148 Mo. 542 | Mo. | 1899
Lead Opinion
Tbis is an action of ejectment for certain lands in St. Louis county. Tbe plaintiffs recovered judgment for possession and rents and profits in tbe circuit court and defendant appeals. Tbis is tbe second appeal in tbe cause. Tbe first will be found reported in 126 Mo. 355, and 28 S. W. Rep. 162.
Tl;e purpose of tbis appeal is to have tbis court review its opinion and judgment in Cornwell v. Orton and Cornwell v. Wulff, 126 Mo. 355, and overrule those cases, and incidentally to overrule Green v. Sutton, 50 Mo. 186, decided in 1872 by tbe Supreme Court.
Tbe earnestness of counsel for appellant and tbe thorough brief and argument wbicli be presented, no less than tbe admirable tone thereof, are such that we feel impelled to review our former opinions and examine anew tbe gounds upon which they were based.
The common source of title was in Robert A. Yeates, and both parties claim under a deed executed by said Yeates and wife on tbe fifteenth day of October, 1895, to John A. Goodlett, as- trustee, which deed is in these words (omitting
“This deed, made and entered into this 15th day of October, 1859, by and between Robert A. Yeates and Sophie Yeates, his wife of, etc., parties of the first part, and John A. Goodlett, of, etc., party of the second part, and Catherine Cornwell, wife of James Cornwell, of, etc., party of the third part, witnesseth: That the said parties of the first part, in consideration of the sum of thirty-one hundred and seventy-two and 40-100 dollars to them in hand paid by the said party of the second part, receipt whereof is hereby confessed and acknowledged, have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto the said party of the second part, and his heirs and assigns, a certain tract or parcel of land situated, etc., to have and to hold the same, with all the right, privileges and appurtenances thereto belonging or in anywise appertaining unto him the said party of the second part, his heirs and assigns forever. In trust, however, to and for the sole and separate use, benefit and behoof of said Catherine Cornwell, wife of said James Cornwell; and the said John A. Goodlett, party of the second part, hereby covenants and agrees to and with the said Catherine Cornwell that he will suffer and permit her without let or molestation, to have, hold, use, occupy and enjoy the aforesaid premises, with all the rents, issues, profits and proceeds arising therefrom, whether from sale or lease, for her own sole use and benefit, separate and apart from her said, husband and wholly free from his control or interferences, and from his debts, in such manner as she may think proper; and that he will at any and all times thereafter at the request and direction of the said Catherine Cornwell, expressed in writing, signed by her or by her authority, bargain, sell, mortgage, convey, lease, rent or otherwise dispose of said premises, or any part thereof; and will pay over the rents, issues, profits and proceeds thereof which may come into his hands,*549 and not otherwise liable, to her, tbe said Catherine Cornwell, in such manner as she shall in writing direct or request; and that he will, at the death of the said Catherine, convey or dispose of the said premises or such part thereof as may then be held by him under this deed, and all profits and -proceeds thereof in such manner, to such person or persons and at such time or times as the said Catherine Cornwell shall by her last will and testament, or any other writing signed by her or by her authority, direct or appoint; and in default of such appointment then, that he will convey said premises to said James Cornwell, his heirs or assigns.”
It was then admitted by both parties:
1. That the defendant is now in the possession of the property and was at the institution of this suit.
2. That Mrs. Catherine Cornwell died, intestate, December 23, 1860, without having made any conveyance of said real estate or appointment under said conveyance in her lifetime.
3. That James Cornwell died December 25, 1889, and the plaintiffs are Mrs. Catherine Cornwell’s children and grandchildren and heirs of James Cornwell.
4. That the plaintiffs Frederick J. Cornwell and Catherine Holmes, wife of James 0. Holmes, are the children of Catherine Cornwell, and that Charles J., Frederick J. and Benjamin S. Cornwell, infant plaintiffs, are the children of Benjamin Cornwell, who died prior to the institution of this suit, and who was the son of Catherine Cornwell; and these plaintiffs are represented in this suit by their next friend, Helen V. Cornwell, plaintiff and widow of said Benjamin Cornwell deceased, who was duly appointed their next friend in this case prior to the institution of this suit.
5. That James Cornwell and Catherine Cornwell were husband and yife at and prior to the date of the deed of Yeates to Goodlett.
6. That plaintiffs a-re the only heirs at law of Catherine Cornwell.
Whereupon plaintiff rested.
The defendant then asked the court to declare that under the pleadings and the evidence the plaintiff was not entitled to recover, which the court refused to do, and defendant excepted at the time.
Defendant offered and read in evidence a' decree of the St. Louis Land Court, rendered at the March term, 1862, in a case wherein James Cornwell was plaintiff and John A. Goodlett- was the sole defendant, by which decree the court required said Goodlett to convey to James Cornwell the premises described in the deed from Teates to Goodlett as provided in the final clause in said deed.
Defendant then offered and read in evidence a deed from John A. Goodlett as trustee to James Cornwell, dated May 21, 1862, conveying the same property pursuant to said decree.
Defendant then offered and read in evidence a warranty deed from James Cornwell to Peachey A. Garriott, dated January 31, 1867, conveying the same property.
Defendant then offered and read in evidence a warranty deed from Peachey A. Garriott and wife to Hans Tyson and George W. Wulff, dated July 26, 1887, conveying the same property.
Defendant then offered and read in evidence a quitclaim deed from Hans Tyson to George Wulff, dated September 21, 1887, conveying the same land.
And this was all the evidence.
The court found for the plaintiffs, and rendered judgment accordingly.
Within four days defendant filed his motion for new trial, alleging as grounds that the court erred in refusing to declare that plaintiff was not entitled to recover, and in finding for the plaintiffs under the evidence, when the finding should have been for the defendant. This motion was over
I. As already remarked in the accompanying statement the deed of Robert Yeates, the common source of title has been twice construed by this court in Cornwell v. Orton, 126 Mo. 355, and Cornwell v. Wulff, 126 Mo. 355.
In those cases it was held that the said deed created an absolute equitable fee simple in and to the land in controversy in Mrs. Catherine Cornwell and at her death descended to her heirs subject to the curtesy of her husband, James Corn-well, and at his death on the twenty-fifth of December, 1889, they were entitled to the possession thereof. It is that construction of said deed which is now, for the third time, challenged by defendant. On the former occasions it was insisted as now by defendant, first, that the deed only created a life estate in Mrs. Cornwell with a power of appointment only, and that as she failed to appoint, the trustee was authorized to convey the remainder to Mr. Cornwell as covenanted by the trustee; second, that granting that the deed created an equitable fee in Mrs. Cornwell, this deed was a conveyance to uses and the feoffor to use had a right to and did provide for the vesting of a fee simple upon the fee simple granted Mrs. Cornwell upon her failure to appoint as permitted by the deed. Essential to any intelligent discussion of this deed it must be first determined what equitable estate Mrs. Corn-well took under the deed, as to duration, whether for life or in fee simple. The words of the grant convey the land to the trustee and his heirs and assigns to have and to hold the same with all the rights, privileges and appurtenances unto him and his heirs and assigns forever in trust however to and
This court in Rubey v. Barnett and Green v. Sutton, also approved the rule laid down in Jackson v. Robins, 16 Johns, 587, in which the court of errors, New York, said: “We lay it down as an incontrovertible rule that where an
As pointed out in Cornwell v. Orton, 126 Mo. 355, that rule has been modified, particularly in tbe construction of wills,in this State by subsequent decisions to this extent only, that it no longer is necessary that tbe life estate should be created by express words but if it is tbe clear intention from tbe whole will that tbe first taker is to have but a life estate, tbe added power of disposition will not convert it into an absolute ownership. [Lewis v. Pitman, 101 Mo. 281; Munro v. Collins, 95 Mo. 33; Harbison v. James, 90 Mo. 411; Redman v. Barger, 118 Mo. 568.]
There are no words in this deed which expressly limit Mrs. Cornwell’s use to her life only, nor are there any words which indicate an intention to so limit her use in said lands. This ás a deed of bargain and sale and not a gratuity, and it is a wholesome and familiar rule that it shall be construed most favorably to tbe bargainee. We confidently assert that no adjudicated case can be found in which a more unlimited, unrestricted power of sale, coupled with a beneficial interest in the estate granted, is vested in the first grantee than was conferred upon Mrs. Cornwell by this deed. Moreover there is nothing in the hdbend/um that squints at a limitation of the equitable fee simple created in her by the granting clause of the deed. Nor is there a single limitation over by the grantor by way of remainder or conditional limitation to any other person or persons. It goes without saying that, if this convey. anee is to be tested by common law principles, having created an estate in fee simple in Mrs.Cornwell, any attempt
If it is to be considered a trust, nothing can be plainer than that upon Mrs. Oomwell’s death, the trust being am executed trust ceased when the occasion for its" creation ended, to wit, the protection of her equitable fee during coverture, and thereupon her estate devolved upon her heirs at law subject to her husband’s curtesy just as if it had been a legal estate. [McTigue v. McTigue, 116 Mo. 138; Roberts v. Mosley, 51 Mo. 282; Pitts v. Sheriff, 108 Mo. 110.]
It is elemental that equitable estates are governed by the same rule of descents that governs the devolution of legal estates and if this were not so great confusion would result. [1 Perry on Trusts, sec. 357; Cushing v. Blake, 30 N. J. Eq. 689.] When therefore it is determined that Mrs. Cornwell by the terms of the deed itself took an equitable estate in fee simple in these lands it follows that upon her death it descended to her heirs, the plaintiffs in this case, subject to the curtesy of her husband. But more than that by the statute of uses of Missouri, but for the fact that she was a married woman and' at that time not suájtwis, the whole beneficial interest would have been executed in her during her life in fee simple with absolute power to convey and dispose of and at her death no estate whatever would have remained in the trustee Good-lett. . An examination of the deed will convince the most skeptical that the grantor or feoffer to uses imposed no duties whatever upon Mr. Goodlett, the trustee, which could in any manner interfere with Mrs. Cornwell’s complete enjoyment or alienation of these lands. On the contrary the sole duty devolved upon him was to passively permit the legal estate to remain in him during her coverture and to do and perform whatever Mrs. Cornwell might direct him to do. That he so construed the deed is evidenced by the fact that he did not
The English and American Reports are replete with well considered cases which draw the distinction between executed and executory trusts. [Wright v. Pearson, 1 Eden, 119; Boswell v. Dillon, Drury, 291; Cushing v. Blake, 30 N. J. Eq. 689; 1 Perry on Trusts, sec. 359.]
Lord Chancellor Sugden, in Boswell v. Dillon, Drury, 291, points out the distinction in these words: “By the term an executory trust when used in its proper sense we mean a trust in which some further act is directed to be done. Executory trusts in this way may be divided into two classes, one, in which, though something is required to be done, (for example a settlement to be executed) yet the testator has acted as his own conveyancer as it is called and defined the settlement to be made, and the court has nothing to do but to follow out and execute the intentions of the party as appearing on the instrument. Such trusts though executory, do not differ from ordinary limitations and must be construed according to the principles applicable to legal estates depending upon the same words. The other species of executory trusts is where the testator, directing a further act, has imperfectly stated what is to be done. In such cases the court is invested with a larger discretion and gives to the word a more liberal interpretation than they would have borne if they had stood by themselves.”
“All trusts,” says Lord St. Leonards, “are in a sense executory because a trust can not be executed except by a conveyance but this is not the sense which a court of equity puts upon the term executory trusts.” [Egerton v. Earl Brownlow, 4 H. L. Cas. star page 210.]
Accordingly the husband as in this case upon issue born capable of inheriting and the death of Mrs. Corn-well was entitled to his curtesy. So that whether we regard this deed as creating in Goodlett, the trustee, an estate by way of bargain and sale to the sole use of Mrs. Cornwell in fee simple and .that the use was created in the bargainee Goodlett [Guest v. Farley, 19 Mo. 147], upon her death the equitable estate devolved upon her heirs as an executed trust and the trustee had no discretion left in him to convey to any other persons than her heirs, who became the eestms que trustent. [McTigue v. McTigue, 116 Mo. 138.]
But it is argued by respondents that the trust created was what is demonstrated a dry trust. Such a trust arises, says Perry in his work on Trusts, section 520, “when property is vested in one person in trust for another, and the nature of the trust not being prescribed by the donor, is left to construction of law. In such ease the eestm que trust is entitled to the actual possession and enjoyment of the property, and to dispose of it or to call upon the trustee to execute such conveyance of the legal estate as he directs.” In such case the duty of the trustee is simple: Eirst to permit the eestm que trust to occupy and receive rents and incomes of the estate; second, to execute such conveyance as the eestm que trust directs; third to protect the title or allow his name to be used for that purpose. Now this is just the character of
The duties imposed upon the trustee were such and only such as the law would have required at his hands, leaving to-her the absolute control over the beneficial interest, together with a right to- call for the legal title, but being a married woman at the time of its creation and at her death, it has been ruled that the statute of uses did not vest the legal estate in her during her life or coverture, but in her trustee for her sole use and benefit [Dean v. Long, 122 Ill. 458; Perry on Trusts (4 Ed.), sec. 310, and cases cited, and 310a], but when she becomes discovert, or dies, the statute executes the use in her, or her heirs. [Roberts v. Moseley, 51 Mo. 282; Pitts v. Sheriff, 108 Mo. 110; 2 Minor’s Inst. 737, 39; 2 Thomas’s Coke Litt. 574, note a; 122 Ill. 458.]
When this case was here on a former occasion we ruled that the deed created an equitable fee simple in Mrs. Corn-well, which, upon her death, descended to her heirs at law, the plaintiffs in the case; that the trust was an executed one; that therefore Mrs. Cornwell took the same estate in duration as in a legal estate, which under our statute would most clearly have been a fee simple in law but for the intervention of the trustee, and that the estate so granted to her was subject to the same incidents, properties and consequences as belong to similar estates at law, and that it was not competent to limit a remainder upon it, seeing that such a limitation would be repugnant to the grant to Mrs. Cornwell. Learned counsel now concedes that if this covenant of Mr. Goodlett, the trustee, is to be construed as creating a remainder, then it must fail because a remainder can not be limited after a fee simple, but he urges that it can be upheld as a conditional limitation of a fee upon a fee under the statute of uses. All the learning upon this subject has been brought in review to
Under the Statute of Uses, and indeed before that statute, a species of limitations known as shifting or springing uses had been recognized which permitted ulterior estates to be created, to arise upon the defeasance of prior estates in the same property contrary to the strict rules of the common law. The courts after the passage of- the Statute of Wills (32 Hen. VTIL), following the analogies furnished in conveyances to uses and in support of the intention of the testator, gradually came to recognize the validity of limitations not permitted in conveyances at common law. In this way originated what lawyers denominate “executory devises,” whereby a fee may be limited after a fee.
That this could be done was finally settled in England in the case of Pells v. Brown, Cro. Jac., 590, a case which Lord Kenyon, in Porter v. Bradley, 3 Term Repox’ts, 145, declares has ever since been regarded as “the foundation and as it were Magna Charta of this branch of the law.”
Far be it from me'to question this doctrine, as declared in that case. The philosophy of that- case, as I understand it and as I find it interpreted by the courts since, is that although the prior estate is denominated a fee because it may last forever, it is nevertheless a base or determinable fee because it is liable to be defeated by the happening of the contingency upon which it is limited. [2 Minor’s Inst., 77 2e.] Thus in Pells v. Brown the devise was in fee to Thomas and his heirs forever, and if he die without issue in the lifetime of William his brother, then to William and his heirs. The court all agreed that this was a good devise of the fee to William by way of that contingency, not by way of immediate remainder, for they all agreed it could not be by remainder, as if one deviseth land to one and his heirs and if he die without heir that it shall remain to another it is void
His estate is not subject to the will of the first taker, but depends upon the event of life or death or other contingency not within the control or volition of the first taker. In 1 Eearne on Remainders, 418, the author says: “The great and essential difference between the nature of a contingent remainder and that of an executory devise (and that indeed which renders it material to distinguish the one from the other in their creation), consists in this: That the first may be barred and destroyed or prevented from taking effect by several different means, whereas it is a rule that an execu-tory devise can not be prevented or destroyed by any alteration whatever in the estate out of which or after which it is limited.”
The question presented here and argued now for the first time is this: Can there be a valid conditional-limitation or executory devise where the executory limitation is conjoined with an absolute power in the first taker or primary devisee to defeat and cut off the further estate or interest by alienation of the entire fee in his lifetime, and whether it makes any difference as to the rights of the ulterior grantee or devisee whether this power to alien has or has not been exercised ?
Whatever preconceived notions we may'have I take it this question being one so seriously affecting property rights, should be determined by the adjudicated law, and we should
It was urged in argument that this doctrine rested upon the great name of Kent. If so it has no ignoble origin, but as we shall presently see, this is not true, though his recognition* of the rule has no doubt greatly added to its stability.
We have the testimony of the Court of Appeals of New York in Van Horne v. Campbell, 100 N. Y. 287, to the effect that beginning with Jackson v. Bull, 10 Johns. 19, and down to Van Horne v. Campbell, there is an unbroken line of authorities in that State reasserting, following and adopting the rule as announced by Chancellor Kent. It has been assailed in New York, as in this case, but the court of appeals held that the question must be considered as closed in New York. It has received the unqualified indorsement of Chief Justice Savage, Cowen and Denio, and of all save one member of the court in Van Horne v. Campbell. In Massachusetts, in Ide v. Ide (1809), 5 Mass. 500, the same doctrine was announced by
Kentucky, in an able opinion by Chief Justice Haegis, in Ball v. Hancock, 82 Ky. 107, a 'case strikingly like the one at bar, approves Kent’s statement of the law, and Jackson v. Bobins, 16 Johns. 587.
The Court of Appeals of Maryland, in Combs v. Combs, 67 Md. 11, citing Chief Justice PaesoNS in Ide v. Ide, and quoting Chancellor Kent’s declaration, that “we are obliged to say that an absolute ownership or capacity to sell, in the first taker and a vested right by way of executory devise in another which can not be affected by such alienation, are perfectly incompatible estates and repugnant to each other and the latter is to be rejected as void,” said: “Both of these great jurists cited and relied upon the case of The Attorney-General v. Hall, Eitzgibbons, 314, decided by Lord Chancellor King, assisted by the Master of the Polls and Chief Baron Keynolds, and quoted with approval by Lord Hardwicke in Flanders v. Clarke, 1 Vesey Sr. Reports, 9. These, assuredly, are authorities of great weight. We think they ought to be considered as settling the law.”
In Hoxsey v. Hoxsey, 37 N. J. Eq. 21, the Chancellor relied upon 4 Kent 270, and Ide v. Ide, supra, to the effect that a valid executory devise could not subsist with an absolute power of disposition in the first taker.
In Alabama, Flinn v. Davis, 18 Ala. 132, and McRee v. Means, 34 Ala. 349, assert that the law is too well settled to be controverted that an absolute power of disposition in the first taker defeats a limitation over.
And so it will be found in Maine, Ramsdell v. Ramsdell, 21 Me. 288, and in Virginia, Malson v. Doe, 4 Leigh, 408; Riddick v. Cohoon, 4 Rand. 547; and in Georgia, Cook v. Walker, 15 Ga. 457; and in Indiana, Tower v. Hartford, 115 Ind. 186. In a word, it may be asserted that as late as 1893 there could be found but two American cases outside of Missouri, which disputed the authority of Ide v. Ide, and Jackson v. Bull, and these were Hubbard v. Rawson (1855), 4 Gray, 247, and Andrews v. Roye (1860), 12 Rich. (S. C.) 536, and neither of these- cases has been followed in their respective States. This brings us to inquire now as to the state of the law in this State.
In Rubey v. Barnett, 12 Mo. 6, Judge Scott said: “It has always been held that an absolute power of disposition over property conferred by will not controlled by any provision or limitation, amounted to an absolute gift of the property. A power to dispose of a thing as one pleases must necessarily carry along with it a full property in it.” He cites with approbation Jackson v. Robins, 16 Johns. 587.
In Gregory v. Cowgill, 19 Mo. 415, Judge Scott cites Ide v. Ide, 5 Mass. 203, with approval. But in Wead v. Gray, 78 Mo. 65, this court, after deciding that the first taker took an absolute estate, referred to the clause giving a remainder over to a designated charity and a niece of the. testator, and said: “The limitation over was void as an exec-utory devise. Mr. Redfield in his work on Wills, volume 2, p. 278, says: ‘It is a settled rule of American as well as
It may be well to remark now and here, that those cases in which this court has construed the estate of the first taker to be only a life estate, and there are many such, have nothing to do with this question, which is predicated on the proposition that the first taker takes an unconditional fee and the attempt then is to limit another fee after the first.
Turning now to another class of cases in which the conveyances were deeds instead of wills, and we find the same doctrine announced in Green v. Sutton, 50 Mo. 186. The deed in that case was in all substantial respects similar to the deed under construction, save and except that in that deed there were words in the granting clause of the deed which attempted to create a limitation over, after Mrs. Green’s death, whereas, in this deed, there are no such words to be found save in the unsigned covenants of the trustee. On the main proposition Judge Bliss held, first, that the deed having conveyed a fee simple to the trustee it was unnecessary to use the word “heirs” in connection with Mrs. Green’s name; that she took an unlimited power of disposal and the attempted limitation over was void. He asks, “Was the use unlimited?” H so, the attempted limitation is void, and the
Thus in Tremmel v. Kleiboldt, 15 Mo. 258, it was unanimously said of a like deed: “By the terms of the deed under consideration the entire estate was vested in the wife, and no remainder was or could be created by the covenant of the trustee, to convey the property to her legal heirs at her death in default of appointment or other disposition thereof, by her during her life.” [Green v. Sutton, 50 Mo. 186.]
In Cook v. Couch, 100 Mo. 29, it was said: “The general rule is that a devise of an estate generally or indefinitely with a power of disposition over it, carries a fee. [Kubey v. Barnett, 12 Mo. 3; Green v. Sutton, 50 Mo. 186.]” And to same effect see Lewis v. Pitman, 101 Mo. 291.
In Wood v. Kice, 103 Mo. 338, the proposition announced by Judge Bliss in Green v. Sutton, that a married woman was not restricted in disposing of her separate estate to the specific mode detailed in the deed to her use, was reasserted. It was cited with approval in Reinders v. Koppelmann, 68 Mo. loc. cit. 491.
Green v. Sutton was decided in 1872. It announced a rule of property. Nearly one hundred volumes of the decisions of this court have since been promulgated without any doubt of its soundness having been expressed. It seems to me a serious matter to say now that it was wrongly decided. The writer had no hesitancy in following it in Corn-well v. Orton, 126 Mo. 355, and the report of that case will show it was not questioned as authority by counsel. [Evans v. Folks, 135 Mo. 397.]
"We find, then, that the doctrine announced by Chief Justice PaesoNs, and followed by Chancellor Kent, has met
This court has so recently construed the counterpart of this deed to convey an equitable fee simple in the wife, in the case of McTigue v. McTigue, 116 Mo. 138, that I refrain from further discussion of this point.
Much stress was laid upon Straat v. Uhrig, 56 Mo. 485, as holding a contrary doctrine. Judge Adams says of the deed in that case: “The consideration moved from the wife and the object of the deed was no doubt to settle the property on her to be at her absolute disposal during her lifetime, with power in her to dispose of the property by will or by any writing signed by her or by her authority to be carried into effect by the trustee after her death. By the terms of the deed there was a springing contingent trust created in favor of the children.” I submit that the deed in that case created an absolute equitable fee in Mrs. Pemberthy, with an added power of alienation in fee, and that the attempted limitation over was void. That case has never been referred to since in any opinion of this court, and has never been approved. It cites no authority, and is clearly out of line with the cases already cited and discussed.
The deed of Yeates must be construed as it is written. Its granting clause is short and unambiguous. It is as follows: “That the said parties of the first part (Yeates and wife) in consideration of the sum of thirty-one hundred and seventy-two and 40-100 dollars totheminhandpaidbythesaid party of the second part (John A. Goodlett) receipt whereof is hereby confessed and acknowledged, have granted, bargained, sold and conveyed and by these presents do grant, bargain, sell and convey unto the said party of the second part and his heirs and assigns, a certain tract or parcel of land situated, etc., to have and to hold the same with all the rights, privileges and appurtenances thereto belonging or in any
Dr. Minor, whose invaluable Institutes counsel has so often invoked in his brief and argument, lays it down as a settled principle that in the limiting of estates under the statutes of uses the same words are required as at common law, save and except where the statutes, as in Virginia and Missouri, dispense with the necessity of the word “heirs” in creating an estate of inheritance. [R. S. 1845, ch. 32, sec. 2, p. 219; R. S. 1889, sec. 8834.] They are no longer necessary. Certainly it will not be seriously contended that the mere covenant of the trustee who never signed this deed would have
As the other points involved in Cornwell v. Orton, 126 Mo. 355, are no longer urged, the judgment of the circuit court having been in strict conformity to our former judgments, is affirmed.
Dissenting Opinion
(dissenting). — Ejectment for ten acres in the north part of lot 3 of a survey and subdivision of the west half of the northwest corner of section 12, township 44, range 5 east, in St. Louis county; Robert A. Yeates is the common source of title. Plaintiffs claim as the heirs at law of Catherine Cornwell, and defendant claims as grantee, by mesne conveyances, of J ames Oornwell, deceased, husband of Catherine Cornwell.
On October 15, 1859, Yeates and wife executed and •.delivered to John A. Goodlett, trustee, the following deed:
“This deed, made and entered into this 15th day of October, 1859, by and between Robert A. Yeates and Sophie Yeates, his wife, of, etc., parties of the first part, and John A. Goodlett, of, etc., party of the second part, and Catherine Cornwell, wife of James Cornwell, of, etc., party of the third part, witnesseth: That the said parties of the first part, in consideration of the sum of thirty-one hundred and seventy-two and 40-100 dollars to them in hand paid by the said party of the second part, receipt whereof is hereby confessed and acknowledged, have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto*568 tbe said party of tbe second part, and bis beirs and assigns, a certain tract or parcel of land situated, etc., to have and to bold tbe same, with all tbe rights, privileges and appurtenances thereto belonging or in any wise appertaining unto him, tbe said party of tbe second part, bis beirs and assigns forever. In trust, however, to and for tbe sole and separate use, benefit and behoof of said Catherine Cornwell, wife of «aid James Cornwell; and tbe said John A. Goodlett, party of tbe second part, hereby covenants and agrees to and with tbe said Catherine Cornwell that be will suffer and permit her without let or molestation, to bave, bold, use, occupy and enjoy tbe aforesaid premises, with all tbe rents, issues, profits and proceeds arising therefrom, whether from sale or lease, for her own sole use and benefit, separate and apart from her said husband and wholly free from bis control or interference, and from bis debts in such manner as she may think proper; and that be will at any and all times hereafter at the request and direction of tbe said Catherine Cornwell, expressed in writing, signed by her or by her authority, bargain, sell, mortgage, convey, lease, rent or otherwise dispose of said premises, or any part thereof; and will pay over tbe rents, issues, profits and proceeds thereof, which may come into bis bands, and not otherwise liable, to her, tbe said Catherine Cornwell, in such manner as she shall in writing direct or request; and that be will, at tbe death of said Catherine, convey or dispose of tbe said premises or such part thereof as may then be held by him under this deed, and all profits and proceeds thereof in such manner to such person or persons and at such time or times as tbe said Catherine Cornwell shall by her last will and testament, or any other writing signed by her or by her authority, direct or appoint; and in default of such appointment then, that he will convey said premises to said James Cornwell, his heir or assigns.”
On the trial in the circuit court the parties made the following admissions:
*569 “1. That the defendant is now in possession of the property and was at the institution of this suit.
“2. That Mrs. Catherine Cornwell died intestate, December 23rd, 1860, without having made any conveyance or appointment of said real estate under said conveyance in her lifetime.
“3. That James Cornwell died December 25th, 1889, and the plaintiffs are Mrs. Catherine Cornwell’s children and grandchildren and her heirs at law, and are also the only children and heirs of James Cornwell.
“4. That the plaintiffs, Frederick J. Cornwell and Catherine Holmes, wife of James C. Holmes, are the children of Catherine Cornwell, and that Charles J., Frederick L. and Benjamin S. Cornwell, infant plaintiffs, are the children of Benjamin Cornwell, who died prior to the institution of this suit, and who was the son of Catherine Cornwell; and these plaintiffs are represented in this suit by their next friend, Helen Y. Cornwell, plaintiff and widow of said Benjamin Cornwell, deceased, who was duly appointed their next friend in this case prior to the institution of this suit.
“5. That James Cornwell and Catherine Cornwell were husband and wife at and prior to the date of the deed of Yeates to G-oodlett.
'“6. That plaintiffs are the only heirs at law of Catherine Cornwell.
“7. That the value of the monthly rents and profits of the premises is, and since James Cornwell died has been, $10.”
Defendant read in evidence a decree of the St. Louis Land Court, rendered at the March term 1862, in case of James Cornwell, plaintiff, against John A. Goodlett, defendant, directing the defendant to convey the property in controversy to the plaintiff, and the deed made in pursuance thereto, and mesne conveyances from Cornwell to Wulff.
I.
The true construction of the deed above set out determines the lights of the respective . parties. Plaintiffs contend that the deed conveyed a fee simple estate to Catherine Cornwell, and that as a fee can not be limited on a fee, the direction to the trustee to convey to. James Cornwell, in a default of a disposition by Mrs. Cornwell, by deed or will, being repugnant to the creation of the fee in Mrs. Cornwell, is void.
Defendant claims, first, that the limitation to James Cornwell is good as a conditional limitation, and that although the deed created an equitable fee simple in Mrs. Cornwell, the limitation of a, fee to James Cornwell after the termination of the' estate of the first taker is valid in equity; and, second, that under the decisions in this State the intention of the grantor must be observed in preference to any mere technical construction, and that to give effect to that intention, the estate of Mrs. Cornwell must be construed as a mere life estate, and that of Mr. Cornwell the fee limited upon the life estate.
Formerly there was a difference between the rules for the construction of wills and deeds. A deed required words of inheritance to pass the fee, while in a will no such formality was necessary. Now under our statute (G. S. 1865, Ch. 108, sec. 2; W. S. 1872, p. 1370, sec. 45; R. S. 1879, sec. 4004; R. S. 1889, secs. 8912 and 8834) they stand on the same footing, and a grant or devise by name carries the fee, without the term “heirs” or words of inheritance. [Green v. Sutton, 50
Tbe true rule of construction of deeds and wills is'that tbe intention of tbe grantor or devisor shall be observed unless it conflicts with some inflexible rule of law. In Hogan’s Heirs v. Welcker, 14 Mo. l. c. 183, Napton, J., said: “If a deed admit-of two constructions, one of wbicb will support and tbe other defeat tbe intent, tbe construction wbicb will uphold tbe deed must be adopted, unless some inflexible rule of law interfere.” In Small v. Field, 102 Mo. l. c. 122, Sherwood, J., said: “And in construing wills, tbe polar-star of construction or exposition of a will, tbe meaning, tbe intention of tbe testator, is never to be lost sight of; single words, single clauses, will not be considered singly; but tbe whole instrument, its general scope and design as gathered from its four corners, will be taken into bonsideration, in connection with tbe surrounding circumstances, when properly admissible, in order that tbe intention of tbe testator may, if possible, prevail.” In Chiles v. Bartleson, 21 Mo. 346, LeoNaed, J., said: “Tbe intention of tbe testator is plain enough; tbe whole will must be read together, and effect given to every clause of it, and tbe words used are. to be understood in tbe sense indicated by tbe whole instrument.” In Carr v. Dings, 58 Mo. l. c. 406,Tories, L, said: “By a technical construction of the language used in tbe will, tbe bequest to tbe children might be so limited; but in construing wills, tbe intention of tbe testator is tbe object to be attained, and in order to ascertain this object, it frequently becomes necessary to look at tbe whole will, by wbicb it will sometimes become necessary to qualify particular clauses so as to bring them in harmony with tbe general intention, as tbe same may be indicated by other clauses.”# In Munro v. Collins, 95 Mo. l. c. 37, Braoe, J., said: “It will not be necessary, in order to determine this question, to consult authorities outside of our own State, and in examining them,
In the light of these principles we approach the crucial question in the case, to wit: did the deed from Teates to Goodlett vest a fee in Catherine Cornwell, or did it vest in her only a life estate notwithstanding the power of disposal given to her, or did it create a fee in her with a conditional limitation over to her husband.
The pi'evious adjudications in this State can not be harmonized. On the one hand it has been held by this court that if a deed or will gives an absolute power of disposal a fee is created, and as a fee can not be limited upon a fee, a limitation over in such an instrument is void for repugnancy, and that it is only in cases where the absolute power of disposal is qualified by express words limiting the first estate to a life estate that a limitation over is valid or effectual. Scott, J., in Rubey v. Barnett, 12 Mo. l. c. 7; Scott, J., in Norcum v D’Oench, 17 Mo. 98; Bliss, J., in Green v. Sutton, 50 Mo. l. c. 191, 192, concurred in by Wagner, J., but Adams, J., expressing no opinion; Hough, J., in State ex rel. v. Tolson, 73 Mo. l. c. 326; Hough, J., in Tremmel v. Kleiboldt, 75 Mo. l. c. 258; Henry, J., in Wead v. Gray, 78 Mo. 59; Black, J., in Cook v. Couch, 100 Mo. 29.
On the other hand it has been held by this court, that it is not necessary that the life estate be created by express
Of the cases last referred to, the following have been cited approvingly in the following cases: Chiles v. Bartleson, 21 Mo. 344, by BlacK, J., in Cook v. Couch, 100 Mo. 29, and in Emmerson v. Hughes, 110 Mo. 630, though they were not followed by the judge in either instance; Carr v. Dings, 58 Mo. 400, by Henry, J., in Wead v. Gray, 78 Mo. 64, though he distinguishes the two cases; by Henry, J., in Russell v. Eubanks, 84 Mo. 86; by Sherwood, J., in Small v. Eield, 102 Mo. l. c. 123; by Brace, J., in Munro v. Collins, 95 Mo. 33; by Black, J., in Lewis v. Pitman, 101 Mo. l. c. 293; by Sherwood, J., in Harbison v. James, 90 Mo. 411, and by Macfarlane, J., in Jarboe v. Hey, 122 Mo. 348.
It is plain therefore that there is a most unusual and deplorable conflict of authority in our own State upon this question. It may fairly be said that the first group of cases follows the lead of Parsons, Chief Justice, in Ide v. Ide, 5 Mass. 500, and of Chancellor Kent, 4 Kent’s Com. (14 Ed.) *270; and are in line with Jackson v. Bull, 10 Johns. 19; Jackson v. Robins, 16 Johns. 587; Pells v. Brown, Cro. Jae. 590; Howard v. Carusi, 109 U. S. 725; Van Horne v. Campbell, 100 N. Y. 287; Fisher v. Wister, 154 Pa. St. 65; Ball v. Hancock’s Adm’r, 82 Ky. 107; Cushing v. Blake, 30 N. J. Eq. 689; Wright v. Pearson, 1 Eden, *119; Boswell v. Dillon,
All of these cases proceed upon the principle that the intention of the grantor or devisor must be observed but that a life estate must be created in express terms or the power of disposal will create a fee, and that an absolute power of disposal may be limited by the creation of a life estate in express terms and in such event the limitation over will be good.
On the contrary the second group of Missouri cases cited are bottomed upon the decision of the Supreme Court of the United States in the case of Smith v. Bell, 6 Peters, 68, where the will gave the property with the absolute right of disposal thereof to the first taker, “remainder of said estate after her death to be for the use of said Jesse Goodwin.” No life estate was created by express words. In construing the absolute power of disposal, the court said: “The operation of these words when standing alone can not be questioned. But suppose the testator had added the words 'during her life.’ These words would have restrained those which preceded them, and have limited the use and benefit, and the absolute disposal given, by the prior words to the use and benefit, and to a disposal for the life of the wife. The words, then, are susceptible of such limitation. It may be imposed on them by other words. . . . If this would be true, provided the restraining words 'for her life’ had been added, why may not other equivalent words, others which equally manifest the intent to restrain the estate of the wife to her life, be allowed the same operation. The words 'remainder of the
The second group of cases are in line with Andrews v. Roye, 12 Rich. (S. C.) 536; Hubbard v. Eawson, 4 Gray, 247; Brant v. Va. C. & I. Co., 93 U. S. 326; Norris v. Beyea, 13 N. Y. 273; Tyson v. Blake, 22 N. Y. 558; Burt v. Herron’s Exrs., 66 Pa. St. 400; Dehoney v. Taylor, 79 Ky. 124; Malim v. Keighley, 2 Vesey, Jr., 333; Wright v. Atkyns, 17 Vesey, 255; Hall v. Otis, 71 Me. 326; Fox v. Rumery, 68 Me. 121; Burleigh v. Clough, 52 N. H. 267; Cook v. Ellington, 6 Jones’ Eq. 371; Knight v. Knight, 3 Beavan, 148; Prior v. Quackenbush, 29 Ind. 475; Richardson v. Palmer, 38 N. H. 218; Yore v. Yore, 63 Fed. Rep. 645; Kent v. Morrison, 153 Mass. 137.
The first group of cases, like the rule in Shelley’s Case, establish an absolute rule of law, while the second group establish a rule of intention or of construction to reach and carry out the grantor’s or devisor’s intention. The first group profess to respect the will of the grantor or devisor, but require him, by an inflexible rule, to express his intention by limiting the estate of the first taker to a life estate in express terms, employing the identical words of the rule. The second group also respect the intention of the grantor or devisor, but gather that intention from the four corners of the instrument, and regard any equivalent words that clearly express the intention as of as much force as the words “life estate.”
Technically and strictly speaking when property is granted or bequeathed to a person with full power to dispose of the same in any manner the grantee or devisee chooses to
If this is permissible because it effectuates the intention of the grantor, what logic is there in requiring the grantor 'to express his intention in set or stereotype language, and in refusing to observe that intention when clearly expressed in equivalent terms? In either event the qualification imposed on the absolute ownership (or power of disposal which is the equivalent of absolute ownership) by limiting the estate of the first taker to one for life, must be construed that he has power to dispose of the estate only during his life, but that after his death the remainder or what is left is to go to the expectant owner. And if this is true, what difference does it make in what words this intention is expressed? In both cases the old, inflexible rule is equally softened, modified and made more elastic. In our day there is not the undefined apprehension about tenures that formerly disturbed the placid dreams of our English predecessors in the law. In all other respects our laws, as to pleading and practice, as to proceedings and remedies and as to interpretation and construction, have been softened and broadened and made plainer and simpler, and it is hard to give a reason why we should tread with leaden heel with respect to conveyances, or try to hamper our real estate transactions with gauges and measures which do not fit our conditions.
If the maxims of interpretation first hereinbefore referred to are applied, the second group of cases will be found
It is a noteworthy fact that the last of the first group of cases, Cook v. Couch, 100 Mo. 29, was decided by Blaoh, J., in which he cited and commented upon the prior cases, without attempting to reconcile them or overrule the conflicting ones, and decided the case in hand according to the doctrine of the first group, and that the next time the question was presented to this court, Lewis v. Pitman, 101 Mo. 281,Black, J., wrote the opinion of the court, again referred to both classes of cases, followed the latter or second group of cases, and practically, though not expressly, overruled those of the first group, and said: “If we follow the common-sense reading of the will from first to last, it seems to us that there is no difficulty in discovering its true purpose aryl meaning as to the personal property, and that is this:
It is patent therefore that if the doctrine of the first group of cases had been followed, the conclusion reached by the learned judge would have been exactly the reverse, and it is manifest that he had both groups of cases in his mind, for he referred to cases belonging to each, and that upon fuller and maturer consideration he concluded that the better rule,
This case must therefore be regarded as settling tbe law in this State up to 1890, when it was decided. Afterwards in 1893, tbe question came again before this court in Redman v. Barger, 118 Mo. 568, and BRACE, J., delivering tbe opinion of tbe court, cited and approved Lewis v. Pitman, 101 Mo. 281; Munro v. Collins, 95 Mo. 83; Harbison v. James, 90 Mo. 411; Russell v. Eubanks, 84 Mo. 83; Bean v. Kenmuir, 86 Mo. 666, and Smith v. Bell, 6 Pet. 68. This decision was concurred in by Brace, P. J., Barclatand MaoearlaNe, JJ., being all tbe judges of Division No. 1.
It follows that Lewis v. Pitman is still tbe law in this State, unless it has been overruled by Cornwell v. Orton, 126 Mo. 355. That case stands squarely upon tbe doctrine of tbe first group of cases, and follows tbe old iron-clad rules of interpretation. It refers to Lewis v. Pitman, Munro v. Collins, Harbison v. James, and Redman v. Barger, but contains no suspicion of intention to overrule them or tp distinguish them. It simply follows tbe earlier eases and subscribes to tbe harsh rule upon which they were bottomed.
Tbe case at bar involves tbe same deed that was construed in Cornwell v. Orton, supra, and this case was decided on former appeal, by Division No. 2 of this court, at tbe same time and upon tbe faith of tbe Orton case. It is here a second time before tbe Court in Banc, and we are asked to review and reverse tbe decision on former appeal.
If we adhere to the decision in Cornwell v. Orton, supra, it is our plain duty, in tbe condition of tbe law in our State as hereinbefore pointed out, to overrule Lewis v. Pitman, and
It can not be denied that the rigidity and inflexibility of the common law rule that a fee could not be limited upon a fee and that an absolute power of disposal in the first taker, created a fee in him 'and made the limitation over void for repugnancy, has been relaxed in America, and that all the cases in both groups, and the cases from other States upon the same subject, cited in support of each group, concede that words which would create an absolute fee simple estate if standing by themselves, may be qualified, or limited, by other words in the same instrument, so as to- create only a life-estate in the first taker, and vest a fee in remainder. The only practical difference between the two classes is what words shall be deemed sufficient to so limit what would otherwise be an absolute fee.
If the power to qualify or limit at all be conceded— which the common law denied — as it is conceded by all the^ American cases and text writers, and if the purpose to be thus subserved is the effectuating of the grantor’s or devisor’s intention, it logically follows that it can make no difference what the words of qualification or limitation employed may be, so long as they clearly express the intention of the grantor or devisor, and that it is a solecism to concede the right to qualify but to refuse to enforce the intention unless it is couched in terms arbitrarily required by the courts.
If the opinion in Lewis v. -Pitman, swpra, had been written for the case at bar it could not have fit it more completely than it does. All of the elements present and decided in that case are involved here. We have here the conveyance with absolute power of disposal, whether by deed or will, and
The reason upon which the common law rule rested that an absolute power of disposal created a fee and made the limitation over void for repugnancy, was, that it was thus planed in the power of the first taker to cut off the limitation by disposing of the estate; and the reason underlying the modern,. American doctrine that where the absolute fee is qualified by words creating only a life-estate in the first taker, is, that the first taker’s power to dispose must be construed to be-limited to the right he had in the estate — the life-estate; and that if he disposed of his life interest, the remainder would vest immediately upon his death in the person for whom the-grantor or devisor intended to provide, and so it is not within the power of the first taker to defeat the remainder, and hence-there is no repugnancy, and therefore the principle upon which the common law rule rested, is not violated.
The only remaining question then is how shall this intention be voiced in words — by the words, “for life only,” or by equivalent words, pregnant with the same idea and expressive-of the same intention.
One theory is purely arbitrary and technical; the other is-common sense. Between the two, all reason and logic, all precedents for the construction of all laws, contracts and dealings of mankind, is on the side of the rule laid down in Lewis v. Pitman, Supra, and the second group of cases.' This-being true, that case and its kindred cases should behereafter-
It follows that tbe deed to Goodlett was a conveyance in .trust for Mrs. Catherine Cornwell for life, with power in her to dispose of her life interest, and a remainder in fee to James Cornwell. It also follows, that it was not a mere naked, dry trust, and that the use was not executed in Mrs’. Cornwell under the statute of uses, even if the statute of uses applies to the second use, which Scott J., in Guest v. Earley, 19 Mo. 151, held-the statute of uses never was intended to ■do, saying: “The statute only executes the first use. A use upon a use is no estate in law; it is only a trust, a creature •of courts of equity.”
The judgment of the circuit court should therefore be reversed.