Walton v. Drumtra

BURGESS, J. This is ejectment for the recovery of the possession of one undivided sixth of a- lot in the city of St. Louis. Defendants recovered a judgment in the court below, from which plaintiffs appeal. The plaintiff Sarah O. Walton is the daughter of Patrick Yore, deceased, by his first wife, while the defendant, Sophia * A. Yore, was his second wife. The common source of title is Michael Kelly, who by deed, dated January 12, 1857, and duly recorded, conveyed the lot in question to - John E. Yore as trustee for Barbara Ann wife of Patrick Yore. The deed is as follows: “This deed made this twelfth day of January, eighteen hundred and fifty-seven, by and between Michael Kelly, of the city of St. Louis, county of St. Louis, and state of Missouri, party of the first part, and John E. Yore, trustee of Barbara Ann Yore, wife of Patrick Yore, of the same city, county and state, party of the second part, witnesseth: That the said party of the first part, for and in consideration of eight thousand dollars, to him in hand paid by the said party of the second part, does hereby grant, bargain and sell, convey and confirm unto the said party of the second part, as trustee aforesaid, the following described real estate lying and — 494 — being situated in the city and county of St. Louis and State of Missouri” (being the same property in controversy in tliis case). “To have and to bold the same unto him, the said John E. Yoré, and bis heirs, together with all rights, privileges, appurtenances, and improvements on said premises, or to the same in anywise belonging or appertaining, to the use of the said Barbara Ann Yore, and in trust as follows: “First. To receive and pay the rents and profits of said lots of ground, together with their appurtenances, to the said Barbara Ann Yore, as her separate property, or at her option to suffer and permit her to use, occupy, possess and enjoy the same in such manner as to her shall seem meet and proper, free from the control of her said husband, or any other person whomsoever, and the written direction of the said Barbara Ann Yore shall be sufficient authority, as to the use and management of the said property, and her receipts shall be full .acquittances as to the rents and profits thereof. “Second. To sell and convey the said lots of ground ■at any time, with their appurtenances, in fee simple, for such price and upon such terms and to such person or persons, as the said Barbara Ann Yore shall designate, and her signing and ■executing such conveyance shall be sufficient evidence of her wishes and instructions in that behalf. “Third. To give and execute mortgages and deeds of "trust in fee simple, or other charges or incumbrances on the said property, to secure any sum or sums of money, or for any other purposes, required by the said Barbara Ann Yore, and her signature to such mortgages, deeds of trust or other charges •or incumbrances shall be sufficient evidence of the authority ■of said trustee to execute the same: Provided always, that if •said Barbara Ann Yore, shall die, leaving said property undisposed of, either by deed of conveyance or by last will and testament, then the trust herein created shall cease, determine, and be at an end, and the said property shall vest in and revert -absolutely to Patrick Yore and his heirs and assigns forever, — 495 — and the said John Yore, trustee as aforesaid, shall in such case convey, by proper deed of conveyance in fee the said property fo said Patrick Yore and his heirs and assigns forever, and this property is conveyed upon the further conditions, that the said Barbara Ann Yore may at any time and whenever-she shall see fit, name and appoint another trustee in the place and stead of said John Yore, and this power toties quoties she can exercise by written instrument under her hand and seal, duly acknowledged and recorded; and such trustee or trustees, in the stead and place of said John Yore shall possess all the-powers, and do and perform all acts, and things, the same as. the said John Yore could or might do and perform under and by virtue of this deed.” The purchase money was paid to Patrick Yore. Barbara Ann Yore died intestate on April 21, 1876, without having-disposed of said property, leaving as her only heirs at law six children, one of whom, Sarah O. Walton, plaintiff, was then and is now the wife of her co-plaintiff, Frederick B. Walton. Patrick Yore survived his wife, and immediately upon her death, took possession of said property, claiming to be the-absolute owner in fee. He retained possession of the property until ÍEay 22, 1879, when by a marriage settlement of that-date, he conveyed to the defendant Sophia A. Yore, then Sophia A. Papin, an estate therein for life, or during her-widowhood, should she survive him. Patrick Yore and Sophia A. Papin were married in the year 1879, shortly after the execution of the marriage contract in consideration for which said Sophia surrendered all her marital rights, including dower-in her intended husband’s property, and he, Patrick Yore,, conveyed to her a life interest in the property involved in this litigation, and in an adjoining lot. After their marriage Mrs. Yore at once took possession of said property and still retains the same. Her co-defendant Drumtra is her tenant, in the possession of the property. Patrick Yore died July 14, 1889, leaving a will whereby496 he disposed of all his property to his children, making no provision for his wife, Sophia, therein. The inventory of his estate recites that the property in question was conveyed to” Sophia A. Yore for life. Plaintiffs contend that the deed from Michael Kelly to John E. Yore, trustee for Barbara Ann Yore, vested in her an equitable fee simple estate in the property thereby conveyed, while defendants’ contention is that upon the death of Mrs. Barbara Ann Yore without executing the power of appointment conferred upon her. by the deed by Michael Kelly to John E. Yore as trustee for her, the fee vested in Patrick Yore by way of executory'limitation. In Rubey v. Barnett, 12 Mo. loc. cit. 6, it was said: “It has always been held that an absolute power of disposition over property conferred by will, not controlled by .any provision or limitation, amounted to an absolute gift of the property. A power to dispose of a thing as one pleases, must necessarily carry along with it a full property in it. Hence whenever property is conveyed by words conferring a power of disposition as one pleases, or as he may think best, it is in law an absolute gift of the property to him on whom the power of disposition is conferred,” That case was cited with approval in Norcum v. D’Oench, 17 Mo. loc. cit. 118; Green v. Sutton, 50 Mo. 186; Reinders v. Koppelmann, 68 Mo. 482; Cook v. Couch, 100 Mo. 29; Lewis v. Pitman, 101 Mo. 281; Hazel v. Hagan, 47 Mo. 281; Bryant v. Christian, 58 Mo. loc. cit. 102; Carr v. Dings, 58 Mo. 400; Wead v. Gray, 78 Mo. 59; State ex rel. v. Tolson, 73 Mo. 320; Russell v. Eubanks, 84 Mo. 82; Hardy v. Clarkson, 87 Mo. 179; Cornwell v. Orton, 126 Mo. 355, and Cornwell v. Wulff, 148 Mo. 542. So in Jackson v. Robins, 16 Johns, loc. cit. 587, it is laid down “as an incontrovertible rule that where an estate is given to a person generally, or indefinitely, with a power of disposition, it carries a fee; and the only exception to the rule is, where the testator gives to the first taker an estate for life — 497 — only, by certain and express words, and annexes to it a power of disposal. In that particular and special case, the devisee for life will not take an estate in fee, notwithstanding the distinct and naked gift of a power of disposition of the reversion. The distinction is carefully marked and settled in the cases.” By the deed in question the legal title to the property was vested in John Yore as trustee. By it he was given power to receive rents and profits of the land, and pay them over to Barbara Ann Yore, and also power to convey or mortgage the land at her request in writing, and was therefore the trustee of the active trust in whom the whole estate in law and equity vested, subject only to the execution of the trust (4 Kent’s Commentaries (12 Ed.), *310) and the provisions of the deed. The rigid rules of construction applied to deeds and wills in former years, have in modern times been somewhat modified, so that deeds are how constructed so as to carry into effect the intention of the parties thereto, and wills the intention of the persons executing them. [Waddell v. Waddell, 99 Mo. 338.] The rule for the construction of deeds announced by Devlin on Deeds (2 Ed.), section 836, volume 2, is that “the intention, of the parties is to be ascertained by considering all the provisions of the deed, as well as the situation of the parties, and then to give effect to such intention if practicable, when not contrary to law.” To the same effect are Morrison v. Thistle, 67 Mo. 596; Long v. Timms, 107 Mo. loc. cit. 519; McCullock v. Holmes, 111 Mo. 447; Fanning v. Doan, 128 Mo. 323. So with respect to wills: they must be so construed as to carry out the intention of the testator to be gathered from the whole instrument. [Russell v. Eubanks, 84 Mo. 82; Redman v. Barger, 118 Mo. 568; McMillan v. Barrow, 141 Mo. — 498 — 55, and authorities cited.] It thus appears that the rule for construing wills and deeds is substantially the same. What then was the intention of the parties to the deed in question, to be derived from the whole instrument and the surrounding circumstances ? It contains this express provision: “Provided always, that if said Barbara Ann Tore, shall die leaving said property undisposed of, either by deed of conveyance or by last will and testament, then the trust herein created shall cease, determine and be at an end and the said property shall vest in and revert absolutely to Patrick Tore, and his heirs and assigns forever; and the said John Tore, trustee as aforesaid, shall in such case convey by proper deed of conveyance, in fee, the said property to said Patrick Tore, and his heirs and assigns forever.” In Jecko, Trustee, v. Taussig, 45 Mo. 167, a deed somewhat like the one in this case was construed. The deed was from S. D. Barlow and wife to Joseph Jecko, trustee for Mrs. Caroline O. Hume, wife of John E. Hume, and Caroline O. Hume. The habendum clause of the deed was as follows: “To have and to hold the same (the premises described in the deed) to the said Joseph Jecko and his successors in trust — in trust, however, for the following uses and purposes, viz.: Eor the use, occupation, and benefit of said Caroline C. Hume, free from all control and power of disposition or incumbrance on the part of her husband, John F. Hume; to be sold and conveyed in fee, mortgaged or rented, as she, the said Caroline O. Hume, may in writing direct; and the proceeds, issues, and rents to be paid to her or her order, without the interference or control of her husband, or any one claiming under or through him. The object and purpose being to invest said Caroline O. Hume with said property and its improvements and appurtenances, subject to her sole use and occupation, without interference from any person, with the limitation only which is hereby made a condition of the trust herein created, — 499 — to wit: that in case of the death of the said Caroline O. Hume, or her husband, John E. Hume, the said property shall at once Test in and belong to the children of the bodies of said John E. Hume and Caroline O. Hume; subject to a life interest in said Caroline C. Hume, should she be the survivor, and their heirs; and the said Joseph Jecko, or his successor in trust, shall, in that case, hold said property for their benefit, •or convey the same upon, their written'order, or that of their legal guardian.” The power of appointment was exercised by the wife in her life time, and the question was as to the validity and effect of the deed, made under-the power conferred thereby. The court said: “It is nevertheless true that an estate in fee simple may be granted in such way and upon such conditions that it may be defeated by the happening of some future event. But the grant of power and authority to Mr. Jecko and his cestui que trust, during the lifetime of Mr. Hume, to alien and convey, is trammeled with no conditions whatever. The authority is absolute and unconditional. Nor is it perceived that the circumstance that the estate might vest in the surviving children of Mr. and Mrs. Hume, upon the death of the former, no conveyance in the meanwhile having been made, affects the question of the power of alienation vested in the grantees during the life of said Hume. The interest and estate of the children was contingent upon the non-exercise of that power, prior to Mr. Hume’s decease.” In Wood v. Kice, 103 Mo. 329, the conveyance was to a trustee for the sole and separate use of a married woman (with power of appointment in fee) and the heirs of her body, with remainder in fee to the husband if she died without heirs to her body. The court says: “So we find that the effect of this conveyance is to give Joella a life estate to her sole and separate use, and the heirs of her body a fee, and if she die without heirs of her body, to her husband in fee, if he survive her. Whatever estate the husband took under this deed is by — 500 — its terms freed from the operation of the trust, when it shall become vested in law and in possession.” Here we have first a life estate and then a fee in children, and then a fee in husband. The deed in question was before the United States Circuit Court for the eastern district of Missouri in Yore v. Yore, 63 Fed. Rep. 645, and it was there held on the death of the wife, Barbara Ann, "the property being undisposed of, an equitable fee simple title thereto reverted to and vested in her husband Patrick Yore. In Bean v. Kenmuir, 86 Mo. 666, the deed under consideration recited that the party of the first part in consideration of one dollar, to her in hand paid, and in consideration of natural love and affection for thg party of the second part, did grant, bargain and sell, unto Neamie J. Talley, the party of the second part for her sole use and benefit, certain real estate described in the conveyance, and concluded as follows: “To have and to hold the said tract, pieces, or parcels of land, together with all the rights, privileges and appurtenances thereto belonging, or in anywise appertaining to the said party of the second part, her heirs and assigns forever; and in case of the death of the said party of the second part, then said property, with all the rights and privileges therein, shall pass to the husband of Neamie, William W. Talley.” It was held that under the deed a life estate vested in Neamie J. Talley, with the remainder over in fee in her husband. The court said: “A power of disposition, such as is needful to defeat the limitation over to the husband, should appear, we think, in more express terms. But rules of interpretation, formerly adhered to with much strictness, have been changed, or modified, or abandoned, when, in their modern applications, they have been found hostile to the end the courts struggle to attain, which is to give effect to the grantor's intention, and to effect which they make it the paramount rule to read the whole instrument, and if possible, give effect — 501 — and meaning to all its language. Tbe granting clause of the deed in question contains the words ‘grant, bargain and sell/ which, in the absence of other clauses restricting, limiting, or modifying the same, would, under our statute, constitute a deed of warranty with full express covenants, and, as said by counsel, if the deed in question stopped here, it would, when' duly signed and sealed, have conveyed the fee. But the deed does not stop here. The clause above quoted is added and we are asked to adjudge the limitation over void, and to hold that, by the deed, it was the intention of the grantor to vest the fee in her daughter, free from the control of her husband, and the claims of creditors, and at the same time, and by the same instrument to provide that, upon the death of the daughter, the entire estate, or fee, thus already vested, should then pass to and become vested in her husband. While it is conceded that this could not be legally done, we are nevertheless asked to say that it was the manifest intention of the grantor to make or create both these estates. The manifest intention, as gathered from the face of the entire deed in question, is, we think, to convey the property to Neamie J. Talley, for her sole use and benefit, during her natural life, and to give a remainder over to the husband, and -there is, we think, no imperative rule of construction, which forbids us to make the intention of the parties effectual.”' So in the case at bar, if the deed had simply conveyed the property to John E. Yore for the use of Barbara Ann Yore with power of disposal by her he would have taken the title in fee for her. It, however, does not stop here, but by its very terms it provides that in the event of her failure to dispose of the property by deed or will it was to revert to and vest in Patrick Yore. In Harbison v. James, 90 Mo. 411, a will which gave to the testator’s widow, all his property real and personal, with power to sell and re-invest as she might desire any part of the same for her separate use and benefit, and any portion of the — 502 — estate remaining at her death, to his three daughters, created in the widow a life estate, with power to use the principal, if necessary for her support, and the remainder, at her death, went to the daughters. In arriving at the intention of the grantor Michael Kelly, all of the provisions of the deed must be considered together, and when this is done it seems plain that Mrs. Barbara Ann Yore, Patrick Yore’s wife, was to have the use and enjoyment of the property therein described during her life, with power in the trustee John E. Yore by the written direction of said Barbara Ann to use' and manage said property for her use and benefit, or to sell and convey the same by fee simple deed, or mortgage the property as she might direct for her benefit, her wishes and directions to be manifested by her joining in such deed or mortgage, or to dispose of the property by will if she was so inclined, but in the event of her failure to dispose of the property as indicated it was to revert to her husband Patrick Yore. Mrs. Barbara Ann Yore being a married woman at the time of the execution of the deed, the statute of Uses and Trusts (Revised Statutes 1889, p. 2036) did not vest the fee to the property in her (Dean v. Long, 122 Ill. 447) but only an equitable life estate with power to convey a fee and upon failure to exercise such power by express provisions in the deed, the power of the trustee was to cease, and determine, and said property to vest and revert absolutely to Patrick Yore, and his heirs and assigns forever, which said trustee was to convey to him by proper deed of conveyance. Patrick Yore paid the purchase money for the property, and caused it to be conveyed to John E. Yore for the use and benefit of his wife Barbara with the right of disposal by her will or deed, with a proviso in the deed that in the event of the failure by her to' exercise such right, that said property should “vest in and revert absolutely to him” and his heirs — 503 — and assigns forever. There was no need for extrinsic evidence to show that it was the intention of Patrick Yore and his wife, to vest ip. her by the deed an unlimited power of disposal of the property either by deed or will and that in the event of her failure to exercise such power that the property was to vest in and revert to him absolutely, for the deed speaks for itself in no uncertain terms; and even if it were not entirely clear, the fact that after Barbara’s death in 1876, he openly and notoriously claimed the property as his absolutely, and conveyed it to his second wife, Sophia A., tends strongly to show that his intentions were in accord with the provisions of the deed before quoted. There were other facts in evidence tending to the same conclusion which are unnecessary to especially notice. In the Cornwell case, supra, there was nothing in the deed indicating that the grantor conveyed, granted or limited any portion of his estate in the lands thereby conveyed to the use of any other person upon the happening of the condition that Mrs. Cornwell had not conveyed the land in her life time, while in the case at bar, the deed expressly provided that if Mrs. Barbara A. Yore failed to dispose of the land by will or deed during her lifetime it was to revert to and vest in Patrick Yore, and in this very important particular the two deeds differ, and what has been said in this case is in no way in conflict with the ruling in that case nor with the ruling in Cornwell v. Wulff, 148 Mo. 542. By the terms of .the deed Barbara A. Yore agreed to accept the property with the power of disposal and upon the. failure to exercise that power by will or deed the trust was to cease upon her death, and the property to vest in and revert to Patrick Yore absolutely. Such an agreement could not have been crouched in stronger language. There was nothing in this provision of the deed which was immoral or against public policy, or which rendered it invalid, and we see no rea — 504 — son why it should not be given the full force and effect intended by the parties to it. By the deed the title remained in John E. Yore in trust for Barbara A. until her death, when the trust terminated and the property vested and reverted to Patrick Yore, by way of executory limitation, to whom John E. Yore was to convey, by proper deed of conveyance in fee the said property. For these considerations it follows that the judgment should be affirmed, and it is so ordered. Gantt, O. J., and Sherwood, Brace, Robinson, Marshall and Yalliant, JJ., concur.