99 Mo. 338 | Mo. | 1889
This proceeding is one for the partition of certain lands, and necessarily involved in the cause is the proper construction to be given to the deed therein mentioned.
The clause of the deed thus brought in question is as follows: “To have and to hold the said real estate, with the appurtenances, to the said John J. Waddell, and to his heirs forever, in trust, however, for the following purposes, that is to say: The said John J. Waddell, of the second part, is to have, possess and enjoy the said several tracts or parcels of land herein-before conveyed, and to be seized of the same, to and for his own exclusive,,use, benefit and behoof, for and during his natural life, doing nor suffering any unnecessary waste, the said lands and tenements, nor any interest in the same to be liable for any debt or debts
So that the chief question this record presents is whether the remainder created by the deed was nested or contingent. The subjects of vested and contingent remainders, and the difference and distinction between them, meet with frequent and elaborate discussion and illustration in the text-books, as well -as in the reported cases. It is unnecessary however, to go at length into the authorities in order to arrive at the proper result in this case, since our own reports furnish us with instances which suffice our present purpose, and serve well to illustrate the distinction between remainders vested and those contingent.
Thus in Jones v. Waters, 17 Mo. 589, where land was devised by the testator to his wife for and during her natural life, and after her death to descend to her “children ” by him, equally share and share alike, it was held that these words created a vested remainder in the children, and that one of them, who predeceased his mother, had an interest subject to sale; and it was remarked that the devisees in remainder were ascertained by the will, and they were to have the enjoyment of the estate as soon as the estate for life ended; and that the devise of the remainder was not, to such as the children as may be alive at the death of the mother, but to all of the children of the marriage.
Aubuchon v. Bender, 44 Mo. 560, presents a case of the same deed creating both kinds of remainder. There, by the terms of the deed, the grantor was to stand seized of the property to his own use during his life; and, after his death, “the use, benefit, usufruct and title to the same shall revert and vest” in the five
In Emison v. Whittlesey, 55 Mo. 254, the conveyance was to the mother during her natural life, and upon her death the remainder in fee simple absolute to vest in the children then living, etc.; and it was ruled that, as at the time of the execution of the deed no one could tell that any of the children would survive their mother, the remainder was only a contingent one.
So, too, in DeLassus v. Gatewood, 71 Mo. 371, the clause of the will declared: “Igive and bequeath unto my beloved wife, etc., all my property, etc., to have and to hold, etc., during her natural life or widowhood. And, at the marriage or death of my said wife, etc., all my estate, heretofore bequeathed, shall be equally divided between my children that are alive,” etc.; and it was ruled that a contingent remainder was thereby created.
Contrasting the foregoing cases with that at bar, there seems no ground to question that a vested remainder was created in the children of John J. Waddell. The petition alleges and the demurrers admit that, at the time of the execution of the deed to John J. Waddell, there were three children then alive of the marriage, to-wit: Martha G. Waddell, James William Waddell and Mary Ellen Waddell; that two other children of the marriage were subsequently born, sons, who died in infancy and without issue; that Martha G., having married, died intestate, leaving, as her child and heir at law, Hannah Groves; that Mary Ellen intermarried with one Moore, died without issue, but testate, having devised her interest in the lands to her mother, the plaintiff, for
The words, “children and heirs at law,” as used in the deed must be construed as constituting a class, and, when this is the case, the estate in remainder will vest in those who were living at the time of the execution and delivery of the deed, and will open and let in such of the same class as come in esse during the continuance of the particular estate; in which case, all the authorities agree that the remainder is a vested one, equally as operative for the benefit of those in esse, as for those in being. 2 Wash. Real Property [5 Ed.] pp. 599, 600, 637; 4 Kent [13 Ed.] 203, note, 205, 206; Moore v. Weaver, 16 Gray, 305; Gernet v. Lynn, 7 Casey, 94; Graham v. Houghtaling, 30 N. J. L. 552; Wolford v. Morgenthal, 91 Pa. St. 30; Wager v. Wager, 1 S. & R. 374.
And the words, “ heir at law,” may well be construed as being used interchangeably with children, or as meaning grand children or descendants. And this is especially true where, as under our statute, the issue of a person entitled takes the share of his ancestor. R. S. 1879, sec. 2161, 2165.
There is no lack of authority in support of the position that, if the words used in the context warrant it, and such construction will carry into effect the manifest intention that moved the execution of the deed or the signing of the will, then such intention will be made effectual, and the word' heirs will be construed as meaning children., and vice versa, and children-as issue, grand children or descendants, if the justice or reason of the case requires it. 4 Kent [13 Ed.] 419; 3 Wash. Real Property [5 Ed.] 282; Haverstick's Appeal, 103 Pa. St. 394; Warn v. Brown, 102 Pa. St. 347. And the fact that a deed is the instrument requiring such liberality of construction, provided such construction is just and reasonable and accords with the evident intent of the grantor, and it is consistent with the principles of law, should not be allowed to
Having reached the foregoing conclusion, it is quite-unimportant to discuss a point so strongly pressed by counsel for defendants as to the effect of the abolition of the rule in Shelley’s case, since the effect of our statute which accomplishes that result (R. S. 1879, sec. 3943) is not considered as having any appreciable bearing on the case at bar.
The premises considered, we consequently hold that-all of the children of John J. Waddell, whether living-at the time of the execution of the deed or born subsequently thereto, were equal sharers in the land conveyed by the deed of their grandfather, and took thereby a. vested estate in remainder, and that the plaintiff as-the mother of Prank C. and Edward A., who died intestate and childless in infancy, acquired an interest in the land in dispute, equal to that of the other brothers and sisters of the said defendants. The plaintiff also acquired. a life-estate in-the land in consequence of the devise made to her by her daughter, Mary Ellen Moore. But the plaintiff did not acquire, by reason of such devise, a. greater interest than a life-estate (2 Redf. Wills, 346), because she had conferred upon her by the will of her daughter the power to dispose absolutely of the interest Mrs. Moore formerly held in the land; since the power conferred was not exercised, and, if exercised, would of course have defeated any claim now made by plaintiff.
Now as to the petition being obnoxious to the charge that it is multifarious. This objection is not well taken for two reasons : First. Under the ruling already made, Martha G. Waddell took an equal interest in the land as the other children, and this interest descended to her daughter, Hannah L. Groves, and
The judgment will therefore be reversed, and the cause remanded with directions to proceed in conformity with this opinion.
