Wilson v. Cockrill

• Decision Date: 31 July 1843
• Citation: 8 Mo. 1
• Parties: WILSON, BY HIS NEXT FRIEND, v. COCKRILL.
• Court: Missouri Supreme Court

8 Mo. 1

WILSON, BY HIS NEXT FRIEND,

v.COCKRILL.

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM HOWARD CIRCUIT COURT.

LEONARD, for Appellant.

The record presents two general questions for the consideration of this court: First. Did the grantor intend that the appellant, William Wilson, should take any, and if so, what interest in the slaves, in the event that has happened? Second. Do the rules of law prohibit such an interest as was contemplated by the grantor, from being created in personal property, by a conveyance inter vivos? I. This is a pure question of intention, and for the appellant it is insisted: 1st. The plain intention of the grantor, as manifested by the deed, uncontrolled by technical rules of construction, was to give the particular slaves designated to his grand-daughter, Juliet Wilson, forever, determinable, however, upon her dying in the life-time of her brother William, without children living at the time of her death; and in the event of her so dying, then over to her brother absolutely; and that the same limitation should prevail in relation to the slaves given in the first place to his grandson, the appellant. Parkhurst v. Smith, Willes' R. 332; 2 Blacks. Com. 379; 1 Preston's Touchstone, 170-176; Law Library, number for Nov. 1840, 170 and 179. 2nd. There is no rule of law requiring the court to give in this case, such a technical construction to the word “heirs,” or the expression, “if either shall die without heirs,” as will defeat the real intention of the grantor. The word “heirs” may, and, if the intent be manifest, must be construed “children.” Fearne on Cont. Rem. 467 (side-paging); Tyte v. Willis, Cas. Temp. Talb., 1; Morgan v. Griffith, Cowper's R. 234; Moffatt's Ex'rs v. Strong, 10 Johns. R. 12; 4 Cruise's Digest on Real Property, title 32, ch. 21, §§ 25-26-27; Plond, 53 and 541; Beck's case, Littell's R. 344; Leigh v. Brace, 5 Mod. R. 266; 1 Ld. Raym. 101. In dispositions of personal property, the words, “die without children, or issue,” or other equivalent words, are interpreted to import a dying without children living at the death of the first taker, and not an indefinite failure of issue. Forth v. Chapman, 1 P. Wil. 663; Kerby v. Fowler, 6 Bro. P. C. 309; Wilmot's Opinions, 308, 309 and 314 (cited in 16 Johns. R. 386); 2 Vesey, sen., 180; 2 Atkinson, 288; Crook v. De Vandes, 9 Vesey, jun., 196; Dew v. Spenton, Cowper, 410; Goodtitle v. Pegden, 2 Term R. 720; Atkinson v. Hutchinson, 3 P. Wil. 258 and note 1; Brasheur v. Macy, 3 J. J. Marshall, 91; Rathbone v. Dychman, 3 Paige R.; Moseby's Administrator v. Corbin's Administrator, 3 J. J. Marshall, 289; Moore's Trustees v. Howe's Heirs, 4 Mon. R. 202; 4 Kent's Com. (fourth edition), 281; Hawley and another v. Northampton, 8 Mass. R. 39; Targett v. Grant, Gilmore's Eg. R. 149; Atkinson v. Hutchinson, 3 P. Wil. 258. The New York courts have given the same construction, even when applied to real property. Anderson v. Jackson, 16 Johns. R. 382 (same case); Fosdick v. Cornell, 1 Johns. R. 440; Jackson v. Blansham, 3 Johns. R. 189; Jackson v. Staats, 11 Johns. R. 337; Anderson v. Jackson, 16 Johns. R. 382 (same case); Jackson v. Chew, 12 Wheat. 153. Even where the expression is construed to meanan indefinite failure of issue, very slight circumstances are seized hold of by the courts to give the words their natural meaning. Pells v. Brown, Crown Jac. 590; “Ewing William,” (Porter v. Bradley, 3 Term R. 143,) “leaving no issue behind him,” Roe v. Jeffry, 7 Term R. 589; “should depart this life and leave no issue,” Dunn v. Bray, 1 Call, 388; “should die and leave no issue,” Timberlake & Wife v. Graves, 6 Munford, 174; “to I. A. and his heirs forever, but if he die without heir, then to be divided between two sisters of I. A.,” Gresham v. Gresham, 6 Munf. R. 187; “to his brother I., and in case he died without issue, to A. and B. (his brother's children),” Didlake v. Hooper, Gilmore's R. 194; “if he die without issue, I give the whole of the property that I have lent him to S. and I,” James v. McWilliams;“to two daughters, provided, if either die without lawful issue, her part to go to the other,” Cordle's Administrator v. Cordle's Administrator, 6 Munford, 455; “to two sons, and if either die without lawful heir, the surviving brother to inherit the estate of the deceased,” 1 Tucker's Com. 164, 165. And so, if the general rule be adopted and applied to the construction of this deed, there is enough on the face of it to confine the want of issue to the time of the death of the first taker. See cases last above cited. The rule, that the same words which, when applied to a disposition of real estate, create an estate tail, will, when applied to personal property, vest the absolute interest in the first taker, does not apply to the words, “dying without issue,” or other equivalent words that only create an estate tail by implication. Atkinson v. Hutchinson, 3 P. Wil. 259. In England (1 Victoria, ch. 26), Virginia (Statutes of 1819), Mississippi (Rev. Code, 1824), and other States of this Union, the unnatural judicial construction of the words, “dying without issue,” has been repealed by express statutes on the subject, and the words restored to their natural meaning. 4 Kent's Com. (fourth edition), 278-279.

II. 1. There is no rule of law prohibiting the existence of such a contingent interest in personal property, as the grantor intended to vest in the appellant in the present instance. 2 Chitty's Blacks. Com. 398; 2 Kent's Com. (4th ed.), 352; Higginbotham v. Rucker, 2 Call's R. 313; Powell v. Brown, 1 Bailey's S. C. R., 100; Moffatt's Ex'rs v. Strong, 10 Johns. R. 12; Smith v. Bell, 6 Peters' R. 72. 2. Or prohibiting the creation of such an interest by a disposition inter vivos. Higginbotham v. Rucker, 2 Call's R. 313; Keen & West v. Macy, 3 Bibb R. 39; Wright v. Cartright, 1 Bur. R. 102; Powell v. Brown, 1 Bailey's S. C. R. 100 (cited in note in 2 Kent's Com. 362, 4th ed).

DAVIS, TODD and KIRTLEY, for Appellee. The defendant relies upon the following points, to sustain the opinion of the Circuit Court. 1st. The word “heirs,” as used in the deed of gift, cannot be restricted by parol evidence to mean heirs of the body, or issue. Upon this point, see the following authorities, to wit: 3 J. J. Marshall, 238; 1 Phillips' Ev. 480; 3 Starkie on Ev. title Parol Evidence, 996, and cases there cited; Lane v. Price, 5 Mo. R. 101. Parol evidence cannot be received, to change the legal effect of the deed. See 3 Starkie, 1011. 2nd. Whether the word “FFFheirs,'DDD' as used in the deed, is to have its usual and legal signification, or is to mean issue of the body of Juliet, the limitation over to the plaintiff is void absolutely. No such limitation of personal property, by deed, ever was allowed to be good at common law. See Betty v. Moore, 1 Dana's Ky. R. 235. That case was a gift of a slave, conditioned that the slave revert to the donor if the donee die without children; and the condition held to be void and the gift absolute; and that case was decided upon the authorities following, to wit: 3 Coke on Littleton, 20; a note, 120; 2 Blacks. Com. 112 and 398: Roper on Legacies, 204; Fearne on Remainders, 460; also, see pages of same, 445, 471, 478 and 482. And 3rd. If the word “heirs,” as used in the deed, is construed to mean issue of the body of Juliet, it is then an estate tail general which she takes in the slaves, and by the rules of the common law she is vested with the absolute property in the slaves, as no remainder ever could be limited after an estate tail in personal property. See 2 Blacks. Com. 113, and note 7 at that page, where it is declared, that after such a gift or grant, either by deed or will, the first taker becomes vested with the absolute property, and that all subsequent limitations are null and void: see, also, 2 Kent's Com. 286; 6 Cond. Peters' S. C. Dec. 651, Williamson et al. v. Daniel et al.; Fearne on Remainders, 463, and authorities there cited. The gift to Juliet was a fee conditional at common law, if the natural meaning of the word “heirs,” is to be restricted to mean “““issue of her body,” which by the statute de donis makes it an estate tail, which the Virginia statute converts into an absolute estate in fee-simple. See Griffith v. Thompson, 1 Leigh's Va. R., 321; 3 Leigh's Va. R. 106, Calava Bryant et al. v. Pope. The case of Griffith v. Thompson, by the Court of Appeals of Virginia, in 1829, was relative to a remainder in slaves limited to take effect after a dying without issue (by will), and in that case all the cases are reviewed, and the result is, that even by will, a remainder which may not take effect within a life or lives in being twenty-one years and about ten months thereafter, never was allowed by the policy of the law, and that wherever it appears by the will that the event upon which the remainder is limited to take effect may not happen within the period above mentioned, that then the limitation is void in its creation, and the absolute property is in the first taker. See, also, Fearne on Remainders, 445. That “a dying without issue,” is settled in England and the United States to mean an indefinite failure of issue, see Fearne and the authorities above cited.

Additional authorities on first point: Watson et al. v. Boylston, 5 Mass. R. 416: “For as there will be no latent ambiguity in the deed, the averment of extraneous matter will tend not to explain, but to control that instrument which cannot be admitted.” Same case: “But we can judge of his intent only by his language. The words of the deed are his own,” 418. 5 Mass. R. 93, Revere v. Leonard: “And that it was against every legal principle to go out of the deed itself, by an inquiry into existing facts, to ascertain the meaning of those and such like words, there being in them no ambiguity of any kind; that what their meaning is was merely a question of law, of which the court are to judge by the words themselves.” 5 Mass. R. Payne v....