Inlow v. Herren , 306 Mo. 42 ( 1924 )

The plaintiffs in this cause, under the first count of their petition, asked for determination of title to certain lands in Pike County, setting forth therein the interests owned or claimed by the several parties; and in the second count, asked for a degree of partition in accordance with the respective interests asserted. The entire body of land consisted of two hundred forty acres, but the interests as alleged had reference to the respective claims of the parties in three several tracts, one of seventy acres, one of ninety acres, and one of eighty acres. Upon the trial it was found, and it is conceded here, that James A. Thomas, one of the plaintiffs, was sole owner of the seventy-acre tract, and that tract, and any issue as to it, was eliminated. The court entered its decree for the sale in partition of the ninety-acre tract, and of the eighty-acre tract, and for distribution of the proceeds among the parties, in accordance with their respective rights as found; and a sale of these two tracts having been made and approved, an order of apportionment of the proceeds was entered. The court, upon the taking of the appeals, ordered the net proceeds of sale to be held pending the appeals. The rights involved here are the rights in the net proceeds.

The cause is here upon cross-appeals: First, the appeal of James A. Thomas, one of the plaintiffs, who assigns error in the finding that he was not the owner of an undivided one-fourth interest in the ninety-acre tract, claimed by him under a deed from his sister Fannie I. Thomas, who was his rival and the successful claimant for said one-fourth interest. Second, the appeal of Jennie Ann Newman and others, constituting nineteen of the defendants, who assign error in that they were adjudged to have no interest in the eighty-acre tract, but that the eighty-acre tract was found to be owned by said James A. Thomas, a plaintiff, and by Cora B. Herren, a defendant, both of whom are respondents here upon the issue of title to said eighty-acre tract.

I. The issue first considered is that related to the interests of James A. Thomas and Fannie I. Thomas in the ninety-acre tract. The facts upon which this issue arises, are simple. It was admitted that as to this ninety-acre tract the commonQuitclaim source of title was Sarah Helen Thomas, who was theDeed. mother of James A. Thomas, Fannie I. Thomas and Cora Herren, and the grandmother of plaintiff Ottie Inlow and eight other plaintiffs, who are children of Lee Routen, a deceased daughter of said Sarah Helen Thomas, deceased. It was admitted that said Sarah Helen Thomas acquired fee simple title to the ninety-acre tract by a deed made May 15, 1880, and that she continued to own the ninety-acre tract until her death, in October, 1917, and that she died intestate. Her heirs at law, therefore, are her son, said James A. Thomas, her daughters, Fannie I. Thomas and Cora B. Herren, and her grandchildren, Ottie Inlow and others, children of Lee Routen, deceased. The issue between James A. Thomas and Fannie I. Thomas as to this ninety-acre tract arose, and depends upon the effect of a deed made by Fannie I. Thomas to James A. Thomas on August 6, 1897, whereby Fannie I. Thomas undertook to convey to James A. Thomas any interest she might thereafter acquire in the land as heir of her mother, Sarah Helen Thomas. James A. Thomas claimed that by virtue of this deed Fannie I. Thomas had no interest in the ninety-acre tract, but that he had acquired the one-fourth interest which she, otherwise, would have inherited from her mother. This deed is as follows:

"This indenture made on the sixth day of August A.D. one thousand eight hundred and ninety-seven by and between Fannie I. Thomas and Samuel S. Thomas her husband of the County of Macon and State of Missouri, parties of the first part, and James A. Thomas of the County of Audrain in the State of Missouri, party of the second part:

"Witnesseth, that the said parties of the first part, in consideration of the sum of one hundred dollars, to them paid by the said party of the second part, the receipt of which is hereby acknowledged do by these presents, Remise, Release and forever Quitclaim unto the said party of the second part, the following described lots, tracts or parcels of land, lying, being and situate in the County of Pike and State of Missouri to-wit:

"The southwest quarter containing one hundred sixty acres also the west half of the northwest quarter containing eighty acres all in Section 15, Township 52, Range 4 West.

"The grantors herein convey all their right, title and interest that they now have in the above described land and any right, title and interest that they may acquire in the future as heirs of Sarah H. Thomas and Cora B. Thomas.

"To have and to hold the same, with all the rights, immunities, privileges and appurtenances thereto belonging unto the said party of the second part, and his heirs and assigns forever; so that neither the said parties of the first part, nor their heirs, nor any other person or persons for them or in their name or behalf, shall or will hereafter claim or demand any right or title to the aforesaid premises, or any part thereof, but they and every of them shall by these presents, be excluded and forever barred.

"In witness whereof the said parties of the first part have hereunto set their hands the day and year first above written.

"FANNIE I. THOMAS," "S.S. THOMAS."

The ninety-acre tract now in issue is a part of the two hundred forty acres described. This deed was acknowledged by the grantors on August 6, 1897, and was filed for record on August 8, 1897. The trial court held that this deed was insufficient to convey any interest which Fannie I. Thomas thereafter inherited from her mother upon the death of the latter in October, 1917. The issue was made under the pleadings as follows: James A. Thomas pleaded ownership of a one-half interest in the ninety-acre tract. Fannie I. Thomas denied this, and pleaded that James A. Thomas owned a one-fourth interest, and that she owned a one-fourth interest therein, to which James A. Thomas replied, setting up the making of the aforesaid deed, and pleading that by virtue thereof, and of acceptance of a valuable consideration therefor, Fannie I. Thomas was estopped from claiming any interest in the tract mentioned. The court overruled the motion of Fannie I. Thomas, to strike out that portion of the reply of James A. Thomas which set up an estoppel, the ground of the motion being that such portion was a departure from the petition, and also that it did not state facts sufficient to constitute any defense to her answer. There is no denial of the allegation of the payment of the consideration for the deed. There is no allegation or proof of fraud in procuring the execution and delivery of the deed. The issue is presented squarely and solely upon the effect of the terms of the deed itself.

As a mere quitclaim deed it could operate to convey only such interest as was already vested in the maker, and was inoperative to pass an after-acquired title. [Bogy v. Shoab, 13 Mo. 365; Gibson v. Chouteau's Heirs, 39 Mo. 536; Ridgeway v. Holliday,59 Mo. 444; Butcher v. Rogers, 60 Mo. 138.]

The deed is distinguished from an ordinary deed of quitclaim by the provision inserted:

"The grantors herein convey all their right, title and interest that they now have in the above described land and any right, title and interest that they may acquire in the future as heir of Sarah H. Thomas and Cora B. Thomas."

This provision written into the body of the deed not only shows a purpose to convey the expectancy of Sarah I. Thomas as prospective heir of her mother, but leads reasonablyTransfer of to the conclusion that the transfer of herExpectancy. expectancy was a thing uppermost in the minds of the parties. In this, as in every deed, its operation, as passing any particular right, is largely a matter of intention. In this deed the intention of the grantor, to pass to the grantee, whatever right in this land there might fall thereafter to the grantor as heir of her mother, is clearly expressed.

There has been much discussion of the subject of the transfer of expectancies, by the courts of the several states in this country, and by the English courts. There is much of variety in the views expressed, and in the reasons held to be compelling one way or the other, and there is not entire harmony. The subject has been made interesting by the reasoning and learning to be found, in the opinions of judges, and the texts of writers upon the law; but any general review of these here would be more lengthy than is necessary, or profitable.

An elaborate review of the cases may be found in 17 A.L.R. at page 597, in the note appended to the opinion in Hunt v. Smith, p. 588, 191 Ky. 443. The generally accepted doctrine is stated in Taylor v. Swafford, 122 Tenn. 303, where it was said: "Both in English and American courts of equity, where it is found that the contract of an expectant has been fairly made and upon a valuable consideration, it will be enforced, as against the grantor and his privies, whenever the property covered by it comes into possession. This is done, however, by these courts, not upon the ground that the grant is one of a present interest, but rather upon that stated by GIBSON, J., in Chew v. Barnett, 11 Serg. R. (Pa.) 389, to-wit:

"That a conveyance before the grantor has acquired the title, operates as an agreement to convey which may be enforced in chancery between the parties and against purchasers with notice."

And the doctrine of estoppel has been applied by the courts, in cases involving the sale and attempted transfer of an expectancy. In Johnson v. Johnson, 170 Mo. 34, the question was at issue under a deed containing covenants of warranty. In that case the grantor was conveying the undivided three-sevenths interest, which, it was recited, was the one-seventh interest inherited by him, and two-sevenths acquired by him from two other heirs. He and they at that time had inherited no interest. The holding was that the recital as to what the grantor had inherited did not restrict the grant to less than three-sevenths, and that the covenant of warranty carried the after-acquired title by estoppel. This court said, l.c.170 Mo. 52:

"A further argument against the contention of defendant; it is asserted that an heir cannot, before the death of his ancestor, convey his expectancy; and that the law ought not to enforce on him against his will what it would not let him do if he desired; but we cannot yield to that argument. The cases in which a sale of an expectancy in lands of a living ancestor has been enforced, even at law, through the doctrine of estoppel springing from the covenants in a deed, are numerous. [Steele v. Frierson, 85 Tenn. 430; Bohon v. Bohon, 78 Ky. 408; Somes v. Skiuker, 3 Pick. 52; Robertson v. Wilson, 38 N.H. 48; House v. McCormick, 57 N.Y. 310; Habig v. Dodge, 127 Ind. 31, followed and approved in Jerauld v. Dodge, 127 Ind. 600; Fairbanks v. Williamson, 7 Me. 96; Stover v. Eycleshimer, 46 Barb. 84; Rosenthal v. Mayhugh, 33 Ohio St. 155; Read v. Fogg, 60 Me. 479.]"

In the case at bar the doctrine of estoppel must spring, if at all, from the special provision incorporated into the deed showing an agreement, and a clear intention to transfer the expectancy, aided if it be, by the provision of non-claim thereafter, of any interest in the land. The case is not wholly without precedents. In Clendening v. Wyatt, 54 Kan. 523, which was a suit to determine title, and for petition of land, the very question at issue here was raised and determined. The court said, at page 525:

"It is the general rule that an assignment at law will not be sustained unless the subject-matter has an actual or potential existence when the assignment is made, but it appears to be well settled that an expectancy of an heir in an ancestor's estate may become the subject of contract, and may be assigned in equity. Courts of equity will uphold such an agreement of an heir apparent where it is fairly made and for an adequate consideration. If no unjust advantage is taken of the indiscretion or necessities of the heir, and if the agreement is not unconscionable, and is not obtained by fraud or oppression, it may be enforced in equity after the death of the ancestor. [Steele v. Frierson, 85 Tenn. 430; Story, Eq. Jur. sec. 1040; Pom. Eq. Jur. secs. 1287, 1288; 1 Am. Eng. Ency. Law, 830, and cases cited.] In the present case, it does not appear that there was any unfairness or fraud in the transaction. There is no suggestion that the consideration is inadequate, nor that any unjust advantage was taken of John Clendening. Indeed, it was not charged or shown that there was any misrepresentation, unfairness, oppression, nor insufficient consideration. John Clendening, who executed the writing, had evidently reached years of maturity, as he was a married man, whose wife joined him in the execution of the contract.

"It is insisted that this contract is in form a quitclaim deed, under which only the present existing interest of John Clendening in his mother's estate would pass. It is true that, ordinarily, the grantee in a quitclaim deed gets nothing except what his grantor in fact owned at the time of the execution of the deed. [Johnson v. Williams, 37 Kan. 179.] And if the contract in question was to be treated as a quitclaim deed, which did not purport to do more than to convey an existing interest, it could not be sustained. It is manifest, however, from the language used that Clendening was bargaining about a future interest which he did not possess at the time, and which he expected to acquire at the death of his mother. In the latter part of the contract it is recited that ``the said John Clendening and Kate, his wife, do hereby (in consideration as above) release, remise and forever quitclaim to his undivided portion that he may be entitled to of his mother's estate to the said August Wyatt, his heirs and assigns.' He had no interest in the land at the time the contract was made. His mother was then alive, and from the face of the contract it distinctly appears that he was contracting away the undivided and future interest which he expected to acquire from his mother's estate at the time of her death. There is a specific description of the land in controversy in the contract, showing that the property now sought to be recovered was within the contemplation of the parties when the contract was made. Such a contract based upon ample consideration, honestly and fairly made, with one who is capable to contract, may be enforced in equity."

A similar provision was contained in the quitclaim deed involved, in Thornton v. Louch, 297 Ill. 204, and held to convey an after-acquired title. In that case the expectancy spoken of appears to have been that interest which the grantor took as one of the survivors of his sister, who, after the making of the deed in question, died without issue, and before the death of the life tenant, the mother of the grantor, the contingency being one provided for by the will of the grantor's father. The court said, at page 210:

"The principal question presented for decision is the effect of the provision in the quitclaim deed of August 31, 1906, from William R. Louch and wife to Joseph T. Louch, wherein the grantors recite: ``It is the intention to convey to grantee by this instrument all right, title and interest the grantor has or may have in the above described real estate by virtue of heirship of the late Thomas Louch, deceased, or under his will, possession of which is deferred during the lifetime of Eliza Louch, widow of Thomas Louch, deceased.'

"William R. Louch, at the time of the execution of the quitclaim deed by him and his wife, had a base fee in an undivided one-fourth interest in the land in question which was subject to conveyance by deed, but which was subject to be determined and defeated should he die without issue before the death of his mother. He also had an expectant interest in the land in question if he should survive his mother and if his brother or either of his sisters should die without issue before the death of his mother, the life tenant. He would then share in such deceased child's share. This latter interest was not subject to conveyance by ordinary quitclaim deed, for such deed conveys nothing more than the present interest of the grantor. [DuBois v. Judy,291 Ill. 340.] Such deed may, however, contain recitals which will convey an after-acquired title, and where an after-acquired title is conveyed by such deed it operates by way of estoppel. [Van Rensselaer v. Kearney, 11 How. 297; McAdams v. Bailey,169 Ind. 518, 82 N.E. 1057; 21 C.J. 1073; 11 Am. Eng. Ency. Law (2 Ed.) 410.]

"William R. Louch conveyed to Joseph T. Louch ``all right, title and interest the grantor has or may have in the above described real estate by virtue of heirship of the late Thomas Louch, deceased, or under his will.' The language itself clearly indicates an intention on the part of the grantor to convey all interest that he then had in the property and in addition to that interest his expectancy as heir and devisee of his father. An examination of the evidence shows that William intended to sell and Joseph intended to buy all the interest of William, present and in expectancy, in the estate of his father."

In McAdams v. Bailey, 169 Ind. 518, the deed under consideration was one containing covenants of warranty, but containing also certain special recitals as to the conveyance therein of interests which might thereafter be inherited. That court after discussion of the two general classes of deeds and of the assignment of expectancies or of interest in things not in being, and the remedies, said, l.c. 523:

"Although, as above indicated, an ordinary quitclaim deed will not estop the grantor from asserting an after-acquired interest, yet a distinct recital in such a deed, showing that the parties proceeds on the theory that a particular interest was thereby conveyed, may be as effectual to create an estoppel as a warranty. [Van Rensselaer v. Kearney, 11 How. 297; 1 Jones, Real Property, sec. 991.] Appellant, however, insists that there can be no estoppel where the truth appears in the instrument. This is, no doubt, a general principle as applied to ordinary recitals. We question the application of this doctrine to distinct undertakings for the transfer of after-acquired property. We place our ruling, however, not on the effect of the recitals, as such but on the ground that an estoppel exists because of the covenant of warranty."

In this deed there is no covenant of warranty, but there is clear intention to convey the expectancy, the estate in the lands described thereafter to be inherited, with the usual agreement or covenant of non-claimer thereafter of any right or titleMarried to the premises. In the Johnson case above mentionedWoman. (170 Mo. 34), the grantor was not a married woman, and the question of coverture of the grantor did not arise in any of the cases that have been mentioned.

In Brawford v. Wolfe, 103 Mo. 391, a case relied upon by counsel for respondent, the grantor was a married woman, and the deed was one with covenants of warranty. It was held that this deed, executed by her and her second husband, did not suffice to pass to the grantee the title afterward acquired by her, by the subsequent filing by her of her election to take, absolutely, one-half of the estate of her former husband, deceased. At that time, the statute governing conveyances of real estate of the wife by the joint deed of herself and her husband, contained the provision: "but no covenant, express or implied in such deed, shall bind the wife, or the heirs, except so far as may be necessary, effectually, to convey from her and her heirs all her right title and interest, expressed, to be conveyed therein." It was held that title acquired by the widow through her election did not inure to the benefit of the grantee "either by virtue of the equitable principles of estoppel, or by the operation of the statute." It was held that by virtue of the statute, "her deed is, in its effect, whatever its form, simply a quitclaim of all her existing right, title and interest." The deed involved in that case was executed before the passage of the Married Woman's Act of 1889.

The statute governing conveyances of the wife's real estate remained unchanged until the Act of 1905 (Laws 1905, p. 94; R.S. 1919, sec. 2175), whereby it was provided that "any covenant expressed or implied in any deed conveying property belonging to the wife, shall bind the wife and her heirs to the same extent as if such wife was a femme sole." The deed in issue, it is to be observed, was executed after the passage of the Married Woman's Act of 1889, but before the amendment of 1905 concerning conveyances. In Hendricks v. Musgrove, 183 Mo. 300, this court had under consideration the question whether a deed of a married woman (executed before 1905) passed after-acquired property. After discussing certain defects in the deed in question this court said at page 309: "In addition to this the rule in this State is that the doctrine of after-acquired property does not apply to a married woman's deed (at any rate if it was made prior to 1889 when the Married Woman's Act was passed), but that without regard to the form of the deed only whatever interest she had at the date of the deed passes." [Citing Brawford v. Wolfe and other cases.] In Conrey v. Pratt, 248 Mo. 576, the question of inurement of after-acquired title was in issue, the grantor being a married woman. The deed was made before the enactment of the amendment of 1905, but after the passage of the Married Woman's Act, and the old statute on conveyances and the Married Woman's Act of 1889 were under consideration. After consideration of these, and of the holdings in Hendricks v. Musgrove, and Brawford v. Wolfe, the court said, at page 586: "Whatever may be the powers of a married woman under the Act of 1889, they were not such as to create a liability against her contrary to the express provisions of the statute (R.S. 1899, sec. 901) in existence at the time of the Married Woman's Act. We are not impressed with the argument of counsel for respondent, that the act giving married women many of the rights of femme sole was intended to take away from her theprotection as to covenants in the conveyances of her land afforded by the former statute (R.S. 1899, sec. 901) prior to its repeal in 1905."

The case here does not involve nor rest upon the existence or effect of covenants of warranty, but upon a specific undertaking to convey the estate in expectancy of Fannie I. Thomas, inheritable from her mother, in and to described lands. At the time the instrument was executed, in 1897, she had the right to contract as a femme sole in respect of any land or interest therein, then owned by her, which came to her after the passage of the Act of 1889 "by gift, bequest or inheritance." [Secs. 6864, 6869, R.S. 1889; Sec. 7328, R.S. 1919.]

Under the holding in Farmers Exchange Bank v. Hageluken,165 Mo. 443, and subsequent holdings reviewed and followed in Brook v. Barker, 287 Mo. 13, she could convey her interest in such land as though a femme sole. Certainly then it must be held that as to an expectancy she could contract as though a femme sole, and doing so be subject to the corresponding obligations. We see no reason for saying that respondent Fannie I. Thomas could not contract for the sale of her expectancy of an interest in an estate, which presumptively would come to her by inheritance from her mother, and be her separate property, and not be bound thereby to the same extent as if she were a femme sole, nor why she, having undertaken to convey the expectancy for a valuable consideration, should not be subject to the principle of estoppel to the same extent that any other person would be. It has been said often that contracts for the sale of expectancies are not looked upon with favor, but the general rule is that such transfers if made upon a valuable consideration, and in good faith, will be valid and enforceable in equity. In this case the parties concerned have submitted this issue solely upon the basis of the terms of the deed, and that there was a valuable consideration. There is not in the record any testimony showing fraud or undue influence, or any other vitiating influence, or any of the circumstances under which the deed was made, although the parties thereto were living. We conclude that upon the record made, the court erred in holding that Fannie I. Thomas was not estopped to claim the one-fourth interest in the ninety-acre tract, by the terms of her deed and the acceptance of a valuable consideration therefor.

II. The title of the parties claimant to the 80-acre tract, depends upon the consideration given to a deed made in 1858, by Amos Thomas and wife to their son Silas Thomas and his bodily heirs. The trial court found that theGrant During eighty-acre tract was owned by James A. ThomasLife: Reservation and Cora B. Herren, who are children of Silasof Fee. Thomas, deceased, and set forth the nature of their interests, and found that the nineteen defendants, appellants here on that issue, and claiming undivided interests in this tract, had no interest therein. It was agreed that James A. Thomas and Cora Herren had acquired whatever interests had accrued to the other heirs of Silas Thomas. The deed made by Amos Thomas is as follows:

"This deed of gift made the 22nd Day of November in the year one thousand eight hundred and fifty eight, Witnesseth: That we Amos Thomas and Jemima his wife of the County of Pike in the State of Missouri, in consideration of the love and affection we have for our son Silas Thomas of the same county and state and also a desire to make provision against future contingencies for the maintenance and support of the said Silas Thomas and his bodily heirs, do by these presents give, grant, bargain, sell and convey unto him and his heirs as aforesaid during their natural lives the following described tract or parcel of land situate, lying and being in the County of Pike and State aforesaid, to-wit:

"The east half of the southwest quarter of Section Fifteen in Township Fifty-three of Range Four, West, in the district of lands subject to sale at Palmyra, Missouri, containing eighty acres be the same more or less.

"To have and to hold the same together with all and singular the privileges, appurtenances, rents, issues and profits thereof and also all the estate right, title, interest, possession and claim we have in and to the above described premises valued by us to be worth two thousand dollars and we will warrant and defend the title to said described tract of land from the claims and demands of all persons whomsoever in the quiet and peaceable possession of him, the said Silas Thomas, and his heirs as aforesaid forever. In Witness whereof we have hereunto set our hands and seals the day and year first above written."

The contention of James A. Thomas and Cora B. Herren was and is that by this deed Silas Thomas took a life estate, with remainder in fee to his bodily heirs. The contention of the nineteen appellants is that by this deed Amos Thomas created a life estate in Silas Thomas and also a life estate in each one of his bodily heirs, and that the remainder was in Amos Thomas to the time of his death, and passed by the residuary clause of his will.

The will of Amos Thomas was executed on December 23, 1859. The residuary clause is as follows: "The residue of my estate both real and personal I desire to be sold at public sale at a proper and suitable time after my decease, the proceeds of which I desire to be equally divided among my children as follows: Ann Bradon, Silas Thomas, Margaret Grafford, Louis Thomas, James Thomas, Nancy Harries and William Thomas." The nineteen appellants on this issue are descendants of the residuary legatees of Amos Thomas, other than Silas Thomas. The will of Amos Thomas was admitted to probate on January 4, 1860. The will thus executed a little more than a year after the date of the deed made by him to Silas Thomas, contains a reference to that conveyance. The clause in the will is as follows:

"To my son Silas Thomas in addition to the lands already conveyed to him, I give and bequeath the following described tract of land situated in the county of Pike and State of Missouri to-wit:" Then follows description of forty acres of land.

The question to be determined is the effect of the foregoing deed. The intent of the maker is to be ascertained from a consideration of the deed as a whole, made up of related parts, to each of which is to be given its due and relative weight. [Garrett v. Wiltse, 252 Mo. l.c. 707; Eckle v. Ryland, 256 Mo. l.c. 440: Howell v. Sherwood, 242 Mo. l.c. 536.] "The instrument as a whole should be considered in connection with the situation of the parties and the purpose sought to be accomplished through its execution." [Brookings v. Scudder, 295 Mo. l.c. 511.] The will shows that Amos Thomas had numerous children, and some grandchildren of a child deceased. He had one or more sons not mentioned in the residuary clause of the will for whom he made provision in the will. The deed made to Silas Thomas was made one year before the will was made. The deed was made in consideration of love and affection, and for the purpose of providing "against future contingencies for the maintenances and support of Silas Thomas and his bodily heirs." The granting clause recites that the property is conveyed to "him and his heirs as aforesaid during their natural lives." The habendum clause uses first the ordinary form of words, that it is to be held "with all and singular the privileges, appurtenances, rents, issues and profits thereof," but, adds to this, "and also all the rents, right,title, interest, possession and claims we have in and to the above described premises." These last words must be considered, in their relation to the extent and purpose of the grant. They are inconsistent with the idea that the grantor was conveying an estate for life or lives only, and was holding the remainder in himself. He values the gift and provision he is making as "worth two thousand dollars." He covenants that he will warrant and defend the title free from the claims and demands of all persons whomsoever in the quiet and peaceable possession of Silas Thomas and his heirs as aforesaid forever. Upon the whole instrument, and the situation as far as shown by the record, we are impressed with the belief that the grantor, Amos Thomas, intended this gift and provision to be for the benefit of Silas Thomas, and his bodily heirs, as distinguished from any other of the heirs of the grantor, and that he undertook to make and did make no reservation to himself or any estate in remainder for the benefit of any other of his heirs or devisees.

The granting clause cannot be taken to obliterate wholly the provision following, which as we take it shows with clearness and emphasis the purpose of the grantor at parting with all his interest and estate in this land. The warranty, in that it warrants quiet and peaceable possession in "Silas Thomas and his heirs as aforesaid forever," cannot, for the reason foregoing be held to apply only to a life estate and to the immediate or first bodily heirs of Silas Thomas. It applies in favor of the bodily heirs of Silas, certainly, but, it applies as against the claims of all persons whomsoever and to the extent of "all the estate, right, title, interest, possession and claim," held by the grantor in and to the premises. At the time this deed was executed there was in force also what is now Section 2265, Revised Statutes 1919 (R.S. 1855, p. 355, sec. 2). Under that section it was provided that the use of the term "heirs" was not necessary to create or convey an estate in fee simple, and it was provided that "every conveyance of real estate shall pass all of the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear, or be necessarily implied in the terms of the grant."

The recital in the will as to land theretofore conveyed to Silas, taken with the residuary clause under which the nineteen defendants claim, is opposed to the contention that Amos Thomas intended, by the residuary clause, to devise land or any interest therein which he had conveyed already to Silas, and his bodily heirs. We are therefore of the opinion that the court did not err in holding that the nineteen defendants had no interest in the eighty-acre tract, by virtue of the joint effect of the deed and the residuary clause in the will.

III. In holding that the nineteen defendants took nothing in the eighty-acre tract by the deed of Amos Thomas and the residuary clause of his will the court further held that James A. Thomas and Cora Herren, two of the children of SilasEstate Thomas, deceased, owned the fee in that tract, havingTail. acquired the interests of the other children and heirs of Silas Thomas. In reaching that conclusion the court held that Silas Thomas took a life estate, and his children living at the time of his death took the fee in the eighty-acre tract. It is to be observed of the deed from Amos Thomas to Silas Thomas, that the grant is not to the "bodily heirs" or the "heirs as aforesaid," and their heirs and assigns. The word "assigns" does not occur in the deed, as they did in Fanning v. Doan,128 Mo. 323. The deed manifests an intention to convey the land, first, to Silas during his natural life, then to his bodily heirs for their natural lives, forever, in endless succession.

We have reached the conclusion that by this deed Amos Thomas undertook to convey an estate tail. The purpose as we gather it was within the definition given: "Estates tail, then, are estates of inheritance, which, instead of descending to heirs generally, go to the heirs of the donee's body, which means his lawful issue, his children, and through them to his grandchildren in a direct line, so long as his posterity endures in a regular order and course or descent, and, upon the extinction of such issue, the estate determines." [Washburn on Real Property (6 Ed.) p. 89, sec. 190.] As was said in Fanning v. Doan, 128 Mo. l.c. 328: "Such estates are, in their nature, inalienable, and, upon failure of issue in lineal descent from the first taker, revert to the grantor." We think the foregoing is the most sensible and reasonable interpretation of the deed. In that view, Silas Thomas took a life estate, and at his death, his bodily heirs, by force of the statute (Sec. 2267, R.S. 1919; Sec. 5, p. 355, R.S. 1855) took the remainder in fee simple. The construction given by the trial court is approved.

It follows that the judgment in respect of the rights of the parties to the eighty-acre tract therein described should be affirmed, and that the judgment as to the rights of the parties in the ninety-acre tract should be reversed and remanded and that said judgment as to the ninety-acre tract, and the rights of the parties in the proceeds of sale thereof be modified in accordance with the conclusions heretofore stated. Seddon, C., concurs.