65 Mo. 670 | Mo. | 1877
"I, Benjamin Stephens, of Boone county, Kentucky, having made a codicil to my former will, I now make this additional one:1 I give to Hiram Stephens and family, the tracts of land I have lately purchased of Coughenour & Finney; and further, it is my wish, and I appoint and constitute John Brady as my lawful agent over said lands, to be managed for their benefit; and I forbid the sale of said lands without orders from me or my agent;” are the words which gave origin to the pi’esent action of ejectment. Since the cause came here on error, the original defendant, Hiram Stephens, has died; that fact has been suggested to plaintiff", and the present defendants, wife and children of the decedent, waiving sei fa, which otherwise would have issued, have entered herein, by consent, their voluntary appearance. April 14, 1855, is the date of the codicil. The testator died a few days thereafter. The plaintiff’s claim is based on a sale under special execution in 1869, the attachment having been levied January 1st, 1866, on the property in suit as that of the former defendant, and judgment rendered October 4th of the year last aforesaid. The trial court adjudged to recover the undivided one-eighth of the premises in controversy. The plaintiff', however, claims that the recovery should have been for the whole tract, while for the defense it is insisted that judgment should have gone for defendants. As will be hereafter seen, the whole question hinges upon the proper force and effect of the codicil, considered with reference to certain statutory provisions.
In Exrs. of White v. White, 30 Vt. 338, where the will gave to the son of the testator “ $1,500 for the support of himself and family, and for no other purpose,” it was held that the word “ family ” would include the wife and children of the testator’s son. The intention of the testator, it is agreed on all hands, should be the pole star by which courts should steer in construing devises, subject, however, to a certain degree of control, owing to technical rules and the intrinsic force of technical expressions. 4 Rent, 537. In the absence of technical terms, the general rule as expressed in all cases regarded reliable, undoubtedly is: 1. That words must have their ordinary, popular signification, technical terms excepted, unless, in the context, or subject-matter of the will, something clearly and unequiv
In the English courts, bequests to the family of one have frequently been held void for uncertainty. Harland v. Trigg, 1 Brown Ch. Cas. 142; Doe v. Joinville, 3 East 172; Robinson v. Waddelow, 8 Sim. 134. But that line of decision is not so common as formerly, and it is said in English works, 2 Jarm. on Wills, 87 (Ed. 1861): “It should seem that a gift to the family, either of the testator himself, or of any other person, will not be held void for uncertainty, unless there be something special creatiug that uncertainty. The subject-matter and the context of the will are to be taken into the account,” and the bequest upheld, if it can be fairly made out what the testator intended by the word family. 2 Redf. L. W. 71, § 5. In Doe v. Smith, 5 M. & Selw. 126, where the devise was “ the interest of all my land property * * * to my wife; * * * after the demise of my wife, to my brother, W.
II. Husband and wife, at common law, to whom a grant or devise was made took per tout et non per my, and th e survivor to ok the whole. 1 Bright Husb. and Wife, 25, and cases cited. This peculiar result arose from the legal identity of husband and wife, both being regarded as oue person. Our statute has wrought no change in this particular, as has been expressly and repeatedly adjudged. Gibson v. Zimmerman, 12 Mo. 385; Garner v. Jones, 52 Mo. 68; Shroyer v. Nickell, 55 Mo. 264. Those adjudications were based on the foliowiug section: “ Every interest in real estate granted or devised to two or
And when husband and wife are co-grantees or co-devisees with a third person, the last named takes one moiety and the husband and wife the other. 1 Bright TI. & W. 27 ; Litt. § 291. If there are two other persons co-grantees or co-devisees, ’besides husband and wife, then the subject matter of the grant or devise is vested one-third in the husband and wife, and the remaining two-thirds in the other persons in equal proportions, and so on, in accordance with the number of persons entitled; the husband and wife always representing a single unit or integer of legal identity. In the case before us, as there were six children at the death of the testator, the husband and wife became together seized of one-seventh of the land devised. Barber v. Harris, 15 Wend. 615. And in this connection the enquiry becomes pertinent whether evidence regarding the members of the family, and of whom composed, was properly admitted ; which point is next for consideration.
III. Although it is well settled that extraneous evidence is not received to vary, explain, contradict or control the terms of a will, 1 Redf. L. W. 597, § 41; yet ft ft eqUaHy well settled that evidence of surrounding circumstances, of the subject matter of the devise, and of the persons to be benefitted thereby is receivable, in order to place the court, so far as may be, in the situation of the testator, and, looking from his standpoint, to determine both the subject and objects of his bounty. Wigr. on W. 101, 109; Redf. L. W. 488, 587,
IY. If, as already seen, the husband aiid wife became seized in entirety of the undivided one-seventh of the devised premises, the plaintiff is clearly en- . titled to a corresponding recovery of possession, if the husband had at the time of the sale, any interest therein susceptible to execution. The great current of authority affirms such susceptibility; going only so far as this, however, that if the wife survive her husband, she, as such survivor, will be entitled to the whole. This theory, that the husband is possessed of a vendible interest, has for its basis that the husband, Jure mariti is entitled to the possession and usufruct of the wife’s real estate during
There is also abundant authority enunciative of the kindred doctrine that a husband thus j ointly seized with his wife, has absolute control of the property during the life of the wife and may'make a valid lease during his life in his own name. Torrey v. Torrey, 14 N. Y. 430; make like lease whereon ejectment may be brought, Jackson v. McConnell, 19 Wend. 175; maintain ejectment in his own name, Topping v. Sadler, 5 Jones, N. C. 357; bring, in his own name trespass qu. cl.freg., Fairchild v. Chastelleux, 1 Pa. St. 176; determine tenancy in his own name, and concurrence of wife not necessary, Pollok v. Kelley, Irish C. L. (N. S.) 367; has a sort of interest of his own, distinct from his wife, which interest he may convey. Bishop, L. M. W. § 621. A different result from that here announced, respecting the sale under execution, of the husband’s interest has been reached in Indiana. Chandler v. Cheney, 37 Ind. 408. But the court there, while correctly stating that at common law the husband had no tenancy by the courtesy in lands held in entirety, altogether ignores the important fact before adverted to, of his possessing during coverture, the absolute control over all property of the wife, and being entitled to the possession and usufruct of her land. Certainly no less right could attach by reason of his also occupying an attitude whereby if he proves survivor, he may acquire the whole estate. And an examination of the authorities cited in that case will scarcely support the position there assumed. Rogers v. Grider, 1 Dana, 242 surely does not, for it only adverts to the general doctrine, and holds that where an execution sale had occurred, the wife’s right of survivor-ship would not be defeated. The case of Roanes v. Archer,
Mr. Justice Cowen in Jackson v. McConnell, 19 "Wend. 175, after commenting on a number of authorities, among them Doe v. ID 8 Cow. 283, says that the husband alone can not alien-, “the meaning is he can not alien the entire estate.” In Bishop, Law Mar. Wom., Vol. 1, § 622, it is stated not only that the husband’s interest in the land held by the entirety is vendible under execution, but that such sale takes from him all his estate, whatever it may be in the land. And in Ames v. Norman, supra, it is distinctly held that the purchaser at execution sale takes the entire estate if the husband survives the wife. As the facts presented by the record before us do not require it, it is unnecessary to give expression of opinion going to the full extent of the authorities just cited. We only hold, in the case at bar, that the husband’s interest during his life at least, passed by reason of the execution sale, and that his wife surviving, took that whereof they had been jomtly seized.
Y. Nor do we regard the conclusion thus announced at all affected by the statute (2 W. S. §14, p. 935); and this for the reason, that the statute is evidently designed to prevent a sale under execution against the husband, where the wife holds the fee in her own right. This statute is in derogation of the common-law right of the husband, and therefore should receive a strict construction, in accordance with a familiar principle. A like view is taken of a similar statute in Tennessee, 4 Sneed, supra.
YI. Another reason occurs why the statute referred to is inapplicable. The right of the plaintiff accrued by reason °f the attachment levied long before the statute under consideration became opera-
Inasmuch as the plaintiff was clearly entitled to a recovery of one-seventh of the estate devised, the judgment which accorded to him a lesser recovery must be reversed. The matter, however, in consequence of the death of the husband during the pendency of the cause in this court, is at present of no great practical importance. With directions that the lower court do take suitable action conformably to this opinion, and also regarding the rents and profits down to the period of the husband’s decease, the judgment will be reversed and the cause remanded. All concur. Reversed.