258 Mo. 383 | Mo. | 1914
This suit was begun in the circuit court of Clay county, and there was a change of venue to the'circuit court of Jackson county at Kansas City. The petition is in two counts; the first to quiet title to so much, of the north ninety acres of the east half of section eight, township fifty-one, range thirty-one, as lies south and east of the right of way of the Chicago', Milwaukee & St. Paul Railroad, being about sixty acres; the second, in ejectment for the same land. There was a judgment for defendant, and plaintiff has appealed.
“This indenture made and entered into this fifth day of December in the year of our Lord eighteen hundred and thirty six, between Valentine S. Peyton of the county of Clay and State of Missouri, of the one part, and Woodson J. Moss, of the county and State aforesaid of the other part, witnesseth:
“That whereas the said Valentine S. Peyton having realized from the sale of a tract of land, the property of his wife, Elizabeth Peyton, the sum of three thousand seven hundred and sixty-one dollars and seventy-nine cents, is desirous and willing to secure to her some equivalent for the same. Now, therefore, in consideration of the premises aforesaid and with the view of providing for the support and maintenance of his said wife, and in consideration of the natural love and affection which he, the said Valentine S. Peyton, has for his grandchildren, Valentine Smallwood Peyton Collier and Louisia Francis Collier, being the children of his daughter Nancy McClanahan Collier, formerly Nancy Mc-Clanahan Peyton of Nicholas county, Kentucky, the said Valentine S. Peyton has granted, bargained, sold and set over and by these presents doth grant, bargain, sell and set over unto the said Woodson J. Moss, all that certain piece or parcel of land situate, lying and being in the county of Clay and State of Missouri aforesaid, to-wit: The north half of the tract whereon we now live to begin at the northwest corner of said tract, thence south on the west line thereof so far as by running the dividing line due east to the east line, thence with that line north to the northeast corner of said tract, and thence west to the beginning to contain one hundred and thirty-five acres. And also three certain slaves for life, to-wit: Henry, Jenny and Sarah.
*388 “To have and to hold, receive and take the same to him the said Woodson J. Moss, his heirs and assigns, to the only proper úse and behoof of him the said Woodson J. Moss, his heirs and assigns, forever.
“In trust, however, and to the intent and purpose that he, the said Wodson J. Moss shall and will employ and appropriate or cause to be employed and appropriated for the use and benefit of the said Elizabeth Peyton during’ her natural life all the rents, hire and profits of the said land and negfoes allowing the said Elizabeth Peyton the personal occupation of the said land and1 the possession and use of the said negroes whensoever and as long as she may choose. And the said Woodson J. Moss is hereby authorized to sell at such time and on such terms as he may think best, all or any of said negroes and to put the money arising from such sale or sales to interest or pay over the same with the interest which may have accrued thereon, or the interest only, at his discretion, to the said Elizabeth Peyton, without security for its return in any event; and this conveyance is upon this further condition, to-wit: That at the death of the said Elizabeth Peyton, said conveyance to the said Woodson J. Moss, his heirs and assigns, shall be null and void and the trust aforesaid shall cease, and the said land and one-half of the said negroes and their increase remaining itnsold and one-half of the money unexpended arising from the sale of such negroes as may have been sold to revert and be the absolute property of the said Valentine Smallwood Peyton Collier and Louisia Francis Collier, said infant children of the said Nancy McClanahan Collier, and the other half of said negroes and their increase so remaining unsold and the onelialf of the money unexpended arising as aforesaid to revert to and become the absolute property of my daughter, Francis Elizabeth Long, and her heirs and assigns, and in case of the death of the said Valentine Smallwood Peyton Collier and Louisia Francis Col*389 Lier, infant children of the said Nancy MeClanahan Collier without issue, them the said land above described and negroes and their proceeds, if sold', to revert to and to be the absolute property of my said daughter Francis Elizabeth Long, her heirs and assigns, forever, and in case of the death of the said Francis Elizabeth Long without issue, then the whole of the above-described negroes and their proceeds if sold, to revert and be the absolute property of the said Valentine Smallwood P’eyton Collier and Lonisia Francis Collier, forever.
“In testimony whereof, I have hereto subscribed my name and affixed my seal the day and year aforesaid.
“(Seal.) Val. S. Peyton. (Seal).”
That deed included the land in controversy. It was properly acknowledged and filed for record December 8, 1836.
Lonisia Francis Collier died while a minor, single and unmarried, in 1838.
On August 28, 1852, Valentine S. P. Collier conveyed the 135 acres of land by general warranty deed to Garrard Long, the husband of Francis Elizabeth Long mentioned in the first deed, in consideration of $2000. Elizabeth Peyton, the widow of Valentine S. Peyton, grantor in the first deed, died August 6, 1862. Valentine S. P. Collier died in 1905, leaving Eobert E. L. Collier, his eldest son, plaintiff in this case, also Thomas J. Collier, a son, Fannie Kent and Dwane Kent, grandchildren by a deceased daughter, Nannie, and Charles Bradford and Collier Bradford by a deceased daughter Laura. Defendant has acquired the title which was conveyed to Garrard Long by Valentine S. P. Collier.
In Yocum v. Siler, 160 Mo. 281, the language of the instrument was the same as here, and it was held that the will devised a fee, subject to being divested on the happening of a contingency, i. e., the dying without issue. In that case there was issue, and it was held that the fee became absolute.
In Gannon v. Albright, 183 Mo. 238, the instrument was in effect the same as in this case on the issue involved. A divided court of four to three said:
“By the said fourth clause of the will the said two sons took a fee simple subject to be defeated upon their dying without issue living at their death, and as both died leaving children, the plaintiffs herein, the contingency upon which their fee simple was to be defeated never happened and never can happen, and their estate in fee became absolute, and their warranty deeds conveyed to defendants’ grantors the fee simple title. A different conclusion was reached in the construction of this same clause - ib. the will of Michael J. Gannon by Division One of this court in Edward Gannon et al. v. Gustave Pauk et al. at the October term of this court, 183 Mo. 265, but upon reconsideration of the said clause in this case by the Court in Banc, we are not satisfied with the opinion of Division One construing said clause, and must decline to accept it as the'proper construction of this will, and the judgment of the circuit court must be and is reversed.”
That conclusion was endorsed by a divided court in Gannon v. Pauk, 200 Mo. 75.
There is no reason why anyone should attempt to add to the store of learning embodied in those opinions. We shall not attempt to do so. It is suffi
The judgment is affirmed.
The foregoing opinion of Boy, C., is adopted as the opinion of the court.
