Shepperd v. Fisher

• Decision Date: 13 July 1907
• Parties: SHEPPERD et al. v. FISHER, Administrator, et al., Appellants
• Court: Missouri Supreme Court

103 S.W. 989

206 Mo. 208

SHEPPERD et al. v. FISHER, Administrator, et al., Appellants

Supreme Court of Missouri, First Division

July 13, 1907

Appeal from Henry Circuit Court. -- Hon. W. W. Graves, Judge.

Reversed and remanded.

C. C Dickinson and Parks & Son for appellants.

(1) In cases where, by the common law or statute law of England, any person might become seized in fee tail of any lands, by virtue of any devise, gift, grant or other conveyance, or by any other reasons whatever, such person, instead of being seized thereof in fee tail, shall be deemed and adjudged to be, and shall become, seized thereof for his natural life only, and the remainder shall pass in fee simple absolute to the person to whom the estate tail would, on the death of the first grantee, devisee, or donee in tail, first pass according to the course of the common law, by virtue of such gift, devise, grant or conveyance. Sec. 4592, R. S. 1899. (2) Where a remainder shall be limited to the heirs, or heirs of the body, of a person to whom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be the heir or heirs of the body of such tenant for life shall be entitled to take as purchasers in fee simple, by virtue of the remainder so limited to them. Sec. 4594, R. S. 1899. (3) If any person, by last will devise any real estate to any person, for the term of such person's life, and after his or her death, to his or her children or heirs or right heirs in fee, such devise shall vest an estate for life only in such devisee, and remainder in fee simple in such children. Sec. 4645, R. S. 1899. (4) Section 4592, Revised Statutes 1899, converts the estate tail, created at common law, into a life estate in the first taker, with a contingent remainder in fee simple in favor of these persons who should answer to the description of the heirs of the body of such first taker. Goodman v Simmons, 113 Mo. 127; Emmerson v. Hughes, 110 Mo. 631; Woods v. Kice, 103 Mo. 329; Chiles v. Bartelson, 21 Mo. 344; Phillips v. LaForge, 89 Mo. 72. (5) In Missouri, an estate tail has been, by statute, converted into an estate for life with remainder in fee in second taker. Rozier v. Graham, 146 Mo. 359; Clarkson v. Clarkson, 125 Mo. 386; Reed v. Lane, 122 Mo. 311.

W. E. Owen and C. A. Calvird for respondents.

(1) Any limitation of an estate, by deed or by devise, which possibly may not vest within a life or lives in being, and twenty-one years thereafter, with the addition of the period of gestation of a child en ventre sa mere, or a limitation to the unborn child of an unborn child, is void. 1 Washburn on Real Prop. (4 Ed.), p. 110, sec. 57, ch. 4; 2 Washburn on Real Prop. (4 Ed.), p. 703, sec. 3, ch. 7; Rice Mod. Law Real Prop., secs. 270, 271, 272, 274, 275; Lockridge v. Mace, 109 Mo. 162. (2) Where there is a gift or devise to a class, as children, heirs or issue, upon a contingency that may possibly arise beyond the limits of the rule against perpetuities as to a part of the members of the class, the gift or devise in such case is void as to all. Gray on Perpetuities, secs. 369 to 382; 2 Washburn on Real Prop. (4 Ed.), p. 704; Lockridge v. Mace, 109 Mo. 162; Gates v. Seibert, 157 Mo. 254; Thomas v. Thomas, 73 Am. St. Rep. 427; Coggins' Appeal, 124 Pa. St. 10; In re Walkerly, 49 Am. St. Rep. 136; Barnum v. Barnum, 26 Md. 119; 22 Am. and Eng. Ency. Law (2 Ed.), 724; Johnson's Estate, 185 Pa. St. 179. (3) Possibility of issue is never extinct so long as life lasts. 1 Washburn, Real Prop. (4 Ed.), p. 103, sec. 36; Rozier v. Graham, 146 Mo. 359. (4) A contingent remainder is subject to the rule against perpetuities. Gray on Perpetuities, sec. 204, 213; Gates v. Seibert, 157 Mo. 254. (5) The devise to the heirs of Mrs. Swindell and Mrs. Shepperd would, but for the limitation over by way of reversion to grantor and his heirs, be a life estate in said heirs liable to enlarge, upon the birth of issue to them or any of them, into a fee. In other words, a conditional fee, at common law. Yocum v. Siler, 160 Mo. 313; Halbert v. Halbert, 21 Mo. 282; Moore v. Wingate, 53 Mo. 410; 2 Rice on Real Prop., secs. 278, 288; Tiedeman on Real Prop. (1 Ed.), sec. 271. (6) The conditional limitation over by way of executory devise, in the event of the heirs of Mrs. Swindell and Mrs. Shepperd themselves dying without issue, limits the estate devised to the heirs of said daughters, to a life estate, remainder in fee to their issue (issue of heirs) if any survive; but on failure of said issue (issue of heirs) then over to grantor and his heirs in fee. Thompson v. Craig, 64 Mo. 312; Farrar v. Christy, 24 Mo. 453; Harbison v. Swan, 58 Mo. 147; Yocum v. Siler, 160 Mo. 281; Halbert v. Halbert, 21 Mo. 281. (7) If it shall be held that the fee under the terms of the will would vest as indicated, in either of the last two points, 5 and 6, then the limitation must fail for remoteness, for in either case the fee may not vest for more than twenty-one years and ten months after the death of all persons in being at the time of the death of the testator. Or it may vest in the unborn child of an unborn child. (8) Where a devise constitutes one general disposition of the life estate and fee, and any part of it violates the rule against perpetuities, the whole devise will, as to the land, be held void; and the life estate of the widow being void she will take a dower interest. Lockridge v. Mace, 109 Mo. 162; St. Armour v. Rivard, 2 Mich. 294; Donahue v. McNichol, 91 Pa. St. 78; Hawley v. James, 16 Wend. 120.

WOODSON J. Graves, J., took no part.

OPINION

WOODSON, J.

The plaintiffs filed this bill of equity in the circuit court of Henry county against the defendants, having for its object the construction of the last will and testament of C. S. Fisher, deceased, and a prayer for partition of the real estate.

The petition alleged, substantially, that C. S. Fisher died testate, in the county of Henry, and State of Missouri, on the -- day of February, 1901; that his will was duly probated, and Adam Fisher qualified as executor and was then acting as such; that said will is in words and figures as follows (formal parts omitted):

"Know all men by these presents: That I, S. C. Fisher, of Henry county, and State of Missouri, being in good health, but declining years, of sound mind and disposing mind and memory do make and publish this, my last will and testament, hereby revoking all former wills by me at any time heretofore made.

"And as to my worldly estate, and all the property, real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof, in the manner following to-wit:

"First. My will is that all just debts and funeral expenses shall by my executors hereinafter named, be paid out of my estate, as soon after my decease as shall by them be found convenient, out of the most available assets.

"Second. To my beloved wife, Martha Jane Fisher, I give all of my personal property, of whatsoever kind, together with all household goods, to have as her separate and sole property, and further, all of my homestead consisting of seven hundred and thirty-two acres, to have and to hold for and during the natural lifetime of the said Martha Jane Fisher as her sole and separate estate.

"Third. To my beloved daughter, Mary Ida Swindell, I will one dollar as her separate estate.

"Fourth. To my beloved daughter, Susan Ellen Shepperd, I will one dollar as her separate estate.

"Fifth. To my dearly beloved son, Adam, I will in trust for Mary Ida Swindell, my daughter aforesaid, for and during the lifetime of the said Mary Ida Swindell, three hundred and sixty-six acres off of the homestead, to vest on and after the death of my beloved wife, Mary Jane Fisher, fully described as follows, to-wit: Forty-nine acres in south one-half of section 34; one hundred and sixty acres, all of southwest one-fourth, and eighty acres, all of the east one-half of southeast one-fourth, and fifteen acres off north part, west one-half of southwest one-fourth; all in section 33, range 27, township No. 44; and sixty-two acres, commencing at the center of section 33, range 27, township 44, thence north sixty-two rods, thence west to section 32, thence due south sixty-two rods, thence due east to the point of beginning; to have and to hold during the life of the said Mary Ida Swindell as her separate estate and at her death to her bodily heirs, if the said bodily heirs have issue, forever, but should the said bodily heirs of the said Mary Ida Swindell die without issue, then this estate is to revert to this grantee, his heirs, assigns or legal representatives.

"Sixth. To my beloved son, Adam Fisher, I will in trust for Susan Ellen Shepperd, my daughter aforesaid, for and during the lifetime of the said Susan Ellen Shepperd, three hundred and sixty-six acres of land off of the homestead, to vest on the death of my wife, being all that portion of land owned by me at this time in sections 33 and 34, range 27, township 44, Henry county, Missouri, less the above-described land willed to my daughter, Mary Ida Swindell, to have and to hold for and during her lifetime as her separate estate, and at the death of the said Susan Ellen Shepperd to her bodily heirs, if they have issue, forever, but should the said bodily heirs of the said Susan Ellen Shepperd die without issue, then this estate is to revert to this grantee, his heirs, assigns or legal representatives.

"Seventh. Since there is at this time deeds of trust amounting to four thousand dollars against the above homestead should it be not paid at my decease, or a part still remaining unpaid, then upon the payment of one-half the then indebtedness...