Walton v. Drumtra

• Decision Date: 05 December 1899
• Parties: Walton et al., Appellants, v. Drumtra et al
• Court: Missouri Supreme Court

54 S.W. 233

152 Mo. 489

Walton et al., Appellants,
v.
Drumtra et al

Supreme Court of Missouri

December 5, 1899

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow, Judge.

Affirmed.

Webster & Webster for appellants.

(1) The deed from Michael Kelly to John E. Yore, trustee for Barbara Ann Yore, vested in Mrs. Yore an equitable fee simple estate in the property thereby conveyed. Rubey v. Barnett, 12 Mo. 3; Green v. Sutton, 50 Mo. 186; State ex rel. v. Tolson, 73 Mo. 320; Tremmel v. Kleibolt, 75 Mo. 255; Wead v. Gray, 78 Mo. 59; Cornwell v. Orton, 126 Mo. 355; Evans v. Folks, 135 Mo. 397; Cornwell v. Wulff, 148 Mo. 542; McKenzie's Appeal, 41 Conn. 607; Jones v. Beer, 57 Conn. 295; O'Boyle v. Thomas, 116 Ind. 243; Williams v. Allison, 33 Ia. 278; Benkert v. Jacoby, 36 Ia. 273; Rowa v. Meier, 47 Ia. 607; Case v. Dwire, 60 Ia. 442; Alden v. Johnson, 63 Ia. 124; In re Burbank, 69 Ia. 378; Bulfer v. Willigrod, 71 Ia. 620; Bernesch v. Clark, 49 Md. 497; Williams v. Worthington, 49 Md. 572; Foos v. Scarf, 55 Md. 301; Combs v. Combs, 67 Md. 11; Ide v. Ide, 5 Mass. 500; Gifford v. Choate, 100 Mass. 343; Hale v. Marsh, 100 Mass. 468; Spooner v. Lovejoy, 108 Mass. 529; Davis v. Mailey, 134 Mass. 588; Kelly v. Meins, 135 Mass. 231; Jackson v. Robbins, 16 Johns. 587; Helmer v. Shoemaker, 22 Wend. 137; Van Horn v. Campbell, 100 N.Y. 287; Howard v. Carusi, 109 U.S. 725; Randall v. Josselyn, 59 Vt. 561; Stowell v. Hastings, 59 Vt. 594; Chaplin v. Doty, 60 Vt. 712; Tiedeman on Real Prop. (2 Ed.), 564. (2) The limitation over to Patrick Yore, upon the death of his wife without having disposed of the property by deed or will, is void, whether it be considered a remainder or an executory limitation. Green v. Sutton, 50 Mo. 186; Cornwell v. Orton, 126 Mo. 355; Cornwell v. Wulff, 148 Mo. 542; McKenzie's Appeal, 41 Conn. 607; Phelps v. Bates, 54 Conn. 11; St. John v. Dann, 60 Conn. 401; Welsch v. Savings Bank, 94 Ill. 191; Hamlin v. Express Co., 107 Ill. 443; Steib v. Whitehead, 111 Ill. 247; Wolfer v. Hemmer, 144 Ill. 554; Ewing v. Barnes, 156 Ill. 61; Wilson v. Turner, 164 Ill. 398; Fullenweider v. Watson, 113 Ind. 18; Case v. Dwire, 60 Ia. 442; Bills v. Bills, 80 Ia. 270; Ramsdell v. Ramsdell, 21 Me. 288; Pickering v. Langdon, 22 Me. 413; Jones v. Bacon, 68 Me. 34; Mitchell v. Morse, 77 Me. 423; Tyler v. Brown, 88 Me. 56; Hill v. Hill, 5 G. & J. (Md.) 87; Combs v. Combs, 67 Md. 11; Gifford v. Choate, 100 Mass. 343; Kelly v. Meins, 135 Mass. 231; Damrell v. Hart, 137 Mass. 218; Shaw v. Cordis, 143 Mass. 443; Todd v. Sawyer, 147 Mass. 570; Joslin v. Rhoades, 150 Mass. 301; McClellan v. Larch, 45 N.J.Eq. 17; Dodson v. Sevars, 52 N.J.Eq. 611; Jackson v. Bull, 10 Johns. 18; Jackson v. Delancy, 13 Johns. 537; Jackson v. Robbins, 16 Johns. 537; Patterson v. Ellis, 11 Wend. 260; Helmer v. Shoemaker, 22 Wend. 137; Smith v. Van Ostrand, 64 N.Y. 278; Campbell v. Beaumont, 91 N.Y. 465; Van Horn v. Campbell, 100 N.Y. 287; Hayes v. Sherman, 117 N.Y. 433; Cole v. Cole, 79 Va. 251; Bowen v. Bowen, 87 Va. 438; Hall v. Palmer, 87 Va. 354; Farish v. Wayman, 91 Va. 438; Robertson v. Hardy, 23 S.E. 766; Stones v. Maney, 3 Tenn. Chan'y 731; Randall v. Josselyn, 59 Vt. 561; Judevin v. Judevin, 61 Vt. 587; Howard v. Carusi, 109 U.S. 725; Potter v. Couch, 141 U.S. 296; 4 Kent's Com., 270; 2 Wash. on Real Prop. (5 Ed.), 678; Tiedeman on Real Prop. (2 Ed.), 486; 2 Williams on Executors (7 Am. Ed.), p. 1267; 2 Jarman on Wills (5 Am. Ed.), p. 529, note 19; 2 Redfield on Wills, 278; 2 Woerner on Adm., 948; 20 Am. and Eng. Ency. of Law, 955, 962. (3) Upon the death of Barbara Ann Yore, the property descended to her heirs at law, subject to the life estate of her husband as tenant by the curtesy. Tremmel v. Kleibolt, 75 Mo. 255; Cornwell v. Orton, 126 Mo. 355. (4) Patrick Yore, having only an estate for his own life, could convey no greater estate, and defendant Sophia A. Yore's estate and right of possession, therefore, terminated with the death of her grantor. She could acquire no title by limitation, for the same reasons that debarred Patrick Yore from so doing. Smith v. Patterson, 95 Mo. 525.

Fred. Wisizenus for respondents.

(1) Upon the death of Mrs. Barbara Yore without executing the power of appointment, the fee vested in Patrick Yore by way of executory limitation. Straat v. Uhrig, 56 Mo. 482; Chew v. Keller, 100 Mo. 368; Wood v. Kice, 103 Mo. 329; Jecko v. Hume, 45 Mo. 167; Carver v. Aster, 4 Peters, 1; Tiedeman on Real Prop. (2 Ed.), par. 484; Gilbert on Uses (2 Ed.), p. 77; Sanders on Uses and Trusts, * 149; Gray on Perpetuities, sec. 54; 2 Wash. on Real. Prop. (2 Ed.), * 251, * 122; Ib. (5 Ed.), p. 670; 3 Cornish on Uses, pp. 19, 92 and 94; 20 Am. and Eng. Ency. of Law, p. 959; Dunwiddie v. Reed, 3 S. & R. 452. (2) In construing a deed the following rules must be observed: The intent of the parties must be ascertained and carried out; no clause should be rejected, if a construction is practicable which gives it effect; the intent of the parties is determined not merely on the face of the instrument, but surrounding circumstances can be called into aid, to clear up doubt; finally, the construction adopted by the parties themselves is of persuasive, if not controlling influence, in the interpretation of the instrument. Fanning v. Doan, 128 Mo. 328; McCullock v. Homes, 111 Mo. 447; Morrison v. Thissel, 67 Mo. 596; Bean v. Kenmuir, 86 Mo. 666; Redman v. Barger, 118 Mo. 568; Long v. Timms 107 Mo. 519; Wilson v. Albert, 89 Mo. 543; Patterson v. Camden, 25 Mo. 22; St. Louis v. Gas Light Co., 48 Mo. 133; Jones v. Delassus, 84 Mo. 545; Scott v. Scott, 95 Mo. 318; Waterman v. Baldwin, 68 Ia. 255. (3) Apart from the doctrine of executory limitations, Mrs. Yore took a life estate with power of disposal; the remainder in fee to Patrick Yore is good. Yore v. Yore, 63 F. 645; Bean v. Kenmuir, 86 Mo. 666; Harbison v. James, 90 Mo. 411; Monroe v. Collins, 95 Mo. 33; Greffett v. Wellmann, 114 Mo. 107; Lewis v. Pitman, 101 Mo. 292; Chiles v. Bartleson, 21 Mo. 346; Russell v. Eubanks, 84 Mo. 82; Carr v. Dings, 58 Mo. 400; Redman v. Barger, 118 Mo. 568; Gavin v. Allen, 100 Mo. 293; Patrick v. Bean, 119 Mo. 105; Reinders v. Koppelmann, 68 Mo. 482; Smith v. Bell, 6 Peters, 68; Wager v. Wager, 96 N.Y. 164; Prior v. Quackenbush, 29 Ind. 475; Baxter v. Boyer, 19 Oh. St. 490; Giles v. Little, 104 U.S. 291; Welsh v. Woodbury, 144 Mass. 542.

BURGESS, J. Gantt, C. J., and Sherwood, Brace, Robinson, Marshall, Burgess and Valliant, JJ., concur.

OPINION [54 S.W. 234]

[152 Mo. 493] In Banc.

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 appeal.

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 [152 Mo. 494] 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 anywise 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 purposes, 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 trustee 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, [152 Mo. 495] and the said John Yore, trustee as...