat for appellant.

(1) The court below erred in holding that the fee simple title to the tract of land described in the petition passed and descended to the heirs of Benjamin H. Payne at the moment of his death and did not pass and descend to his heirs at the moment of the death of his widow, Adelia R. Payne. Jones v Waters, 17 Mo. 587; Aubuchon v. Bender, 44 Mo. 560; Emison v. Whittelsey, 55 Mo. 254; DeLassus v. Gatewood, 71 Mo. 371; Waddel v. Waddle, 99 Mo. 338. (2) The court below erred in holding that under her election to be endowed absolutely of a child's part of her deceased husband's estate, Adelia R. Payne did not take a child's part of the land in question.

T. F. McDearmon for respondents.

(1) The fee simple title to the real estate in question, remained in Benjamin H. Payne until his death, and then vested by descent in his five surviving children, Alfred H., Nellie L., Robert H., Jefferson and Fannie F. Payne. There is nothing in the marriage contract to interfere with this result; nor is there anything in the said contract to justify the conclusion that Benjamin H. Payne intended any other result. But it makes no difference what his intentions might have been, they can cut no figure against the plain letter and language of the contract and the law of descent. Harbison v. Swan, 58 Mo. 147; Farish v. Cook, 78 Mo. 212; Russell v. Eubanks, 84 Mo. 82. (2) There is no question of remainder, either contingent or vested, involved, for the reason that the event or condition which might have created a remainder, vested or contingent, never happened, and therefore such remainder failed. 2 Wash. on Real Prop. [3 Ed.], p. 531, secs. 18, 19, 20, 21; Fearne on Cont. Remainders, 238; 2 Cruise's Dig., 221; Doe v. Shephard, 1 Doug. 75. (3) Adelia R. Payne secured no interest in the land described in the petition (same described in the marriage contract), by her election to take a child's part of her deceased husband's estate. His seisin of said land was not such as would confer a dower right, or any right arising therefrom or dependent thereon. Warren v. Williams, 25 Mo.App. 22: Gentry v. Woodson, 10 Mo. 224; 1 Revised Statutes, p. 1033, sec. 4513; 1 Bishop on Married Women, secs. 273, 277; 1 Wash. Real Prop. [3 Ed.], p. 181, secs. 5, 6; Tiedeman on Real Prop. [2 Ed.], bottom page 116, sec. 116; same, bottom page 384, sec. 388; 1 Scribner on Dower, p. 217, sec. 5; 1 Scribner on Dower, p. 308, secs. 1, 2; 4 Kent. Com. 38, 40.

Black P. J. Barclay, J., absent.

OPINION

Black, P. J.

This was a suit for the partition of four hundred arpents of land situate in the county of St. Charles. The facts are to the following effect: On the twelfth of December, 1863, Benjamin H. Payne and Adelia R. Gray entered into a marriage contract, the eight clause of which is as follows:

"Clause eight. In consideration of said future marriage and the sum of one dollar to me Benjamin H. Payne, paid in hand by the said Adelia R. Gray, the receipt whereof is hereby acknowledged and the stipulations hereinafter named, I hereby grant, bargain, sell, convey, remise and release unto the said Adelia R. Gray, during her natural life, and at her death to pass and descend as specified in the fourth clause of this marriage contract, a certain tract of land situated, lying and being in the state of Missouri, county of St. Charles [describing the land now in suit]. To have and hold the said tracts and parcels of land into her the said Adelia R. Gray, to her sole and exclusive use and benefit."

The parties married immediately after the execution of the contract. Benjamin H. Payne died intestate in the month of September, 1867, leaving five children, namely, Alfred H., Nellie L., and Robert H., who were children by a former marriage, and Jefferson and Fannie, children by said Adelia R. Robert H. Payne, one of the children by the first marriage, died in October, 1889, intestate, unmarried and without issue.

Adelia R. Payne died intestate in March, 1891, never having again married, leaving the two children before mentioned, namely, Jefferson and Fannie.

1. The trial court held that the fee passed to the heirs of Benjamin H. Payne at the moment of his death, thus giving to each heir a one-fifth interest, subject to the unexpired life estate of Adelia R. Payne, formerly Gray. The plaintiff insists that the fee did not pass to the heirs of Benjamin Payne until the death of Adelia R., and hence each took a one-fourth interest, one having died before the death of Adelia; and this difference between the ruling of the court and the claim of the plaintiff, presents the first question for our consideration.

The eight clause of the marriage contract conveys the land to Adelia R. for life "and at her death to pass and descend as hereafter specified in the fourth clause." It is claimed by the plaintiff and conceded by the defendants that the fourth clause of the contract utterly fails to point out to whom the property shall go after the death of Adelia R. For all the purposes of this appeal, we except the construction thus placed upon the fourth clause as correct, it being our purpose to decide only the questions which are in dispute. We must, therefore, look to the eighth clause alone. For the plaintiff, the contention is, that the title did not pass to the heirs until the death of Adelia R because of the words "and at her death to pass and descend;" and in support of this we are cited to a number of cases which discuss the subject of vested and contingent remainders. But we do...