Eversmeyer v. McCollum

Hart, J., (after stating the facts). The decision of the chancellor is based upon the theory that the deed of T. E. Billingsley and wife to the 220 acres of land in Hempstead County, Arkansas, conveyed a life estate to Mary Pool with the remainder to Dr. W. H. B. Pool, who was found to be her son. In the first place it is sought to reverse the decree upon the theory that the Billingsley deed conveyed the fee to Mary Pool, under the rule in Shelley’s Case, as declared in Hardage v. Stroope, 58 Ark. 303, and Ryan v. Ryan, 138 Ark. 362. Mary Pool and Philander Pool, her husband, conveyed the land by warranty deed to A. H. Eversmeyer, and he iu turn conveyed it by warranty deed to P. F. Hein, who claims to be the present owner. We do not think the rule in Shelley’s Case lias any application under the language of the Billingsley deed. In looking for the intention of the grantor we must be guided by the words which he has used, reading them iu the light of established principles of law. Under the terms of the deed of T. E. Billingsley, the entire fee in the 220 acres in controversy is conveyed. The fee is carved up into a life estate for the benefit of Mary Pool and her husband, Philander Pool,- with the remainder over to Dr. W. H. B. Pool, her child, and, in case of . his death before the life tenants, to other persous. It is clear from the language used that it was intended that Mary Pool and her husband should only have an estate during their natural lives, and that upon their death the land should go to the child or children born of Mary Pool, or the descendants of such child or children. The deed further provides that, if there be no child'or children or their descendants in existence at their -death, then the land should become the property of Nannie L. Mason, who was the child of Philander Pool by a former wife. Thus it appears from the language used that the words, “child or children born of Mary Pool or descendants of such child or children, ’ ’ meant the issue of Mary Pool living at her death, or at the death of her husband Philander Pool, and not the whole line of succession which would be included under the words, “heirs of the body, ’ ’ and the words used must necessarily be construed to be the words of purchase, and the rule in Shelley’s Case does not apply. The language of the deed clearly gives a life estate to Mary Pool, with the remainder over to her son, Dr. W* H. B. Pool, under the rule announced in the repeated decisions of this court. Horsley v. Hilburn, 44 Ark. 458; Watson v. Wolff-Goldman Realty Co., 95 Ark. 18; Georgia State Savings Association v. Dearing, 128 Ark. 149; and Gray v. McGuire, 140 Ark. 109, and cases cited. The rule in Shelley’s Case is applicable only when the language used in the conveyance creates a limitation to the heirs of the grantor in general. If the -limitation is to the heirs of the body of the grantee, the rule in Shelley’s Case does not apply. Philander Pool is dead, and Mary Pool is still alive. It follows then that the chancellor was correct in holding that only a life estate was conveyed to Mary Pool, and his holding that Dr. W. H. B. Pool is the remainderman depends upon whether the proof shows him to be the son of her marriage with Philander Pool. On this phase of the case the testimony is in irreconcilable conflict.. Philander Pool and Mary Pool were both witnesses in the case, and both testified in positive language that Dr. W. H. B. Pool was not their son. According to the testimony of Philander Pool, he was 76 years old when he testified in January, 1916, and he married Mary Pool in 1881. His wife had a miscarriage in 1885, and the attending physician persuaded him to take a child which he brought to his house, and tell his wife that it was a child born unto her. The child was less than twenty-four hours old wheu. the physician brought him there. They reared the child as their own, and always spoke of him as their son. Dr. W. B. H. Pool is the child in question. Mary Pool was of nearly the same age as her husband, and corroborated his testimony in the matter. On the other hand, Dr. W. B. H. Pool testified that he was raised and educated by Philander Pool and Mary Fool, and was always told by them that he was their own son. There never was any intimation that such was not the case until his mother filed the suit in the Hempstead Chancery Court in 1915, which- had- for its object the reformation of the- Billingsley deed so as to vest title in fee simple in her to the 220 acres of land- in question. U. L. Lovell, who worked for and boarded with the Pools when Dr. Pool was born, told in detail about being sent for the physician, and the birth of the child about seven o’clock in the morning. He worked with the.Pools for about eight months after this, and never heard any intimation that Dr. Pool was not the child of Mary Pool. He was present at the house after the physician was summoned, and does not think that any child could have been brought in and substituted as a child born of Mary Pool on that morning, without his knowledge. Several other persons who lived in the neighborhood testified that' Dr. Pool was regarded as¡ the son of Mary Pool and Philander Pool, and that they never heard his birth questioned during his childhood. When the petition for the division of the Kentucky land in the circuit court of Henderson County was filed, Mary Pool signed the petition in which Dr. Pool was represented to be the child of herself and her husband. At this time he was 27 years of age. The form of the deed used in the conveyance by Billingsley was expressly provided in the order of the court to be the same as that used in the deed to the Kentucky land. It was recognized by the parties that Mary Pool had only a life estate in the Henderson County, Kentucky, land. It would seem that this was the purpose in providing that the grantees should be described in the deed in the same way as they were described inthe'deedto the Kentucky land. Of course, it could make.no difference to Billingsley who the grantees were. He evidently executed the deed in the manner provided by the petitioners in the order they procured from the circuit court in Henderson County, Kentucky. To avoid the force of their action in the circuit court proceeding in Henderson County, Kentucky, Mary Pool and Philander Pool claimed that they were persuaded by false statements to make the deed, in this way. In the first place, it may be stated that the attendant circumstances do not warrant such a finding, and .no statement whatever of what Dr. Pool said to cause them to sign a false application is testified to by them. In-the next place, no complaint was ma'de from the time this was done, which was in July, 1910, until Mary Pool instituted the chancery suit in Hempstead County, Arkansas, in September, 1915. The fact that the petitioners asked the Henderson Circuit Court to have two-thirds of the proceeds derived from the sale of the Henderson County land invested in the Hempstead County land and the .grantees to be described just as they were in the 'deed- to the Kentucky land, shows that the parties acted with .deliberation, and intended for their rights to 'become the same in the Arkansas, land as they were in the Kentucky land. When all the attending facts and circumstances are considered, it cannot -be said that the finding of .the chancellor on this point is not sustained by a preponderance of the evidence. Both A.» H. Eversmeyer and P. F. Hein have appealed to this court. The chancellor found that P. F. Hein was entitled to recover on his cross-complaint against A. H. Eversmeyer the sum of $8,240 as damages for the failure of his title. It is insisted that this is wrong because Dr. Pool had only a contingent remainder in' the- land under the holding in Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, and Liberty Central Trust Co. v. Vaughan, 167 Ark. 219, and cases cited. Certainly, when the deed was executed, it was uncertain who the remaindermen were, and it is not possible now to ascertain who they will be until the death of Mary Pool. Therefore, under the authorities cited, the remainder was contingent, and no. title passes to the contingent remaindermen until the happening of the contingency, and, strictly speaking, the recovery could not be had. It is well settled, however, in this State that chancery cases are tried de novo upon the record made in the court below, and we do not think that the finding of the chancellor in this respect was against the weight of the evidence. It appears from the evidence in the record that Mary Pool is over 80 years of age and is very feeble. Dr. Pool is in the prime of life, and is a married man. The record shows that he already ,has two minor children. P. F. Hein executed an oil and gas lease to the land in question under the belief that he had received a title in fee to the land in his deed from A. H. Eversmeyer, and this lease is canceled. When all these matters are considered, it is plain that the chancellor might have found that he had been already damaged in a sum at least as great as that found by him. Therefore the finding of the chancellor in this respect will be sustained. Under the authorities above cited, and particularly that of Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, James H. McCollum as the grantee of Dr. W. H. B. Pool as the contingent remainderman, and Jessie Gr. B. Pool as grantee of Dr. W. H. B. Pool, had the right to bring an action against P. P. Hein and the other defendants to prevent waste, but they had no right to have the title quieted in them, subject only to the life estate of Mary Pool. As above stated, no title passed to the contingent remaindermen until the happening of the contingency, which was, if their grantor was living at the time of the death of Mary Pool, and in the interim they would have no right to have the title quieted in themselves subject to the life estate of Mary Pool, because this would interfere with the rights of the two minor children of Dr. Pool, and possibly with the rights of appellants- It may be that Dr. Pool might die before his mother. In which event his two minor children. would become the contingent remaindermen, and tlie land would go to them at the death of the life tenant, Mary Pool. If the two minor children of Dr. Pool should die before the death of Mary Pool — a contingency which is possible — then Nannie L. Mason would become the remainderman, and, inasmuch as she has conveyed her interest in the land to Mary Pool, the life estate and the remainder would be merged. For the error in entering a decree quieting the title in James H. McCollum and Jessie G. B. Pool, subject to the life estate of Mary Pool, the decree must be reversed, and the cause remanded with directions to render'a decree declaring them to be contingent remaindermen, as decided in this opinion. In all other respects the decision of the chancellor was correct, and the decree will be affirmed except as indicated.