delivered the opinion of the court.
This was an action of ejectment, brought for the recovery of the possession of one undivided eighth part of the east half of the south-west fourth and the south-east quarter of section thirty-two, and the west half of the south-west quarter of section thirty-four, all in township sixty-four and range seventeen, in Adair county, Missouri.
The petition is in the usual form. The answer of the defendants first denies the facts stated in the petition, and then by way of special defense, sets up title in the defendant, Sarah E. Claybrook, and as to one quarter section of the land the defendant relied on the statute of limitations. The plaintiff replied, putting in issue the new matter set up in the answer.
The facts of the case as they appear in the bill of exceptions are about as follows: Both parties claim the land in controversy under the will of one Jane Menx, who died in the State of Kentucky. The clause of the will under which the parties claim, and the only clause in the will which could affect the rights of the parties is as follows :
“Item 11. It is my will that after defraying the above mentioned bequests and appropriations, if there be any of my estate remaining, that my executors. secure the one-half thereof, by trust or otherwise, for the benefit of my niece, Mrs. Jane Allen, daughter of my sister Gatewood, (who is said to be in destitute circumstances) and her children, and not to be subject to the control of her present husband.”
The plaintiff and the defendant, Sarah E. Claybrook, who is the wife of her co-defendant, are children of Mrs. Jane Allen, the niece named in the will. It is admitted that Jane Allen died long before the commencement of this suit.
After the execution of the will by Mrs. Menx she died.' A trustee was appointed to receive and hold the bequest named in the clause of the will before set forth, in trust for said Jane Allen and her children. After the appointment of the trustee, the executor of the estate of Jane Menx, under the provision of the will aforesaid, paid over to Richard Gate-
Subsequent to the execution of this deed, Mrs. Jane Allen obtained a divorce from her husband, after which, for some years, she resided with her children, sometimes with the defendants, who were residing on a part of the lands now in controversy, where she died. Shortly before the death of Mrs. Jane Allen, on the 31st day of Oct., 1871, she, by deed of that date, conveyed to defendant, Sarah E. Claybrook, the lands described in the plaintiff’s petition. The consideration named in the deed being two hundred dollars as well as services rendered to the grantor by the defendants. It is by virtue of this last deed that the defendants claim to hold the entirety of the title to the land in controversy, as well as by the statute of limitations as to 160 acres of the land. The defendants also offered in evidence a tax deed to the land; but it was only insisted on as a color of title in support of the plea of the statute of limitations.
The defendant, James E. Claybrook, also insists as a ground of defense to the action, as to one quarter section of the land
It was admitted by the parties that the plaintiff is one of the children of Jane Allen, and was in existence when the will of Jane Menx was made, and at her death ; that Jane Allen had nine children in addition to the plaintiff, two of whom died before the death of their mother, without children, arid that two died before the death of their mother, leaving
" 1st. — If the jury find from the evidence, that the defendants were in possession of 160 acres of land at the time it was entered by Gatewood, and that Gatewood, prior to his entry, agreed with James H. Claybrook, that if he would consent to the entry of this land by Gatewood, he would hold it for him, and from that time continuously until the commencement of this suit, defendants continued in possession of that part they were occupying as aforesaid, and claiming the whole tract as their own land, adversely to Mrs. Allen and her children, the verdict of the jury as to that 160 acres should be for defendants.”
“ 2nd. — By continuous possession, is not meant that defendants should have lived on the premises continuously; but that they should have had an actual possession of this laud, and not abandoned it' with the purpose of yielding up the possession to whoever might choose to take.”
" 3rd. — Although the jury may find from the evidence that defendants were in possession of said 160 acres at the time of the entry, claiming a pre-emption right to the same, yet, if they find that the agreement with Gatewood was, that Gate-wood might enter the land, and that defendants should hold it free of rent until the land entered by Gatewood should be divided among the children of Mrs. Allen, or until the youngest child should attain its majority, and that defendants so held and possessed said land, then plaintiff is entitled to recover an undivided eighth of said land, and damages for the detention thereof.”
" 4th, — The jury are further instructed that as to the other 160 acres, on defendant’s own evidence, plaintiff is entitled to recover an undivided eighth.”
" 6th. — If they find that defendant for ten years prior to the commencement of this suit was in the open, notorious*129 and adverse possession of a part of the 160 acres of land on which he had claimed a pre-emption, and that he was so claiming the whole of said 160 acres by agreement with Gate-wood or Mrs. Allen for a deed to the same, they should find for the defendant, unless they find the patents for the land in question issued within ten years before the commencement of this suit.”
“ 7th. The effect of the deed from Gatewood to Mrs. Allen and her children, was to make them tenants in common of the land conveyed, unless defendants then claimed the 160 acres of land, upon which they first settled, as their exclusive property, ad verselv to plaintiff and his mother and her other children, and were in the actual possession of a part thereof, claiming the whole under an agreement with Gatewood or Mrs. Allen, that they were to hold and occupy the same as their land exclusively. But such claim will not avail defendant if the patent for said land was issued ten years before the commencement of this suit. And if there was no such agreement with Gatewood, or Mrs. Allen, as that mentioned in the foregoing instruction ; yet, if at the time of the conveyance to Mrs. Allen and her children, defendants were in the open, actual possession of a part of said 160 acres of land, claiming it adversely to all jmrsons, then the deed from Gatewood to'Mrs. Allen did not have the effect to make defendants tenants in common with Mrs.-Allen and her children, as to that part of the said 160 acres so actually in the possession of defendants, unless the patents issued ten years before the commencement of this suit.
The defendants objected severally to the foregoing instructions and their objections being overruled, they at the time excepted.
The court then-gave a number of instructions at the instance of the plaintiff which were objected to by the defendants, but as no new or additional principle of law is involved in them, not contained in the instructions copied, they will not be further noticed.
Some seven or eight instructions were asked for by the defendant and refused by the court, yet all but the sixth were
The sixth instruction asked by the defendants and refused by the court was as follows:
“The jury are instructed that the.presumption is that the patent issued within a year or two after the land was entered, and the burden of proof is on the plaintiff to show that it was not so issired.”
The jury found a verdict foi* the plaintiff for one undivided eighth part of the land described in the petition, and judgment was rendered accordingly.
The defendants filed a motion for a new trial and in arrest of the judgment.
On'the argument of the motion for a new trial, the plaintiff asked leave to remit part of the verdict, that is to say, to reduce the qnantity of interest recovered in the land from one-eighth part thereof, to 11-90 thereof.' The court permitted the plaintiff to l’emit as asked for, and rendered a judgment for 11-90 of the land named in the petition. To this action of the court the defendants excepted.
The defendants’ motion for a new trial and their motion in arrest of judgment were then overruled by the court, and the defendants again excepted and appealed to this court.
The material question discussed by the parties to this suit, in this court, going to the merits of the controversy, grows out of the construction to be placed on the clause of the will of Jane Menx hereinbefore set forth, and the deed made by Gatewood to Jane Claybrook and her children The clause of the will referred to, in speaking of the residue of the estate of the testatrix', directs the executors of the will to “secure the one-half thereof by trust or otherwise, for the benefit of my niece, Mrs. Jane Allen, daughter of my sister Gatewood (who is said to be in destitute circumstances) and her children, and not, to be subject to the control of her present husband.”
It is true, that as a general rule where personal property is bequeathed to one who is invested with a power of disposition of the fund or property in a way that might result in a consumption of the property itself, it is construed to be an absolute gift. In the present case, however, the bequest is not placed under the control of Jane Allen. The fund is to be secured by trust, or otherwise, for the benefit of Jane Allen and her children, and it is to be held free from the control of Jane’s present husband. Jape has no power of disposition of the property by any express terms, nor do we think any such power is to be implied. The language is just the same as it respects Jane and her children! ¥e are referred to the case of English vs. Bechle, (32 Mo., 186,) as an authority in point in this case. That action, like this, was brought to recover an undivided interest in a lot of land. The plaintiffs claimed as representatives.of one of the children of Marianne Bedford. The lot had previously been conveyed to said Marianne who had afterwards conveyed the same and then died ; and it was claimed by the plaintiffs-that Marianne only had a life estate-and could convey no more, and that by virtue of the conveyance of the lot to her, upon her death, the lot would vest in the plaintiffs or their grantors. The deed relied on in that case used this language “I sell, cede, relinquish, and transfer to the said Marianne Belford, by birth Guitarre, all the rights, titles, actions, claims and property which I have and can have in and to a lot (describing it) for the said Marianne and ('ainsiqüe) her heirs in di
The two first instructions given to the jury by the court seem to fairly present the law growing out of the evidence in support of the plea of the statute of limitations as to one tract of the land in controversy. The third and fourth instructions improperly tell the jury that the plaintiff, if he recovers,
The 7th instruction given to the jury by the court is clearly improper, and calculated to confuse or mislead the jury in reference to the issues made on the plea of the statute of limitations. By that instruction the jury are told, that the deed from Gatewood to Mrs. Allen and her children had the effect to make them tenants in common of the land conveyed, unless the defendants then claimed the 160 acres of land upon which they first settled as their exclusive property adversely, etc.; bnt such claim will not avail defendants if the patent for said land was issued ten years before the commencement of this suit. That part of the instruction is certainly improper and is certainly inconsistent with the latter part of the instruction which, in effect, tells the jury that the ten years time to constitute a bar did not begin to run until after the patent for the land had been issued. It may be that this in-_ structiou has been improperly copied by the clerks. We can.not, however, assume that it is wrongly copied.
Eor the reasons that the deed from Mrs. Allen to defendants was improperly excluded from the evidence, and the instructions were improper and defective in reference to the matters herein stated, and that the judgment is admitted to be for an improper amount of interest in the land, the judgment will be reversed and the cause remanded;