Walton v. Drumtra

• Court: Missouri Supreme Court
• Writing for the Court: Burgess
• Citation: Walton v. Drumtra, 152 Mo. 489, 54 S.W. 233 (Mo. 1899)
• Decision Date: 05 December 1899
• Parties: WALTON et ux. v. DRUMTRA et al.

54 S.W. 233

152 Mo. 489

WALTON et ux. v. DRUMTRA et al.

Supreme Court of Missouri, Division No. 2.

December 5, 1899.

DEEDS—CONSTRUCTION—FEE—POWERS—USES.

1. A husband conveyed land to a trustee and his heirs, for the use of his wife, who was to receive the rents and profits, or, at her option, to occupy the same free from the control of any other person. The trustee had power to sell and

convey in fee simple, or to incumber it at the request of the wife, provided, always, that, if she died without having disposed of said land by deed or will, the trust was to cease, and the property vest in the husband. The wife received the property, and died, without having disposed of it, survived by her husband. Held, that on the death of the wife the property reverted to the husband.

2. A conveyance by a husband to a trustee and his heirs, to the use of the wife, does not vest absolute title in the beneficiary; the statute of uses (Rev. St. 1889, p. 2036) not applying to such a conveyance.

In banc. Appeal from St. Louis circuit court; James E. Withrow, Judge.

Ejectment by Frederick B. Walton and Sarah O. Walton against Adolpha Drumtra and Sophia A. Yore. Judgment for defendants, and plaintiffs appeal. Affirmed.

For opinion in division, see 48 S. W. 924.

Webster & Webster, for appellants. Fred Wisizenus, for respondents.

BURGESS, J.

This is ejectment for the recovery of the possession of one undivided sixth of a lot in the city of St. Louis. Defendants recovered a judgment in the court below, from which plaintiffs appealed.

The plaintiff Sarah O. Walton is the daughter of Patrick Yore, deceased, by his first wife, while the defendant Sophia A. Yore was his second wife. The common source of title is Michael Kelly, who, by deed dated January 12, 1857, and duly recorded, conveyed the lot in question to John E. Yore, as trustee for Barbara Ann, wife of Patrick Yore. The deed is as follows: "This deed, made this twelfth day of January, eighteen hundred and fifty-seven, by and between Michael Kelly, of the city of St. Louis, county of St. Louis, and state of Missouri, party of the first part, and John E. Yore, trustee of Barbara Ann Yore, wife of Patrick Yore, of the same city, county, and state, party of the second part, witnesseth: That the said party of the first part, for and in consideration of eight thousand dollars, to him in hand paid by the said party of the second part, does hereby grant, bargain, and sell, convey and confirm, unto the said party of the second part, as trustee aforesaid, the following described real estate, lying and being situated in the city and county of St. Louis, and state of Missouri [being the same property in controversy in this case]. To have and to hold the same unto him, the said John E. Yore, and his heirs, together with all rights, privileges, appurtenances, and improvements on said premises, or to the same in any wise belonging or appertaining, to the use of the said Barbara Ann Yore, and in trust as follows: First. To receive and pay the rents and profits of said lots of ground, together with their appurtenances, to the said Barbara Ann Yore, as her separate property, or, at her option, to suffer and permit her to use, occupy, possess, and enjoy the same in such manner as to her shall seem meet and proper, free from the control of her said husband, or any other person whomsoever; and the written direction of the said Barbara Ann Yore shall be sufficient authority as to the use and management of the said property, and her receipts shall be full acquittances as to the rents and profits thereof. Second. To sell and convey the said lots of ground at any time, with their appurtenances, in fee simple, for such price, and upon such terms, and to such person or persons, as the said Barbara Ann Yore shall designate; and her signing and executing such conveyance shall be sufficient evidence of her wishes and instructions in that behalf. Third. To give and execute mortgages and deeds of trust in fee simple or other charges or incumbrances on the said property to secure any sum or sums of money, or for any other purpose, required by the said Barbara Ann Yore; and her signature to such mortgages, deeds of trust, or other charges or incumbrances shall be sufficient evidence of the authority of said trustees to execute the same: provided, always, that, if said Barbara Ann Yore shall die, leaving said property undisposed of, either by deed of conveyance or by last will and testament, then the trust herein created shall cease, determine, and be at an end, and the said property shall vest in and revert absolutely to Patrick Yore and his heirs and assigns, forever; and the said John Yore, trustee, as aforesaid, shall in such case convey, by proper deed of conveyance, in fee, the said property to said Patrick Yore and his heirs and assigns, forever. And this property is conveyed upon the further condition that the said Barbara Ann Yore may at any time and whenever she shall see fit name and appoint another trustee in the place and stead of said John Yore, and this power toties quoties she can exercise by written instrument under her hand and seal, duly acknowledged and recorded; and such trustee or trustees in the stead and place of said John Yore shall possess all the powers, and do and perform all acts and things, the same as the said John Yore could or might do and perform under and by virtue of this deed." The purchase money was paid by Patrick Yore. Barbara Ann Yore died intestate on April 21, 1876, without having disposed of said property, leaving as her only heirs at law six children, one of whom (Sarah O. Walton, plaintiff) was then and is now the wife of her co-plaintiff, Frederick B. Walton. Patrick Yore survived his wife, and immediately upon her death took possession of said property, claiming to be the absolute owner in fee. He retained possession of the property until May 22, 1879, when, by a marriage settlement of that date, he conveyed to the defendant Sophia A. Yore, then Sophia A. Papin, an estate therein for life, or during her widowhood, should she survive him. Patrick Yore and Sophia A. Papin were married in the year 1879, shortly after the execution of the marriage contract in consideration for which said Sophia surrendered all marital rights, including dower in her intended husband's property, and he (Patrick Yore) conveyed to her a life interest in the property involved in this litigation and in an adjoining lot. After their marriage, Mrs. Yore at once took possession of said property, and still retains the same. Her co-defendant, Drumtra, is her tenant, in the possession of the property. Patrick Yore died July 14, 1889, leaving a will, whereby he disposed of all his property to his children, making no provision for his wife, Sophia, therein. The inventory of his estate recites that the property in question was conveyed to Sophia A. Yore for life. Plaintiffs contend that the deed from Michael Kelly to John E. Yore, trustee for Barbara Ann Yore, vested in her an equitable fee-simple estate in the property thereby conveyed, while defendants' contention is that upon the death of Mrs. Barbara Ann Yore without executing the power of appointment conferred upon her by the deed by Michael Kelly to John E. Yore, as trustee for her, the fee vested in Patrick Yore by way of executory limitation.

In Rubey v. Barnett, 12 Mo. 3, it was said: "It has always been held that an absolute power of disposition over property conferred by will, not controlled by any provision or limitation, amounted to an absolute gift of the property. A power to dispose of a thing as one pleases must, necessarily, carry along with it a full property in it. Hence, whenever property is conveyed by words conferring a power of disposition as one pleases, or as he may think best, it is, in law, an absolute gift of the property to him on whom the power of disposition is conferred." That case was cited with approval in Norcum v. D'Oench, 17 Mo. 118; Green v. Sutton, 50 Mo. 186; Reinders v. Koppelmann, 68 Mo. 482; Cook v. Couch, 100 Mo. 29, 13 S. W. 80; Lewis v. Pitman, 101 Mo. 281, 14 S. W. 52; Hazel v. Hagan, 47 Mo. 281; Bryant v. Christian, 58 Mo. 102; Carr v. Dings, Id. 400; Mead v. Gray, 75 Mo. 59; State v. Tolson, 73 Mo. 320; Russell v. Eubanks, 84 Mo. 82; Hardy v. Clarkson, 87 Mo. 179; Cornwell v. Orton, 126 Mo. 355, 27 S. W. 536; and Cornwell v. Wulff (Mo.) 50 S. W. 439. So, in Jackson v. Robins, 16 Johns. 587, it is laid down "as an incontrovertible rule that, where an estate is given to a person generally or indefinitely, with a power of disposition, it carries a fee, and the only exception to the rule is where the testator gives to the first taker an estate for life only by certain and express words, and annexes to it a power of disposal. In that particular and special case the devisee for life will not take an estate in fee, notwithstanding the distinct and naked gift of a power of disposition of the reversion. The distinction is carefully marked and settled in the cases." By the deed in question the legal title to the property was vested in John Yore, as trustee. By it he was given power to receive rents and profits of the land, and pay them over to Barbara Ann Yore; and also power to convey or mortgage the land, at her request in writing; and was, therefore, the trustee of an active trust, in whom the whole estate in law and equity vested, subject only to the execution of the trust (4 Kent, Comm. [12th Ed.] 310) and the provisions of the deed. The rigid rules of construction applied to deeds and wills in former years have in modern times been somewhat modified, so that deeds are now construed so as to carry into effect the intention of the parties thereto, and wills the intention of the persons executing them. Waddell v. Waddell, 99 Mo. 338, 12 S. W. 349. The rule for the construction of deeds announced by 2 Devl. Deeds, § 836, is "that the intention of the parties is to be ascertained by...