Buxton v. Kroeger

FOX, J. — This cause is now pending in this court upon appeal by the plaintiff from a judgment of the circuit court of the city of St. Louis. — 232 — There is no dispute about the facts developed upon the trial of this canse, and we deem it unnecessary to set ont in detail the agreed statement of facts or other testimony upon which this cause was submitted to the trial court. It is conceded in the briefs of learned counsel for both appellants and respondents that the rights of the parties to this litigation rest upon the proper interpretation of the deed, which was embraced in the agreed statement of facts. With this view, to fully appreciate the legal propositions involved in the record before us, it is essential that the deed, which is the basis of this legal controversy, be reproduced. It was as follows: “This deed made and entered into this twentieth day of November, eighteen hundred and seventy-seven, by and between John F. Lauman and Catherina Lau-man, his wife, of the city of St. Louis, State of Missouri, parties of the first, part, and William F. Lau-man, of the county of St. Charles and State of Missouri, party of the second part, and said ' Catherina Lauman, party of the third part, Witnesseth: “That the said parties of the first part, for and in consideration of the sum of one hundred dollars to them in hand paid by the said party of the third part, the receipt of which is hereby acknowledged, and the further sum of one dollar to them paid by said party of the second part, the receipt of which is also hereby acknowledged, do by these presents, grant, bargain and sell, convey and confirm unto the said party of the second part, his heirs and assigns and his successors in trust, forever, the following described real estate, situated in the city of St. Louis, t.o-wit: [Here follows description of the various parcels of real estate involved in this suit, besides other parcels.] “To Have and to Hold the same, together with all and singular, the privileges and appurtenances thereunto belonging or in anywise appertaining, unto the said party of the second part, his heirs and as — 233 — signs, and to Ms successors in trust and their heirs and assigns forever. . In Trust, however, as follows: “First: For the sole and separate use, benefit, enjoyment and behoof of the said Oatherina Lauman, for and during the term of her natural life, entirely free from all control, restraint or interference on the part of her husband, the said John F. Lauman; the said Oatherina Lauman, during the said term of her natural life, to have, hold, use, occupy and enjoy, the exclusive use and undisturbed possession of said real estate and the appurtenances thereunto belonging, with full power, jointly with her said husband, to direct the said William F. Lauman, trustee, and his successors in trust, to sell and convey, mortgage, encumber by deed of trust, lease, or make any other disposal of said real estate, or any part or portion thereof, at their will and pleasure; the said Oatherina Lauman to receive to her own separate use and benefit the proceeds of such sale and encumbrance, and all rents and profits arising or accruing from the leasing or other disposal of said property; the said party of the second part and his sucessors in trust to hold said real estate during the lifetime of said Oatherina Lau-man and her husband John F. Lauman, subject at all times to the joint direction of the said Oatherina Lau-man and her said husband, as to the disposal of said real estate or any part or portion thereof, whether by lease, conveyance in fee, mortgage, deed of trust, transfer or assignment of this trust or otherwise, the said direction in writing to he evidenced by their joining with said trustee, or his successors in trust, in the execution of said lease, conveyance in fee, mortgage, deed of trust, or other instrument, and by their acknowledgment of the same, in due form of law. “Second: Should the said John F. Lauman survive the said Oatherina Lauman, and said real estate has not then been disposed of as above provided, then the said party of the second part and his successors — 234 — in trust shall hold said real estate to the use, benefit and behoof of said John F. Lauman, during the term of his natural life, with full power and authority vested in the said John F. Lauman, to receive and appropriate to his use the rents, issues and profits of said real estate; also at his will and pleasure to direct the sale, encumbrance or mortgage or deed of trust, lease, or any other disposition of said real estate as to him seem meet and proper. Also to appropriate to his own use, the proceeds of such sale, encumbrance or'other disposition of said property, without being accountable for said rents, issues or profits, or the proceeds of such sale, or other disposition of said real estate, to any person whomsoever. “Third: From and after the death of said Cath-erina Lauman and the said John F. Lauman, the said party of the second part and his successors in trust, shall hold the real estate above described, to the use, benefit and behoof, share and share alike of the children born or to be born of the marriage of said John F. Lauman and Catherina Lauman, the children now living, being named as follows, to-wit: John Henry Lau-man, born May 30th, 1854; Catherina Maria Alvina Lauman, born November 25th, 1863; John Frederick William Lauman, born November 11, 1867; Catherina Carolina Wilhelmina Lauman, born September 13th, 1869; and the said party of the second part, or his successors in trust, shall collect and receive all the rents, issues and profits arising or accruing from said real estate, out of which he or they shall pay the taxes levied or assessed upon said real estate. Also whatever sum may be necessary or requisite for keeping the buildings upon said real estate in good repair, and in tenantable condition, also the costs and expenses of collecting the rents and income arising or accruing from said property, together with a reasonable compensation for his or their services as trustee, and the balance or residue of the rents or income from — 235 — said real estate, after deducting the taxes, cost of repairs, expenses of collecting and compensation of trustee as aforesaid, shall he divided equally between the said children, and shall be regularly paid to such of them as 'shall have attained their majority at the end of every six months in each year, or if the said trustee or his successors in trust, in his or their discretion, shall deem it more advantageous, and for the best interests of said children so to do, he or they may make such payments at the end of every three months in each year. “During the minority of any of said children, the said trustee or his successor in trust, shall disburse the share of said rents and profits to which each minor child may be entitled, in such manner, for the support, maintenance and education of such minor, as he or they, in the exercise of their best judgment and discretion, may think proper and most conducive to the welfare and happiness of such minor. “At the expiration of ten years and after the date when the youngest of said children shall have attained lawful age, the said trustee or his successor in trust, shall make a final settlement with each of said children, paying over to each of them then living', and to the heirs at law of such of them as may have departed this life, their respective equal shares as aforesaid, of the said rents and profits, and thereupon this trust shall cease and be determined, and the title to said real estate and every part and portion thereof, not disposed of as hereinbefore provided, shall without any act to be done or performed by said trustee or his successor in trust, pass to and become fully vested in fee simple in said children then living, and in the heirs at law of such of said children as may then be dead, to be held by them as tenants in common, according to their respective equal shares as aforesaid, and their inheritance from such of said children as may then be dead. — 236 — “And the said Catherina Lauman and John F. Lauman, or the survivor of them, at any time hereafter, whenever from any cause whatsoever, they shall deem it necessary or expedient, shall have full power by an instrument in writing under their hand and seal, made by them, acknowledged in due form of law, to nominate and appoint a trustee or trustees in the place and stead of the party of the second part above named, which trustee or trustees, or the survivor of them, or the heirs of such survivor,' shall hold the said real estate upon the same trusts, and with the same powers and duties as above recited; and upon the nomination and appointment of such trustee or trustees, the estate in trust hereby vested in said party of the. second part, shall thereby be fully transferred and vested in the trustee or trustees so appointed by the said Catherina Lauman and John P. Lauman, or by the survivor of them. “And the said parties of. the first part covenant to warrant and defend the title to said real estate and every part and parcel thereof, against the claim of all persons whomsoever. “And the said party of the second part accepts and covenants faithfully to perform and fulfill' the trust herein created. “In Testimony Whereof, the said parties have hereunto set their hands and seals, the day and year first above written.” It is conceded by counsel on both sides of this controversy that the judgment of the trial court must stand or fall upon the correct interpretation of the deed as heretofore indicated, and if at the time of the execution and delivery of such deed its provisions created a vested remainder in the children designated, the plaintiff is entitled to recover and the judgment in this cause should be reversed. On .the other hand, if the provisions of such deed created simply a contingent remainder in such children then the judgment rendered — 237 — by the trial court was proper and should be affirmed. In view of these concessions by both parties to this litigation we see no necessity for burdening this opinion with a detailed statement of all the facts developed at the trial. As before stated, the judgment rendered by the trial court was for the defendants. A timely motion for new trial was filed and by the court taken up and overruled, and from the judgment rendered the plaintiff prosecuted this appeal, and the record is how before us for consideration. OPINION. At the very threshold of the consideration of the questions involved in this proceeding it is well to keep in mind the legal propositions, the correct solution of which are sought by the respective parties to this controversy. They rest within a very narrow compass and can be stated in a few short sentences. On the one hand it is earnestly insisted • that by the terms employed in the deed indicated in the statement of this cause there was created a vested remainder in the children of the grantors then born or thereafter to be bom, and that the intention of the grantors gathered from the whole deed was to give his children such vested remainder. On the other hand it is with equal earnestness insisted that the deed upon which the rights of the parties to this controversy must rest simply created a contingent remainder in the children of the grantors, and that by giving due consideration to the entire deed and each and every provision in it the intention of the grantors to create such contingent remainder is clearly made manifest by the terms employed in the instrument. In other words, it is contended upon the one side that upon the execution and delivery of this deed by the grantors the interests of the children in the remainder were — 238 — vested at the date of the execution and delivery of such deed. On the other side it is contended that under the express provisions of the deed the title to the remainder in such real estate would not vest until ten years after the youngest child reached his or her majority, and that it was to vest in those of the children living at that period and the heirs at law of such of them as may then he dead. In harmony with such provisions it is earnestly insisted-on the part of the respondents that under the terms of the deed the persons in whom the title would vest at the termination of the ten-year period could not he ascertained, hence the terms employed in the instrument created a contingent remainder. It may also be added concerning the controversy in this proceeding that when this cause was first presented to this court, in fact upon the last oral argument upon the legal propositions involved, there was no dispute at that time between learned counsel for appellant and respondents as to the validity of the conveyance now before us for interpretation. It was frankly conceded by counsel for appellant as well as respondents that the deed involved fin this controversy was valid and formed the basis upon which both parties predicated their rights so earnestly contended for in this suit. However, since the oral argument learned counsel for appellant have presented a supplemental brief in which numerous authorities are collated upon the subject of the rule of perpetuities. In this brief by counsel for appellant it is insisted that this deed created a vested remainder and is valid, but if the court construed the deed as' creating a contingent remainder it is void on the ground that it violates the rule of perpetuities. We shall not undertake to discuss this proposition for the reason that the record before us does not warrant the consideration of it. The record plainly discloses that the parties to this suit tried the causé — 239 — and sought the judgment of the lower court upon the theory that this deed was entirely valid, and the main controversy which arose was upon the force and effect of the deed, that is, whether or not it created in the children a vested or contingent remainder. It is sufficient to say upon that proposition that under the well-settled rules of this court parties will not he permitted to try causes upon one theory in the lower court and present them upon an entirely different, theory in the appellate court. We are unwilling to convict in this proceeding the trial court of error upon a theory with which it was not confronted in the trial and disposition of the cause. This is an action in ejectment, and upon the pleadings in this cause the judgment rendered would not he held res adjudicata upon any subsequent suit in ejectment for the real estate involved in this proceeding, hence if the appellant should institute another suit in ejectment and insist upon the trial of that cause that this deed is void for the reason that it violates the rule of perpetuities, and the cause should again reach this court, it will he time enough to then treat of the proposition. Doubtless when the trial court is called upon to deal with that litigation upon the theory that this deed violates the rule of perpetuities, it will he confronted with many reasons why such rule does not and should not apply to the deed now under consideration; however; we repeat that the record does not disclose any such case before us. Upon the present state of the record confronting us we must decline to pass upon or even discuss the proposition as to the bearing that the rule of perpetuities has upon the cause now pending before us. Manifestly the plaintiff based her right of recovery upon the deed as heretofore indicated, and the trial proceeded upon that theory. Clearly if that deed is void the plaintiff was not entitled to recover in the trial court. — 240 — I. The text-writers, as well as the numerous adjudications, in treating of the subject of remainders, seem to have no trouble in clearly pointing out in a general way the distinction between vested and contingent remainders. The difficulty, however, has manifested itself in many of the adjudications in the courts of this country in the application of the rules of law which mark the distinction between vested and contingent remainders, to the terms employed in the particular instruments in judgment before such courts. One of the marked characteristics of a vested remainder is suggested by Mr. Tiedeman in his treatise upon Real Property, in the footnote to section 397, as a reliable test to determine whether the remainder is vested or contingent, that is, “the present capacity to convey an absolute title to the remainder,” and, on the other hand, the marked feature of the class of contingent remainders with which we are dealing, is whether from the terms employed in the instrument of conveyance there is manifestly an uncertainty of the person or persons who are to take the remainder. In other words, as expressed by Mr. Fearne on Contingent Remainders', p. 217, “where the contingency depends upon the uncertainty of the person who is to take the remainder,” that is, where the remainder is limited to a person not ascertained by the terms of the instrument, the remainder is contingent. Mr. Tiedeman on Real Property (2 Ed.), sec. 402, points out instances whe- i the remainder would be a contingent one. He says: “If the remainder is limited to children living at the death of the life tenant, the remainder is contingent until the death of the life tenant. This is so, although it may be provided that in the event of the prior death of any of the children, the share of such child or children should vest in his or their issue. The issue would in that case — 241 — take as purchasers and not as heirs, unaffected by any attempted conveyance of the remainder by the deceased parent. ’ In Emison v. Whittlesey, 55 Mo. 254, the conveyance in judgment before the court was made to A in trust for the sole and separate use of B, a married woman, for life, and upon her death the remainder to vest in her children and the children of such of her children as were dead at her death. This court in treating of that proposition very clearly and correctly stated that “at the time of the deed it was impossible to say that any one was in existence who could take the remainder. No one could tell that any of the children would survive the mother. It was, therefore, a contingent remainder.” DeLassus v. Gatewood, 71 Mo. 371, was a case where the testator had devised all of his property to his wife for life or widowhood. It was provided that at her death the property was to be equally divided between the children of the testator that were alive, or their bodily children, naming them in the instrument. This court in that case, on page 381, thus stated the law as applicable to the provisions in the will as suggested: “Until the death or marriage of the tenant of the particular estate, it was impossible to ascertain who of the children of the testator, or their bodily children, would be alive to take in remainder.” The remainder in that case was held to be contingent, and that the heirs of one of the children named, who died before the mother, had no interest in the estate. Vested or contingent remainders are determined not by the uncertainty of enjoying the remainder, but by the uncertainty of the vesting of the estate. It is this uncertainty of the persons who are to take in' remainder which creates one class of contingent re — 242 — mainders. [Rodney v. Landau, 104 Mo. l. c. 257-8; Emmerson v. Hughes, 110 Mo. l. c. 630.] 1 Preston on Estates, p. 74, in treating of tbis subject, uses tbis language: “It is not tbe uncertainty of enjoyment in future, but tbe uncertainty of tbe right to that enjoyment, which marks tbe difference between an interest wbicb is vested and one wbicb is contingent. ’ ’ In Taylor v. Adams, 93 Mo. App. 277, tbe conveyance disclosed by tbe record in that case was to Mrs. Taylor for her sole and separate use for life, with power to dispose of tbe fee by sale, and in case she failed to direct tbe sale then tbe same was to be equally divided between her children or their descendants, tbe children of any that were dead to take tbe place of their parents. Tbe appellate court in that case held that tbe conveyance created a contingent and not a vested remainder. Tbe appellate courts of numerous other States have treated of tbe subject of remainders and have pointed out very clearly tbe distinction between vest-, ed and contingent remainders. Tbe authorities from such- other jurisdictions have been fully collated and cited by counsel for respondent in their briefs, and it is sufficient to say of them that they are in harmony with tbe views of tbe text-writers herein indicated, as well as with those of tbe Supreme Court and Courts of Appeals of tbis State. II. Directing our attention to tbe provisions of this deed, it will be observed that there is only one clause in' tbe deed wbicb undertakes by express provisions to designate tbe time when tbe title to tbe remainder of tbe estate shall vest. That provision of the deed is as follows: “ At tbe expiration of the ten years from and after tbe date when tbe youngest of said children — 243 — shall have attained lawful age, the trustee shall make final settlement with each of said children, paying over to each of them then living, and to the heirs of such of them as may have died, their respective equal shares of the rents and profits; and thereupon the trust shall cease and he determined, and the title to said real estate and every part and portion thereof, not disposed of as hereinabove provided, shall without any act to he done or performed by said trustee, pass to and become fully vested in fee simple in said children then living, and in the heirs at law of such of them as may then be dead.” It is insisted by learned counsel for appellant that this clause in the deed did not create a contingent remainder, and it N suggested that “if, in this case, the deed had said that the remainder should go to those-children of the grantors living at the time of the death of their mother, the life tenant, then the right of either child to have any part of it would be contingent on his or her surviving the mother, and if that were the fact in this case, this would he a contingent remainder. ’ ’ Now, while it may he conceded that a recitation in the instrument of the facts suggested would create, as is insisted by the appellant, a contingent remainder,, however it is manifest that the basis upon which the case as suggested is a contingent remainder, is predicated upon the uncertainty of whether or not the children or any of them would he alive at the time of the death of the mother, hut it will certainly not be seriously contended that there are not other uncertainties as to when the estate in remainder should vest that would make the remainder a contingent one. It is by no means essential in order to create a-contingent remainder that the uncertainty in the deed now under consideration should be of the precise nature and character suggested by counsel for appellant. In the clause of the deed to which particular attention has been directed, which expressly provides that “at — 244 — the expiration of ten years from and after the date when the youngest of such children shall have attained lawful age” the title in fee to the real estate shall vest in the children of the grantors “then living, and in the heirs at law of such of them as may then be dead, ’ ’ we have an uncertainty as plainly manifest as is made by the facts suggested by appellant. The contingency suggested that the remainder should vest in the children at the death of the mother is of no greater force and does not manifest any greater uncertainty than the provision which vests the remainder in the children living at the expiration of the ten-year period. There is absolutely no distinction to be drawn between the character of the remainder in the supposed case and the character of the remainder expressly provided" for by this deed. The essential elements of uncertainty necessary to create a- contingent remainder in the supposed case suggested and the uncertainty which appears upon the face of the deed now in judgment before us, in contemplation of law stand upon the same footing.. III. It is next insisted by learned counsel for appellant that the clause fixing the time when the title should vest, and expressly providing that at such time without any act to be done or performed by the trustee the .fee simple title, should pass and become fully vested in •said children then living, and in the heirs at law. of :such of them as may then be dead, were unnecessary words, without force -or vitality, and should not be •considered in reaching a correct conclusion of the true 'interpretation of the instrument now under consideration. With the highest respect and consideration for the ■views entertained by learned counsel for appellant we •are unable to give our assent to this insistence. It is — 245 — apparent that if the grantors in this deed intended to create a vested remainder the clause which is now under discussion was unnecessary; hut, if on the other hand the grantors saw proper to embrace in such deed an express provision designating the time when the title in fee simple should pass, as well as the persons in whom such remainder should vest, and if under the terms of the deed it was uncertain as to the persons who would take the remainder, we are unable to comprehend upon what rule, either in law or equity, such clause can be ignored in the interpretation of the instrument now in judgment before us. To ignore the provisions of this deed, as suggested by appellant, would certainly be doing violence to the terms employed in the conveyance, and would fall far short of being in harmony with the plainly manifest intentions of the grantors in such instrument. The rule is well settled in this State, in fact it is no longer an open question, that in the interpretation of contracts, whether it.be deed or any other instrument of writing, the proper construction of the instrument must be sought from the entire deed, and not merely from any particular part of it: In the early case of Gibson v. Bogy, 28 Mo. 478, this court in discussing that proposition thus laid down the rule which has never been departed from: ‘‘ In the construction of deeds, the intention of the parties must govern as in other cases of contract. If the language is free from ambiguity, the instrument must be construed according to the plain common meaning of the words, but the construction must be on the entire deed, and not merely on any particular part of it; and it is the 'duty of the courts ‘to endeavor to find out such a meaning in the words as will best answer the intention of the parties.’ ” In Orr v. Rode, 101 Mo. l. c. 396, this court used this language: “In the construction of such an instrument as the deed” in question “the first and best rule — 246 — of interpretation is to gather from the entire document, as best we may, the intention of the parties to it and give effect to such intent when manifest.” It is fundamental that all parts of an instrument are to he construed as consistent with each other, if such construction he possible. [McCulloch v. Holmes, 111 Mo. l. c. 447.] In Meyer v. Christopher, 176 Mo. l. c. 594, the uniform rules as announced by this court treating of this proposition were strictly adhered to, and it was there stated: “Courts construe contracts and ascertain their meaning from all of the provisions of the contract and not from single words or phrases or sentences, and when the intention of the contracting parties is thus ascertained, that intention will he effectuated, unless it violates some inexorable rule of law. ’ ’ In Williamson v. Brown, 195 Mo. l. c. 336-337, this court, speaking through Lamm, J., very clearly and correctly pointed out the well-recognized rule for the interpretation of written instruments. In commenting upon the case of Utter v. Sidman, 170 Mo. 284, it was said that “the doctrine of that case is, in a nutshell, that the old cast-iron general rule, that, if there ha repugnancy, the first words in a deed and the last words in a will shall prevail, no longer obtains in Missouri.” In that case the rule as announced in the Utter case was quoted approvingly and attention was specially directed to that quotation, which is as follows: “In short [under the old rule] a grantor might convey as he pleased and his intention and wishes would be observed by the courts, but with this qualification, that he must express his intention in set and technical language and at the proper places and in the right order and clause of the deed. Failing to do so, the courts did not feel called on to bother about his intention, but took what he said first as expressing conclusively his intention and disregarded everything else as void for repugnancy. Such a rule of construction — 247 — made it almost impossible for anyone except a very expert conveyancer to draw an instrument that would stand the test of the rule, and likewise made it very easy for the courts in construing complicated instruments, but it is not clear that the real intention of the grantor was ascertained or effectuated. ■ The modern rule, which prevails in' this State, is much simpler and much more calculated to carry out the wishes of the grantor. The intention of the grantor, as gathered from the four corners of the instrument, is now the polar star of construction. That intention may be expressed anywhere in the instrument, and in any words, the simpler and plainer the better, that will impart it, and the court will enforce it no matter in what part of the instrument it is found.” IY. It is next maintained that the trustee in executing the provisions embraced in the deed, which directed him to collect the rents and pay them over to the children, was not acting as a mere agent or as one controlling the mere power, but it is- insisted that he was acting as trustee holding the title in trust, and the persons to whom he was to pay the money collected were not mere donees of the money, but were equitable owners of the land, and the money was theirs because it was the fruit of the land. We are unable to give our assent to the correctness of this contention. The grantors in this deed expressly created this trust, and the powers delegated to the trustee were not left to mere conjecture or surmise, to be exercised upon the theory that as he-was holding the land in trust, hence by legal presumption followed the right to collect the rents and pay them over to the children, but the grantors in this deed not only expressly created the use of the rents for the children, but expressly designated and plainly pointed out the manner in which such use should be — 248 — executed and carried out by the trustee; hence it must logically follow that under the provisions of this deed the right to collect the rents and disburse them emanates from the deed itself. The children were not entitled to the money arising from the rents by reason of any title or interest in the land, but they were only entitled to such money because- the deed directed the trustee to pay the money over to them, and we are unwilling to sanction the doctrine that because the trustee is directed to pay the income derived from the property to the children, such fact had the force and effect of a conveyance of any title to the land itself. Manifestly had this deed provided that after the ten-year period had elapsed the legal title to the real estate involved in this proceeding should be conveyed by the trustee or become fully vested in some person other than those named as the children of the grantors, the right of the children to receive money in the interval of the time between the expiration of'the life estate and the expiration of the trust could not have depended upon any title to the real estate being vested in them. We repeat, that the rights of the children to the money arising from this property held by the trustee can only be predicated upon the express provisions of the deed and the plain directions given to the trustee to pay such money over to them y. The provision of this deed upon which appellant chiefly relies for support of the insistence that this deed created a vested remainder, is that after the death of said Catherina Lauman and said John F. Lauman, the said trustee shall hold the real estate involved, or so much thereof as shall not have been disposed of by the life tenants, to the use, benefit and be-hoof of the children born or to be born of the marriage of said John F. Lauman and said Catherina Lauman, — 249 — the children living at the time of the execution of the deed being named in the instrument. Directing Our attention to this provision it will he observed that there is an entire absence of any power either in the trustee or the children named, of disposition of any portion of the property that was left at the death of the life tenants, and it will be further observed that in the creation of this use it is not provided that this land shall be held in trust for the children and their heirs or assigns, but the deed simply creates a use and limits it for the benefit of the children, and such use created is fully pointed out and explained by the terms which follow its creation. In treating of the provision which creates the use for the benefit of the children, the intention of the grantors should not be interpreted from simply some portions of the recitals in this provision. In arriving at the true intention of the grantors the provisions of the entire instrument must be looked to, and with the observance of this rule, when we consider, following the creation of this use for the benefit of these children, the particular and detailed directions given the trustee as to the execution of this use, which was applicable alone to the keeping of the property in repair, collecting the rents and paying it at stated times to the children, there is no difficulty in arriving at the conclusion, when the deed is considered in its entirety, that by that provision it was not intended to vest any title to the real estate in such children at the date of the execution of the deed now under consideration. No one can analyze the provisions of this deed without fully recognizing the well-settled purpose of the grantors in this conveyance to keep the property in the family and withhold the title and control of such property until such period (which is designated in the deed) as it appeared to such grantors the judgment of such children might be sufficiently matured to take the title to the real estate and deal with it as their own. This — 250 — settled purpose of the grantors, which is made so plainly manifest by the provisions in this deed, very clearly negatives any intention on their part to create a vested remainder at the date of the execution and delivery of such deed. While it is true that whether the remainder was vested or contingent, the children upon arriving at their majority might barter, sell, give away, or devise their interests in such estate, it is common knowledge that there is a. marked difference between dealing with vested and contingent remainders in estates, and this difference is more intensely marked in the opportunities for deals concerning such interests, hence, if this deed created a vested remainder in the children at its date and was so intended by the grantors, it is significant that there is an entire absence of any provisions to meet the conditions should any of the children, after reaching their majority, give away or convey for a consideration their title to the estate in remainder prior to the expiration of the ten-year period. A careful analysis of the provisions of this deed most clearly indicates that the grantors therein, in each and every provision of the deed, were extremely watchful as to where the title to this land should vest. Emphasizing the correctness of the conclusion that the grantors never contemplated in the execution of this deed the creation of a vested remainder, it will be observed by a careful analysis of the language employed in it that the grantors never recognized any power either in the trustee, the children or anyone else, to convey or dispose of the title or any part of this property except in the manner pointed out by the deed, which was applicable alone to conveyances made upon directions of the life tenants. If the grantor, as is insisted upon by appellants in this case, intended to create a vested remainder, he must have known that the children that were of age at the time of the execution and delivery of the deed and the other children — 251 — upon reaching their majority would have the right, by appropriate instruments, to either give away or convey in any other manner recognized by law such vested estate; hence it is significant when the deed was executed the grantors expressly provided that after the death of the life tenants the trustee should take charge of all portions of the property that had not been conveyed by the life tenants in the method pointed out by the deed. Then follows the express directions of the trustee that his dealing with such property, so far as the rents are concerned, shall be with the children, and manifestly the thought seems to have never entered the minds of the grantors that by this deed a vested remainder was created. If so it clearly follows that the children upon reaching their majority poésessed full power to convey the title to the interest in the estate remaining upon the death of the life tenants. Those of the children who were of age at the date of the execution and delivery of this deed were authorized to pass the title to their interests in such estate. The same may be said as to the other children as they reached their majority. This clearly would be in direct conflict with the express provisions of this deed, which designates the time when the title to the remainder of this estate shall vest and in whom it shall vest. It is not a sufficient answer to this question that it may be said that if the remainder was a contingent one the children would also have the right to convey such interests prior to the death of the life tenants and prior to the expiration of the ten-year period. That may be conceded to be true, yet, as heretofore stated, there is a marked difference between a vested and a contingent remainder. If the remainder is vested and the children should undertake to convey it they deal with the title to whatever estate is left upon the death of the life tenants. On the other hand, the children in undertaking to convey their interests in a contingent remainder would be dealing with a mere contingency. — 252 — Their interests would not be vested. Their conveyance would not pass any title to a vested interest. The title does not vest until the expiration of the ten-year period, and then it passes to the children living at that period and the heirs of those who have died, hence a conveyance by any of the children prior to the expiration of the ten-year period and the termination of the trust would simply he dealing with a mere contingency, and it would not and could not he known to the parties to that transaction at the date-of the consummation of it, as to whether or not any title to the remainder of such estate had passed by-such conveyance. Manifest-' ly the . grantors in this deed never contemplated that they were executing an-instrument by which the title to the estate remaining after their death might he conveyed to entire strangers prior to the period designated by the express provisions of the deed, and even prior to the death of either of the life tenants. If this be the nature and character of this instrument, then we are unable to comprehend the great concern the grantors manifest in the provisions of this deed about the children. As before stated, the grantors in this deed in the first use created retained the absolute control of the property. This deed retained in the grantors, John F. Lauman and Catherina Lauman, absolute power to control and dispose of the title until the death of the survivor of them and gives them unconditionally all the rents and the entire proceeds of the sale of the property. By the provisions of this instrument they have power to control and convey the property in fee and the right to take the proceeds as absolutely their own. This in effect constituted the entire ownership of the property. It will be noted that the life tenants, the grantors, retained absolute power to direct the sale and the right to retain as owners the entire proceeds of such sale. It must not be overlooked that in. order to hold that the remainder was vested, as con — 253 — tended for by tbe appellants, it must be fonnd tbat tbe children did take a vested interest in tbe property from tbe execution and delivery of tbe deed on November 20, 1877. In our opinion, tbe strong terms employed in this deed to safeguard tbe absolute control and in fact tbe entire ownership of this property, indicates at least in some degree tbe intention of tbe grantors to exclude tbe possibility during their lives of a vested right in any one else. VI. Again recurring to tbe consideration of tbe clause in this deed (which appellant insists was unnecessary and without any force or effect) after a most careful and thorough analysis of each and every clause embraced in tbe instrument now under consideration we have reached tbe conclusion tbat this final clause is tbe most vital of any contained in it. In tbe first place, it is tbe only provision in the deed which, after tbe vesting of the title in tbe trustee, undertakes to further deal with the title to this property and divest tbe title out of tbe trustee and invest it in those designated by tbe grantors in tbe deed. This clause, it will be noted, was tbe final provision of this instrument which undertook to deal with tbe disposition of this property, and doubtless was inserted with a full recognition of tbe provisions of tbe deed which preceded it. There is no uncertainty or ambiguity in tbe terms employed in this clause. They are plain and clearly manifest tbe purpose and intention of tbe grantors so far as concerns tbe time at which the title shall vest, and tbe persons who are to take such title. It' is expressly provided in this clause tbat, “At tbe expiration of ten years from and after tbe date when tbe youngest of said children shall have attained lawful age, tbe said trustee or bis successor in trust shall make a final séttlement with each of said children, paying over to each of them then liv — 254 — ing, and to the heirs at law of snch of them as may have departed this life, their respective equal shares as aforesaid, of the rents and profits, and thereupon this trust shall cease and he determined, and the title to said real estate and every part and portion thereof, not disposed of as hereinbefore provided, shall without any act to he done or performed by said trustee or his successor in trust, pass to and become fully vested in fee simple in said children then living, and in the heirs at law of such of said children as may then be dead.” The grantors in this clause in no uncertain or doubtful terms designated the exact time when the title to this real estate should vest, and in the language employed in that clause they have manifested very clearly that they did not recognize that the title to the real estate remaining after their death, or any part of it, was vested, nor was it their intention to do so, by any of the other provisions embraced in this instrument. This deed provides that at the date, which was ten years after the youngest child becomes of age, “the title to said real estate and every part and portion thereof, not disposed of as hereinbefore provided, shall pass to and become fully vested in fee simple in said children then living and in the heirs at law of such of said children as may then be dead.” It will be noted that the only method provided for the conveyance of this property by this provision of the deed, preceding the clause now under consideration, was by direction of the life tenants or the survivor of them. This being true, the provision in the deed which fixed the date when the title should pass and vest, with the express provision that the title which the grantors sought to pass and vest by this clause, being the title to every portion of the real estate which had not been previously conveyed under their direction during their life tenancy, excludes the idea of a vested remainder, and we see no escape from the conclusion that the title which passed and vested under the pro — 255 — visions of that clause and expressed to be tbe title to every part and portion of tbe real estate wbicb bad not been disposed of by tbe grantors in tbe method pointed out by tbe deed, is an absolute exclusion of tbe theory that any title in remainder was vested in any person at tbe date of tbe execution and delivery of this deed. In other words, when these grantors say in this clause of this deed that tbe title to every part and portion of tbe real estate remaining after their death, which was not disposed of by their directions by tbe trustee during their lives, shall then pass to their children then living, they fixed an absolute exclusion that any title to an estate in remainder vested at the date of the execution of the deed, and that exclusion clearly negatives any intention upon the part of the grantors by the provisions of this deed to create such vested remainder. In our opinion this clause in the deed is a very vital one, and we are unable to concur in the views» expressed by counsel for appellant, which in effect maintain that the provisions of this clause were of no force or vitality.’ We have herein indicated the long and unbroken line of decisions applicable to the rule for the interpretation of written instruments, which have with such uniformity held that in the interpretation of such instruments the proper construction must be sought from a consideration of the entire writing. If these cases are to be longer followed and regarded as a guide to this court, we are unable to see how the provisions of this clause in the deed can be ignored. With the plain and unambiguous terms of this clause there is no necessity for surmises or speculations as to the time when the title passed to this real estate. It is the only one in which the title to the remainder of this real estate is dealt with, and it expressly provides that after the expiration of ten years from the time the youngest child becomes of age the title shall pass to and become fully vested in fee simple in the children of the grant — 256 — ors then living, and in the heirs at law of such of said children as may then be dead. The inquiry is further made on the part of the appellant that if the equitable estate in fee did not vest until ten years after the youngest child became of age, where was it between the termination of the life estate in 1893 and the expiration of the ten-year period in 1897? It is a sufficient answer to that inquiry to say that under the provisions of section 4596, Revised Statutes 189-9, it was not necessary that there should he any estate created between the end of the life estate and the vesting of the estate in remainder. It was expressly ruled by this court in O’Day v. Meadows, 194 Mo. 588, that an estate may be created by deed to commence in the future without any intervening estate to support the same. But aside from all this, in our .opinion, under the provisions of this deed the legal title to the real estate embraced in such deed was vested in the trustee, and he held the same until the period -’fixed for the termination of the trust, which was ten years after the youngest child reached its majority. VII. Our attention is next directed to the final provisions of this deed in which it is provided that- at the expiration of the trust the title to all of the real estate and every portion thereof which had not been disposed of by the life tenants in the manner provided in the deed, should pass to and become fully vested in fee simple in said children then living and in the heirs at law of such of said children as may then be dead. It is sufficient to say concerning that provision of' the deed that if the conclusion reached as to the interpretation of it is the correct one, then.it is only necessary to suggest that the terms in the deed, “heirs at law of such children as may then be dead,” do not mean that the heirs at law were to take by descent the — 257 — interest of such children as may then he dead, hut under the ■well-recognized rules applicable to such provisions in instruments passing title to real estate, such heirs at law will take as purchasers under and by virtue of the deed. In other words, those terms indicate the person or persons to whom the grantors give the estate in remainder by way of substitution for the deceased children, and those terms by no means should be construed that the heirs at law were to take the estate by descent through the deceased. "We see no necessity for pursuing this subject further. We have given expression to our views upon the main propositions disclosed by the record, which results in the conclusion that the judgment of the trial court should be affirmed, and it is so ordered. Burgess, Lamm and Graves, JJ., concur; Valliant, G. J., Gantt and Woodson, JJ., dissent.