Clarkson v. Clarkson, 28 S.W. 446

Clarkson v. Clarkson

28 S.W. 446

Mo.

1894

Check Treatment

Black, P. J.

This is an action of ejectment brought by James Clarkson and others against Sarah Clarkson, the widow of John Clarkson, to recovеr about one hundred acres of land in Mississippi county. Jabez Clarkson, by a warranty deed, dated the ninth of November, 1858, conveyed the land' to “John Clarkson and his bodily heirs.” Jabez died in two or three days thereafter. John was a son of Jabez. John resided on the land at the date of the deed, and continued to reside thereon until 1890, at which date he died, leaving the defendant as his widow. At the date of the deed from Jabez to John, the latter had no children, and none were born to him after that date. *385The plaintiffs are brothers and sisters and children ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of deceased brothers and sisters of John Clarkson.

The record contains thе following further recital: “Defendant offered in evidence a deed of adoption, by John and Sarah Clarkson, adopting Ray Conyers, dated July 11, 1887. Plaintiff objected as immaterial and the court excluded it.”

The first question to be determined is, whether the wоrds “bodily heirs,” as used in this deed, created an estate ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍tail, or a fee simple. A conveyance or devise to a рerson and the heirs of his body creates an estate tail. Chiles v. Bartleson, 21 Mo. 344; Phillips v. LaForge, 89 Mo. 72; Wood v. Kice, 103 Mo. 329. Says Washburn: “The statute Be Bonis was regarded by the courts as a remedial one, and, insteаd of confining it to the precise cases enumerated in it, they regarded these as put by way of example.” 1 Wash, on Real Prop. [5 Ed.] p. 100. The same author says: “It is, therefore, requisite, in order to create such an estate, that, in addition to the word heirs, there should be words of procreation which indicate the body from which these heirs are to proceed, or the person by whom begotten.. If .this is done, it may not be necessary to make use of the words ‘of the body/ if, by the description, it appears that they are to be the issue of a particular person. A general limitation toa man and the hеirs of his body is sufficient, it being immaterial of whom begotten.” Ibid., 107; Tiedeman on Real Property [Enlarged Ed.], sec. 47.

Sometimes an estate tail is created by ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍implication. Thus, it was said in Farrar v. Christy, 24 Mo. 468, “there is a universal concurrence among law writers that a gift to a man and his heirs, and, if he shall die without heirs of his body, then to others, conveys an estate tail.” There is no substantial difference between *386the words “heirs of his body” and “bodily heirs.” They are all words оf limitation, and not of purchase, and the latter have the same meaning ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as the former, unless there is something in the instrument to show that the donor used them in some other than their technical sense.

In the cases of Righter v. Forrester, 1 Bush, 278, and Mitchell v. Simpson, 10 S. W. Rep. (Ky.) 372, the words “bodily heirs” were used in wills and were construеd to mean children, when taken in connection with other parts of the instruments. These cases both proceed on the proposition that “bodily heirs” are proper words of limitation, and create an'estate tail, which the statute оf that state converts into a fee simple, unless it appears from the entire will that the testator did not use the words in their technical sense. So it was said in Donnell v. Mateer, 5 Ired. Eq. (N. C.) 9: “But there is nothing in the context here, to control the technical meaning of the term, ‘bоdily heirs; ’ and, therefore, we are obliged to receive them in that sense, as meaning that class of persons who, by law, take property by inheritance or succession from another. Thus understood, they are not words of purchase, but of limitation, in dispositions of this kind, as well as in conveyances of land.” These cases are all authorities ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for, instead of against, the proposition that the words “bodily heirs,” as used in the deed in question, create an estate'tail; for there is not a wоrd in the whole deed to show or indicate that- the donor used them in any other than their technical sense. Our conclusion is thаt this deed created an estate tail. Our statute converted that estate, as soon created, into a life estаte in John Clarkson, remainder in fee to his children.

The next question is, who are the present owners of the land. This case was tried by the court without *387a jury, and no instructions were asked or given, and the court made no finding of facts. There is evidence in the сase from which it may be inferred John Clarkson had a child or children by his first wife, and that he was living with his second wife, the defendant here, at the date of the deed. It is, however, conceded that he had no children living at that date, and that no children were bоrn to him after that date. On this state of facts the plaintiffs insist the title passed to them. This question must be determined by section 5, chaрter 32, Revised Statutes, 1855, the statute in force when the deed was executed. It provides that every conveyance оr devise which would have created an estate tail under the statute of the thirteenth Edward First “shall vest an estate for life оnly in such grantee or devisee, who shall possess and have the same power over, and right in, such premises, and no other, as a tenant for life thereof would have by law; and, upon the death of such grantee or devisee, the said lands and tenements shall go, and be vested in the children of such grantee or devisee, equally to be divided between them as tenants in сommon, in fee; and if there be only one child, then to that one, in fee; and if any child be dead, the part which would have come to him or her, shall go to his or her issue; and if there be no issue then to his or her heirs.”

This statute disposed of the entire estate conveyed by the deed. It vested in John Clarkson a life estate, and no more. As he had no children or their descendаnts living, either at the date of the deed or at his death, the remainder vested, according to the last clause of the sеction of the statute just quoted, in his ■brothers and sisters and the heirs of those who were dead, he having no father or mother living at his death.

The defendant makes the point that the adopted *388child of John and Sarah Clarkson was a child within the meaning of the statute just quoted, and hence the remainder passed tо the adopted child. It is now sufficient to say no such question is presented by this record. The deed of adoption was excluded by the trial court on the objection of the plaintiffs who are the appellants. The defendant took no appeal and is not, by the record, here complaining of any ruling of the trial court. The judgment is reversed and the cause remanded.

All concur.