Hull v. Calvert

*168 BLAIR, J. The disposition of this appeal depends upon the construction of the will of Samuel Hull, which reads thus: “In the name of God, Amen. I, Samuel Hull, of Jefferson Township, Clark County, the State of Missouri, do therefore make, ordain, publish and declare this to he my last will and testament;, that is to say: “First, after all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give, bequeath and dispose of as follows, to-wit: “To my beloved wife, Mary C. Hull, the east half of the northwest quarter and sixty acres off of the west end of the north half of the southwest quarter and ten acres off of the north end of the east twenty of the north half of the southwest quarter, all being in Section Eleven, Township Sixty-six, Range Eight, west, in Clark County, Missouri, and the following, to-wit: “The west hálf of the northwest fourth of' the northeast quarter of Section Twenty-one, all in said township, county and State. The above said Mrs. Hull is to have and to hold all the above said lands during her natural lifetime and at her death go to my son Oscar G. Hull. All the remainder of my real estate for which I hold deeds, I give, will and bequeath to my son Ocsar G. Hull, him and^ his heirs and assigns forever. And in case of the death of my son Oscar G. Hull, previous to that of his mother, and him dying without issue, or leaving a child who is his lawful heir, his mother M. C. Hull shall hold all his part of the estate in the same manner and form as she holds her own, and at her death the entire estate to go to' the Hull heirs. And I hereby appoint Mary C. Hull executrix of this, my last will and testament; and said executrix is to hold all the personal property jointly for the benefit of herself and her son Oscar G. Hull, and to dispose of it as she may think best for the benefit of both, and when Oscar G. Hull becomes of age he shall receive .one-half of all the personal property and money they have at *169 that time belonging to the estate and all money due the said testator from any association to which he belongs shall be considered and held as personal property; and it is my last will and testament that my wife, Mrs. M. 0. Hull, shall not be required to give bond as executrix of this estate.” It is stipulated: that Samuel Hull died March 11-, 1878, seized of the land described in the will and personalty appraised at $1456.41; that on’final settlement a balance of $1110.70 was due the estate.; that Samuel’s widow, Mary 0., and one son, Oscar G., survived him and are the devisees named in the will; that Oscar G. was fourteen year of age at the time of his father’s death; that he lived on the land with his mother until April 10, 1892, when he died, aged twenty-eight; that “he never married, nor had any child or children;” that after Oscar attained his majority, in 1882, Mary O. paid to him the proceeds of one-half of Samuel Hull’s personalty, in the sum of $780:40, and took his receipt; that thereafter Oscar purchased a seven-eighths interest in sixty acres of land other than that described in Samuel’s will; that Mary C. Hull married J. C. Wilson in 1891; that no children were born of this marriage; that Wilson died in 1914, and Mary C. died October 1, 1916; that Mary C. managed and used the real estate and personalty left by Samuel Hull, except the one-half paid over to Oscar in 1885, until her death, and took all the real and personal property of Oscar after his death; that plaintiffs and the minor defendants are the brother and the surviving decendants of other brothers and sisters of Samuel Hull and are his heirs, and that the other defendants are the devisees under the will of Mary C. Wilson, formerly Mary C. Hull, and claim the property in question as such; that the personal property in Mary G’s. hands at her death. amounted to many thousands of dollars. The evidence shows that Samuel Hull died of consumption and that prior to Samuel’s death Oscar, the son, while bright and dutiful, was not physically strong. *170 Oscar’s death, in 1892, was due to the same disease which carried off his father. The judgment gave plaintiffs the one hundred and seventy-acre tract and gave defendants all other property in suit. Both plaintiffs and defendants on the trial claimed all the property, real and personal, mentioned in the above statement. Both appealed from the judgment. Executory Devise. I. Plaintiffs take the position that they take the land, described in the will of Samuel Hull, by virtue of an executory devise limited upon the fee Oscar Gr. Hull would have taken had he not died without issue or child surviving him. Defendants are of a different opinion. Power of Disposition. It is earnestly insisted by defendant’s counsel that the limitation upon which plaintiffs rely is void by way of an executory devise because Oscar 0. Hull, they contend, was vested with an absolute power of disposition, destructive of such a limitation. Their argument, as we understand it, runs thus: (1) that with respect to both tracts devised by Samuel Hull, the words of the will in the devises to Oscar, in the first instance, are adequate, when considered alone, to vest in him fee simple title; (2) that a power of alienation is one of the essential elements of such a title; that, (3), therefore, since Oscar was devised a fee simple in the first instance he took with it as its incident “an absolute power of disposition;” and that (4) such a power renders void a subsequent limitation over by way of executory devise; (5), in this case, rendered void the limitation under which plaintiffs claim. Is the power of alienation inherent in every fee such a “power of disposition” or alienation that it has the effect for which defendants contend? In view of their earnest presentation of the question and their reliance on certain decisions of this court, we shall give the question a more extended consideration than might seem necessary under other circumstances. *171 No one questions that an executory devise can be limited upon a fee. We do not understand defendants’ counsel to contend directly to the contrary. In case “a fee simple is devised to one, hut is to determine upon some future event, and the entire estate thereupon to go over to another,” it is an executory devise. [2 Washburn on Real Property (6 Ed.), sec. 1739, p. 642; 4 Kent (14 Ed.), p. 269; Pells v. Brown, 2 Civ. Jac. 590; Greenawalt v. Greenawalt, 71 Pa. l. c. 486, 487; Naylor v. Godman, 109 Mo. l. c. 550; Yocum v. Siler, 160 Mo. l. c. 296 et seq.; Gannon v. Albright, 183 Mo. 238, 264.] It is true, nevertheless, that if defendants’ present insistence is sound, then the impossibility of the legal existence of a limitation over upon a fee, by way of execu-tory devise, becomes at once apparent; for no fee can be limited upon a fee by way of executory devise unless in the devise to the first taker words are used which, considered alone, would give a fee to the first taker; but, if defendants are right, these words when so used necessarily give an “absolute power of disposition” which defeats the limitation over. If .this be true in one case it must be true in all, and a fee could never be limited upon a fee by way of executory devise. This follows as a necessary conclusion from the position defendants take, but is a conclusion contrary to the settled law, as is shown by the authorities cited and multitudes of others. We think defendants are in error in assuming that the power of disposition incident to a fee, such as is given in a devise to a first taker in a will like that in this case, is an “absolute power of disposition” with-' in the meaning of the rule invoked. The cases make this clear. In Gannon v. Albright, 183 Mo. l. c. 251 et seq., the rule upon which defendants rely is stated thus: “Where an estate is devised to one and his heirs and assigns forever and there is added” (italics ours) “either by express words or by implication an absolute power of alienation, the limitation over is void” because of its *172 inconsistency with the power to alienate. This statement of the rule appears at the close of that part of the opinion designed to show that the Gannon will contained the “added” power of disposition. The authorities there cited were neither cited to support, nor do they support, the view that the power of disposition incident to a fee devised in a will like the Gannon or Hull will is sufficient to render applicable the rule now invoked, whether or no the words “his heirs and assigns forever” appear in the devise to the first taker. Mr. Redfield, 2 Wills, p. 296, sec. 278, illustrates the rule he states: “Thus a devise to the testator’s son P. of certain real and personal estate, and to his heirs and assigns forever, adding, that if P. should die, and leave no lawful heirs, what estate he should leave to be equally divided between another son and a grandson of the testator, naming them, it was held the deviso over was void, as being inconsistent with the absolute interest in the first devisee.” In the case from which this illustration was taken (Ide v. Ide, 5 Mass. 500) it was held that the estate would have passed to the devisees over, by way of executory devise, except for the fact that the devise over was only of what estate Peleg Ide “should leave;” that these words necessarily implied a full power of disposition, repugnant to a devise over, and it was, therefore, void. The case of Brightman v. Brightman is also cited in the note in 2 Redfield, as in 108 Mass. 238. It appears in 100 Mass. 238. In that case a devise to D and J “and to their heirs and assigns” was coupled with a condition for making payments to named persons, and the whole followed by a provisionlhat “If the said Daniel or John shall decease leaving no issue of his body lawfully begotten, then what I have here given and devised to such one I here devise to the survivor and his heirs and assigns.” It was held that the words in the first'clause, taken by themselves, gave an estate in fee simple, but that the subsequent quoted clause “created an executory *173 devise limited upon that fee simple. ’ ’ In Jackson, ex dem. Brewster v. Bull, 10 Johns, 19, the devise was to M “and his heirs and assigns forever.” In a subsequent clause it was provided that in case M “ should die without lawful issue, the said property he died possessed of, I will to,” etc. In an opinion participated in by Chancellor Rent, the court held that the words italicized implied a power of alienation by the devisee which imported absolute ownership repugnant to the limitation and destructive of it. The court cited the case of Ide v. Ide, supra, and pointed out that the limitation considered in that case would have been good except for the presence of the words “what estate he shall leave.” In Jones v. Bacon, 68 Me. l. c. 36, is quoted from Ramsdell v. Ramsdell, 21 Me. 288, the following: “If estates be devised to a person with or without words of inheritance, and with an absolute right to sell and appropriate the proceeds at pleasure to his own use, it is not perceived how there can be a vested interest imparted to another in the same estate or property. Siieh full dominion in the devisee or ’ legatee is inconsistent with and destructive of all other rights.” In Kelly v. Meins, 135 Mass. 231, the devise was to B, “to have and to hold the same to him . . . his heirs, executors, administrators and assigns, forever.” A subsequent clause provided that if B died without living issue “then any portion of my said estate and property which may remain shall be equally divided among,’.’ etc. The court made the decision on this point turn solely on the implication of'a power of alienation from the words “which may remain.” A like course of argument is found in McKenzie’s Appeal, 41 Conn. l. c. 608 et seq., and cases cited; Howard v. Carusi, 109 U. S. l. c. 730 et seq.; Wolfer v. Hemmer, 144 Ill. 554; Roberts v. Lewis, 153 U. S. 367; Cook v. Walker, 15 Ga. l. c. 462; Armstrong v. Kent, 21 N. J. L. l. c. 519 et seq. Kent, vol. 4 (14 Ed.) pp. 270, 271, states, the rule thus: “If, therefore, there be an absolute power of *174 disposition given by tbe will to the first taker, as if an estate be devised to A in fee, and if he dies possessed of the property without lawful issue, the remainder over the property which he, dying without heirs, should leave, or without selling or devising the same, the remainder over is void as a remainder, because of the preceding fee; and it is void by way of executory devise because the limitation is inconsistent with the absolute estate, or power of disposition expressly given or necessarily implied by the will. A valid executory devise cannot subsist under an absolute power of disposition in the first taker.” The cases cited in support of this are Ide v. Ide, supra; Jackson v. Bull, supra, and the like. Chancellor Kent was not announcing a rule in conflict with that which permits a fee to be limited upon a fee by way of executory devise. [4 Kent (14 Ed.) p. 265, 269.] The power of disposition which precludes a limitation of 'a fee upon a fee is shown by the citations above to be one conferred expressly, or by implication, by words other than those in the devise to the first taker sufficient, if standing alone, to devise a fee. It is an “added” or “absolute” power of disposition to which the courts give this effect. It is added to the power implied in the previous words. It’ is absolute in contrast with the conditional power of disposition which the first taker gets in case an executory devise is limited upon a fee. When an executory devise is limited upon a fee the first taker takes a conditional fee and the condition affects as much his power to alien as does his power to hold. He can alien the estate, subject to the limitation over. ITe thus has, in every case of an executory devise a power to dispose of the property, subject to the condition, i. e. he has a conditional power of alienation. This conditional power to alien does not avoid the limitation over. It is the purpose and necessary effect of the devise and limitation to vest such a conditional power; but by “an absolute power” is meant one which enables the first taker to convey the whole estate, free from any *175 condition. It is to distinguish, it from the conditional power that the term absolute is used in characterizing it. In McRee’s Admrs. v. Means, 34 Ala. l. c. 368 et seq., the court met an argument like that we are considering and discussed the question at some length. It concluded at page 369; “The proposition, therefore, that the power of disposition incident to every fee defeats an executory devise limited upon it, is not maintainable; and the principle that where there is an absolute power of disposition, the limitation over is repugnant and void, must not he understood to assert that proposition.” In Booker v. Booker, 5 Hump. l. c. 511, Green, J., for the court, said: “But it is insisted that . . . the first taker had an unlimited power of disposition by the will, because the devise vests in its terms a fee simple estate in him; and having such an estate, he had a right to dispose of it. No such consequence as is supposed results from the simple fact that the devisee took an estate in fee; for one of the peculiarities of an executory devise is, that a fee may be limited upon a fee, which in a contingent remainder cannot be done. ’ ’ In Brown v. Hunt, 12 Heisk, l. c. 409, this ruling was approved and followed. . Heirs and Assigns. II. It is urged that the words “his heirs and assigns forever” which appear in the devise to Oscar of the two hundred and ninety acre tract distinguish this devise from that of the one hundred and seventy acres and have in them something which aids defendants’ argu-men^ in ^13 application to that tract. The cases of Gannon v. Albright, supra, and Gannon v. Pauk, 200 Mo. 75, are cited in support of this view. In the first case thfe words “heirs and assigns forever” were considered in connection with a question not the same as that now presented in this case. That question was whether the first sentence of the fourth paragraph of the will, considered alone, gave an estate in fee simple. When it came to the question presented here, Judge Gautt said: “We tmderstand it is settled law that where an estate is de *176 vised to one and Ms heirs and assigns forever and there is added either by express words or by implication an absolute power of alienation, the limitation over is void. In our opinion the words of this restraining clause” (theretofore discussed) “give an express power to sell, but if not there is clearly given such power by implication.” Nevertheless, the court seems to have held that the will limited upon the fee given the sons a condition which might defeat it, but that the condition failed. This case does not support defendants position. In Gannon v. Pauk, supra, some emphasis is placed upon the words “his heirs and assigns forever” in connection with the question whether the subsequent language of the Gannon will cut down to a life estate, with power of disposition, the fee granted the first taker by the first sentence of -the fourth clause. The court said in that case that the power to alien could not be implied from the language of the first sentence of the fourth clause (which included the words “heirs and assigns forever”) from ‘‘the mere use of the words assumed to grant a fee simple” without begging the question. This is sound. This paragraph of the opinion did not, in other respects, secure the approval of a majority of the court. [200 Mo. l. c. 96, 97.] In the second paragraph, in which four judges concurred, the same conclusion was reached as in Gannon v. Albright, supra. This case does not aid defendants, in our opinion. No case has been cited and we have found none which holds or intimates that the use of the words “his heirs and assigns forever” in a devise to a first taker “adds” or vests a power of disposition of a sort to defeat a limitation over by way of executory devise. The cases already cited are, in principle, to the contrary. The words are merely apt words to devise a fee, rendered unnecessary, but not changed in meaning, by our statute. In Den v. Wertendyk, 7 N. J. L. l. c. 377, 378, the court in construing a will in which a devise was to the testator’s children “and to each of their heirs and as *177 signs forever,” responded to an argument like that now being considered, as follows: “In the outset I will remark that little or no importance is to be attached to the use of the word assigns in this case, a circumstance upon which a considerable part of the argument was founded. I am not aware of a single case, wherein a certain interest having been given in a will, this word has been held to enlarge, or in any manner affect this interest. Every interest recognized by the law, unless under particular circumstances, is the object of an assignment. It belongs essentially to every species of interest or property. . . . The first section in Lyttle-ton shows that this word has no enlarging power in a conveyance ; and Coke, in his commentary, fol. 9, b., shows that it is the same in case of a will. The argument, therefore, resting upon this basis, is entitled to no consideration. ” , In Theological Seminary v. Cole, 18 Barb, 860, 376 and 384, it was held that the use of the words “her heirs and assigns forever” in a devise to C did not imply such a power of disposition as would defeat an executory devise thereinafter limited. In Crane v. Cowell, 2 Curt. 178, a devise to C, “his heirs and assigns forever” was held to be cut down by a devise over, upon condition of C’s death without surviving issue, to a conditional fee with an executory devise over or to an estate tail; which, the court found it unnecessary to decide. The following are also in point: Berg v. Anderson, 72 Pa. 87; DeWolf v. Middleton, 18 R. I. 810; O’Brien v. O’Leary, 64 N. H. 332; Christie v. Phyfe, 19 N. Y. l. c. 356; Woodman v. Madijan, 58 N. H. 6; Ben v. Taylor, 5 N. J. L. 413 et seq.; Daniel v. Thomson, 53 Ky. 662; Sale v. Crutchfield, 71 Ky. 636; Crozier v. Cundall, 99 Ky. 202; Ray v. Enslin, 2 Mass. 554; Whitcomb v. Taylor, 122 Mass. 243; Lippencott v. Warder, 14 Serg. & R. 115; Eby v. Eby, 5 Pa. St. 461. We are of opinion this position is untenable. *178 Unambiguous Devise:Plain Subsequent clause. *179 To Hull Heirs: Uncertainty. *178 III. Defendants invoke another rule. This court, Sevier v. Woodson, 205 Mo. l. c. 214, has said: “We take it to he well settled law that where a certain estate is granted in plain and unequivocal language in one clause of a will, the same cannot be lessened or cut down by a subsequent clause of the will unless the language used in such subsequent clause is as clear, plain and unequivocal as the language of the first grant.” In Gannon v. Albright, supra, and in Yocum v. Siler, supra, it was held that “where the words of a will at.. the outset clearly indicate a disposition by the testator to give the entire estate absolutely to the first donee, the estate will not be cut down to a less estate by subsequent or ambiguous words inferential in their intent. ’ ’ Conversely it is true that an estate first granted may be cut down by a subsequent clause as “clear, plain and unequivocal as the language of the first grant” and this may be by express words or “by words so strong and clear as to have that effect by plain and necessary implication.” [Cox v. Jones, 229 Mo. l. c. 62, et seq.] It cannot be questioned that the will plainly gave Mary C. Hull a life estate in the one hundred and seventy acre tract and a life estate in the two hundred and' ninety acre tract, on condition that Oscar predeceased her “without issue or leaving a child who is his lawful heir.” It is also clear that the words in the devises to Oscar were sufficient, when considered by themselves, to give him a remainder after the life estate of his mother in the one hundred and seventy acre tract and a fee in the two hundred and ninety acre tract. Both these estates in him were conditioned upon his surviving his mother or leaving direct descendants in case he predeceased her. The fact that in the first tract he would have takén a remainder did not render inoperative the subsequent limitation by way of executory devise; nor did the intervention of the mother’s life estate in the two hundred and ninety acre tract, under the limi *179 tations providing therefor, preclude a limitation over to others, to-wit, the ‘‘ Hull heirs. ” [2 Washburn Real Property, p. 679 (340) et seq.] Nor do counsel so contend. Nor do we understand them to contend the language of the limitation over is ambiguous, or uncertain, in its.elf, except that they argue the donees of the executory devise are not designated with certainty; that it is not clear who is meant by “the Hull heirs.” Since the words conditioning the first devises are clear and plain, it might be questioned whether the rule, supra, upon which defendants rely is to govern in examining the question whether the conditional limitation is to fail because of a failure to designate the beneficiary thereof with sufficient certainty. Nevertheless, we are of opinion that the designation is made with sufficient certainty to satisfy that rule. Defendants’ argument is that the Hull heirs may have meant the heirs of Oscar G-. Hull. This uncertainty, they contend, renders the limitation ambiguous and, therefore, ineffective as against the plain words of the first devises. The testator was, in the clause under consideration, disposing of his property on the contingency that Oscar had died without leaving children, and was providing that this disposition should not take effect, at least in enjoyment, until the death of Mary C. Whether or not he had in mind the techincal rules which might govern, it- is plain he did not intend an executory devise to the heirs of Oscar; for, if he thought the limitation would vest a remainder at Oscar’s death without children surviving, prior to the death of his mother, then if by the “Hull heirs” he intended the “heirs of Oscar Hull,” that would have given Mary C., the mother, the fee, since she would then have been Oscar’s only heir; whereas, the will expressly gives her only a life estate in the land and makes it plain that the limitation over is subject to that. That the testator intended to give Mary C. both a life estate and a fe.e, and therefore a fee at *180 Oscar’s death, is not a construction that can be adopted in the face of the plain language of this will. On the other hand, if the testator thought he was postponing the taking effect of the executory devise until the death of Mary 0., then he had in mind the facts that, before the limitation could become effective, Oscar would have died without surviving children and that Mary 0. would also be dead at the time he had it in mind that the limitation should take effect. If this was in his mind, what could the words “Hull heirs” have been thought by the testator to mean except the heirs of the testator, those of his blood entitled to take under the Statute of Descents and Distribution? Not the heirs of Mary 0., because her heirs in no way come within the words. Not the heirs of Oscar, since his “heirs” living after the death of his mother would be the “Hull and Calvert heirs,” plaintiffs and defendants. We think the words the “Hull heirs” are plain and clear in themselves. Samuel Hull wrote the will. What draftsman would have doubted, after writing this will down to the clause in which the words in question are used, what Samuel Hull would have meant if he had then directed a clause to be added which would give the whole estate at Mary C’s. death, upon the conditions already stated in the will, to the ‘ ‘ Hull heirs ’ ’ ? Perhaps the draftsman might have couched the limitation in different words, but such a direction, as hypothesized, if given by the testator, could and would not have been misunderstood and could have meant but one thing, i. e. Samuel Hull’s own relatives by blood. There is no uncertainty in the terms used. The briefs accompanying this opinion cite eases announcing the general rule first referred to, and these cases apply it to various wills. None of them is at variance with the conclusion stated. A discussion of them, seriatim, is not deemed necessary. *181 Personalty. *180 III. The plaintiffs have no interest in the personalty left by Mrs. Wilson. The will deals with the per *181 sonalty of Samuel Hull’s estate entirely separately from the realty. In accordance with its terms the personal property was divided equally between the widow, Mary O., and Osear G-., upon the latter’s attainment of his majority. What Mary C. accumulated subsequently was not affected by the will of Samuel. It was her own and goes to her heirs. The words “the entire estate” in the devise to the Hull heirs has reference to the realty only. This provision is followed by a bequest of the personalty as already stated. Neither are plaintiffs entitled to any share in the sixty acres which Oscar G. Hull purchased after his father’s death. That, upon Oscar’s death, went to his mother and thence to her devisees. The judgment is reversed and the cause remanded with directions to enter judgment in accordance with this opinion. All concur.