Priest v. McFarland

• Decision Date: 17 November 1914
• Docket Number: No. 16456.,16456.
• Citation: 171 S.W. 62
• Parties: PRIEST et al. v. McFARLAND et al.
• Court: Missouri Supreme Court

171 S.W. 62

PRIEST et al. v. McFARLAND et al.

No. 16456.

Supreme Court of Missouri.

November 17, 1914.

Rehearing Denied December 1, 1914.

1. WILLS (§ 693) — POWER OF DISPOSITION — EXTENT — SALE OF LANDS — REMAINDER.

Where a will gave the residue of the testator's property to his wife for her life, with full power to sell and dispose of it, or any part thereof, and to convey good title upon the sale or other disposition of any or all of the property, and with remainder over to the children as to such property as the wife did not sell, the wife could sell the remainder in a part or all of the land, reserving to herself a life estate.

2. WILLS (§ 88) — DISTINGUISHED FROM DEED — EXECUTION OF POWER.

Where a testator's widow was given a life estate with power to convey during her lifetime, a deed given by her, which conveyed the remainder, reserving a life estate to herself, and which stated that after the wife's death the deed should become absolute and vest the title to the estate in the grantees, was a present conveyance, and not one in the nature of a will, since the last clause merely stated the legal effect of the present conveyance.

Lamm, C. J., and Graves and Faris, JJ., dissenting.

In Banc. Appeal from Circuit Court, Lincoln County; James D. Barnett, Judge.

Action by Jane E. Priest and others against Abraham McFarland and others, to quiet title. Judgment for defendants, and plaintiffs appeal. Affirmed.

This action to quiet title to 220 acres of land was begun in 1907. The plaintiffs are some of the children and grandchildren of Walter McFarland, who died in 1871, the owner of the land sued for and considerable other lands, after making a will whereby his wife was made sole executrix. After giving $1 each to seven of his children, and directing a payment of $500 each to his two remaining children, the will contains the following clauses:

"4th. I give, devise and bequeath all the rest and remainder of my property, real, personal, mixed and of whatever kind to my beloved wife, Harriet McFarland, to be held, owned and enjoyed by her during her natural life with full power to sell and dispose of the same or any part thereof absolutely and at her own discretion and with full power to give a good and perfect title upon sale or other disposition of any or all of my said property, hereby expressing the fullest confidence in my said wife in the management and control of my estate and of her carrying into execution fully all my desires in regard to it.

"5th. It is my will and desire that in the final distribution of my estate all my said children shall be made equal in the amounts which they shall receive therefrom, and that at the death of my said wife whatever of my property or its proceeds may remain undisposed of by my said wife, shall descend to and be divided between my said children in such proportions as will make the amounts which each of my said children shall receive from my estate to be equal in all respects excepting the sum of five hundred dollars to be paid as aforesaid to each of my said children, Mercy C. Glascock and William H. McFarland, making the whole amounts to be received by them respectively from my estate to be five hundred dollars in excess of the shares of the others of my said children."

The wife qualified as executrix and took charge of the personal estate amounting to $3,931, and administered it. She also managed the real estate of about 720 acres of land. In 1883, she executed a warranty deed to defendants (two of her children) purporting to convey to them 220 acres whereon the family residence stood, for $6,000 cash, but reserving to herself a life estate and providing that the fee should vest in said grantees at and after her death. The evidence tends to show that the grantees (defendants) paid off a deed of trust on the land in the sum of $2,100 and certain indebtedness against their father's estate of about $3,800; that they took possession of the property and accounted to their mother for its rents, and provided her with support and maintenance until her death in 1906. After her death the real estate, except that mentioned in the deed to defendants, was vested in fee in the heirs of her husband. Some of these, the present plaintiffs, brought this action to set aside the deed made by the life tenant to the defendants. After a hearing before the circuit court sitting as a chancellor, the petition was dismissed, and plaintiffs duly perfected their appeal to this court.

Reuben F. Roy, of New London, and Ben E. Hulse, of Hannibal, for appellants. E. W. Nelson, Geo. A. Mahan, Albert R. Smith, and Dulany Mahan, all of Hannibal, and O. H. Avery, of Troy, for respondents.

BOND, J. (after stating the facts as above).

I. There is no proposition better settled than that where a life estate is expressly or impliedly created by will or deed, coupled with a superadded power of disposition in the life tenant and a remainder in fee if that power is not exercised, the limitation over will take full effect unless the power to dispose, given to the life tenant, has been exercised according to the strict terms in which it was bestowed. Grace v. Perry, 197 Mo. loc. cit. 562, 95 S. W. 875, 7 Ann. Cas. 948, and cases cited; Armor v. Frey, 226 Mo. loc. cit. 669, 126 S. W. 483; Burnet v. Burnet, 244 Mo. loc. cit. 505, 148 S. W. 872; Tallent v. Fitzpatrick, 253 Mo. loc. cit. 15, 161 S. W. 689.

In the case in hand there was no attempt, on the part of the tenant of the life estate, to dispose of the 720 acres devised in the will of her husband except as to the portion thereof consisting of 220 acres constituting the home place. The residue, consisting of 500 acres, upon the death of the life tenant vested in fee in the nine children or their descendants of the testator as remaindermen under the will. Hence the solitary question on this appeal is whether the deed of the life tenant to defendants cut off the rights of these remaindermen to the property described.

The clause of the will under which the deed made to defendants recites it was made contains apt terms investing Harriet McFarland, the wife of the testator, with an estate for life in all of his land. The power given to her to alienate is couched in the following language:

"With full power to sell and dispose of the same or any part thereof absolutely and at her own discretion and with full power to give a good and perfect title upon the sale or...