Yocum v. Siler , 160 Mo. 281 ( 1901 )

GANTT, J.

This is an action in .ejectment by plaintiffs to récover of defendants the northwest quarter of section 7, township 53, range 35, said lands lying in Platte county, Missouri. The judgment in the circuit court was for defendants, and plaintiffs appeal.

The petition is in the usual statutory form, and the answer is a general denial.

The case was tried upon the following agreed statement of facts and the will of George W. Yocum, deceased, upon part of plaintiffs, and the evidence offered by defendants.

Agreed Statement oe Eacts.

“It is agreed by and between the parties hereto that George W. Yocum is the common source of title and that he died in September, 1854, leaving a will, which was duly probated in the probate court of Platte county.

“That Susan Siler is in possession of one hundred acres of the land in controversy, and that William S. Kenney and Lucinda Kenney, his wife, are in possession of the remaining sixty acres of the land in controversy, and were at the time of the institution of this suit.

“That J. W. Turner is in possession, as tenant of Susan Siler, of the one hundred acres, and was at the -time of the institution of this suit.

“It is agreed and stipulated that William E. Yocum, in his lifetime, with his wife, for a valuable consideration, by warranty deed dated September 15, 1858, conveyed all the land in controversy to William 3. Norris, which deed is recorded in deed book “O,” page 130, of Platte county, Missouri.

“And that William J. Norris, by warranty deed, conveyed the same land to Samuel Alexander, which deed is recorded in deed book “T,” page 240, of the records of Platte county, Missouri.

“And that Samuel Alexander conveyed said lands, by warranty deed, to Elias Siler, which deed is recorded in deed book “1,” page 462, of Platte county, Missouri.

“That Elias Siler is dead, and the defendants are the widow and heirs of said Elias Siler, together with J. W. Turner as tenant of Mrs. Siler, who is also in possession of 'the one hundred acres of land under Mrs. Siler.

“That it is further agreed that the plaintiffs are the legitimate issue of William Franklin Yocum and were living at the date of William F. Yocum’s death, and were the only children of said William Franklin Yocum living at the time of his death.

“It is admitted that William Franklin Yocum died on the twenty-second day of February, 1892.

“That the rental value of the land in controversy is $400 a. year.

“That William Franklin Yocum was married the twenty-first day of February, 1854, and that the plaintiffs are the legitimate issue and children of such marriage.

“It is admitted that John W. Yocum is forty-three years of age; that Oscar M. Yocum is forty years of age; and James Yocum is thirty-eight years of age.”

Plaintiff offered in evidence the will of George W. Yocum.

The only part of said will affecting this case is paragraph five which is as follows:

“5. To my well-beloved son, William Eranklin Yocum, my natural son, I bequeath absolutely the northwest quarter of section seven of township fifty-three and range thirty-five, the, place I now reside on in Platte county, Missouri, subject forever to the reservation for my burial place, made in clause two of this will, and, further, with the express understanding and restriction, namely, that if my said son dies without legal issue, descendants of his, legitimate issue of his, said land's shall pass to Susan Evans, wife of Joseph B. Evans; Marina Botts, wife of Thomas Botts; Elzira Botts, wife of William Botts, my nieces; to Elizabeth Erame, my sister, wife of John Erame, and to George, son of my brother, Stephen Yocum, and Jane Yocum, wife of Milford Yocum, deceased, my sister, in equal parts.”

Defendants offered in evidence a deed from Samuel Alexander to Elias Siler dated thirtieth day of March, 1871, for all the land in controversy, duly acknowledged and recorded in the office of the recorder of deeds of Platte county, book 18, page 45o.

Plaintiffs objected to the introduction of said deed for the reason that it is immaterial, incompetent and irrelevant, and because, under the terms of the will, William Eranklin Yocum acquired only a life estate in the premises and did not acquire the title in fee simple, and therefore his deed to Norris could not affect the title acquired by plaintiffs, the legitimate issue of said William E. Yocum at the time of his death; and plaintiffs object to the introduction of any evidence of title derived through said William Eranklin Yocum by deed, for the same reasons.

Which objections were overruled by the court aud exception duly taken, and the deed read in evidence.

■ Defendants offered in evidence the will of Elias Siler, deceased, dated October 28, 1890, which was duly probated, devising said lands to Susan Siler for life, and at her death to the defendants other than Turner.

Defendants objected to said will for the reason that it was incompetent and irrelevant, and for the same reason set out in the objection to said deeds.

The objections were overruled and exceptions duly taken,' and said will read in evidence.

Plaintiffs offered the following declaration of law, viz.:

“The court declares the law to- be that under the will of George W. Yocum, deceased, William Eranklin Yocum only took a life estate in the real estate described in the will and in the petition, and that the plaintiffs are entitled to the possession of the land sued for, and judgment should be entered for them for such possession.”

Which was refused by the court and exception duly taken.

We are called upon to construe the meaning of the fifth clause of the last will of George W. Yocum, as above set out. Did the testator intend thereby to give his son, William E. Yocum, a fee simple estate in the lands mentioned in said item, and if so, are there any unbending, rigid rules of law which will compel us to disregard such manifest purpose on his part and hold that he only gave him a life estate ?

This will was executed in 1853 and probated in 1854. The statute of wills of 1845, then in force, and still the law of this State, required “all courts and others concerned in the execution of last wills to have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them.” [R. S. 1845, see. 51, p. 1086.] This is also a general canon for the construction of wills irrespective of the statute. By the words “bequeath absolutely,” he unquestionably intended to devise to his said son his whole estate in said lands. These words are ample for that purpose in a will, and it is unnecessary to cite precedents to establish that it has been often so held. It is also settled by many well considered cases that when the words of the will in the first instance clearly indicate a disposition in the testator to give the entire interest, use and benefit of the estate absolutely to the donee, it will not be cut down to any less estate by subsequent or ambiguous words, inferential in their intent, [Small v. Field, 102 Mo. 104; Clarke v. Leupp, 88 N. Y. 228; Lambe v. Eames, L. R. 10 Eq. Cas. 266.]

The words “heirs and assigns” or “heirs and assigns forever,” were not necessary to create a fee simple when this will was executed, nor when probated. [R. S. 1845, sec. 2, page 219.]

In Small v. Field, 102 Mo. 123, it was held by this court that “in giving a proper and practical construction to wills, technical rules must yield to the obvious meaning of the testator, . gathered from all parts of the will........All other rules of construction are subordinate and auxiliary to this leading and predominant principle.”

It can not be doubted, then, that if the testator had stopped with the words, “To my well-beloved son, William Eranklin Yocum, my natural son, I bequeath absolutely the northwest quarter of section 7, township 53, range 35,” the said son would have taken a fee simple absolute. But it is contended that, because the testator considered that his said son might die without having any descendants of his own at his death, and desired to provide in such case that the said tract should- go to certain neices and sisters of his, thereby the estate of the son was cut down to a fee-tail, and by virtue of our statute to a life estate only.

We have already adverted to the general rule that when in the first instance, a fee simple is given by will to the donee, it will not be restricted or cut down to any less estate by subsequent or ambiguous words, inferential in their intent. Not only is this the general doctrine both in England and the States of our Union, but it was in 1853, as now, the statutory rule of this State.

By section 47 of the chapter on Wills, 1845, it was expressly provided that, “In all devises of lands, or other estate in this State, in which, the words, ‘heirs and assigns’ or, ‘heirs and assigns forever,’ are omitted, and no expressions are contained in such will, whereby it shall appear that such devise was intended to convey a life estate only, and no further devise be made of the devised premises, to take effect after the death of the devisee to whom the same shall be given, it shall be understood to be the intention of the testator thereby to devise an absolute estate in the same., and shall convey an estate in fee simple to the devisee, for all such devised premises.”

. Did George W. Yocum devise to his son William E. Yocum “any lands” without using the words “heirs and assigns” or “heirs and assigns forever ?” Most assuredly he did. Did he use any expressions whereby it appears that he only intended to give his said son a life estate “onlyf” Most obviously he did not. Did he in the language of the statute, make “a further devise of the devised premises to take effect after the death of,the first devisee?”

We answer, he did only conditionally and as that contingency never happened, that clause of the will is wholly inoperative, and we must construe the writing as if these words had never been superadded, and that the testator made no further devise of the devised premises to take effect after the death of his son William E. Yocum, and this being so, must hold that said son took a fee simple as directed by that statute. And this we shall see is the construction put upon a similar statute in Great Britain.

Says Jarman in his treatise on wills, in his exposition of the British statute, 1 Viet., ch. 26, sec. 28, which provides, “that where any real estate shall be devised to any person without words of limitation, such devise shall be construed to pass the fee simple.......unless a contrary intention shall appear by the will" "the onus probandi under the present statute lies on those who contend for the restricted construction; and is not discharged by showing that another devise in the will contains formal words of limitation.” '[2 Jarman on Wills, *1135.]

But the contention is that this fifth item or clause of the will of George W. Yocum created a fee-tail in William Franklin Yocum which the- statute of 1845 converted at once into a life estate.

This necessitates an examination of the doctrine of fee-tails under the statute “de donis ” 13 Edward the First, to which our statute of 1845 refers as determining what was a fee-tail.

By the ancient common law, if a grant was made to a man and the heirs of his body, the descent of the estate was confined to the heirs so described, and could not go to his collateral heirs. So if the grant had been made to him and the heirs male of his body, it excluded not only all the collateral heirs, but the female in the lineal line. Nor could the grantee alienate so as to defeat the succession. But to give facility to alienations, the courts at length, held that estates of such limited succession were conditional fees and that as soon as the grantee had issue, the condition was fulfilled and the grantee might sell his land or forfeit it or charge it with incumbrances. To counteract this ruling of the courts, Parliament passed the statute “de donis.” The preamble to that statute recites that: “Where one giveth land to another and the heirs of his body, it seemed very hard to the grantors and their heirs, that their will expressed in the grant should not be observed. Instead of which, after issue born, the grantee had power to aliene his land contrary to the mind of the giver and contrary to the form of the gift;" and then provided “that the will of the giver, according to the form in the deed of gift manifestly expressed, should be observed so that those to whom the land was given under such condition shall have no power to aliene the land so given, but it shall remain unto the issue of them to whom it was given after their death or shall revert to the donor or his heirs if issue fail.” [Statute of Westminster 2 (13 Edw. 1, ch. 1).]

In this statute, estates-tail originated. The name was borrowed from the feudists, among whom it signified a mutilated or truncated inheritance, from which the heirs general were cut off. [2 Minor’s Inst., p. 79.]

Washburn thus defines the requisites of an estate-tail: “It is therefore requisite in order to create such an estate that in addition to the word ‘heirs,’ there should be words of procreation which indicate the body from which these heirs are to proceed or the person by whom begotten........A general limitation to a man and the heirs of his body is sufficient, it being immaterial of whom begotten.” [1 Washburn on Real Prop. (5 Ed.), p. 107.]

These are the requisites of an express grant or devise of an estate-tail.

It is plain the will of George W. Yocum does not create such an estate within the above description.

Put it is urged that an estate-tail can be and is created by implication, and unquestionably this was true, both in England and in this country prior to the abolition of estates-tail, and in determining when an estate-tail was created by implication we must look to the interpretation of the statute “de donis” by the English courts.

At a very early period after the enactment of the statute “de donis” the question arose as to the meaning of the words “dying without issue.” Did they mean a dying without issue living at the very time of the death of the first taker, or ancestor named in the will or deed, or did they mean a general or indefinite failure of issue.

If they meant dying without issue living at the death of the first taker, then an executory devise over was good because-it did not violate the rule against remoteness or perpetuities, but if they meant an indefinite failure of issue, i. e., a failure of issue whenever it shall happen sooner or later without any fixed, certain, definite period within which it must happen, it was held the executory devise over after such an indefinite failure of issue was void, because the period when the contingency on which the remainder over depended must happen, was too remote or uncertain, and might tie up the property for generations and lead to a perpetuity or property perpetually unalienable, and therefore void. It was generally held by the English courts that the words meant an indefinite failure of issue, and by implication created an estate-tail in the first taker or ancestor named. Such was, we think, the great weight of authority.

This conclusion was reached after a memorable struggle, and though acquiesced in, many of the greatest judges reluctantly accepted it and seized upon the slightest circumstance which indicated that the grantor or testator meant dying without issue at the death of the first taker to defeat this interpretation. But in the noted cases of Porter v. Bradley, 3 Term Repts. 143, and Roe v. Jeffrey, 1 Term Reports 589, Lord Henyon took a different view and held the executory devise over to be good, relying upon Pells v. Brown, Cro. Jac. 590.

In Fosdick v. Cornell, 1 Johns. Repts. 439, the words, “that if any of the testator’s sons should die without- heirs male the land should go to the survivor,” came before the court for construction, and the question was whether these words created an -estate-tail or not, and the court held they did not, and the devise over was good, the court saying the words “dying without children must be taken to be children living at the death of the party and not an indefinite failure.”

In Jackson v. Blanshan, 3 Johns. Reports 292, Chief Justice Kent held that the words “without lawful issue” meant issue livipg at his death.

In Moffat v. Strong, 10 Johns. Reports 12, the words were, “if any of the sons should die without lawful issue, then his part to go to the survivors.” Chief Justice Kent, after admitting there were contradictory opinions, came to the conclusion “that the intent of the testator according to the settled construction of terms was to provide for the surviving sons on the contingency of either of the sons dying leaving no issue at his death, and the intention being consistent with the rule of law, the limitation over was good by way of executory devise.” Such has been maintained to be the law since that date in New York. [Jackson v. Staats, 11 Johns. Rep. 337.]

This resume of the doctrine has been made in order to gather the full significance of our own statutes on the subject. In 1825 our Legislature abolished estates-tail in this State. The language of that act is somewhat different, though not materially, we think, from the Act of 1845, which in terms also abolishes estates-tail and provides that thereafter, where by any conveyance or devise the grantee shall be seized of an estate which under the statute (13 Edwd. 1) would have been held an estate tail, every such conveyance should vest only a life estate in the grantee and upon his death should go to his children. [R. S. 1845, sec. 5, p. 219.]

But in the very next section of the same act it is provided that “whenever a remainder in lands or tenements, goods or chattels, shall be limited by deed or otherwise, to take effect upon the death of any person without heirs or heirs of his body or without issue, the words ‘heirs’ or ‘issue’ shall be construed to mean heirs or issue living at the death of the person named as ancestor.” These two sections being in pari materia and standing in juxtaposition, must be construed together and full effect given to both if possible. The intention of the lawmaker we think is clear. Our lawmakers were cognizant of the struggle between the courts over these words, and of the English doctrine followed by many American courts construing these words to create a fee-tail in the first taker or ancestor named, and they intended that the doubt as to their meaning should be removed by plain, unequivocal words.

They determined, in a word, that no estate-tail should be created by this ambiguous expression after that date. As said by this court, per Sherwood, J., in Naylor v. Godman, 109 Mo. loc. cit. 550, “this statute was evidently enacted to prevent having the words ‘die without issue,’ construed to mean an ‘indefinite failure of issue,’ as by some authorities the former words were construed to mean.” By so construing these two sections, we give full effect to both, and,the decisions of this court where the words “heirs of his body” and similar expressions have been held to create a fee-tail, and also gives full effect to the statutes of wills, which permits a testator to devise a fee simple to his devisee, and if he dies without issue living at his death, then to make a good executory devise over.

So that, in 1854, when this will took effect, the statute of this State required the words “dying without issue” to he construed as meaning “heirs or issue living at the time of the death of the person named as ancestor.” [Sec. 6, chap. 32, R. S. 1845, p. 220.]

These words as used in this will then meant if William. Eranklin Yocum 'died without issue or descendants living at his death, and the limitation to his nieces and sisters would have been a good executory devise had he died without children or descendants of his then living, but as he had three sons living, the executory devise over of course failed because the condition could never happen upon which the sisters and nieces were to take.

Let it be conceded that both the English and our own courts in construing the statute “de donis ,” 13 Edw. I, prior to the Act of 1845, supra, held that if in a devise to A and his heirs which would otherwise create a fee simple, it was after-wards provided that if A dies without issue or on failure of issue then a devise over to B in fee, A only took an estate-tail by implication, and if he had issue the estate passed to them ad infinitum.

Yet when it is considered thajfc this conclusion was only reached by holding that these words “dying without issue” meant an indefinite failure of issue, and this postponed the vesting of the executory limitation so long that it violated the rule against perpetuities and was therefor void, as our statute of 1845 gave a different meaning to those words, and directed they should be construed as meaning heirs or issue livirng at the time of the death of the ancestor named,, no such implication can longer be raised from their use in this State. Such is the construction put upon the statute 1 Yict., ch. 26, sec. 29 (1837). In 1 Jarman on Wills, 521, it is said:

“No implication of an estate-tail can arise from words importing a failure of issue, in a will made or republished since the year 1837, unless an intention to use the phrase as denoting an indefinite failure of issue be very distinctly marked, as the statute 1 Yict., ch. 26, sec. 29, provides that such words shall be held to mean a failure of issue in the lifetime or at the death of the person referred to, unless a contrary intention shall appear by the will,” etc.

Thus we find that this artificial rule has been abolished both in England and in this State by removing the foundation upon which it rested, because experience demonstrated that it violated the natural meaning of language and defeated instead of subserving the intent of the testator.

The learned author, Jarman, further says ('5i"p3ge 522, referring to the effect of the statute 1 Victoria, ch. 26) : “Under this clause, coupled with the preceding section, which makes a devise confer an estate in fee without words of inheritance, it will generally happen, in cases in which, according to the old law, the prior devisee would have been a tenant in tail, by the effect of the words devising over the property on the failure of his issue, that he will, under the new rule of construction, take an estate in fee simple, subject to an executory devise in the event of dying without leaving issue at his death; and this no doubt was the effect contemplated and designed by the Legislature.”

So in Missouri, since the revision of 1845 provides that where a remainder in lands shall be limited to take effect on the death of any person “without heirs” or “heirs of his body” or “without issue,” the words “heirs” or “issue” shall be construed to mean heirs or issue living at the death of the person named as ancestor, the ground-work upon which a fee-tail was implied in such a grant or devise is swept away, and no reason can exist for construing a will containing these words as creating a fee-tail. But we are not left to construe that statute alone in determining what estate this will conferred upon the son, William Eranldin Yocum. The statute of wills, which we have already quoted and considered, was . then in force and must govern, and it provided he should take a fee simple in the absence of express words showing an intent to give him only a life estate, and we must all agree that there are none such. Nor is there lack of authority in this State and elsewhere to sustain this view.

In John Den v. Snitcher, 14 N. J. L. 53, the words of the will were: “I give and bequeath to my son S. C. my home plantation, and my will is that if he shall die without issue, then the said plantation shall be divided,” and one-half was given to trustees for the Society of Friends, and the other to his wife, his son Samuel and two grandchildren, etc. At that time the Act of 1784, Revised Laws of New Jersey, was in force, and was in the exact words of section 47 of our statute of wills (1845), above cited. The chief justice for the court said: “It appears to me hardly possible, that any intelligent mind, unembarrassed by technical rules and legal refinement, can entertain a doubt upon the plain reading of this will, that the testator intended his son 'Samuel should have the whole plantation in fee simple in case he had issue, and that at all events, he should be the absolute and unconditional owner of one-half of it. He did not intend to give the estate to Samuel’s issue, but to Samuel if he had issue.” And it was so held.

Section 47 of the chapter on wills (1845), had been continued ever since. In 1879 it was section 4004, and it has received a liberal construction by this court. In Cook v. Couch, 100 Mo. 34, it was held that where a fee was given in the first instance, it would take express words showing an intent to cut down the fee to a life estate. And in Small v. Field, 102 Mo. 104, it was again considered in a case in which the will gave the devisee certain property for the sole use of herself and children, and it was held that the mother took a fee simple absolute. The contention was that she took as a tenant in common with her children, but if this were not true that she took only a life estate, remainder to her children, but this court said (after quoting section 4004, Revised Statutes 1879, the same as section 47 of statute of wills, 1845) : “Under this statute it is obvious that the absolute estate in fee granted Mrs. Kate Greene could not be impaired, cut down or qualified except by words as affirmatively strong as those which conveyed the estate to her. Such has been the ruling upon similar statutes elsewhere.” [Citing Roseboom v. Roseboom, 81 N. Y. 356; Clark v. Leupp, 88 N. Y. 228.]

This language of our own court is in complete harmony with that of the Lord Chancellor in Thornhill v. Hall, 2 Clark & Fin. 22, in which he says the rule is without exception in the construction of written instruments, “that where one estate is given in one part of an instrument in clear and decisive terms, such estate can not be taken away or cut down by raising a doubt upon the extent or meaning or application of a subsequent clause, or by inference therefrom, nor by any subsequent words that are not as clear and decisive of the clause giving that estate.” And to the same effect will be found Clark v. Leupp, 88 N. Y. 231, and Lambe v. Eammes, L. R. 10 Eq. Cas. 266.

In neither of these cases was there such a clear, positive devise of fee simple in the first instance as this will presents. The express words to cut it down to a. life estate are wholly absent, and we can only destroy the fee simple of William Eranklin Yocum by resorting to an implication of a fee-tail, when the base-work of that implication had been destroyed before this will was written, and that, too, in the face of a positive enactment, the statute of wills, giving him a fee simple in the absence of express words cutting his estate down to a life estate.

If, as was said in Small v. Field, 102 Mo. 123, “technical rules must yield to the obvious meaning of the testator;” then it is plain that George W. Yocum intented to give his son William Eranklin Yocum a fee simple absolute in the quarter section mentioned subject only to be determined or defeated if he should die without legal descendants of his own. As he had legal issue living at his death, the condition upon which his estate might have been lessened, never happened and never could thereafter, and that estate was absolute as Ms father intended.

The judgment of the circuit court so holding was right, and is affirmed.

Burgess, C. J., Robinson, Brace and Valliant, J. J., concur; Sherwood, P. J., and Marshall, J., dissent in separate dissenting opinions.