Yocum v. Siler

• Decision Date: 19 February 1901
• Citation: 61 S.W. 208,160 Mo. 281
• Parties: YOCUM et al. v. SILER et al.
• Court: Missouri Supreme Court

61 S.W. 208

160 Mo. 281

YOCUM et al. v. SILER et al.

Supreme Court of Missouri.

February 19, 1901.

WILLS—ESTATE—FEE SIMPLE.

A testator bequeathed certain lands to his son absolutely, with the express reservation that, if "my son dies without legal issue, descendants of his, legitimate issue of his, said lands shall pass to" certain nieces and sisters in equal parts. When the will took effect, Rev. St. 1845, c. 32, § 2, declared that the words "heirs and assigns" were not necessary to create a fee simple. Estates tail were abolished by section 5, which provided that thereafter, where, by any conveyance or devise, the grantee should be seised of an estate which would have been held an estate tail, under St. 13 Edw. I., every such conveyance should vest only a life estate in the grantee, and on his death the remainder should go to his children; but section 6 directed that the words "dying without is-due" meant issue living at the death of the ancestor named, thus preventing the creation of estates tail by implication; and section 47 of the chapter on wills (Rev. St. 1879, § 4004) declared that in all devises in which the words "heirs and assigns" are omitted, and no expressions are contained in the will whereby it shall appear that the devise was intended to convey a life estate only, and no further devise is made to take effect after the death of the devisee, it shall be understood to be the intention of the testator to devise an estate in fee simple. Held that, as the son had legitimate issue living at his death, he took a fee simple, in the absence of express words showing an intent to give him only a life estate.

Sherwood and Marshall, JJ., dissenting.

In banc. Appeal from circuit court, Platte county; William S. Herndon, Judge.

Action by Oscar Yocum and others against Susan Siler and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

The following is the opinion in division No. 2 (SHERWOOD, J.):

"Ejectment for the N. W. ¼ of section 7, township 53, range 35, in Platte county, Mo. The answers of defendants were general denials. This controversy turns on the legal meaning, force, and effect of the fifth clause of the will of George W. Yocum, the original owner of the tract, the father of William Franklin Yocum, the devisee named in the will, the father of the plaintiffs. That clause is the following: "To my beloved son William Franklin Yocum (my natural son), I bequeath absolutely the northwest quarter of section seven of township 53 and range 35, the place I now reside on, in Platte county, Missouri, subject forever to the reservation for my burial place made in clause two of this will; and, further, with this express understanding and restriction, namely, that if my said son dies without legal issue, descendants of his, legitimate issue of his, said land shall pass to Susan Evans, wife of Joseph B. Evans, Marina Botts, wife of Thomas Botts, Elzira Botts, wife of Wm. Botts, my nieces; to Elizabeth Frame, my sister, wife of John Frame; and to George, son of my brother Stephen Yocum; and Jane Yocum, wife of Milford Yocum, deceased, my sister,—in equal parts.'

"The cause was tried at the December term, 1897, of the circuit court, on the following agreed statement of facts, which is quoted so far as material: `It is agreed that George W. Yocum is the common source of title; that he died September, 1854, leaving a will, which was duly probated in the probate court of Platte county; that Susan Siler is in possession of one hundred acres of land in controversy, and that William S. Kenney and Lucinda Kenney, his wife, are in possession of the remaining sixty acres of land in controversy, and were at the time of the institution of this suit; * * * that William F. Yocum in his lifetime, with his wife, for a valuable consideration, by warranty deed dated September 15, 1858, conveyed all the lands in controversy to William J. Norris, which deed is recorded; that William J. Norris, by warranty deed, conveyed the same land to Samuel Alexander, which deed is recorded; that Samuel Alexander conveyed said land, by warranty deed, to Elias Siler, which deed is recorded; that Elias Siler is dead, and the defendants constitute the widow and heirs of said Elias Siler; * * * that the plaintiffs are the legitimate issue of William Franklin Yocum, and were living at the time of William F. Yocum's death, and were the only children of said William F. Yocum living at the time of his death; that he was married on the 21st day of February, 1854; that he died on the 22d day of February, 1892; and that plaintiffs at the time of the trial were, respectively, 43, 40, and 38 years of age.'

"After testimony was introduced as above by plaintiffs, and also the will of George W. Yocum, the defendants offered in evidence a deed from Samuel Alexander to Elias Siler, dated 30th day of March, 1871, purporting to convey the litigated land. Plaintiffs objected to any evidence of title derived through William Franklin Yocum, by deed, for the reason that William Franklin Yocum, by the terms of the will aforesaid, only had a life estate in said real estate. Objection overruled, and plaintiffs excepted. Defendants offered in evidence the will of Elias Siler, which was objected to by plaintiffs for reasons above. Objection overruled, and plaintiffs excepted. Thereupon plaintiffs moved the court to declare the law as follows: `The court declares the law to be that, under the will of George W. Yocum, deceased, William Franklin Yocum only took a life estate in the real estate described in the will and in the petition, and that the plaintiffs are entitled to the possession of the land sued for, and judgment should be rendered for them for such possession,'—which declaration of law was refused by the court; to which ruling plaintiffs excepted. Upon this the court found in favor of defendants, and gave judgment accordingly, and from this ruling results this appeal.

"By the terms of the will, William Franklin Yocum took what would have been at common law an estate tail; but under the provisions of section 8836, Rev. St. 1889, this estate tail was converted by the statute into an estate in the first taker for his natural life only. Thompson v. Craig, 64 Mo. 312. In the case just cited, the provisions of the will of Philip W. Thompson were as follows: `I give, grant, and devise, and bequeath to my said grandchild Burrell Thompson (saving the life interest above granted and devised to my wife, Penelope Thompson) all of the lands and improvements which lie,' etc.,—embracing the land in question. `I give, grant, devise, and bequeath to my granddaughter Mary Hutson the lands of my estate situate,' etc.; describing other lands than those devised to plaintiff. `It is my will that, in the event that either of my grandchildren above named shall die before lawful age, or before leaving a lawful heir or heirs, the property above specified, and intended to be given in this will, shall descend to and belong to the survivor of said grandchildren only, and to his or her heirs or legal representatives; and in the event of both said grandchildren, viz. Burrell Thompson and Mary Hutson, dying before marriage, or in the event of leaving no lawful issue by marriage as aforesaid, it is my will that all my estate intended in this will for them shall be sold for the use and benefit of the poor persons of Saline county, Missouri, to be expended and paid as my executor may deem advisable and just.' It was admitted that plaintiff was 21 years of age, and had a child or children living; and this, the last will of Philip W. Thompson, and the written agreement sued on were the evidence in the case. The defendant asked the court for the following declaration of law, which was refused: `That the plaintiff in this cause has only a conditional estate in the land mentioned in the petition, and, if plaintiff shall die without leaving lawful issue, then, and in that event, the estate of the plaintiff in said land would cease, although the court may believe from the evidence that the plaintiff has arrived at the age of majority.' The action in that case was brought by Burrell Thompson against Hugh Craig on a written agreement for $625, which Craig promised to pay plaintiff for a certain piece of land, provided plaintiff should, in 12 months thereafter, be competent to give a good title to the land. Plaintiff alleged his competency, and that he had made and tendered defendant a deed such as was required, but defendant refused to receive it, and issue was joined on these allegations. On this state of facts, following Farrar v. Christy's Adm'rs, 24 Mo. 453, and Harbison v. Swan, 58 Mo. 147, holding the statute already referred to accomplished the stated change in the common law, it was ruled that Burrell Thompson under the will of his grandfather acquired but a life estate in the property devised to him, and that in consequence of this he could not make such a title to Craig as his agreement called for, and that his marriage and the birth of children to him did not change the character of his estate. In subsequent cases this court has followed the same construction of the statute. Emmerson v. Hughes, 110 Mo. 627, 19 S. W. 979; Godman v. Simmons, 113 Mo. 122, 20 S. W. 972; Bone v. Tyrrell, 113 Mo. 175, 20 S. W. 796.

"A similar view was taken in Kentucky, upon a statute like ours, where there was a devise to a young woman (unmarried at the time) and her children, and such devise was held to give her an estate for life, with remainder to her children, the court remarking: `It has been observed that the words of the devise, abstractly and literally, import an immediate gift, not only to the devisee in being, but to those not in being. But, there being no children in esse at the time of the devise, it could not have been the intention to give an immediate estate to them, for that would be impossible. And as the words of the devise, as conceded by all the authorities,...