252 Mo. 58 | Mo. | 1913
This is an action under section '2535, Revised Statutes 1909', to quiet title to an un-Quieting 1 e' divided one-sixth interest in the southwest quarter of section 2, township 55, range 14, containing 160 acres more or less, in Randolph county, Missouri. The' suit was originally begun in the circuit court of Randolph county, and was afterwards by agreement of the parties transferred to the circuit court of Chariton county, where trial was held, resulting in a judgment finding that defendant is owner of said land and that plaintiffs have no title or interest therein. Plaintiffs thereupon appealed to this court.
There is little dispute over the facts. Most of the evidence adduced was documentary in form. One Catharine Weldon was the common source of title. Plaintiffs (representing one-sixth of the bodily heirs of Catharine Brown) claim to have acquired their title through an instrument, which they claim is a deed, executed February 25, 1862, by said Catharine Weldon to /said Catharine Brown and another. Defendant claims title through a deed dated May 4, 1868, executed by said Catharine Weldon to one Ben C. Brown, and by mesne conveyances from said Brown to the defendant, conveying the land in controversy.
The determination of the matters involved in this suit depends upon the construction given to the above-mentioned instrument, dated February 25, 1862, from
“Know all men by these presents, that I, Cath-arine Weldon, of the county of Randolph and State of Missouri, knowing the uncertainty of life and the certainty of death, and being desirous of making such disposition of my earthly effects as I think right and proper, do hereby make the following disposition of the same (to-wit) for and in consideration of the love and affection I have for my daughter Catharine Brown, wife of Ben Brown, and for the further consideration of the fact of the said Catharine Brown and Ben Brown, her husband, having taken care of me in my old age, I do hereby give, grant and relinquish to my said daughter Catharine Brown and the heirs of her body at my death, the following described slaves, and all their increase, or as many ^ of them as may then be living and belonging to me, to-wit: Mary Catherine, aged twenty-eight years, Martha lone, aged thirteen, Mary Susan, aged sis, Hager, aged three, Mary, aged fourteen, and Betty, aged twelve. And also all the household and kitchen furniture, and stock of every kind and description of which I may die possessed. And also all the money, cash, notes or other evidences of debt of every kind. All for the benefit of my said daughter, Catharine Brown, and the heirs of her body, with only this reservation (to-wit) : The said Catharine Brown is to take care and well provide for my servant Hannah during her lifetime. And if it should become necessary, from any cause, for me to sell or otherwise dispose of any of the slaves above enumerated, during my lifetime, I reserve the right to do so. And I do also hereby give, grant and relinquish to my other daughter, Drucilla Mitchell, for the love and affection I have for her the following'described lands in Randolph county, Missouri, under however, the following restrictions (to
her
CATHERINE x Weldon (Seal), mark
■“Witness—
“John Finnie his “Simeon x Hunt.” mark
The above instrument was duly acknowledged and ,was recorded on the 26th day of February, 1862, in the recorder’s office of Eandolph county, Missouri. If said Catharine Brown, by virtue of said instrument, acquired unconditionally a life estate in the land in suit, with remainder over to her bodily heirs, then plaintiffs are entitled to an undivided one-sixth interest in the' land. If title did not so pass, then the title to the entire 160 acres in suit is in defendant by virtue of the other conveyances above mentioned. After introducing in evidence the above copied instrument, plaintiffs introduced in evidence a deed dated February 21, 1848, from William King and wife to said Catharine Weldon, conveying to her the land in controversy and other lands.
Witness John W. Brown testified- for plaintiffs .that the land involved in this suit was a part of 640 acres which said Catharine Weldon purchased from William King. It was admitted by the.parties that “there never was any exercise of the powers or duties attempted to be imposed by the terms of the instrument •executed by Catharine Weldon, dated February 25, 1862, by the trustee therein named, or by any other person.”
I. Appellants contend that the above copied instrument' vested in Catharine Brown a life estate,
For the present, we will assume that the instrument in question undertook to deal with the land now in controversy, reserving that question, however, for discussion later in this, opinion.
The early rule of construction of instruments was that the first words in a deed, and the last words in a will, would control. But that rule has been discarded as not being the safest route by which to arrive at the grantor’s intention, and the modern rule in that regard is as stated by Judge Marshall in Utter v. Sidman, 170 Mo. 284, 1. c. 294:
“The intention of the grantor as gathered from the four corners of the instrument is now the pole star of construction. That intention may be expressed anywhere . in the instrument, and in any words, the simpler and plainer the better, that will impart it, and the court will enforce it, no matter in what part of the instrument it is found.”
And if possible without violating any of the legal proprieties, that construction should he given the instrument which will give life to the whole and develop consistency rather than inconsistency between its parts. One of the important distinctions between a deed and an instrument testamentary in character is that in a deed a present -estate or interest is passed, while in an instrument testamentary in character no part of the title treated is to pass until the death of the grantor. Whenever the instrument discloses the grantor’s intention to be that no estate or interest is to-pass until the death of the grantor, then it is considered to be testamentary in character, and comes within
The case of Nichols v. Emery, 109 Cal. 323, is a well considered case on the general matters involved here. In that case the owner of real estate conveyed the same to a trustee to make sale of the land within ten months after the grantor’s death, and to distribute the proceeds as in the deed directed. The deed also reserved to the grantor the power to sell the property. The grantor died without making sale of the property, and a contest arose as to whether the instrument was a deed or an instrument téstamentary in character. It was held that the instrument conveyed in praesenti an estate to the trustee, and that the power of revocation contained therein did not destroy its character as a deed creating a voluntary
“Indeed, this power of revocation was strongly favored in the case of voluntary settlements at common law, and such a trust without such a reservation was open to suspicion of undue advantage taken of the settler. [Lewin on Trusts, *75, 76; Perry on Trusts, see. 104.]
“We think, however, that the circumstances of the reservation of power to revoke, and the limitation of the trust upon the life of the settler, have operated to mislead the learned judge of the trial court. If the life selected had been that of a third person, and if no revocatory pcwer had been reserved, no one would question but that a valid express trust had been created. But the fact that the designated life in being was the settler’s could not operate to destroy its validity, for he had the right to select the life of any person as the measure of duration. And the fact that he reserved the right to revoke did not impair the trust, nor affect its character, since title and interest vested subject to divestiture only by revocation, and if no revocation was made, they became absolute.
“A man may desire to make disposition of his property in his lifetime to avoid administration of his estate after death. Indeed, in view of the fact, both patent and painful, that the fiercest and most expensive litigation, engendering the bitterest feelings, springs up over wills, such a desire is not unnatural. And when it is given legal expression, as by gifts absolute during life, or by gifts in trust during life, or voluntary settlement, there is manifest, not only an absence of testamentary intent, but an absolute hostility to such intent.”
In the case of Markwell v. Markwell, 34 Beav. 12, it was held, where the settler provided in the volun
In Gaither v. Williams, 57 Md. 625, where the grantors of settlers, in creating a voluntary trust, reserved the power to-revoke the same, it was held that the sale under a subsequent mortgage executed by the settlers on the trust property worked a revocation of the trust on the land and passed the title thereto, and that it was not necessary that the mortgage should have referred to the power of revocation reserved in the trust deed.
In Ewing v. Shannahan, 113 Mo. 188, the doctrine hereinabove discussed was recognized. In that case the grantor, by deed dated December 31, 1863, created an express trust, but reserved no power of revocation. In 1866, thé grantor undertook to revoke the trust by having the trustee execute a quit-claim deed back to the grantor. The court, applying the rule announced by Perry on Trusts and Trustees, supra, held that “a completed trust, without reservation of power of revocation, can only be revoked by the consent of all the beneficiaries.” (L. c. 196.)
In the present , casé the settler, by reserving to herself the power of sale of the land which is the subject of the trust, clearly intended thereby to reserve the power of revocation; and in the year 1868 she exercised. that, reserved power of revocation by executing and delivering a warranty deed conveying the
II. We are nnable to see from the evidence adduced how appellants conld recover upon any theory. It will he noticed that the instrument of February 25,
The judgment is affirmed.
The foregoing opinion of Williams, C., is adopted as the opinion of the court.
