Pratte v. Coffman's

Scott, Judge, delivered the opinion of the court. On general principles a devise of land carries with it the crops growing upon it. If the devisee is entitled to the crop as against the heir, it is because it is considered as a part of the realty and goes along with it. In the case of McIlvaine v. Harris, 20 Mo. 457, it was held that a growing crop of wheat was an interest in land. . As between the executor and heir, growing crops may be personalty; but, as between heir or executor and devisee, they are deemed a part of the realty. It is clear, then, that by the devise the growing crop passed along with the land and must remain with it, unless the testator has otherwise directed, which it is admitted that it was competent to him to do. The clause in 'the will on which the defendant relies directs the executor “ to sell all the perishable part of the estate, such as horses, mules, cattle of every description, plantation tools, household and kitchen furniture, crops on hand, and all other personal' property not herein otherwise disposed of.” The tract of land devised to the plaintiffs was a considerable distance from the homestead of the testator, where he had a large estate. It is clear that all the words of the will may be satisfied without taking the crop growing on the land devised. There may at the same time belong to a person a crop on hand and a growing crop. The words “ other personal property” show what the testator had in his mind. By employing the tei’ms “ other personal property” he conveyed the idea that [427] all the property before enumerated was personal property. He directs, too, that all his perishable property be sold, and enumerates it in part, in which enumeration are “ crops on hand.” It is not usual to denominate growing crops as perishable property. But “ crops on hand,” or which have been gathered, may be so termed with the strictest propriety of language. If the testator regarded the crop growing on the land devised as personal property, which he must have done if it is embraced in the words of the clause above cited, then he did not intend to give it to the executor, because he willed to him only the personal property not herein otherwise disposed of. If he regarded it as realty it did not pass, for he only gives the executor the personal property. The case mostly relied on by the defendant is that of West v. Moore, 8 East, 341. There the testator devised estates in fee to one, and to his executor all his money, stock upon his farm, with the implements of husbandry, and all other his personal estates of what nature or kind soever. It was held that the crop growing upon the estates passed to the executor. This case only shows how differently the words “ stock on a farm” are understood in England and among us. In construing a Missouri will, would it ever have entered into the head of man to conceive, unless he had accidentally read the case referred to, that by the words “ stock on a farm” the testator intended to pass a growing crop ? The reasoning of Lord Ellenborough in that case is favorable to the plaintiffs. He says, in the testator himself, the standing corn, though part of the realty, subsists for some purposes as a chattel interest, which goes on his death to his executors as against the heir, though as against the executors it goes to the devi-see of land, who is in the place of the heir. This is founded upon a presumed intention of the devisor in favor of the devisee. But this again may be rebutted by words which show an intent that the executor shall have it. In the case referred to, the devise to the executor was of “ all other his personal estates of what nature soever;” here the bequest is of all “ other personal property not herein otherwise dis [428] posed of.” The growing crop having passed to the devisees, there is nothing in the will which satisfies us that the testator intended that it should be taken from them. Judge Richardson concurring, the judgment will be reversed and the cause remanded.