Tindall v. Tindall

• Decision Date: 19 February 1902
• Parties: JEFFERSON W. TINDALL et al., Appellants v. N. C. TINDALL et al
• Court: Missouri Supreme Court

66 S.W. 1092

167 Mo. 218

JEFFERSON W. TINDALL et al., Appellants v. N. C. TINDALL et al

Supreme Court of Missouri, First Division

February 19, 1902

Appeal from Howard Circuit Court. -- Hon. Jno. A. Hockaday, Judge.

Affirmed.

R. C Clark and W. M. Williams for appellants.

(1) Where a deed inter vivos conveys real estate to one for life and then to the issue of his body as a class, only those who answer the description at the death of the life tenant take as remaindermen. Ridley v. McPherson, 43 S.W. 772; Soper v. Brown, 32 N.E. 769; Bradford v Griffin, 19 S.E. 76. (2) (a) The deed from Jere Kingsbury would have created an estate tail at common law. Farrer v. Christy, 24 Mo. 453; Harbison v. Swan, 58 Mo. 147; McIlhinney v. McIlhinney, 37 N.E. 147. (b) Under the statute of 1835, which was in force at the time this deed was made, it vested a life estate in Lusina Tindall, and the remainder was contingent during her life, and at her death vested in the heirs of her body surviving at that time. This was expressly so ruled in a case involving the construction of a deed dated April 17, 1845, and which, like the deed involved here, was controlled by the statute of 1835. Rozier v. Graham, 146 Mo. 352. (c) Henry C. Tindall died in the lifetime of his mother. The deed of trust executed by him, and the trustee's sale thereunder, did not convey any title to defendant, N. C. Tindall. Rozier v. Graham, supra; Godman v. Simmons, 113 Mo. 122; Emmerson v. Hughes, 110 Mo. 627; Read v. Lane, 122 Mo. 311. "But it is equally well-settled law in this State that though a fee may vest as a contingent remainder, it may be divested upon contingencies, until the death of the life tenant, at which it vests finally." Rozier v. Graham supra. (3) If, under the statute of 1835, Lusina Tindall under this deed had a life estate, with a vested remainder in H. C. Tindall the oldest son (Frame v. Humphreys, infra), plaintiffs still have an interest in said land. H. C. Tindall only attempted to convey by his deed of trust "an undivided one-third" of the land. The deed of trust only purports to transfer an undivided one-third. He remained, therefore, the owner of two-thirds, subject to his mother's life estate. This descended, upon his death, to his children, and each of the plaintiffs, as his heirs, would be entitled to one-sixth of said two-thirds. Frame v. Humphreys, 64 S.W. 116.

Thomas Shackelford, C. B. Crawley and A. W. Walker for respondents.

(1) In order to create an estate tail at common law by deed, the words "heirs" must be used. No other word will suffice. 2 Black. Com., 115; Tiedeman on Real Prop. (El. Ed.), sec. 47; Coke on Litt., 2b; Alpass v. Watkins, 8 T. R. 516; McLeod v. Dell, 9 Fla. 441; Ford v. Johnson, 41 Ohio St. 367; Doty v. Teller, 54 N. J. L. 163; Kirk v. Ferguson, 17 R. I. 432. Hence, the deed from Jere Kingsbury to Lusina Tindall "for and during her natural life and then to the issue of her body forever," for lack of the word "heirs" did not create an estate tail at common law and the statute of 1835, cited by appellants, has no application. R. S. 1835, sec. 5, p. 119. (2) Although the rule in Shelley's case was in force in this State as to deeds when the deed in question was executed, that rule operated only on limitations using the words "heirs" or "heirs of the body." Hence, it can have no application to the remainder "to the issue of her body forever." The rule never applies to the word "issue." Greenl. Cruise, ch. 23, title 32, Deeds, sec. 28, p. 389; Tiedeman on Real Prop. (El. Ed.), sec. 434; McIlhinny v. McIlhinny, 137 Ind. 411; Daniel v. Whartenby, 17 Wall. 639; Muldrow v. White, 67 Mo. 471; Tesson v. Newman, 62 Mo. 200. (3) (a) The word "issue," when used in a deed, is universally held to be a word of purchase and not of limitation. Greenl. Cruise, ch. 23, title 32, Deeds, sec. 28, p. 389; 2 Washb. Real Prop. (5 Ed.), top pp. 654-655; Elphinstone's Int. of Deeds, 318, 319; Doe v. Collis, 4 T. R. 299; Bagshaw v. Spencer, 2 Atk. 586; Bagley v. Morris, 4 Ves. Jr. 794; Price v. Sisson, 13 N. J. Ch. 177; Ford v. Johnson, 41 Ohio 366; Taylor v. Taylor, 63 Pa. St. 481; McIlhinny v. McIlhinny, 137 Ind. 411. (b) And the grant to Lusina Tindall "for and during her natural life and then to the issue of her body forever," created a valid remainder in fee in the issue of Lusina Tindall and said remainder did not hang in abeyance until her death, but vested in her first child immediately upon its birth and thereafter opened to let in her afterborn children. 2 Washb. on Real Prop. (5 Ed.), 629; Greenleaf's Cruise, title 32, Deeds, chap. 23, sec. 28, p. 389; McIlhinny v. McIlhinny, 137 Ind. 411; Daniel v. Whartenby, 17 Wall. 639; Jones v. Waters, 17 Mo. 587; Waddell v. Waddell, 99 Mo. 338; Gates v. Seibert, 157 Mo. 271; Bank v. Lees, 176 Pa. St. 402. (c) "The law favors vested estates and no remainder will be construed to be contingent which may, consistently with intention, be deemed vested." Jones v. Waters, 17 Mo. 590; Chew v. Keller, 100 Mo. 362; Byrne v. France, 131 Mo. 646; Fanning v. Doan, 128 Mo. 328. (4) (a) The entire estate being thus disposed of by the granting clause of the deed, the grantor's attempt to further control the devolution of the estate by the clause appearing after the description of the land, "in case the said Lusina shall depart this life without leaving issue living at her death then said tracts or parcels of land to descend to her heirs at law and not to the said Cordy Tindall or his heirs," is void upon the familiar principle that a remainder can not be limited upon a previous grant in fee. Vaughan v. Gray, 17 Mo. 429; Waddell v. Waddell, 99 Mo. 338; Chew v. Keller, 100 Mo. 362; Cornwall v. Orton, 126 Mo. 365. (b) Neither can the lastmentioned limitation in said deed in anywise affect the meanings or construction to be given the previous grant, because the last limitation is based upon a definite failure of issue. Glover v. Condell, 163 Ill. 536; Bank v. DePauw, 75 F. 777; Parkhurst v. Harrower, 142 Pa. St. 432; De Wolf v. Middleton, 18 R. I. 810. (5) As the deed does not create an estate tail at common law, there can be no application of the doctrine of primogeniture. Appellants' abstract does not show who was the oldest son of Lusina Tindall. (6) The agreed facts admit that the defendants, N. C. and M. F. Tindall, are each entitled to one-third of the land under the deed of Jere Kingsbury and that if the remainder "to the issue of her body forever" became vested upon the birth of a child or children to Lusina Tindall, then the remaining one-third of the land belongs to N. C. Tindall under the deed of trust given him by Henry C. Tindall and the deed of foreclosure thereof.

OPINION

BRACE, P. J.

This is an appeal from a judgment of the Howard Circuit Court in partition upon an agreed case. All parties claim under a deed executed by Jere Kingsbury on August 19, 1844, which is as follows:

"This indenture made and entered into on this nineteenth day of August, in the year of our Lord one thousand eight hundred and forty-four, between Jere Kingsbury of the county of Howard and State of Missouri, of the one part, and his daughter, Lusina Tindall, wife of Cordy Tindall, of the same place, of the other part, Witnesseth: that the said Jere Kingsbury for and in consideration of the natural love and affection which he bears for his said daughter, Lusina Tindall, and for the further consideration of one dollar to him in hand paid by her, the said Lusina, at and before the sealing of these presents, the receipt whereof is hereby acknowledged, has this day given, granted, bargained and sold and does by these presents give, grant, bargain and sell unto her, the said Lusina, for and during her natural life and then to the issue of her body forever, the following described tracts or parcels of land, but not to be in any manner subject to the disposition of her said husband, to-wit: The southwest quarter and the east half of the northwest quarter of section twenty-nine, township fifty in range sixteen in Howard county in the State of Missouri, valued at $ 2,000; and in case she, the said Lusina Tindall, shall depart this life without leaving issue living at her death, then the said tracts or parcels of land to descend to her heirs at law, and not to the said Cordy Tindall or his heirs. To have and to hold the above described tracts or parcels of land together with all their appurtenances thereunto belonging or in any wise appertaining unto her, the said Lusina, and to her sole use and benefit, for and during her natural life, and to the issue of her body forever after. And the said Jere Kingsbury doth further for himself, his heirs, executors or administrators, further covenant to and with the said Lusina and the issue of her body forever to warrant and defend the title to the above described tracts or parcels of land free from the claim or claims of all and every person or persons claiming by, through, from or under them, the said Jere Kingsbury, or any other person or persons, bodies corporate or political whatsoever."

At the time of the execution of the deed the said Lusina Tindall had no children. Subsequently she had five, viz., Henry C. Tindall, Sr., M. K. Tindall, M. F. Tindall, N. C. Tindall and Lucy Tindall. In August, 1855, Lucy Tindall died, and in May, 1883, M. K. Tindall died, both without issue. In 1894, Henry C. Tindall, Sr., died leaving six children, viz., Mary L., Jefferson W., Josephine, Jackson C., Leona, and Henry C. Tindall, Jr., and in August, 1898, the said Lusina Tindall died.

On the fourth of March, 1893, the said Henry C. Tindall, Sr. conveyed "an undivided third interest" in said real estate in trust for the benefit of the said N. C. Tindall, which deed of trust was duly foreclosed on...