Waddell v. Waddell
99 Mo. 338
Mo.
1889
Check Treatment
Sherwood, J.

This рroceeding 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, аnd 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 *343of the said John J. Waddell, which he has cоntracted or may hereafter contract, and on the death of said John J. Waddell, the title, in fee simple, to go and vest in the children and heirs at law of the said John J. Waddell, equally, to be divided between them as tenants in common.”

So that the chief question this record presents is whether the remainder created by the deed was nested or contingent. The subjеcts 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 wеll -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 rеports 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 dеvised 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 remаinder 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 dеed, 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 *344■children nаmed in the deed, “and such other children in lawful wedlock by him begotten as shall be living at the time of his death, and their heirs.” And upon this it was ruled that, as to the five children named in the deed, a vested remainder was created, and as to those that should be “living at the time of his death,” the remainder was contingent.

In Emison v. Whittlesey, 55 Mo. 254, the conveyance was to the mothеr 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., аll 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 crеated.

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, thе plaintiff, for *345and during her natural life, with full power to dispose of the same as she might choose.

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 vestеd 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 cоnstrued 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.

Therе 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 *346defeat such, liberal and beneficial construction any more-than if the instrument under examination were a will. Huss v. Stephens, 51 Pa. St. 282 and cases cited; Wyth v. Blackman, 1 Vesey, Sen. 196; Royle v. Hamilton, 4 Vesey, 437.

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 аbolition 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 sistеrs 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 рlaintiff 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 twо 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 *347under the original deed the whole tract was conveyed by the deed in one body, and none of those, entitled thereto have any exclusive interest in the same; they take as tenants in common, and not otherwise; and the fact that some of those tenants may have purchased interests of the others does not affect this point, nor confer upon the purchasers any exclusive right to any portion of the land. Second. Besides, here a general right to the whole land is being litigated, and, where this is the bаsis of the litigation, it matters not that the parties litigant should rely upon distinct and independent rights. Donovan v. Dunning, 69 Mo. 436; Bobb v. Bobb, 76 Mo. 419; Rinehart v. Long, 95 Mo. 399.

The judgment will therefore be reversed, and the cause remanded with directions to proceed in conformity with this opinion.

All concur, but Ray, C. J., absent.