Schee v. Boone

• Decision Date: 28 August 1922
• Citation: 243 S.W. 882,295 Mo. 212
• Parties: FRANK E. SCHEE, Appellant, v. IRMA D. BOONE et al
• Court: Missouri Supreme Court

243 S.W. 882

295 Mo. 212

FRANK E. SCHEE, Appellant, v. IRMA D. BOONE et al

Supreme Court of Missouri, Second Division

August 28, 1922

Appeal from Lewis Circuit Court. -- Hon. James A. Cooley, Judge.

Affirmed.

D. H Eby & Ben E. Hulse for appellant.

(1) A will is to be interpreted by an examination of the whole will, in an attempt to arrive at the intention of the testator. Burnett v. Burnett, 244 Mo. 491, 498. (2) The original devise in the Mantle will and the subsequent cross-contingent remainders created no repugnancy between the provisions in the will. Shepperd v. Fisher, 206 Mo 208; Lockwood v. Mace, 109 Mo. 162; Buxton v Kroeger, 219 Mo. 245. (3) The remainders in the Mantle will were contingent notwithstanding the fact that the life tenant may be too old to bear children. Emerson v. Hughes, 110 Mo. 627; Rozier v. Greham, 146 Mo. 352, 359. (4) The devises were inoperative and void, as contravening the rule against perpetuities. Shepperd v. Fisher, 206 Mo. 208; Lockridge v. Mace, 109 Mo. 162; Bradford v. Blossom, 207 Mo. 177. (5) The devises being void, there was no subject-matter to which the statute applicable to fee-tail estates, could apply. To apply them would be creating a life estate with remainders over, upon a void devise. (6) The will did not create nor attempt to create a technical estate tail. 16 Cyc. 608, A. Although certain clauses in a will, standing alone, might present a clear estate in tail, such apparent intent may be negatived by the other provisions in the will, which show either that no estate tail was granted or intended to be granted, or that by such other provisions the estate tail was in fact barred. 16 Cyc. 614, par. 7.

Sloan & Sloan and Hollingsworth & Blood for respondent.

(1) This plaintiff is barred from bringing this action by his conduct amounting to waiver, estoppel, and laches. Hobbs v. Henley, 186 S.W. 981; Wood v. Conqueror Trust Company, 265 Mo. 511. (2) A primary rule of construction is that if the will is in ambiguous terms and there is doubt as to what construction should be adopted, the will should be so construed as to allow it to stand. Cox v. Jones, 229 Mo. 53. (3) The court in construing the language of a testator will place itself in his position and construe the language from his standpoint. Cox v. Jones, 229 Mo. 53. (4) A definite estate once granted must not be held to be cut down by the use of words of uncertain meaning. Cox v. Jones, 229 Mo. 53. (5) In arriving at the intention of the testator, if need be, words may be supplied and omitted and sentences transposed. Grace v. Peery, 197 Mo. 550. (6) A provision repugnant to a fee already clearly granted in a will, should be rejected. Sevier v. Woodson, 205 Mo. 302; Small v. Field, 102 Mo. 104. (7) The granting of an estate which would have been an estate in fee-tail under the common or statute law of England does under the statutes give a life estate to the first taker and a fee to the second taker and is a complete disposition of the fee. Sec. 2267, R. S. 1919. (8) A will should be so construed as to vest the estate at the earliest possible time and where there is doubt as to whether a remainder is vested or contingent it will be construed as vested. Chew v. Keller, 100 Mo. 369; Dickerson v. Dickerson, 211 Mo. 403. (9) The language of the Mantle will giving the land to "Loretta B. Schee and to the heirs of her body at her death," is the most apt and customary wording to create an estate in fee-tail at common law and under the Statute De Donis and so recognized in this State. Burrowes v. Page, 12 Mo. 358; Nichols v. Robinson, 277 Mo. 483; Phillips v. La Forge, 89 Mo. 72; Emmerson v. Hughes, 110 Mo. 627; Miller v. Ensinger, 182 Mo. 195; Gilliland v. Gilliland, 278 Mo. 99; Cox v. Jones, 229 Mo. 53; 1 Tiffany on Real Property (2 Ed.) sec. 26. (10) Under this statute the statutory remainder in fee is contingent until life tenant's death, as the persons who will be heirs can only be determined at that time. Emmerson v. Hughes, 110 Mo. 527; Nichols v. Robinson, 277 Mo. 483. (11) A contingent remainder does not pass by the deed of an apparent remainderman who never takes, and therefore the remainder passing to the bodily heirs of Loretta B. Schee being contingent until her death, her son J. C. Schee had no vested interest at any time during his life, and nothing passed by his deeds to plaintiff. Nichols v. Robinson, 277 Mo. 483; Emmerson v. Hughes, 110 Mo. 630; Clark v. Sires, 193 Mo. 510; Godman v. Simmons, 113 Mo. 122; Rosier v. Graham, 146 Mo. 352. (12) "The rule against perpetuities is defined to forbid the creation of a future estate that will not vest within the lifetime of a person in being and twenty-one years and ten months thereafter." Stewart v. Coshon, 238 Mo. 662; 1 Tiffany on Real Property (3 Ed.) p. 591. (13) The rule against perpetuities relates only to the time of the vesting of interests. It does not relate to the possession or duration, nor does it apply at all to vested interests. Sioux City Terminal v. Trust Co., 82 F. 124, 132; 1 Tiffany on Real Property (2 Ed.) p. 591, note; Lewis on Perpetuities, p. 173; Gates v. Seibert, 157 Mo. 254; Deacon v. Trust Co., 271 Mo. 669. (14) The rule against perpetuities does not apply to a reversion or to a possibility of reverter. Nor does it apply to a possibility of a reverter which has been conveyed by the same instrument to take effect upon the termination of a defeasible fee or after an estate-tail, if such possible estate takes effect immediately upon the termination of the particular estate. The fee being vested subject only to a condition subsequent it is sufficiently vested to satisfy the rule. 30 Cyc. 1473; 1 Tiffany on Real Property (2 Ed.) secs. 184, 137; 2 Am. & Eng. Ency. Law, 706; Deacon v. Trust Co., 271 Mo. 669.

OPINION

WALKER, J.

This is a suit to procure a judicial construction of the will of John Mantle, who died testate in Clark County in 1906, seized of about one thousand, eight hundred and sixty-five acres of land in that county, and to determine the rights and interests of the parties to the same. Upon a hearing before the court, there was a finding and judgment for the defendants, from which the plaintiff appeals.

The testator left surviving him his widow, who died before the institution of this suit, and two daughters, both married and now living, namely: Loretta B. Schee, and Elizabeth J. Harr, now Elizabeth J. Harr Smith. The plaintiff is the son of Loretta B. Schee. She had another son, John C. Schee, who died before this suit was brought, leaving a widow, Elizabeth Schee, and an infant daughter, Edna M. Schee, one of the parties defendant herein. The testator's will contemplated a disposition of all of his real estate. The portions of the will in controversy are as follows:

"2nd. I give and devise to my wife Emma Mantle, the life use of my real estate. Also it is my will that she and my two daughters Elizabeth J. Harr and Loretta B. Schee shall inherit my personal estate according to the laws of inheritance in force in this State.

"3rd. I give and bequeath to my said daughter Loretta B. Schee and to the heirs of her body at her death, to the exclusion of any right and interest of her husband therein, the following described real-estate, situate in Clark County, Missouri:" (Here follows a description of the land by government subdivisions, being the same designated in this proceeding as the "Loretta B. Schee lands"), "making a total acreage to my said daughter and to her bodily heirs, as stated, of 811 acres, more or less, and which I estimate as one-half in value of all my real estate. This bequest being subject to my wife Emma Mantle's life use of said property."

A subsequent paragraph (the 4th) makes a like disposition to testator's widow for life, remainder in his other daughter, Elizabeth J. Harr, now Elizabeth J. Harr Smith, to the balance of his lands. These lands are not involved in this action, but only those described as the Loretta B. Schee lands.

The fifth paragraph of the will limits the foregoing bequests as follows:

"5th. If any of the bodily heirs of my two daughters named should die without issue, after the death of their mother, it is my will that the surviving husband or wife shall have no interest in the estate inherited by said descendant from his or her mother, but that said share of the heir dying shall vest in his brothers and sisters who may be living, or who may have died leaving issue."

The plaintiff and his brother John C. Schee, now deceased, constituted the apparent heirs of Loretta B. Schee in 1908, and in October of that year they made quitclaim deeds to each other of portions of said lands, these deeds being made, as plaintiff stated, for the purpose of dividing the land, as they thought they both had the same interest under the will. During the year 1908 and prior thereto, these two sons had rental arrangements with each other with reference to this land and the plaintiff paid his brother rent for portions thereof up to and including 1908, and when he paid the rent plaintiff stated that he knew that the only interest his brother John C. Schee had was what he took under his grandfather Mantle's will. The plaintiff further testified that down to 1917, he and his brother and mother, all acted on the assumption that the will was valid and that all had an interest under the will, and that was the reason these deeds were made back and forth.

On May 1, 1914, plaintiff procured a quitclaim deed from his brother John C. Schee for the portion that he had previously deeded to his brother and in which deed the brother, his wife, and his mother and father joined. Thereafter, June 2, 1919, the plaintiff procured from his mother Loretta B. Schee and her husband a warranty deed to the entire track known as...