Rothwell v. Jamison

BURGESS, J. — This is an action of ejectment for the possession of forty acres of land in Saline county, Missouri. The petition is in the usual form and the answer a general denial. — 606 — The case was tried by the court, a jury being waived. There was judgment for defendants from which plaintiff, after an unsuccessful motion for a new trial, appeals. Both parties claim title under one Martha Ann Frances Gorham as the common source of title. The facts are stated by counsel for defendant to be as follows: The plaintiff’s position is that Martha Ann Erances Gorham died intestate leaving as her sole heir a daughter, SarahErancesGorham;that saiddaughter marriedThomas L. Gorham, and died,leaving her husband and a daughter, Sarah Erances, and that the latter married W. H. Archer, who, with her by joint deed, conveyed the land to H. T. Eort, the deed being recorded October 4, 1876; and that H. T. Port’s heirs conveyed to plaintiff; that neither plaintiff nor his grantors were entitled to possession of the land until the death of Thomas L. Gorham, in 1891, who,' plaintiff contends, had curtesy in the land, by virtue of being the husband of Sarah Prances Gorham. To establish the facts necessary to pass the title to Sarah Prances Archer, the plaintiff relies upon the depositions of Annie E. Port, Prances M. Hammett and John T. Fort, whose testimony defendant contends is simply hearsay, incompetent and of no probative force. The defense is adverse- possession and the bar of the statute of limitations, and in support thereof defendant introduced a deed to the land from Thomas L. Gorham to defendant Jamison, dated April 27, 1870, and recorded in the recorder’s office of Saline county, October 20, 1870, and it was admitted by plaintiff that the defendant, Jamison, had been in possession of the land, claiming title thereto, adversely, ever since the date of said deed. The defendant also proved that Martha Ann Prances Gorham married a man by the name of Hillman, with whom she had a marriage contract authorizing her to dispose of her property by will, and — 607 — tliat she did make a will, which was filed with the clerk of the county court of Lafayette county, Missouri, upon her death in that county, on the twenty-fourth day of June, 1843, and said clerk took the proofs of the witnesses to the will required in such cases. The will and the proofs thereof were recorded in the office of the county clerk of said Lafayette county, on the twelfth day of September, 1843, and afterwards on the twelfth day of October, 1843, the transcript from the records of the county court of Lafayette county, Missouri, of said will and the proofs thereof were recorded in the recorder’s office of Saline county, Missouri. By this will the testatrix devised to her “daughter, Sarah Frances Gorham,” who was at the death of the testatrix, eight or nine years of age, “and her children,” a negro boy and girl, a watch, a bed and bedding, and the land in controversy; the said will further providing as follows: “And if my said daughter, Sarah Frances, shall die without issue, it is my will that all the property which I do hereby devise to her, shall be equally divided after the death of the said Sarah Frances, equally between my brothers and sisters, including the children of my deceased sister, America Chamblin, who shall be entitled with my brothers and sisters, to one equal share of the whole amount.” It is insisted by plaintiff that this will vested in Sarah Frances Gorham, an estate in fee simple, and that, as she married Thomas L. Gorham, and by him had a daughter, Sarah Frances, who afterwards married Archer, upon the death of Sarah Frances Gorham, Thomas L. Gorham took an estate by the curtesy, and that, as he died within ten years prior to the institution of the suit, plaintiff’s action was not barred by limitation. On the other hand, the defendants maintain that the estate devised to Sarah Frances Gorham was a life estate only, with remainder to her children, and in event of Sarah — 608 — Frances’ failure of issue, to the brothers and sisters of the testatrix. That, -therefore, Thomas L. Gorham had no curtesy, and, if the evidence shows that Sarah Frances Gorham died leaving a child, Sarah Frances, she became entitled to the posession of the land, and from the time defendant took possession of the land in 1870, and certainly from the time of the conveyance from the Archers to Henry T. Fort, in 1876, the statute of limitations began to run, and that the defendant has a good title to the land by adverse possession for more than ten years, and plaintiff’s right of action is barred. Plaintiff asked declarations of law presenting his theory of the case, all of which were refused. It is first insisted by plaintiff that Thomas L. Gorham only had a life estate in the land by curtesy, by reason of his marriage with Sarah F. Gorham, and as defendants derive title from him, and plaintiff from her, by and through her daughter and only heir at law, Sarah Frances Archer, and husband, that not until the death of Thomas L. Gorham in 1891, did the statute of limitations begin to run against him. Defendant contends that the evidence was not sufficient to show that Sarah Frances Archer ever acquired title by descent or otherwise from Martha Ann Frances Gorham, who intermarried with one Hillman. 1. If plaintiff’s contention as to the facts be borne out by the testimony, there can be no question as. to the correctness of the legal proposition contended for by him, for it is well settled in this State that the possession of a life tenant is not, and can not be, adverse to the remainderman. [Sutton v. Casseleggi, 77 Mo. 397; Dyer v. Wittler, 89 Mo. 81; Rumsey v. Otis, 133 Mo. 85.] 2. For the purpose of showing that Henry T. Fort acquired the legal title to the land by virtue of the deed to him from Sarah Frances Archer and husband, of date — 609 — August 80, 1876, plaintiff read in evidence the depositions of Annie E. Eort, Eannie Hammett and Henry T. Eort, tending to show that Sarah Erances Archer was the daughter of Sarah Erances Gorham, and that Sarah Erances Gorham was the daughter of Martha Ann Erances Hillman, and that she derived title through her mother from Martha Ann Erances Hillman, and that Sarah Erances Gorham was the only heir at law of said Martha Hillman, and Sarah Erances married Thomas L. Gorham, and died shortly after her marriage, leaving Mrs. Archer her only heir at law, and her husband, Thomas L. Gorham, surviving her. At the time of taking the depositions Mrs. Hammett was forty-four years of age, and Henry T. Eort thirty-eight years of age. According to Mrs. Eort’s testimony, Mrs. Archer’s mother had then been dead over forty years, so that Mrs. Archer must have been over forty years of age at that time. She also stated that she did not know when or where Sarah Erances Gorham, wife of Thomas L. Gorham, died; that she died a good many years ago when she, witness, was a very few years old. She testified, further, that Martha Ann Erances Hillman, died when witness was a child. With respect to Sarah Erances Gorham, she testified that she did not know in what county she was married or when or where she died. It is apparent from the testimony of these witnesses that neither one of them knew anything of their personal knowledge about Martha Ann Erances Hillman, whether or not she left any children, if so how many or who they were, or of the marriage or death of Sarah Erances Gorham. There were facts to which these witnesses did not pretend to testify as being of general repute in the family, nor as being obtained from the declarations of deceased relations or other persons, and as they did not know them of their own personal knowledge, they were but — 610 — hearsay. It seems impossible that Mrs. Port could, testify to facts within her own knowledge which occurred when she was not more than four years old, and John T. Port to facts that occurred before his birth. These same witnesses, testified that Thomas L. Gorham had been dead about two years, but neither one of them appears to have known anything in regard to his death of their own personal knowledge. So that, in that respect this testimony, not dissimilar from that of Mrs. Port and Mrs. Hammett in regard to other matters already passed upon, is mere hearsay, and does not prove anything. 3. It is next claimed that the court erred in admitting in evidence over the objections of plaintiff the transcript of the record of the Lafayette county court of the alleged will of Martha Ann Frances Hillman, because the transcript contains no copy of any order of said court admitting the will to probate, or any order of the court approving the action of the clerk in vacation in taking the proof of said will, and because the will was never probated. The transcript of the record contains a copy of the will and a copy of the evidence taken when the original will was exhibited for proof, which shows that it was recorded by the clerk, two months and five days after the proof was taken. It was held by this court in Barnard v. Bateman, 76 Mo. 414, that a will proved before the clerk in vacation and recorded, but the probate of which the probate court had failed to confirm, was not admissible in evidence. The same rule is announced in Smith v. Estes, 72 Mo. 312; and in the recent case of Snuffer v. Howerton, 124 Mo. 637. See, also, R. S. 1835, title Wills, sec. 9, p. 618. That this is the general rule is indisputable, but like all other rules of like character there must be exceptions thereto. Defendants contend that owing to the fact that the transcript of the record of the Lafayette county court read in evidence by defendant, contains a copy of the will and a — 611 — copy of the evidence when the original will was exhibited for proof on the seventh day of July, 1843, and also shows that it was recorded in the proper'office on the twelfth day of September, 1843, that the presumption must be indulged that the probate of the will by the clerk was thereafter confirmed by the court. By section 14, of “an act respecting wills,” Eevised Statutes, 1835,-page 618, it is provided that all wills shall be recorded by the clerk of the county court in a book kept for that purpose, within thirty days after probate, which implies that a will under that section of the statute was not entitled to record and could not be. recorded until after it was probated. It was not recorded until about sixty-five days after the proofs were taken. It was more than half a century from that time up to the time of the trial of this cause, and under these circumstances it does seem to us that it should be presumed that in the interim between the time it was exhibited for proof and the time it was recorded, the court made an order confirming the probate of the will. Moreover, unless this presumption be indulged the clerk violated his duty in recording the will before probated, while the presumption is that he did his duty, thus affording another reason for the presumption that the court made an order confirming the probate of the will. In Creasy v. Alverson, 43 Mo. 20, in speaking of the record of a will, it was said: “Having been recorded in the manner required by law, with the proof of its execution indorsed upon it, and certified by the clerk, the circuit court may very well have inferred that the act necessary to be performed previous to its being placed on record, had been performed, although no certificate of such fact was attached to the copy produced in evidence.” In Seward v. Didier, 16 Neb. 58, the record of the probate court showed a license to a guardian to sell the real — 612 — estate of his ward, a sale and confirmation thereof, and the execution of a deed to the purchaser, and it was ruled that it would be presumed twenty-two years afterwards, in an action by the ward to recover the land, that the necessary steps were taken to procure the issuing of the license. The court observed: “The law will presume official acts of public officers to have been rightly done unless the circumstances of the case overturn this presumption; and acts done which presuppose the existence of other acts to make them legally operative are presumptive proof of the latter.” In the case at bar the act of recording the will presupposes that the probate of the will by the clerk was thereafter confirmed by the court. [Coombs v. Lane, 4 Ohio St. 112, Ward v. Barrows, 2 Ohio St. 241.] In Long v. Joplin Mining & Smelting Co., 68 Mo. 430, it is said: “The principle is a familiar one, that if you prove the existence of one fact, that another, its usual concomitant in the ordinary course of business will be presumed.” [Citing, 1 Greenlf. Ev. (15 Ed.), sec. 40, and cases cited, and Bank v. Daudridge, 12 Wheat. 64.] No objection seems to- have been made in the court below to the introduction of the certified copy of the will upon the ground that the loss or destruction of the original had not been accounted for, and the question can not be raised for the first time in this court. Therefore, the objection to the admission in evidence of the transcript of the record of the will was not well taken. Moreover the will and proofs were recorded in the recorder’s office of Saline county on the twelfth day of October, 1843, more than fifty years before this case was tried in June, 1895, and the.record imparted notice to all persons. [R. S. 1889, secs. 4864, 4865, 8898; Totten v. James, 55 Mo. 496; Creasy v. Alverson, 43 Mo. 13; Brown v. Oldham, 123 Mo. 621.] — 613 — Nor was any objection made to tbe will because of want of capacity to make it, the testatrix being a married woman at tbe time. Tbe power to do so was conferred upon ber by tbe marriage contract and seems to be conceded. 5. Tbe rule is well settled in this State that a will should be so construed as to carry out tbe intention of tbe testator to be gathered from tbe whole instrument, but if from tbe provisions of tbe will tbe intention of tbe testator be doubtful or uncertain then tbe surrounding circumstances may be considered in arriving at tbe intention of tbe maker. [McMillan v. Farrow, 141 Mo. 55, and authorities cited.] At tbe time of tbe execution of tbe will and of tbe death of tbe testatrix she only bad one child, tbe devisee therein named Sarah Frances Gorham, who was at tbe time of ber mother’s death about eight or nine years of age, and by tbe provisions of ber will she says: “I will and bequeath to my daughter, Sarah Frances Gorham and ber children . . . all my landed estate lying and being situate in tbe county of Saline, and State of Missouri, amounting to two hundred acres . . . And if my said daughter, Sarah Frances shall die without issue, it is my will that all tbe property, which I do hereby devise to ber, shall be equally divided after tbe death of tbe said Sarah Frances, equally between my brothers and sisters, including tbe children of my deceased sister, America Obamblin, who shall be entitled with my brothers and sisters, to one equal share of tbe whole amount.” Now it seems to us to be perfectly clear that tbe testatrix intended to give to her daughter and ber children, if any she bad, a fee simple estate in tbe land, and that only in tbe event of tbe death of ber daughter without issue, did she intend otherwise. The limitation over in tbe event of tbe death of ber daughter without issue, may be accounted for on tbe ground of tbe age of tbe daughter at tbe time of tbe — 614 — execution of the will, who was not so likely to live to have issue as one of more mature years, and can not be construed as meaning thereby that she intended to give her only a life estate. This position finds support in the codicil to the will in which the testatrix says: “I Martha Ann Frances Hillman have by last will and testament given and bequeathed to my daughter Sarah Frances Gorham a certain tract of land, etc.” Moreover by section 2, Revised Statutes 1835, page 118, under the head of “conveyances” it is provided that “every conveyance of any real estate hereafter executed, shall pass all the estate of the grantor, unless the intent to pass a less estate shall appear by express terms, or be necessarily implied in the terms of the grant.” It can not be said from anything that appears in the will and codicil that an intention of the testatrix existed at the time of their execution to devise a less estate than the fee, nor can any such intent be implied from the use of the word “children,” for as used in the will it is not a word of purchase, but of limitation. In Waddell v. Waddell, 99 Mo. 345, it is said: “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 vested one, equally as operative for the benefit of those in esse, as for those in being.” [Citing 2 Wash. Real Prop. (5 Ed.), pp. 599, 600, 637; 4 Kent (13 Ed.), 203, notes 205, 206; Moore v. Weaver, 16 Gray 305; Gernet v. Lynn, 7 Casey, 94; Graham v. Houghtalin, 30 N. J. L. 552; Wolford v. Morgenthal, 91 Pa. St. 30; Wager v. Wager, 1 S. & R. 374.] — 615 — So that if Sarah. Erances, the devisee had a child born to her after the demise of the testatrix, when the will took effect, such child took under the will just as if it had been in esse at the time of its execution. In Richardson v. Noyes, 2 Mass. 56, the testator devised to his three sons all of his lands not otherwise disposed of, and provided in the will that if either of the sons last named should die without children, the survivor or survivors to hold the interest or share of each, or any of them dying without children, and it was held that an estate in fee simple passed to them determinable on the contingency of their dying without issue, and on that contingency vesting in the survivor or survivors by way of executory devise. The court said: “It is obvious that the will in this case was written by an unskilful person. Technical accuracy and precision are not therefore to be expected. We are inquiring for the intention of the testator; and it is clear from a view of the wdiole instrument that he intended a complete disposal of all the property he should leave behind. And I have no doubt that he intended his sons should take an estate of inheritance. . . . The fee was certainly intended to vest in children or grandchildren. Whether any of the latter existed at the time the will was made or not we are ignorant. But in either case no motive is suggested why the testator should entertain a more favorable regard for his grandchildren and make a better provision for them than for his own children. ... A devise to one, and if he die without issue, remainder over is an estate tail, from the manifest intention of the testator; so also a devise to one and if he die without children remainder over, may be an estate tail. Now with us all the children are heirs, and as this is a devise to the three sons and their children or in effect heirs, it could not be an estate for life only. It was then intended to give an estate of inheritance either in tail or in fee. Was an estate tail intended? I think not.” — 616 — It seems to us that there is no escape from the conclusion that by the will a fee simple estate to the land in question vested in Sarah Frances Gorham, and she having married Thomas L. Gorham, and by him had a daughter, Sarah Frances, who after married Archer, that upon the death of Sarah Frances Gorham, Thomas L. Gorham, took an estate by the curtesy in the land, and that the statute of limitations was not put in motion against the owners in fee until his death. For reasons stated, however, in the first paragraph of this opinion we affirm the judgment. Gantt, P. J., and Sherwood, J., concur.