125 Mo. 381 | Mo. | 1894
This is an action of ejectment brought by James Clarkson and others against Sarah Clarkson, the widow of John Clarkson, to recover 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.
The record contains the 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 words “bodily heirs,” as used in this deed, created an estate tail, or a fee simple. A conveyance or devise to a person 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, instead 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 heirs 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
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 construed 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 of 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, ‘bodily 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 word in the whole deed to show or indicate that- the donor used them in any other than their technical sense. Our conclusion is that this deed created an estate tail. Our statute converted that estate, as soon created, into a life estate 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
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 descendants living, either at the date of the deed or at his death, the remainder vested, according to the last clause of the section 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