Schee v. Boone

*217 construction of the will of John Mantle, who died testate in Clark County in 1906, seized of about one thousand, eight hundred and sixty-five acres of land in that county, and to determine the rights and interests of the parties to the same. Upon a hearing before the court, there was a finding and judgment for the defendants, from which the plaintiff appeals. The testator left surviving him his widow, who died before the institution of this suit, and two daughters, both married and now living, namely: Loretta B. Schee, and Elizabeth J. Harr, now Elizabeth J. Harr Smith. The plaintiff is the son of Loretta B. Schee. She had another son, John C. Schee, who died before this suit was brought, leaving a widow, Elizabeth Schee, and an infant daughter, Edna M. Schee, one of the parties defendant herein. The testator’s will contemplated a dis *218 position of all of Ms real estate. The poi'tions of the will in controversy are as follows: “2nd. I give and devise to my wife Emma 'Mantle, the life use of my real estate. Also it is my will that she and my two daughters Elizabeth J. Harr and Loretta B. Schee shall inherit my personal estate according to the laws of inheritance in force in this State. “3rd. I give and bequeath to my said daughter Loretta B. Schee and to the heirs of her body at her death, to the exclusion of any right and interest of her husband therein, the following described real-estate, situate in Clark County, Missouri:” (Here follows a description of the land by government subdivisions, being the same designated in this proceeding as the “Loretta B. Schee lands”), “making a total acreage to my said daughter and to her bodily heirs, as stated, of 811 acres, more or less, and which I estimate as one-half in value of all my real estate. This bequest being subject to my wife Emma Mantle’s life use of said property.” A'subsequent paragraph (the 4th) makes a like disposition to testator’s widow for life, remainder in his other daughter, Elizabeth J. Harr, now Elizabeth J. Harr Smith, to tire balance of his lands. These lands are not involved in this action, but only those described as the Loretta B. Schee lands. The fifth paragraph of the will limits the foregoing bequests as follows: “5th. If any of the bodily heirs of my two daughters named should die without issue, after the death of their mother, it is my will that the surviving husband or wife shall have no interest in the estate inherited by said descendant from his or her mother, but that said share of the heir dying shall vest in his brothers and sisters who may be living, or who may have died leaving issue.” The plaintiff and his brother John C. Schee, now deceased, constituted the apparent heirs of Loretta B. Schee in 1908, and in October of that year they made *219 quitclaim deeds to each other of portions of said lands, these deeds being made, as plaintiff stated, for the purpose of dividing' the land, as they thought they both had the same interest under the mil. During the year 1908 and prior thereto, these two sons had rental arrangements with each other with reference to this land and the plaintiff paid his brother rent for portions thereof up to and including 1908, and when he paid the rent plaintiff stated that he knew that the only interest his brother John C. Schee had was what he took under his grandfather Mantle’s will. The plaintiff further testified that down to 1917, he and his brother and mother, all acted on The assumption that the will was valid and. that all had an interest under the will, and that was the reason these deeds were made hack and forth. Plaintiff seeks to have thi-j will declared void as creating a perpetuity, and avers that Loretta B. Schee took by inheritance a one-half interest in the land of the testator, and had acquired by quitclaim deed from Eliza- *220 betli J. Harr Smith the entire title to the “Loretta B. Schee lands,” and that it had been transferred to plaintiff. The defendant Edna M. Schee defends the action on two grounds: First: That the plaintiff is prevented by estoppel, waiver, and acquiescence in the validity of the will and by laches from disputing the validity of the same; and Second: That the will itself must stand as a valid disposition of the “Loretta B. Schee lands” under the statutes of Missouri. The lower court overruled the first defense, but sustained the second. I. On the question of waiver, estoppel and laches, the trial court found against the defendants and in favor of the plaintiff, who is the sole appellant. It is only the assignments of error made by the appellant that will be considered. While the right of appeal is given to any party a suit within the terms of the statute] (Sec. 1469, R. S. 1919) who claims to have beeh aggrieved, the procedural requirements of the latter must be complied with to entitle the party to a review of such grievances. The nature of the action is immaterial so far as a compliance with these requirements is concerned, provided it be civil in its nature. These exceptions may be noted in appeal^ in equity cases growing out of the nature of these actions, viz.: The court will consider the entire testimony for the purpose of determining what is relevant and competent evidence; instructions fill no office in an equity case and their giving or refusal will not be regarded as error. These exceptions and the consequent latitude of a review following an observance of same is what is meant when it is said that, under our practice, “equity cases are practically tried de novo in the appellate courts.” [Williams v. Husky, 192 Mo. l. c. 549.] It is not meant, however, by this ruling that any of the requirements necessary to the perfecting of an appeal under the statute are to be disregarded; and it *221 is as necessary in an equity as in a law case to entitle an appellant to a review tliat tliey be complied with. Ee-spondent’s claim as to errors in the rulings of the trial court in tbis case, therefore, are not for our consideration. [German Evan. Church v. Schreiber, 277_ Mo. 113, 209 S. W. 914; Summers v. Cordell, 187 S. W. (Mo.) 5; Ross v. Presby. Church, 272 Mo. 96.] The only exception to this rule, not applicable here, is where a respondent questions the trial court’s ruling in sustaining a judgment, and not to effect its modification in any respect; [St. Charles Savings Bank v. 275 Mo. l. c. 621, and cases.] The fact that the plaintiff for more than a decade recognized the terms of the will, as manifested by his joining in conveyances of the land in conformity with the bequests therein made, might well be adduced as persuasive reasoning in support of the conclusion that such a showing of waiver and estoppel on the part of the plaintiff constituted nothing more than proof to sustain the judgment rendered in defendant’s favor, and consequently came within the exception above noted. The terms of the will, however, render such a holding unnecessary, as they are sufficiently free from ambiguity to enable its meaning to be determined without resort to other sources of interpretation. [Peak v. Peak, 195 S. W. (Mo.) 993; LaVaulx v. McDonald, 190 S. W. (Mo.) 604; Wooley v. Hays, 285 Mo. 566, 226 S. W. 842.] II. The matter of vital moment, therefore, is the construction of the will. The cardinal rule governing such construction, which cannot be departed from without violating the fundamental law concerning the testamentary disposition of property, is to determine as near as may be from the words used the intent and meaning of the testator. In addition to the unambiguous meaning of the language employed, we may take into consideration the circumstances surrounding the testator at the time the will was executed, including his *222 relations to tlie beneficiaries named. [Cook v. Higgins, 290 Mo. 402; Bernero v. St. Louis Tr. Co., 287 Mo. 602; Guthrie v. Crews, 286 Mo. l. c. 448; Gibson v. Gibson, 280 Mo. 519; Deacon v. Trust Co., 271 Mo. 669.] Guided by these canons of construction, if the language be unambiguous, as stated, we will be enabled to determine the testator’s prime or paramount intention. When that has been ascertained, words or expressions indicative or declaratory of a subordinate purpose on his part, must be so construed as to harmonize with the main or moving purpose in the making of the will. [Brown v. Tushoff, 235 Mo. l. c. 456, 138 S. W. l. c. 499.] That the will gave a life estate to the testator’s widow, Emma Mantle, there is no ground for controversy. This estate terminated with her death, which occurred before the institution of this suit. Subject to *223 this estate, the third paragraph of the will created a life estate in the testator’s daughter Loretta B. Schee, with a remainder over in fee at her death to those then constituting’ the heirs of her body. This devise at the early common law and subsequently under the statute de donis created an estate tail in the heirs of Loretta B. Schee’s body. This character of estate, however, has been abolished by statute (Sec. 2267, R. S. 1919), which provides: “In cases where, by the common or statute law of England, any person might become seized in fee-tail-of any lands, by virtue of any devise, gift, grant or other conveyance, or by any other means whatever, such’ person, instead of being seized thereof in fee-tail, shall be deemed and adjudged to be, and shall become, seized thereof for his natural life only; and the remainder shall pass in fee simple absolute to the person to whom the estate tail would, on the death of the' first grantee, de-visee or donee in tail, first pass according to the course of the common law, by virtue of such devise, gift, grant or conveyance.” This statute has been frequently construed both as regards deeds and wills; and where the terms of the instrument provide, as here, that the conveyance or devise is to the grantee named and the heirs of his or her body, a life estate is granted in the first taker with a remainder in fee to those to whom, the estate would have passed upon the death of the first donee according to the course of the common law. [Burris v. Page, 12 Mo. 358; Phillips v. LaPorge, 89 Mo. 75; Hall v. French, 165 Mo. 430, and cases, 437; Cox v. Jones, 229 Mo. 53.] During the existence of the life estate, the statutory remainder in fee of the heirs of the life tenant’s body are contingent in that their identity cannot be definitely determined until such tenant’s death. Only upon the occurrence of this event can it be ascertained who are the heirs who will take the remainder, at which time their contingent interest will become vested. Express approval of this conclusion has been given by this court in *224 Emmerson v. Hughes, 110 Mo. 627, in which Black, J., speaking for the court said: “The statute (now Sec. 2267, R. S. 1919) just quoted, converted the estate tail, created by the deed at common law, into a. life estate in the first taker with a contingent remainder in fee simple in favor of those persons who should answer the description of heirs of the body of the tenant for life.” In a later opinion, Craves, J., speaking for the court in Nichols v. Robinson, 277 Mo. 483, in construing the same section, said: “This statute converts an estate tail into a life estate for the first taker, with a contingent remainder to the persons designated as heirs of her body, the contingency is' created by the force of the fact that under the statute the heirs of her body cannot be determined until the death of the life tenant.” A concrete application of the statute therefore authorizes the conclusion that under the will of John Mantle, the plaintiff and his brother John C. Schee were the holders of a contingent remainder in the estate of the testator until the death of their mother Loretta B. Schee, which has not yet occurred. We find, however, that John C. Schee conveyed whatever interest he had in the lands -to the plaintiff. There is no question that a remainder, whether vested or contingent, constituting, as it does, an interest in real estate, may be sold and conveyed by the remainderman. [McFarland v. Bishop, 282 Mo. l. c. 552; Oldaker v. Spiking, 210 S. W. (Mo.) 59; McClure v. Baker, 216 S. W. (Mo. App.) 1018.] The grantee, however,-can take no'greater estate than that possessed by the grantor. Whatever interest John C. Schee had in the lands was subject to the contingency of his survival of the life tenant. The failure of this contingency by his death in 1917 extinguished his interest in the lands, and his deed to the same was rendered ineffectual to pass title to the plaintiff. This, upon the principle that although a fee may vest as a contingent remainder, it may be divested upon a contingency and it does not vest finally until the death of *225 the life tenant. [Eckle v. Ryland, 256 Mo. l. c. 440; Buxton v. Kroeger, 219 Mo. l. c. 251; Rozier v. Graham, 146 Mo. l. c. 360; Godman v. Simmons, 113 Mo. 122.] It also appears that the life tenant, Loretta B. Schee, has conveyed her interest in these lands to the plaintiff. It is scarcely necessary to say that the interest thus acquired by the plaintiff can he no greater than that of the grantor, which is the right of use and occupancy during her life. Certainly this conveyance can have no effect upon the rights or interests of, the “heirs of her body at her death.” As to who may come within this category can only be determined upon the demise of Loretta B. Schee. Her apparent heirs, so far as the facts now disclose, are the plaintiff and Edna M. Schee. III. However, it is contended that the fifth paragraph of the will creates a perpetuity which nullifies the devise. As has frequently been said, most recently in Stewart v. Coshow, 238 Mo. 662, the rule against per-petuities is designed to forbid the creation of a future estate that will not vest within the lifetime of a person then in being and twenty-one years and ten months thereafter.” The contention here made is that paragraph five postpones indefinitely the vesting of some interest under the will, and as to such interest contravenes the rule against perpetuities. It is well to bear in mind in the consideration of this question that the rule is only concerned with the time of the commencement of the vesting of the estate and not with its duration. This distinction is well made in Gates v. Seibert, 157 Mo. 254, in ’which this court said: that the limitation must be of such a character that the estate will become vested, if at all, within the period prescribed in the rule, but that it need not necessarily be vested in possession if vested in interest. An estate is vested in possession when there is a right of present enjoyment; it is vested in interest when there is a present fixed right of future-enjoyment. We had occasion to discuss this question *226 in Deacon v. St. Louis U. Tr. Co., 271 Mo. l. c. 695, as follows: “In all cases where it is sought to apply this rule the character of the interest as vested or contingent is of first consideration. If vested, the rule can have no application (Grates v. Seibert, 157 Mo. 254), as -it is directed only against future contingent interests. If, therefore, it appears that the interest or right to future enjoyment of an estate has vested within the period designated by the rule, viz., twenty-one years after a life in being at the time of the creation of the interest (Gray, Perpetuities (2 Ed.) sec. 201), the postponement of possession or actual enjoyment is immaterial. A contrary ruling once prevailed in this State, it having been held in Lockridge v. Mace, 109 Mo. 162, that to avoid a violation of the rule it was necessary that the possession of the estate be vested within the period prescribed. Plowever, in Gates v. Seibert, supra, the ruling as to the vesting of possession was held to be unauthorized and it was declared to be sufficient if it appeared that the interest was vested. The last expression of this court in this regard is in harmony with rulings elsewhere as to the application of the rule. [O’Hare v. Johnston, 273 Ill. 458; Lawrence’s Estate, 11 L. R. A. (Pa.) 85; Flanner v. Fellows, 206 Ill. 136; Seaver v. Fitzgerald, 141 Mass. 401; Thatcher’s Trusts, 26 Beav. 365.] ” If, therefore, the contingent remainder in fee in these lands will, as we hold it does, become vested upon the death of Loretta B. Schee, the rule against perpetuities is not violated. When an interest becomes vested, it is not subject to the rule because it is vested and. by its very nature cannot be'subject, to a condition precedent or one to be performed before some right depending thereon accrues. [Gray, Perpetuities, sec. 201; Sioux City Co. v. Trust Co., 82 Fed. l. c. 132; Toms v. Williams, 41 Mich. 552; Todhunter v. Railroad, 58 Iowa, l. c. 207.] The contention as to the creation of a perpetuity by paragraph five is based upon the assumption that upon the death of Loretta B. Schee her bodily heirs will take *227 a contingent remainder, -which, interest will so continue and become vested only upon the death of one of such bodily heirs without issue. It is only necessary to revert to the fact, before stated, that by the terms of this devise the contingent remainder in fee of the bodily heirs of Loretta B. Schee will become vested upon her-death, and, hence, there is nothing left to which the rule against perpetuities can apply. In short, if it was meant by the testator that paragraph five, should apply where a bodily heir died without issue after the life tenant, and therefore after such heir had taken the fee, then, paragraph five is inconsistent with the prior estate created, the creation of which was the paramount purpose of the testator. This being true, the inconsistent paragraph should be rejected for repugnancy. This conclusion is in harmony with what we have said on this subject in former cases. , In Sevier v. Woodson, 205 Mo. l. c. 214, 120 Am. St. 728, we said: “Where a certain estate is granted in plain and unequivocal language1 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.” Later in Gibson v. Gibson, 239 Mo. l. c. 506, 144 S. W. 775, we said: “In what we have expressed, we do not wish to be understood as holding that what would otherwise be a fee in the first taker can be cut down to a less estate by ambiguous words or words not as clear and strong as those in the devise to the first taker.” Later still in Lemp v. Lemp, 264 Mo. 533, 175 S. W. 618, we held that, “where an estate is given absolutely in one clause of a will, it cannot be cut down by a subsequent clause, unless the language thereof is as clear and unequivocal as the language of the first.” If, however, paragraph five be not rejected for re-pugnancy and is not superseded by the statute, in the event of a failure of issue the interest of the bodily heirs *228 which, had vested at the death of Loretta B. Schee- would be terminated by the happening of the condition subsequent, viz., the failure of issue, and the right of entry of the other bodily heirs, the brothers and sisters or their issue. This reasoning finds its support in the right to create a determinable fee, which is well settled. Whenever a fee is created which is determinable upon a condition subsequent, in this case a failure of issue, there is always a possibility of a reverter in'the donor. The possibility of reverter has, in this country, always been held not subject to the rule against perpetuities. [Cowell v. Colorado Spgs. Co., 100 U. S. 55; Hopkins v. Grimshaw, 165 U. S. 342; Lougheed v. Dykeman Church, 40 N. Y. Supp. 586; First Univ. Soc. v. Boland, 155 Mass. 171; Tobey v. Moore, 130 Mass. 448.] IY. It is contended that Shepperd v. Fisher, 206 Mo. 208, sustains plaintiffs’ contention that paragraph five enlarges a life estate into a fee upon the birth of issue, but keeps the fee contingent and unvested in the meantime. The ruling in that case was against the enlarging of a life estate into a greater one and thus vesting what was before a contingent interest. It was upon this alone that the court placed its ruling. If the prior estate had not been enlarged but curtailed by devising a portion of what had been vested, the decision would have been otherw-ise> as the rule against perpetuities only strikes at unvested interests. That case, therefore, has no application to the one at bar, where the estate passes to the heirs of Loretta B. Schee as a determinable fee or an estate upon a condition subsequent. In Lockridge v. Mace, 109 Mo. 162, and Shepperd v. Fisher, supra, relied upon by plaintiff, the application of Section 2267, Revised Statutes 1919, was not involved, as the wills in neither of these cases attempted to create what at common law would have been an estate tail, and in neither case is there a discussion of or reference to the statute. The decisions-therefore are not rendered upon *229 wills affected by the statute but upon the strict language of the wills themselves. If these wills had created estates tail at common law, there would have been no occasion (that fact having been found) to discuss the legality of the terms relating thereto, for'the statute would, by virtue of its terms, have at once applied and determined what estates should exist, transforming those created by the wills into estates created by the statute; and the language of the wills relating to the entailing of the estates would at once be superseded by the statute and the estate thus created would become vested. V. Other interesting reasons are suggested why the language of the will here under review does not create a perpetuity. Those adduced, however, are deemed sufficient to sustain the holding that it should not be so construed. Summarizing what has heretofore been said: What under the terms of the will would have created an estate tail becomes under the statute a life estate with a remainder in fee which will vest upon the death of Loretta B. Schee in the heirs of her body then living; that by the contingency of a default in issue, referred to in paragraph five of the will, is meant a -default at the time of Loretta B. Schee⅛ death; that although a perpetuity was attempted to be created by paragraph five, there was no such general plan of disposition provided for therein as to defeat the fee created by paragraph three, and that the provisions of paragraph five shquld be rejected as repugnant and not permitted to stand. In consideration of all of which the judgment of the trial court is affirmed and it is so ordered. All concur.