Tisdale v. Prather

• Decision Date: 17 March 1908
• Citation: 210 Mo. 402,109 S.W. 41
• Parties: TISDALE et al. v. PRATHER et al.
• Court: Missouri Supreme Court

109 S.W. 41

210 Mo. 402

TISDALE et al. v. PRATHER et al.

Supreme Court of Missouri, Division No. 2.

March 17, 1908.

1. WILLS—CONSTRUCTION—INTENT OF TESTATOR—STATUTORY PROVISIONS.

Under Rev. St. 1899, § 4650 (Ann. St. 1906, p. 2518), providing that the true intent and meaning of the testator is to govern, in the construction of wills, in determining the testator's intent, the court should consider the will as a whole, giving to each part due consideration.

2. SAME — INTEREST CREATED — GENERAL DEVISE WITH POWER OF DISPOSITION.

A testator devised to his daughter, free from the debts and liabilities which might then exist against her husband or be thereafter contracted by him, certain described land, "to have and to hold the same unto her and her heirs forever, with full power to sell and dispose of the same at any time she may think best." Held that, if the daughter did not take the fee under the general provision of the will, the power to sell and dispose of the land as she saw fit carried with it a full property interest in the land.

3. SAME—PARTICULAR PROVISIONS—EFFECT.

The fact that the will further provided: "The proceeds of sale to be invested, if she desire it, in other property, to be conveyed to her and the heirs of her body"—would not restrict her power of disposal as owner of the fee, but simply left it discretionary with her to sell the land and invest the proceeds as suggested, and, when she exercised the power by disposing of the property, her children had no interest whatever in the land.

4. SAME—LIFE ESTATE—POWER TO SELL—EFFECT.

Where a will only vested a life estate in the devisee, the power given to sell and dispose of the same did not enlarge the estate to a fee.

5. SAME — RIGHT TO MORTGAGE — EFFECT OF PROVISION AUTHORIZING SALE.

Where an estate in fee vested in a devisee by a general clause in a will, a provision of a will giving her the right to sell and dispose of the land as she might think best gave her authority to mortgage it.

Appeal from Circuit Court, Chariton County; John P. Butler, Judge.

Action by A. M. Tisdale and others against Marcellus A. Prather and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Benecke & Benecke and Kinley & Kinley, for appellants. J. A. Collet and H. J. West, for respondents.

BURGESS, J.

This is a controversy over the title to a tract of land in Chariton county, Mo. The land in question was owned by George W. Temple, who died and left a will which was admitted to probate in the probate court of Chariton county June 13, 1871, the second clause of said will being as follows: "Second, I give and bequeath to my daughter, A. M. Tisdale, free from the debts and liabilities which may now exist against her husband, R. H. Tisdale, or which may be hereafter contracted by him, the following land situated in Chariton county, Missouri, to wit: The east half of the southwest quarter of section thirty-five, township fifty-four, range nineteen, to have and to hold the same unto her and her heirs forever, with full power to sell and dispose of the same at any time she may think best, the proceeds of sale to be invested, if she desire it, in other property, to be conveyed to her and the heirs of her body." On February 8, 1884, R. H. Tisdale and his wife, the said A. M. Tisdale, mortgaged this land to Robert H. Hodge for $1,200. Afterwards, on December 2, 1889, Mrs. Tisdale and her husband borrowed $1,410 of James Cuddy with which to pay off the Hodge mortgage, and executed to John C. Crawley, as trustee, their deed of trust on said land to secure their note to Cuddy for said sum. Default was made in the payment of the note, and Mr. Crawley, the trustee, foreclosed on February 3, 1900, the defendant, Marcellus A. Prather, becoming the purchaser of the land at the price of $2,275. On February 12, 1904, Marcellus A. Prather and wife conveyed one-half of said tract to their son, J. C. Prather, the consideration being $1 and love and affection.

The plaintiffs in this case are A. M. Tisdale, and her eight children. The petition sets out the will of George W. Temple, and alleges that the maker of the will thereby devised the land in question to A. M. Tisdale and the heirs of her body, and that she took and held possession thereof until May, 1904; that defendant Marcellus A. Prather is in wrongful possession under the Cuddy deed of trust and a foreclosure thereof by Mr. Crawley, the trustee; that the debt of $1,410 to Cuddy was the individual debt of Richard H. Tisdale, the husband of A. M. Tisdale, and that her signing of the deed of trust was gratuitous and without consideration, and that these facts were understood and well known to all the parties to said transaction at the time. The prayer is to set aside the Cuddy deed of trust and the trustee's deed made thereunder by Mr. Crawley, and for possession. It is also alleged in the petition that the Cuddy note was assigned to Marcellus A. Prather before the foreclosure, and that he acquired the note with knowledge that the debt was the individual debt of Richard H. Tisdale, and that A. M. Tisdale received no consideration therefor. There was no evidence whatever offered in support of this allegation. Defendant Marcellus A. Prather answered, admitting that he was in possession of the land in question, and asserting that he was the absolute owner thereof. By agreement of parties, J. C. Prather was made a party defendant, and he adopted the answer of his codefendant as his answer. Plaintiffs offered to prove by Mrs. Tisdale that she received no part of the money evidenced by the Hodge note, but the court sustained defendants' objection to her testifying on this point on the ground that Hodge was dead, and that she was incompetent as a witness to impeach the validity of a contract made between herself and husband and Hodge; to which action of the court in sustaining said objection plaintiffs excepted. The court found the issues for defendants, and rendered judgment for defendants and against plaintiffs for costs, from which judgment, after an unavailing motion for a new trial, plaintiffs appealed.

The vital question involved in this case relates to the interest Mrs. A. M. Tisdale acquired under the second clause of the will of her father, G. W. Temple, deceased. Section 4650, Rev. St. 1899 (Ann. St. 1906, p. 2518), provides that "all courts and others concerned in the execution of last wills shall have due regard to the...