72 Mo. 616 | Mo. | 1880
This suit was instituted to quiet title to to certain real estate in Andrew county, Missouri. The plaintiffs are children and heirs of one James 0. Hunt, deceased, and the defendants claim the land under a conveyance made by Diana A. Hunt, his widow, to one Abbott.
The controversy alises on the construction of the will of said James 0. Hunt, who died in the state of North Carolina, seized of the land in this State, which is in litigation in this suit. The will was as follows :
In the name of God, amen. I, James 0. Hunt, being weak in body, but of sound mind, do make this my last will and testament:
Item 2nd. I give and bequeath unto my beloved wife, Diana A. Hunt, all my estate, both real and. personal, during her natural life or widowhood, and what then remains to be equally divided among my children, viz: Leonidas Hunt, Cynisca Hunt, George Bowen Hunt, James Martin Hunt, Elvira Bryan Hunt, and Susan Clemens Hunt.
Item 3rd. I will that my wife raise my children as she thinks proper.
Item 4th. I will that my wife, Diana A. Hrnrt, be my executrix of this my last will and testament, this 28th day of June, 1847-
That doctrine has no application when a life estate is expressly devised, but only where an estate is given^without words of limitation.
Chancellor Kent in Jackson v. Bull, 10 John. 151, states the doctrine thus : “ Where the charge is upon the estate, and there are no-words of limitation, the devisee takes only an estate for life; but where the charge is on the person of the devisee, in respect of the estate in his hands, he takes a fee, on the principle that he might otherwise be a loser.” This distinction will be found in all the cases on the subject. It was announced by Lord Mansfield in Frogmorton v. Holyday, 3 Burrows 1624, in which he said that “ the devisee without words of limitation, can take an •estate for life only,” but if a personal charge be made upon him, “let the sum charged upon the devisee' be ever so small, it shall give a fee.” But in'this case, there was no personal charge upon Diana A. Hunt. The first item of
There is more plausibility in the second position, that she took under the will a life estate with power to sell and convey.
There are adjudications in Maine and Massachusetts, and elsewhere, which favor the doctrine contended for by appellants : Ramsdell v. Ramsdell, 21 Me. 288 ; Scott v. Perkins, 28 Me. 22; Shaw v. Hussey, 41 Me. 495 ; Harris v. Knapp, 21 Pick. 413; Paine v. Barnes, 100 Mass. 470. They hold that from the words “whatever shall remain,” the implication is inevitable, that the first taker had a power to make such disposition.
On the other hand, in Smith v. Bell, 6 Peters 74, a gift to a wife of all the testator’s personal estate, with an absolute power of disposal expressly given, with a proviso, that the remainder, after her decease, should go to his son, was held by the Supreme Court of the United States to be inoperative as to the power of sale, that the wife took a life estate only, and the son a vested remainder. C. J. Marshall delivered the opinion of the court, and used this language : “ These words give the remainder of the estate, after his wife’s decease, to the son, with as much clearness as the preceding words give the whole estate to the wife.” “The limitation in remainder shows that in the opinion of the testator, the previous words had given only an estate for life.”
The position of the court in that case was that the words “the remainder after her decease” qualified and limited the estate personally given, while here it is contended that they enlarge an express life estate-into an absolute fee simple estate, or, at least, give an absolute power of sale. Smith v. Bell was followed by the Supreme Court of
It is a question of intention, and the intention of the testator, to be ascertained by taking and construing all parts of the will together, controls in its construction. It is on this ground that the devise of an estate without limitation, accompanied with a personal charge upon the devisee gives him a fee.
That the clause of the will in question here did not confer a power of sale upon the widow, has been determined in this State, we think, in the case of Gregory v. Gowgill, 19 Mo. 415, where the testator devised all of his estate, both real and personal, to his widow, to have and hold during her lifetime-, except one slave, whom he emancipated. To his nephew, J. H. Gregory, by another clause of the will, he devised all that might remain of his estáte, both real and personal, after the death of his wife, forever. The court held that no express estate for life was given to the widow, and that “ if the word ‘ remain’ was sufficient to raise a power of disposition in the devisee for life, there were words in the will enough to give it an effect without applying it to the real estate. Some of the property was of a perishable nature, and some of it would be consumed in the use; it was not, therefore, designed that such portions should be accounted for to the remainder-man.” There the words “ all that might remain of his estate,” related as well to the real, as the personal estate, by the express language of the will. Here, it would not be a violent construction of the clause of the will in question to hold that the words “ what then remains,” relate only to the per