Warne v. Sorge

• Citation: 167 S.W. 967,258 Mo. 162
• Parties: T. A. WARNE et al., Appellants, v. BERTHA B. SORGE et al
• Decision Date: 26 May 1914
• Court: United States State Supreme Court of Missouri

167 S.W. 967

258 Mo. 162

T. A. WARNE et al., Appellants, v. BERTHA B. SORGE et al

Supreme Court of Missouri, Second Division

May 26, 1914

Appeal from Jefferson Circuit Court. -- Hon. Joseph J. Williams Judge.

Affirmed.

F. A Wind and L. A. Wind for appellants.

The deed created a contingent remainder. It is to the child or children surviving the life tenant. Until termination of the life estate it could not be known who would take the remainder. Buxton v. Kroeger, 219 Mo. 224.

Frank Dietrich for respondents.

(1) In construction of deeds as well as wills the intention of parties should be considered, especially that of grantor. 13 Cyc. 601; Waddell v. Waddell, 99 Mo. 338; Tindall v. Tindall, 167 Mo. 224. (2) A resort to extrinsic facts and circumstances may become necessary to ascertain who the grantees are. 13 Cyc. 622. (3) The law favors vested estates and the rule is that estates shall be held to vest at the earliest possible period unless a contrary intention is clearly manifested in the grant. Tindall v. Tindall, 167 Mo. 225. (4) There is no lack of authority that the word "heirs" will be construed as meaning children and vice versa, and children as issue, grandchildren, or descendants, if the justice or reason of the case require it. Herrington v. Gibson, 22 Ky. L. R. 1486; Butler v. Ralston, 69 Ga. 485; Waddell v. Waddell, 99 Mo. 345; Keeney v. McVoy, 206 Mo. 71.

BROWN J. Walker, P. J., and Faris, J., concur.

OPINION

BROWN, J.

Action to determine the title to real estate and for partition. From a decree adjudging the defendants to own one-half of the land and directing a sale in partition, the plaintiffs appeal.

The four plaintiffs (appellants) are the surviving children of one Charles G. Warne, who died March 4, 1909. The defendants are grandchildren of Charles G. Warne, whose parents died prior to the death of said Charles G. Warne, which fact becomes an important item in this cause, as will hereafter appear.

On December 31, 1861, one Timothy B. Edgar held the title to a one-hundred-acre farm situated in Jefferson county, Missouri, as trustee for Mary S. Warne, the mother of the aforesaid Charles G. Warne. Edgar was duly authorized as such trustees to convey the farm to whomsoever Mary S. Warne, his cestui que trust, should in writing direct.

The real dispute between the parties arises over the construction of a deed which Timothy B. Edgar as such trustee for Mary S. Warne executed on December 31, 1861, conveying the one-hundred-acre farm in controversy, which said deed, omitting signatures, description of land and acknowledgments, is as follows:

"This deed, made and entered into this thirty-first day of December, A. D. eighteen hundred and sixty-one, by and between Timothy B. Edgar, trustee, in a certain deed executed by Oscar W. Collet and wife to him as trustee for Mary S. Warne, dated the eleventh day of September, A. D. 1857, the said Timothy B. Edgar, trustee, as aforesaid making this conveyance at the written request of the said Mary S. Warne as is evidenced by her signature hereto, party of the first part, and Charles G. Warne, of Jefferson county, Missouri, party of the second part. Witnesseth, that the said party of the first part in consideration of the said written request of the said Mary G. Warne aforesaid and the sum of ten dollars to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, does by these presents bargain, sell, convey and confirm unto the said Charles G. Warne for and during his natural life and at his death to the child or children he may leave surviving him and entitled by law to inherit his estate in such shares or portions as such children would by law take the following described tract, piece or parcel of land."

(Here follows a description of the one hundred acres in controversy.)

"To have and to hold the same together with all the rights, privileges and appurtenances thereunto belonging or in any wise appertaining unto him, the said Charles G. Warne, for and during his natural life, and at his death, in fee to such child or children as the said Charles G. Warne may leave surviving him at his death and in default of any such child or children of the said Charles G. Warne in being and capable of inheriting his estate at his death then the same shall revert to the said party of the first part as of his first estate.

"In witness whereof the said party of the first part has hereunto set his hand and affixed his seal the day and year first above written."

It is conceded by all the parties to this action that the above quoted deed passed a life estate to Charles G. Warne, the paternal ancestor of the parties to this action; but the difficulty arises in determining to whom the title passed when the life estate of said Charles G. Warne expired. We have italicized those words in the deed which seem to throw light on the intention of the grantors.

In the year 1902 Charles G. Warne executed a will by which he disposed of other real estate to his wife. Said will contained the following recitals:

"I, Charles G. Warne of the age of sixty-five years, and being of sound mind and memory, do hereby make, publish and declare this my last will and testament in manner following, that is to say:

"I give and devise to each of my children the sum of one dollar -- their interest in the home farm of one hundred acres in U.S. Survey 416, being theirs at the time of my death."

In this will Warne did not further refer to his children or grandchildren. Before Charles G. Warne made the will above mentioned two of his eight children had died, leaving issue, and between the date of making his will and his death two more of his children died, also leaving issue surviving them.

The defendants, as before stated, are the descendants of the four children who departed this life prior to the death of their father, Charles G. Warne, and it is contended by plaintiffs that the trial court erred in awarding defendants any interest in the farm, because their parents did not survive said Charles G. Warne.

OPINION.

I. The proper interpretation of the deed from Edgar the trustee and Mary S. Warne to Charles G. Warne involves a construction of the word "children" as used in this deed, and whether the deed conveyed to the children of Warne a vested or a contingent remainder. If such remainder was contingent and vested only in such of Charles G. Warne's children as were living at the time of his death, then the defendants have no title, and the judgment nisi should be reversed.

The word "children" of a named person most usually refers to his immediate offspring, and not to his grandchildren, but said word when used in a collective sense is sometimes applied to grandchildren or other descendants, depending, of course, upon the sense in which it is used. If one speaks of the "children of Israel" he is understood to refer to all the descendants of the patriarch Jacob. The word "children, as well as issue, may stand, in a collective sense, for grandchildren, when the justice or reason of the case demands it." [4 Kent (13 Ed.), p. 451; 13 Cyc. 623.] So, I take it, the word "children" does not have a castiron meaning, and, in furtherance of the chief aim of all construction (to ascertain the intention of the parties using the word), it may be expanded when the surrounding facts warrant such construction. Textwriters have announced many rules for construing deeds and wills, but the settled rule in Missouri seems to be that a construction cannot be made to depend upon particular words found in such an instrument, but that all parts of the instrument must be considered together, and the intent of the parties, when ascertained, is the pole star to guide courts to a correct interpretation. [Utter v. Sidman, 170 Mo. 284, 70 S.W. 702, 294; Tindall v. Tindall, 167 Mo. 218, 66 S.W. 1092; Williamson v. Brown, 195 Mo. 313, 93 S.W. 791, 336; Howell v. Sherwood, 242 Mo. 513, 147 S.W. 810.] So, in approaching the solution of the particular dispute at hand, it must be conceded that the word children should be held to include only the immediate offspring of Charles G. Warne, unless there is language in the deed, or something in the situation of the parties who executed it, to warrant such an enlarged meaning of that word as to cover the grandchildren of said Charles G. Warne, whose parents had predeceased him.

While it is not permissible to add to or vary the meaning of written instruments by parol evidence, when language is found in either a will or deed which is fairly susceptible of different constructions courts may receive parol or other evidence to ascertain the situation of the parties for the purpose of determining what is meant by the language used. [Walton v. Drumtra, 152 Mo. 489, 54 S.W. 233; Cross v. Hoch, 149 Mo. 325, 50 S.W. 786, 338; Tisdale v. Prather, 210 Mo. 402, 109 S.W. 41; Cox v. Jones, 229 Mo. 53, 129 S.W. 495.]

Approaching the case with these rules in mind, we observe that the will of Charles G. Warne made in 1902 recites that he was then sixty-five years old, and if that recital is correct he was only twenty-four years...