Simmons v. Cabanne

In Banc. MARSHALL, J. The following opinion heretofore rendered by Division Number One is hereby adopted as the opinion of the Court in Banc. Robinson, G. J., and Brace, Gantt, Burgess and Fox, JJ., concur; Valliant, J., dissents. In Division One. MARSHALL, J. This is a proceeding, under sections 650 and 651, Revised Statutes 1899, by the plaintiff, who is in the possession of lot 21 of Forest Park — 345 — addition to the city of St. Lonis, fronting one hundred feet on the south line of Westmoreland Place, in United States Survey 2036, and who acquired an apparent fee-simple title thereto, by mesne conveyances, from the defendant Joseph Charless Cabanne, against said Joseph Charless Cabanne and his children, and against his brother Sarpy Carr Cabanne and his children, to have the court adjudge and define the title, estate and interest of the parties severally in and to such real estate. The facts are undisputed, and are these: The lot in question is a part of a tract of three hundred arpens, which covers what is now Westminster Place between Rings Highway and Union Avenue, Portland Place, Westmoreland Place, Forest Park Terrace and the Northern part of Forest Park, and which tract constituted a portion of the real estate that was owned by John Charles Cabanne in his lifetime, and who left surviving him, his widow, for whom other provision was made and accepted, and his three sons, John Peter Cabanne, Joseph Charless Cabanne and Sarpy Carr Cabanne, all of whom were under twenty-one years of age and unmarried at the time of his death. On May 27, 1854, the father made his will, which is all in one paragraph, except the attestation clause, but which for convenience counsel for the parties hereto have divided into fourteen paragraphs, and which will, so divided, is as follows: “1. I, John Charles Cabanne, do make this, my last will and testament, hereby revoking all former wills made by me. “2. All my estate, real, personal and mixed, I give, devise and bequeath to John P. Sarpy and Lucien I). Cabanne, and to the survivor of them and to the heirs of such survivor, in strict trust, however, that they will take charge of, manage and control and superintend the same according to their best judgment, discretion and skill, so as to derive therefrom the largest income and revenue which is consistent with — 346 — the safety of the principal or capital. They shall apply the income received by them from said estate to the support and education of my children (whose names are John Peter Cabanne, Joseph Charless Cabanne and Sarpy Carr Cabanne) in equal proportions. “3. If any of my children die before arriving at the age of twenty-one years, and without issue, the share of such child shall go in equal proportion to my surviving children. “4. I wish the education of my children to be as thorough and perfect as the means I leave at the disposal of my trustee and the aptitude of my children to receive instruction will permit. “5. And I especially exempt my trustees herein named from giving any security for the performance of the trust confided in them. The trust herein created is a personal one. “6. In case of the death of all my children without issue within the age of twenty-one years, my will and desire is that my estate, real and personal, shall vest in my brothers, Lucien D. Cabanne and Jules L. Cabanne, and their heirs and assigns forever. “7. I hereby authorize, require, order and command my said trustees, or the survivor of them, to disinherit, divest or deprive any of my children from all or any right, title or interest in the whole or any .part of my estate, real, personal or mixed, if said trustees or the survivor of them shall at any time be of the opinion that such child has become a drunkard, gambler, or spendthrift; that he would probably spend his estate, except that such child shall be allowed such sum that said trustees, or the survivor of them, shall deem sufficient for his maintenance, according to his rank and condition in society, and the interest that such child may be deprived of, as aforesaid, shall be given by said ..trustees, or the survivor of them, to my other children, to be equally divided among them. “8. I hereby appoint said trustees, and the sur — 347 — vivor of them, guardians of said children, and to take possession of and protect and control them according to law. “9. I desire that my oldest son, John Peter Cabanne, shall have the choice of his share in my tract of three hundred arpens of land in the county of St. Louis and State of Missouri, on the River Des Peres, about four miles west of the city of St. Louis. [This tract included the premises in controversy.] “10. My said trustees or the survivor of them, shall have power to sell and dispose of absolutely the whole or any part of my property, real, personal or mixed, except said three hundred arpens, and to make, execute, acknowledge and deliver all necessary conveyances thereof, and receive and receipt for the purchase money. “11. It is my express will, desire and command that the said trustees, or the survivor of them, or the heir or heirs of such survivor, shall not give to my said children, or either of them, his share or shares of my estate to manage for himself or themselves until they or he shall, in the opinion of the said trustees, or survivor, or the heir or heirs of such survivors, be fully capable of exercising a safe, prudent management thereof. The same may be conveyed in trust for my said children for their respective shares. “12. I hereby appropriate the sum of two thous- and dollars for the purpose of erecting a monument to my father and mother, under the direction of my executors. ‘ ‘ 13. If my trustees, or the survivor of them, shall deem any of my slaves worthy of their freedom, they may, if they deem proper and advisable, emancipate them and set them free; but, if they should think said slaves, or any of them, unworthy of freedom, they may sell such as they do not choose to emancipate. Provided, however, that my mulatto slave ‘Ben’ aged about twenty-nine years, shall be emancipated by my — 348 — executors, and they shall have no discretion in the matter. “14. I do hereby appoint John B. Sarpy and Lucien I). Cabanne, executors of this, my will. “In witness whereof, I have hereunto set my hand and seal this 27th day of May, 1854. “John Charles Cabanne.’’ John Charles Cabanne died in the same year, and his will was probated on July 22, 1854. John B. Sarpy, one of the executors and trustees named in the will, did not qualify. Lucien D. Car banne the other executor and trustee accepted the trust, 'qualified and acted as such. As above stated, his three sons were minors and unmarried at the date of his death, but in 1863, the oldest son, John Peter Cabanne died, at the age of twenty-seven years. He had never received his share of the estate from the trustee, nor had he exercised his right of choice of the three hundred arpens which was conferred upon him by the ninth paragraph of the will. But he left a will whereby he devised his share or interest in his father’s estate to his two brothers, Joseph Charless and Sarpy Carr Cabanne, who are still alive and are parties to this suit. In 1869 Joseph Charless Cabanne and Sarpy Carr Cabanne made a voluntary partition of the land devised by their father’s will. They executed deeds to each other for their respective shares and the trustee Lucien D. Cabanne joined in the same. By this partition the three hundred arpens was divided, and the southern part thereof, covering what is now Portland Place, Westmoreland Place, Forest Park Terrace and a portion of Forest Park, and including the property in controversy here, was conveyed to Joseph Charless Cabanne, and this lot was afterwards sold and conveyed by him and his wife and passed by mesne conveyances to the plaintiff: hqrein. Thereafter in 1872 Lucien D. Cabanne, the trustee, made another deed to Sarpy Carr — 349 — Cabanne, wherein he recited that by the former deed it was intended, to convey said land to Sarpy Carr Cabanne (that is, the share conveyed to him by the partition deeds of 1869) ‘ ‘ as fully as said trustee had power to convey the same; said Sarpy Carr Cabanne being in the opinion of said Lucien D. Cabanne, surviving trustee, fully capable of exercising a safe and prudent management thereof.” Upon this showing the circuit court adjudged the fee simple title to the plaintiff, and decreed that under the will of John Charles Cabanne no right, title, estate or interest in said lands passed or was limited to the children or issue of the sons, and that none of the defendants have any right, title, estate or interest in the land. After proper steps the defendants appealed. It thus appears that only questions of law are involved. The defendants’ contention,, reduced to its last analysis, is that the will gave the sons only an equitable life estate, and that the fee was limited to the heirs of the sons by necessary implication, and therefore the plaintiff acquired only a life estate in the lot in question, and that upon the termination of the lives of Joseph Charless and Sarpy Carr Cabanne the fee will pass to their heirs. This of course treats the voluntary partition and the deeds from the trustee as void, or at any rate as effective only so far as the life estate is concerned. On the other hand the plaintiff’s contention is that the sons acquired an equitable fee simple estate under the will, the legal title being in the trustee only for a particular purpose and being divested and the trust destroyed by the partition deeds of 1869, in which the trustee joined, and therefore the plaintiff as the mesne grantee of Joseph Charless Cabanne acquired a full fee simple title, and the heirs of Joseph Charless and Sarpy Carr Cabanne acquired nothing by the will of John Charles Cabanne. — 350 — I. The decisive question is, what interest did the sons of John Charles Cabanne acquire under his will? The industry, deep research and marked ability of counsel in the case, has left nothing more to be desired in the way of briefs. The discussion has taken a wide range, and has brought out a multiplicity of cases, both in our own State and in foreign jurisdictions, which bear upon the questions discussed by counsel. The briefs for the defendants cover over an hundred pages, and are replete with logic, force and ability, and with citations of cases, while the brief for the plaintiff covers fifty pages and is equally strong, clear and learned, The limits of an opinion preclude an examination ox discussion of every point made or of every phase of the case that has been presented. Nor, indeed, is ii necessary to follow counsel along all the lines of discussion, or to analyze all the cases cited, in order te solve the problem. It would serve no good purpose to follow the discussion of counsel as to the rule in Shelly’s case-, and the change made by our statute in that rule, because the devise in this case, whatever its nature, was not to the sons and their heirs or the heirs of their bodies, and therefore the rule in Shelly’s case has no application to this case. Neither is it at all material to the, plaintiff in this case whether the grandchildren of the testator take by limitation or by purchase, for if they take at all, the result is the same to- the plaintiff, and if they do not take at all, how they would take if they were entitled to take is immaterial. Likewise it is not necessary to consider what interest in the land the survivors would take, under the third paragraph, from the brother who died, for none of the brothers died before arriving at the age of twenty-one years, and without issue, and therefore the — 351 — conditions contemplated by that paragraph never arose. That paragraph is valuable only in considering the general and decisive question of what interest the sons acquired under the will. If the sons acquired only an equitable life estate in the land, then this third paragraph of the will is meaningless, for upon the death of one life tenant his estate would cease, and his life estate could not be extended by the will so as to pass to his brothers — the other life-tenants — but in such a case the fee would go at once as the will devised it or as the statute devolved the descent. Counsel for the defendants, however, differentiate in respect to this phase of the case, between an equitable estate for life and a right to education and support for life out of the income of the estate, and claim that this clause only entitled the survivors to the one-third of such income which would have gone to the deceased brother, so that after the death of one of the three brothers, the two surviving would be entitled to one-half each of the income instead of the one-third each as would be the case if none had died, and in case of the death of two, the longest liver would be entitled to the whole income. This construction of the third paragraph, however, can not be made to harmonize with either the seventh, the ninth or the eleventh paragraphs of the will, as will be demonstrated later in the course of the opinion. It will also serve no useful purpose to try to harmonize paragraph six with paragraphs seven, nine and eleven, nor to speculate as to whether or not this clause would be void for repugnancy if the will gave the sons of the testator an equitable fee simple estate. For no such question is involved in this case. All of the sons did not die without issue within the age of twenty-one years and therefore no estate ever passed to the brothers of the testator. Indeed this paragraph can not be made to harmonize with the chief and fundamental contention of the defendants that the testator’s sons acquired only an — 352 — equitable life estate, or a right to education and support for life out of the income of the property, and that the fee simple remainder vested by .implication in the grandchildren. For if this be true, then the attempt of the sixth paragraph to pass the fee to the brothers of the testator upon all his sons dying without issue within the age of twenty-one years, would be limiting a fee upon a fee, or rather, and worse still, would amount to limiting the entire fee to two different persons or sets of persons at the same time, each to the exclusion of the other. On the other hand if the defendants ’ contention that, the sons acquired only an equitable life estate be correct, then the limitation over to the brothers of the testator wbuld be a valid provision, but in that event the defendants’, contention that the fee was limited by implication to the grandchildren must fail, for the fee would have passed to the testator’s brothers and their heirs and assigns forever. So, too, if the plaintiff’s contention be true that the sons acquired an equitable fee, then the attempt by paragraph six to thus limit the fee to the testator’s brothers would be void for repugnancy. For it makes no difference that it is an equitable fee, as courts of equity follow the rules of law applicable to legal estates in such respects, and equitable estates are subject to the same incidents, properties and consequences as belong to similar estates at law. [Tremmel v. Kleiboldt, 75 Mo. l. c. 258; 1 Perry on Trusts, sec. 324.] But this repugnancy need not trouble anyone in this case, for no such thing ever happened and the testator’s brothers or their heirs or assigns are not parties to this case, nor are they asserting any rights. So, too, the power of the trustee to disinherit any of the sons who became a drunkard, gambler or spendthrift, needs no consideration, because none of them became such and none of them were ever disinherited. But if the defendants ’ contentions that the sons acquired — 353 — only a right to education and support or at most an equitable life estate and that the fee simple remainder was limited by implication to the grandchildren, be true, then whether any or all of the sons were or were not disinherited is immaterial, so far as the defendants ’ right to the remainder in fee is concerned, for the defendants’ estate in the land would not be affected' in any manner, nor would their right of possession be hastened or postponed, by reason of the fact that any of the sons were so disinherited or not. The provisions of paragraph ten allowing the trustees to sell any part of the land, except the three hundred arpens, is also unimportant, for it does not appear that the trustees sold any of the land whatever. Nor is it at all clear what light this paragraph can shed upon the nature or character of the estate devised to the sons. For whether such estate was a life estate or a fee simple, if the power was legally vested in the trustee it could be exercised and the trustee would be accountable for the proceeds, and the interest of the sons and of the defendants would be the same in the proceeds that it was in the land before it was sold. The elimination of the foregoing considerations from this case will serve to make the solution of the problem that much easier. Both parties concede that it was the intention of the testator to dispose of his whole estate, and not to leave any part to descend according to the statute, and this is the correct legal presumption. [RoBards v. Brown, 167 Mo. l. c. 457.] Both parties also concede that the will must be read from its four corners; that the'true intent and meaning of the testator must be ascertained, if possible; that in reading any ambiguity in the will the court can best understand the will by putting itself, as far as may be, in the place of the testator and reading the will in the light of the testator’s environment at — 354 — the time he made the will; that when the true intent is ascertained, all technical rules of construction must give way, and that words may be supplied or omitted, or sentences transposed in order to ascertain and effectuate the intention of the testator. And such is the law. [Small v. Field, 102 Mo. l. c. 122; Cross v. Hoch, 149 Mo. l. c. 336; Hurst v. Von De Veld, 158 Mo. l. c. 246; Walton v. Drumtra, 152 Mo. l. c. 497; RoBards v. Brown, 167 Mo. 447.] The expressions of the testator referring to “my property” are referable to the property at the time the will was written, and not to the date it took effect; and are therefore valueless in determining what estate passed to anyone under the will. [RoBards v. Brown, 167 Mo. l. c. 461.] In the'light then of these conditions and principles of law this will must be examined. The first thing that attracts the attention, in reading the will, is, that it is manifestly inops consilii, yet it is the work of a man of affairs, who had more or less idea of legal terms, and of the preparation of a will. Stripped of all technical terms, and reduced to every-day English, and read according to its good sense and true intent, the tale it tells is this: The testator felt his end approaching. He had a large estate. He had a wife and three sons, who were minors. He felt the necessity and propriety of providing for them, and, at the same time, of protecting them against the baneful consequences of their own, possible, imprudence. He first made a provision for his wife, which proved acceptable .to her. He then decided to treat all of his sons equally, except that he gave his oldest son his choice of his share of the three hundred arpens. But he realized that they were all minors, and unable to properly manage their shares for themselves. He knew that if they were left with property, some one would have to be appointed to manage it, and likewise that some one would have to be appointed guardian of their persons and look after their education. Naturally he preferred to have some — 355 — one of Ms own blood who had family pride and affection, act as guardian and curator, than to have a stranger appointed by a court who would perform such acts merely as a matter of business. He also knew that when the minors attained their majority the duties ,and powers of guardian and curator would cease, and the son would be entitled to be put into possession of his own. He evidently knew that it was within his power to continue a protectorate over the son and over the property beyond the time that the son attained his majority, and that this could be done by placing the property in the hands of trustees, and clothing them with a power to withhold the share of any one, or all of the sons, until such time as they had shown that they were not drunkards, gamblers or spendthrifts, and were competent to be trusted with the management and control of their own. Standing, as the testator did, in the fast closing shadows of the evening of life, the veil that curtains the future about was lifted, and he saw the panorama of the coming events after he would have laid down the burden of life, and in his own way he attempted to provide protection and care for his loved ones after he was gone. Having provided for his spouse, by means outside of his will, his whole thought, in the preparation of this will, was for his three sons. They were yet children, and the idea of their growing up and having children never seemed to have occurred to him, or if it did, he must have thought that as he provided for Ms children so his children would provide for their children, and therefore he gave no thought to any grandchildren. No one else than his sons seem to have appealed to his sense of duty or to his bounty. These were his environments, and these the fears and purposes that he had in mind. The scheme he evolved was to give each son an equal share in Ms estate, preferring thei oldest son «nly to the extent of allowing him to take Ms choice — 356 — of the three hundred arpens. He placed the whole estate in the hands of trustees, who were of his blood, and directed them to control and manage it, to educate his sons as well as the income of his property and their aptitude permitted, and to support them, whether as infants, or as unworthy sons, drunkards, gamblers or spendthrifts, "according to his rank and condition in society.” He empowered the trustees to hold the shares of each in trust, only using the income as aforesaid, and not to give any son his share until they were satisfied that he was fully capable of managing his share for himself, and if any son turned but to be a drunkard, gambler or spendthrift, he authorized the trustees to retain the management of his share, and to allow him only enough for his maintenance according to his rank and condition in society. Then it occurred to bim that one of his sons might die before attaining majority, and without issue, so, to prevent the share of such son going to any one else, even in part, he provided that the share of such son should go to the surviving sons. Then it seemed to occur to him that all of his sons might die within the age .of twenty-one years, without issue, so, to keep the property in the hands of his blood kin, the testator provided that in such event it should go to -his two brothers, and their heirs and assigns forever. He then appointed the trustees guardians of his children. This is the whole scheme of the will. Reduced to its last analysis, and leaving put the provisions in reference to one or all of the sons dying without issue, the scheme of the will is found in the second, seventh, eighth and eleventh paragraphs of the will, and that scheme is, first, vest the property in trustees for the benefit of the three sons; second, appoint the same persons to be executors, trustees and guardians; third, have the trustees hold the property and use the income for the education and support of the sons, not only until they attain majority, but until such time as the trustees — 357 — are satisfied that they are fully capable of properly managing it, and then “give” each one his share, provided, however, that if any son turns out to be a gambler, or drunkard or spendthrift, don’t “give” him his share, but continue the trust, and allow him only such sum as is sufficient to maintain him according to his rank and condition in society. It is true that the will does not affirmatively command the trustees to “give” each son his share whenever they are satisfied that he is fully capable of managing his share, and that the will employs the negative form of expression, to-wit, that the trustees 11 shall not give to my said children, or either of them, his share or shares of my estate to manage for himself or themselves until they or he shall, in the opinion of the said trustees, or survivor, or the heir or heirs of such survivors, be fully capable of exercising a safe, prudent management thereof.” But the form of expression employed is immaterial, and the rights of the devisees and the duties of the trustees are the same, whether an affirmative command was employed, or negative order given, for, at last, the thing to be done or not to be done was to give or not to give to-each son his share "in the event the trustees were satisfied he was or was not capable of managing his own. Thus the intent and meaning of the testator was as plainly expressed as it ought reasonably to be expected from one who was using language and terms of which he was not a master, to accomplish a lawful purpose. The meaning is clear, although the words employed to express it may not have been as apt as might possibly have been found to clothe the idea in. The eleventh paragraph of the will can not be harmonized with the idea or theory that the sons were given only an equitable life estate or a right to education and support for life, with a remainder in fee, by implication, in the grandchildren, nor in fact with any other idea than that the sons were given an equitable — 358 — fee simple estate, and that the trust should cease and the legal and equitable titles should unite in the sons, if and when they proved themselves capable of handling their own affairs. And this occurred, when in 1869, the sons made a voluntary partition, and the sole acting trustee joined in the deeds. That act was a sufficient legal expression of opinion by the trustee that the time had arrived and the conditions arisen when it was his duty and the sons’ right to have the whole title vest in the sons and to end the trust. Thereafter each son had the absolute fee simple title to the share allotted to him and could convey a good title thereto. The use of the words in this paragraph “to manage for himself” do not have the effect and was not intended to cut down or define the nature or character of the estate-, but were inteuded only to terminate the trust. The lot in question was thus vested in Joseph Charle-ss Cabanne, and has been conveyed by mesne conveyances to the plaintiff, and he is the owner of the fee simple title, and none of the defendants have any right, title, interest or claim in or to the same. It thus appearing that an equitable fee simple title, to afterwards ripen, on certain conditions, into a full legal and absolute fee-simple title was intended by the will, and not a mere life estate, there was no necessity under the statute as it then existed and now exists for the will to contain words of inheritance. [R. S. 1845, sec. 47, p. 1085; R. S. 1899, sec. 4646.] So also as a fee simple estate was intended, there could be no limitation, by implication, to the grandchildren. Such a limitation by implication depends upon the predicate that the estate of the first taker, is found to be only a life estate, and no provision is made for the devolution of the fee thereafter. A full discussion of the eases cited by counsel would only result in the same conclusion as that here reached, and it is deemed best to clothe this opinion — 359 — only in the fewest, plainest and easiest understood words possible. The judgment of the circuit court is right and is affirmed. All concur, except Valliant, J., who dissents.