Green v. Sutton
50 Mo. 186
Mo.
1872
Check Treatment

Lead Opinion

Bliss, Judge,

delivered the opinion of the court.

This is аn action of ejectment for possession of land situated in the city of St. Louis. The case was submitted on the pleadings and an agreed statement of facts, which are briefly as follows: On the 10th day of June, 1856, Wm. A. Pendleton and Mary A., bis wife, bargained and sold the property in question to George Harrington in fee, “ upon trust, nevertheless, to the uses and subject to the powers, provisions, declarations and agreements hereinafter *191expressed and declared; that is to sаy, to the sole and separate use, benefit and disposal of the said Nancy A. Green, party of the third part, free from the control of liability for or on account of her husband, Henry S. Green, and to such uses. as the party of the third part may at any time or times hereafter, by any writing signed by her hand, in the presence of two or more credible witnesses, direct and appoint, and on her death to such uses as she may by her last will and testament, duly made and executed, dirеct and appoint; and in the event of her dying intestate, to the use of the issue then living of said Henry S. and Nancy A. Green, and in default of such issue, to the right heirs of Henry S. Grеen. And this indenture and the estate created by the same is hereby made subject to this other and further condition and trust, namely, that the property hereby cоnveyed shall and may be from time to time and successively charged, invested and reinvested indefinitely by said trustee, on the sole and separate request mаde in writing of the said Nancy A. Green, and attested by two or more credible witnesses, and that each and every thus newly acquired accession of the afоresaid trust estate shall bp subject to the uses hereinbefore limited and declared.” Nancy A. Green had no issue, made no disposition of the propеrty during her life, and died intestate in January, 1868. Henry S. Green died in October, 1870. The plaintiffs are his heirs. The plain intent of this deed is to create an estate for the sole and separate use of Mrs. Green, and the trustee is a married woman’s trustee, who holds the property subject to the uncontrolled disposition of the wifе. That this is not the purport of the deed is contended, first, because the mode of directing the disposition is specific, to-wit: by writing, signed and witnessed by two witnesses, or by devise; second, because of the remainder.

First, nothing is more common than for a conveyance creating a sole and separate estаte in a married woman to specify in detail the mode of disposition, and it was never supposed ‍‌​​‌​​‌‌‌‌‌‌​‌​‌​‌‌‌‌​​​​​​​‌​​‌​‌​‌‌‌‌​‌​‌‌‌‌​​‍that she was restricted to that mode. But the doctrine now is that she may adopt any other known to the law, unless affirmatively confined to the one named. (Kimm v. Weippert, 46 Mo. 522.)

Second, the remainder is impossible. No lifе estate is given, *192and the provision for the disposition of the property is inoperative. It cannot create a remainder ; for when the fee — thе whole estate — is disposed of, nothing remains. To avoid this difficulty it is contended that only a life estate was created in Mrs. Green, and that this remainder itself shows suсh to be the intent of the instrument. A life estate is usually created by words of express limitation, and will not be assumed unless there are such words or their equivalent. If the dеed shows by other provisions that the grantor intended his grantee to hold an estate for life only, such would be its effect. But if there be inconsistent provisions, some indicating a power of absolute disposal, which can only be had by the holder of the fee, and others creating a remainder which supposes a life estate, then the words of the habendum should have a controlling significance.

Counsel claim that the right to control the conveyance, to devise, etc., is simply a power of disposition attached to the life estate. Such ‍‌​​‌​​‌‌‌‌‌‌​‌​‌​‌‌‌‌​​​​​​​‌​​‌​‌​‌‌‌‌​‌​‌‌‌‌​​‍a power might be given, but will not be inferred' from the words importing a complete estate. The chancellor, in Jackson v. Robbins, 16 Johns. 288, distinguishes between the two as follows: “We may lay it down as an incontrovertible rule that when an estate is given to a person generally or indefinitely, with a power of disposition, it carries a fee, and the only exception to the rule is that when the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal, in that particular and special case the devisee for life will not take an estate in fee, notwithstanding the distinct and naked gift of a. power of disposition of the reversion. This distinction is carefully marked and settled in the cases.” Thе same distinction is substantially made in Pulliam v. Byrd, 2 Strob. Eq. 142, and there can be no doubt of its correctness. The question has generally arisen, as in Jackson v. Robbins, in construing devises; for before our statute it was necessary, in order to pass the fee, that the conveyance should contain words of inheritance, while the same formality was not required in a will. In this respect they now stand in this State upon the same footing, and a grant or devise to a person by name carries the fee, withоut the term “heirs,” or other words of inheritance. (Gen. Stat. 1865, ch. *193108, § 2; Wagn. Stat. 135.) But for the statute, the present grant might be for the life of Mrs. Green only, and in that case the right ‍‌​​‌​​‌‌‌‌‌‌​‌​‌​‌‌‌‌​​​​​​​‌​​‌​‌​‌‌‌‌​‌​‌‌‌‌​​‍to dispose could be treated as a power, merely. The general doctrine has been uniformly recognized by this court. In Rubey v. Barnett, 12 Mo. 1, the devise was to the widоw for life, and the court says that ‘1 an express estate for life negatives the intention to give the absolute property, and converts the words giving a right of disposition into words of mere power, which, standing alone, would have been construed to convey an interest.” (See also Hazel v. Hagan, 47 Mo. 277.)

That this was not intеnded to be a limitation over, I the more readily infer from the fact that it was made ‍‌​​‌​​‌‌‌‌‌‌​‌​‌​‌‌‌‌​​​​​​​‌​​‌​‌​‌‌‌‌​‌​‌‌‌‌​​‍to the heirs of a living person, of one who might be and actually was alivе at the death of Mrs. Green.

At the determination of what is called the particular estate there was no one who could take. The title must vest somewhеre, and if the plaintiff’s claim be correct, it vested nowhere — was in abeyance until Mr. Green’s death. This could not be. Did it then revert? If so, the plaintiffs are out оf court, and the remainder would be gone even if it bad been created. I prefer rather to- treat it as a nullity from the beginning — a mere attempt to follow the property after all control over it was surrendered. I have spoken of the instrument as though it conveyed a legal estate to the benefiсiary, and counsel insist that a different rule prevails in trust deeds. So far as words are merely technical, a more liberal construction may be given them in order to carry out the intention of the parties. But the question pertains to that intention. Did the grantor design to give the beneficiary complete power оver the premises? Was the use unlimited? If so, the attempted limitation is void, and the rule is not a technical one. It cannot matter whether the wife held the legаl estate, or whether or when the use was executed in her. It is just as impossible to limit an unlimited use as to have a remainder when the whole is given.

The judgment of the Circuit Court will be affirmed.

Judge Wagner concurs.



Concurrence Opinion

Per Adams, Judge.

I concur in the rеsult, but I am not satisfied with regard to some of the propositions maintained by Judge Bliss. In any view of the case, the plaintiffs cannot recover, as they have shоwn no title to the premises. Conceding that the limitation over could have been made, they cannot take, because the limitation was to the right heirs of their ancestor, who was alive at the time of the death of the grantor holding the particular estate. He could have no heirs until his death. " JYemo est haeres viven¿is.” It is unnecessary to decide whether the grantee took an absolute fee discharged of the limitation or not; or whether, this being a trust estate, a ‍‌​​‌​​‌‌‌‌‌‌​‌​‌​‌‌‌‌​​​​​​​‌​​‌​‌​‌‌‌‌​‌​‌‌‌‌​​‍fee could be limited on a fee to take effect on the contingency referred to in the deed. And I therefore express no opinion on these questions.