Opinion
No. 38036.
September 8, 1942. Rehearing Denied, March 25, 1943. Motion to Transfer to Banc Denied, June 7, 1943.
1. WILLS: Construction: No Interpolation of Words Required. Section 3496, R.S. 1939, does not require the interpolation of words into a will.
2. WILLS: Construction: No Interest in Issue of Deceased Remainderman. Plaintiffs took no interest as purchasers under the will as issue of a remainderman who predeceased the life tenant.
3. WILLS: Construction: Interest of Remainderman Alienable if Descendible. If plaintiffs' deceased mother, a remainderman in the will, took a descendible interest, such interest was alienable, and passed by her deed prior to her death.
4. FRAUD: Deed in Settlement Between Heirs Not Fraudulent. Plaintiffs must claim by descent through their mother, and the evidence fails to establish that any fraud was perpetrated upon her when she joined with other devisees in executing deeds in settlement of a potential will contest.
5. WILLS: Defendants Claim Under Will. It appears that the defendants are claiming under the will, and not seeking both to take under the will and to renounce it.
Appeal from New Madrid Circuit Court. — Hon. Louis H. Schult, Judge.
AFFIRMED.
Drake Watson and Giboney Houck for appellants.
(1) The devise in paragraph four of the Joseph Hunter will to Jennie Houck for life, then to the issue of her body, and on failure of same then to Sallie Byrd, created a contingent remainder in Sallie Byrd. 2 Blackstone's Commentaries (Christian's Ed.), chap. 11, p. 163; Nichols v. Robinson, 277 Mo. 483, 211 S.W. 14. Such a remainder is generally described as an alternative contingent remainder, or a contingent remainder with a double aspect. Fearne's Essay on Contingent Remainders (Third Ed.), chap. 2, pp. 160-1, also chap. 6, pp. 292-3; 4 Kent's Commentaries (11th Ed.), p. 227. (2) The defendants are not entitled to the defenses they plead because they are based on the family settlement which they introduced and which is illegal, is a conspiracy of joint tort-feasers, co-adventurers, and brands the parties thereto and those claiming thereunder with unclean hands. United States v. Pan American Petroleum Co., 55 F.2d 753; Roberts v. Criss, 266 F. 296, 11 A.L.R. 698; Gray v. Clements, 296 Mo. 497, 246 S.W. 940. (4) And that illegality the courts act upon when they first discover it, regardless of how discovered, and without pleading it. White v. McCoy Land Co., 101 S.W.2d 763; 13 C.J., p. 446, sec. 382. (5) Defendants are bound by their own construction of the Joseph Hunter will and, as expressed in the purported family settlement, to the effect that it created a life estate in Jennie Houck with a contingent remainder to the issue of her body and on failure of same, then to Sallie Byrd. Hoppock v. Gaines, 284 S.W. 191; Lorton v. Trail, 216 S.W. 54; Aetna Ins. Co. v. Hyde, 34 F.2d 185; State ex rel. v. C. A.R. Co., 265 Mo. 646, 178 S.W. 129. (6) The deed from Sallie Byrd to Jennie Houck was of no legal force because (a) It was part of an effort of the devisees to alter the will of the testator, Joseph Hunter, while taking under said will. They cannot at the same time renounce and take under the will, and having taken under the will said deed and all their acts inconsistent with the terms of the will are void. Hobbs v. Henley, 186 S.W. 981; Utermehle v. Norment, 197 U.S. 40, 25 Sup. Ct. 291, 49 U.S. 655, 3 Am. Cas. 252. (b) Said deed was never executed, and the evidence so establishes. (c) The life tenant Jennie Houck died without bodily issue in 1937, after the death of the contingent remainderman, Sallie Byrd, grantor, in 1919. Emmerson v. Hughes, 110 Mo. 627, 19 S.W. 979; Godman v. Simmons, 113 Mo. 122, 20 S.W. 972; Commerce Trust Co. v. Foulds, 221 Mo. App. 317, 273 S.W. 229. (7) At common law the devise in question created a contingent remainder in fee tail which under the statute was converted to a life estate in the first taker, remainder in fee simple to those who would at common law take at the happening of the contingency, to-wit: death of Jennie Houck, i.e. these plaintiffs. Sec. 2872, R.S. 1909; Sec. 3498, R.S. 1939; Fearne's Essay on Contingent Remainders (Third Ed.), chap. 10, p. 448; Barnitz's Lessee v. Casey, 7 Cranch, 456; Stockwell v. Stockwell, 262 Mo. 671, 172 S.W. 23; Welsh, Admr., v. Woodbury, Admr., 144 Mass. 542, 11 N.E. 762; 4, Comyn's Digest (4th Ed.), p. 12 (Title Estate, sub-head Issue in Tail; How He Takes); Landers Invest. Co. v. Brown, 300 Mo. 348, 254 S.W. 14, 30 A.L.R. 908. (8) A contingent remainder may be conveyed under the law of this State. Kay v. Politte, 344 Mo. 805, 129 S.W.2d 863, 122 A.L.R. 1145. (9) But the deed conveys only a chance. Callison v. Wabash Ry. Co., 219 Mo. App. 271, 275 S.W. 965; 21 C.J. 984. (10) And such a deed is defeated and becomes just an empty piece of paper by death of the grantor prior to the happening of the contingency and by the death of Sallie Byrd in 1919, prior to the death of Jennie Houck without issue of her body in 1937, said Sallie Byrd deed, assuming it was not invalid for any other reason, became, because of the grantor's prior death, of no legal effect. Stockwell v. Stockwell, 262 Mo. 671, 172 S.W. 23; Emmerson v. Hughes, 110 Mo. 627, 19 S.W. 979; Godman v. Simmons, 113 Mo. 122, 20 S.W. 972; Clark v. Sires, 193 Mo. 502, 92 S.W. 224; Vance v. Humphreys, 219 Mo. App. 498, 241 S.W. 91; Schee v. Boone, 295 Mo. 212, 243 S.W. 882; Nichols v. Robinson, 277 Mo. 483, 211 S.W. 14; Donaldson v. Donaldson, 311 Mo. 208, 278 S.W. 686; Bank of Brumley v. Windes, 314 Mo. 206, 282 S.W. 696; Golladay v. Knock, 235 Ill. 412, 85 N.E. 649, 126 Am. St. Rep. 224; 33 Am Jur., sec. 150, p. 617. (11) Contingent remainders are of two general classes — limited and general. Romjou v. Randolph, 166 Mo. App. 87, 148 S.W. 185. (12) The contingent remainder here considered in Sallie Byrd, i.e., whether there would ever exist in said contingent remainderman the right to take the estate, it being uncertain as to whether Jennie Houck would ever have issue of her body and that uncertainty only becoming certain by the death of Jennie Houck in 1937 without said issue, Sallie Byrd if living at the happening of the contingency, would then have taken, but she having died leaving lineal issue, these appellants, take on the happening of the contingency the same interest she would have then taken. Sec. 2870, R.S. 1909; Sec. 3496, R.S. 1939; Stockwell v. Stockwell, 262 Mo. 671, 172 S.W. 23; Barnitz's Lessee v. Casey, 7 Cranch, 456; Fearne's Essay on Contingent Remainders (Third Ed.), chap. 10, p. 448. (13) These appellants take by purchase said undivided one-third of the lands described in the petition. They take under the terms of the Joseph Hunter will and not by descent from their mother. Sec. 2874, R.S. 1909; Sec. 3500, R.S. 1939; Payne v. Payne, 119 Mo. 174, 24 S.W. 781; Winget v. Gay, 28 S.W.2d 999, 325 Mo. 368; Stockwell v. Stockwell, 262 Mo. 671, 172 S.W. 23. (14) Defendants defense of estoppel, laches and limitation, is not well taken because the life tenant, Jennie Houck, died in 1937, and in 1938 appellants sought their rights and received a letter from one of the principal defendants, Joseph H. Allen, with reference thereto. Appellants had no right to assert right of ownership until death of the life tenant. Souder v. Kitchens, 124 S.W.2d 1137; Williams v. Reed, 37 S.W.2d 537; Bradley v. Goff, 243 Mo. 95, 147 S.W. 1012. (15) The intention of the testator was that Sallie Byrd's children should take in the event she predeceased the contingency, to-wit: death of Jennie Houck, life tenant without issue of her body, and this court will listen first to the intent of the testator gathered from the will and all surrounding facts and will carry out that intent. Dameron v. Lanyon, 234 Mo. 627, 138 S.W. 1; Schneider v. Kloppert, 193 S.W. 834, 270 Mo. 289.
Joseph H. Allen, James M. Reeves, H.C. Blanton and Norwin D. Houser for respondents.
(1) The devise consisted in a life estate to Jennie Houck with an alternative or substantial contingent remainder over to (a), the bodily heirs of Jennie Houck, but in the event Jennie Houck die without bodily heirs, then (b), one-third to Sallie Byrd. Sec. 3499, R.S. 1939; 23 R.C.L., p. 552, secs. 96, 97; 69 C.J., sec. 1660, p. 583; 23 R.C.L., p. 487, sec. 12; 21 C.J., p. 988, sec. 140; 18 C.J., p. 309, sec. 289; 69 C.J., pp. 635, 637, secs. 1725, 1727; 2 Jarman on Wills (6th Ed.), p. 1391; Page on Wills, p. 1844; Donaldson v. Donaldson, 311 Mo. 208; Hartnett v. Langan, 282 Mo. 471; Eckle v. Ryland, 256 Mo. 424; Tevis v. Tevis, 259 Mo. 19; Cox v. Jones, 229 Mo. 53; Arnold v. Wells, 131 So. 400; Cowman v. Classen, 144 A. 367; In re Fields' Estate, 143 A. 280; Norman v. Horton, 126 S.W.2d l.c. 190; Golladay v. Knock, 85 N.E. 649, 235 Ill. 412; In re Coot's Estate, 234 N.W. 141. (2) It is the nature of a contingent remainder that it is not descendible. 23 R.C.L., pp. 517-18; Page on Will, p. 1847; 2 Washburn on Real Property (5th Ed.), sec. 223; Payne v. Payne, 119 Mo. 174; Williams v. Reid, 37 S.W.2d 537; Hauser v. Murray, 256 Mo. 58; DeLassus v. Gatewood, 71 Mo. 381; Hartnett v. Langan, 282 Mo. 471; Stockwell v. Stockwell, 262 Mo. 671; Dickerson v. Dickerson, 211 Mo. 483, 110 S.W. 700; Sullivan v. Sullivan, 229 Mo. 496; Vance v. Humphries, 210 Mo. App. 498; 26 C.J.S., p. 991, sec. 1; Lewis v. Lewis, 136 S.W.2d l.c. 70; Keller v. Keller, 92 S.W.2d l.c. 161. (3) Purchase relative to the acquisition of title is described as any other means of acquiring title than by descent. 26 C.J.S., p. 991, sec. 1. (4) The will was drawn by and under the advice and counsel of a lawyer and member of the bar, which fact suggests that testator was thoroughly acquainted with the force and legal effect of his devise. Hanssen et ux. v. Karbe, 115 S.W.2d 109. (5) The will itself is complete in its disposition and creates life estates, remainders, fee simple devises and trusts, establishes the executor, provides for residuary clause and disposes of personal property and cash bequests. There is no extrinsic or intrinsic evidence that testator intended otherwise than the omission of appellants in disposition of said remainder to Sallie Byrd. Therefore, it is submitted that neither from any evidence of intention otherwise than expressed by the testator, nor by any possible construction of the will, can the said appellants be construed as purchasers of the one-third contingent remainder of their mother, Sallie Byrd. 69 C.J., p. 165, sec. 1191; Brock v. Dorman, 98 S.W.2d 672; Hanssen et ux. v. Karbe, 115 S.W.2d l.c. 117; Gunn v. Yancey, 33 S.W.2d 1029; Miss. Valley Trust Co. v. Bowler, 149 S.W.2d 379; Methodist Church v. Thomas, 145 S.W.2d 157; 1st Presbyterian Church v. Lynott, 78 S.W.2d 396; Crowson v. Crowson, 19 S.W.2d 634; Stolle v. Stolle, 66 S.W.2d 912; Heard v. O'Dell, 72 S.W.2d l.c. 495; Bishop v. Broyles, 22 S.W.2d 790, in which is quoted Griffith v. Witten, 252 Mo. 627, 161 S.W. 708. (6) Appellants cannot take under will by purchase with aid of statute. Appellants rely on Sections 3496 and 3500, R.S. 1939, as authority that appellants take by purchase by aid of statute. This is answered in respondents' argument. (7) Contingent remainder lapsed and went into residuary clause. 60 C.J., p. 1051, sec. 2254; 69 C.J., p. 1053, sec. 2257; 28 R.C.L., p. 327; Lewis v. Lewis, 136 S.W.2d l.c. 70-71; State ex rel. Cowden v. Knight, 338 Mo. 584; Stolle v. Stolle, 66 S.W.2d 912; Bernero v. St. Louis Union Trust Co., 287 Mo. 602; Dickerson v. Dickerson, 211 Mo. 483; Lehnhoff v. Theine, 184 Mo. 346; Rengquist v. Young, 112 Mo. 25; In re Beach's Estate, 151 A. 654. (8) The contingent remainder of Sallie Byrd, having lapsed, passed into the residuary clause as a reversionary interest under the will of Joseph Hunter. 69 C.J., p. 1076, sec. 2313, p. 1071, sec. 2306, p. 1085, sec. 2321. Missouri cases supporting this view: Hyde v. Hopkins, 317 Mo. 587; Hobbs v. Yeager, 263 S.W. 225; Gillilan v. Gillilan, 278 Mo. 99; Keller v. Keller, 338 Mo. 731; Lewis v. Lewis, 136 S.W.2d 66; Fisher v. Easton, 299 Ill. 293, 132 N.E. 442, 108 A.L.R., p. 463; Carter v. Lewis, 108 A.L.R. 463. (9) The right in reversion under the residuary clause is a present vested estate. The general warranty deed of Sallie Byrd to Jennie Houck conveyed eo enstante this reversionary right. Upon the failure of issue to Jennie Houck at her death, the remainder went into said residuary clause as an after-acquired property. The conveyance of this vested right in reversion conveyed Sallie Byrd's reversionary share and all the share that remained in Sallie Byrd to Jennie Houck. Lewis v. Lewis, 136 S.W.2d 66; 21 C.J., p. 1018, sec. 181, p. 1020, sec. 183, 69 C.J., p. 421, sec. 1478, p. 1076, sec. 2313, p. 1085, sec. 2321, p. 1086, note 28(a); Hyde v. Hopkins, 317 Mo. 587; Hobbs v. Yeager, 263 S.W. 225; Gillilan v. Gillilan, 278 Mo. 99; Keller v. Keller, 338 Mo. 731; Fisher v. Easton, 299 Ill. 293, 132 N.E. 442. (10) Jennie Houck, the recipient of general warranty deed from Sallie Byrd, as aforesaid, was the owner of a defeasible fee, or vested estate subject to being divested, defeasible only in the event of issue born to Jennie Houck, which issue would take the remainder. Lewis v. Lewis, 136 S.W.2d 66. (11) As to defendants, Lee and Ollie Hunter, also contingent remaindermen under the devise to Jennie Houck, having survived Jennie Houck, who died without issue, the interest of Lee and Ollie Hunter accrued into a vested estate. The general warranty deed from Lee and Ollie Hunter to Jennie Houck conveyed by retroaction the after-acquired property in this estate to Jennie Houck, her heirs and assigns. Contingent remainders are alienable subject to the happening of the contingency. Sec. 3497, R.S. 1939; 69 C.J., p. 1283, sec. 2686; 21 C.J., p. 998, sec. 156; Gould v. Leadbetter, 150 A. 375; Godman v. Simmons, 113 Mo. 122; Callison v. Wabash Ry. Co., 275 S.W. 965; Bramhall v. Bramhall, 216 S.W. 766; Donaldson v. Donaldson, 311 Mo. 208; Finley v. Babb, 173 Mo. 257; Wood v. Kice, 103 Mo. 329; Inlow v. Herren, 306 Mo. 42; Schee v. Boone, 295 Mo. 212; Vance v. Humphreys, 210 Mo. 498; Nichols v. Robinson, 211 S.W. 14; Hart v. Sires, 193 Mo. 502; Brown v. Fulkerson, 125 Mo. 400. (12) The appellants being privies of Sallie Byrd, are estopped to claim as against respondents residuary legatee. Sallie Byrd conveyed by general warranty deed her right in reversion, being a vested estate, to Jennie Houck. These appellants, as privies of Sallie Byrd, are estopped to claim in renunciation of said contract, or that it, Byrd to Houck deed, did not operate as a conveyance. 21 C.J., p. 1067, sec. 26, p. 1074, secs. 39-40-41, p. 1088, sec. 68, p. 1093, sec. 76, p. 1095, sec. 82; 31 C.J.S., p. 203, sec. 21, p. 195, sec. 10, p. 211, sec. 35, p. 228, secs. 50-51-52-53, p. 231, sec. 55, p. 232, sec. 55(b), p. 235, sec. 58, p. 347, sec. 109, p. 399, secs. 131-132; Steele v. Culver, 158 Mo. 136; Clark v. Clark, 18 S.W.2d 77; Keller v. Keller, 92 S.W.2d 157, 338 Mo. 731; Hubbard v. Slavens, 218 Mo. 598; Boone v. Getting, 114 S.W.2d l.c. 983; Lawson v. Cunningham, 204 S.W. l.c. 1108; Proctor v. Nance, 220 Mo. l.c. 115; Rhodes v. Geatley, 147 S.W.2d l.c. 637-8; Bank of Brumley v. Windes, 282 S.W. l.c. 698; Runnells v. Lasswell, 219 S.W. l.c. 981; Sage v. Finney, 135 S.W. l.c. 1000.
Plaintiffs' petition is in two counts. The first seeks to quiet and determine title in plaintiffs to an undivided one-third interest in approximately one thousand acres of land and attacks the validity of two deeds to Virginia Hunter Houck — one from Joseph Hunter and wife; the other from residuary devisees of Joseph Hunter. The second count seeks the reformation of said deed from Joseph Hunter and wife if it be [692] determined that said deed was executed, acknowledged and delivered. The common muniment of title is the will of Joseph Hunter, deceased. He was survived by his widow, Emeline Hunter; and his children, Sallie Hunter Byrd and Abram R. Hunter, children of his first marriage, and Robert Lee Hunter (frequently designated in the record as Lee Hunter), Virginia Hunter Houck (frequently designated in the record as Jennie Houck), and two grandsons, Joseph H. Allen and Thomas B. Allen, Jr., sons of a deceased daughter, Emma Hunter Allen, descendants of his second marriage. Plaintiffs are children of Sallie Hunter Byrd. (Defendants Lee Hunter and Ollie Hunter, his wife, are excluded in our references to defendants. They filed no answer or disclaimer nisi and present no contention here.) There is no controversy between the several defendants as to their respective interests and it would unnecessarily encumber the record to give the details of the judgment and decree nisi. Sufficient for the purposes here and subject to the observations hereinafter, Jennie Houck devised the lands to Joseph Hunter Allen and Thomas B. Allen (Jr.), subject to an annual charge thereon of $600 in favor of Frances Viola Houck Houser, an adopted daughter of Jennie. The judgment and decree nisi sustained Jennie Houck's disposition of the lands and plaintiffs appealed.
Principally, the controversy involves a devise to Jennie Houck, the residuary clause of Joseph Hunter's will, an agreement between Joseph Hunter's residuary devisees and the deeds, especially one to Jennie Houck, executed in connection with said agreement. Joseph Hunter died September 20, 1911, well advanced in years. His will was executed April 20, 1903, and carried six codicils, the last being dated November 9, 1908.
Joseph Hunter's will contained a devise to Jennie Houck, reading:
"Paragraph 4. I have heretofore conveyed my deed to my daughter, Jennie Houck, during her natural life and then to the heirs of her body, the following described lands situate, lying and being in the county of New Madrid and State of Missouri, to wit:
[Here are described certain lands embracing those involved in this litigation. Then:]
"In the event that said grantee die without said issue, then the above mentioned property to descend: 1/3 to my daughter, Sallie Byrd, 1/3 to my son Lee Hunter, 1/3 to my grandsons Joseph H. Allen and Thomas B. Allen, Junior."
His will also contained a residuary clause, which was modified by a codicil dated July 31, 1905. This codicil read:
"I give, devise and bequeath all the rest residue and remainder of my real and personal estate not hereinbefore disposed of that I may own at the time of my death wherever situated to my children — Sallie H. Byrd 1/5, Abram R. Hunter 1/5, Robert Lee Hunter 1/5, Jennie Houck 1/5 and Joseph Hunter Allen and Thomas B. Allen, Jr. the sons of my daughter, Emma Allen, deceased, jointly 1/5."
The will named Lee Hunter executor, with broad powers, he being authorized to pay debts and settle any unsettled business matters without waiting for any order of court whatsoever, quoting, in part: "It being my purpose and will to invest him with all the powers I possess at this time in closing up my estate." All the devises in the will, i.e., the individual devises to his wife, all of his children and his grandsons, the Allen children, begin as does the devise to Jennie: "I have heretofore conveyed by deed to . . ." By a codicil Lee Hunter was substituted for Thomas B. Allen, Sr., as curator and trustee for the Allen children.
Lee Hunter testified in detail with respect to certain events transpiring subsequent to his father's death. The heirs, including the widow, met on September 24, 1911. Testator's papers were in a lock box at a bank, which witness and A.R. Byrd, father of plaintiffs, produced. In the box, among the other papers, were the will, which was read by Judge Thomas B. Allen, and the several deeds mentioned in said will. The heirs met the following day. The several deeds were delivered to the respective grantees and they took possession of their respective tracts of land. (Among said deeds from Joseph Hunter and wife were warranty deeds, dated April 16, 1903, conveying the fee: To Jennie Houck, covering among others, the land here involved. This is a deed plaintiffs seek, first, to void and, if unsuccessful, to reform. To Sallie H. Byrd, covering practically all the land devised to said grantee.) Witness also testified: Abram, who received considerably less than the others, stated he was not satisfied. After discussion, the heirs adjourned. [693] When they next met, Abram was represented by an attorney. It was agreed that Abram should receive one-fifth of the estate, equalizing his share with the others. At A.R. Byrd's suggestion they agreed to place a value on the property. They met again and arrived at a total value, real and personal, of $400,000; allocated as follows: Sallie Byrd, $85,000; Jennie Hunter, $87,500; Joseph H. and Thomas B. Allen, $89,500; Lee Hunter, $93,000. When they met to sign the papers, Louis B. Houck, husband of Jennie, announced she would not proceed until the entailment of the lands involved was released. According to witness, more argument followed; but an agreement dated December 9, 1911, finally resulted.
The record discloses an agreement, dated October 20, 1911, signed by Lee, Sallie, Abram, Jennie, and "Joe and Tom Allen, by Thomas B. Allen, Sr." reciting that Abram was to receive $80,000 as his share, and that all property entailed under the will was to be released if possible.
The agreement of December 9, 1911, is in greater detail. It is signed: "Lee Hunter, Joseph Hunter Allen and Thomas B. Allen, Jr., by Thomas B. Allen; Abram R. Hunter; Sallie Hunter Byrd; Virginia Hunter Houck; Emeline Hunter." After setting out the will it recites, among other things, an "intent, purpose and desire" to immediately effect distribution of all of testator's estate "as provided by said will and according to the true tenor, purpose and effect of said will, (except as herein expressly agreed to) and providing against any suit, contest or proceeding construing, contesting or questioning the validity of said will or any of its provisions or codicils;" that Abram R. Hunter was "not satisfied with the terms of said will and has threatened to institute a suit to contest the validity of said will and to set the same aside and for the purpose of removing the entailments on the real estate of the undersigned, whose property was entailed under the above will." The parties declared they had full knowledge of the will and all the material facts involved and did "confirm, establish and sustain said will as the true and accepted will of said Joseph Hunter, deceased"; that they accepted the provisions thereof; that "each of the undersigned fully understands and intends that he and she is to be and is hereby estopped from instituting any suit or proceeding affecting the construction or contesting the validity of said will or any of its provisions or codicils"; and that each authorized Lee Hunter to perform his powers as executor, "deliver the several deeds to the several legatees, as provided in said will" and distribute the assets. The fourth clause of said agreement read:
"Fourth. Each of the undersigned agree to convey or invest by appropriate legal proceedings or deeds all rights, title, interest, or claim he or she may have in and to the real estate devised to the several legatees in said will, it being the intent and purpose to annul and remove all the entailments to the real estate, as made and provided by said will and the deeds referred to and described in said will, and we and each of us hereby expressly waive, surrender and relinquish any and all rights and elections in law or equity which we or either of us may have in said will." They then "approve, ratify and confirm" all acts of Lee Hunter as agent for Joseph Hunter, and accept as correct and true an annexed account. Then followed:
"It is understood that each agreement and undertaking on the part of each of the undersigned is in consideration of the agreements and understandings of the other parties to this instrument."
Acting under said agreement, Lee Hunter was given authority to and did pay Abram on behalf of the others the following amounts: On behalf of Lee $12,520.13; Sallie, $5,150; Jennie, $7,650; "Joe and Tom Allen, by Thomas B. Allen," $9,650.
A general warranty deed bearing date of October 28, 1911, was executed and delivered by Robert Lee Hunter and wife, Emeline Hunter, Sallie Hunter Byrd and husband, and Abram R. Hunter and wife, to Jennie Houck. This deed conveyed all the land here involved. Plaintiffs seek to set it aside.
All the deeds herein mentioned were filed for record on May 8, 1912.
Sallie H. Byrd died in 1919 or 1920.
Jennie Houck died January 11, 1937.
The litigants on both sides say that the devise in Joseph Hunter's will to Jennie Houck created a life estate in said Jennie, with contingent alternative or substitutional remainders, or remainders with a double aspect, in the heirs of said Jennie's body or, in the event Jennie died without issue, in Sallie Byrd, one-third; Lee Hunter, one-third; [694] and Joseph H. Allen and Thomas B. Allen, Jr., one-third.
Plaintiffs, asserting the deed of October 28, 1911, to Jennie Houck, in which Sallie Byrd and husband joined with other residuary devisees, was ineffective to destroy their interest, contend, absent said deed, that as Sallie, if living at the happening of the contingency, the death of Jennie without issue, would have taken, they, the lineal issue of Sallie, who predeceased Jennie, take, deed or no deed. They cite Barnitz v. Casey, 7 Cranch 456, 3 L.Ed. 403; Stockwell v. Stockwell, 262 Mo. 671, 673, 172 S.W. 23; Inlow v. Herren, 306 Mo. 42, 61[II], 267 S.W. 893, 898 [II]; Burford v. Aldridge, 165 Mo. 419, 63 S.W. 109. They say the remainder to Sallie was to an ascertained person and was not made contingent upon Sallie surviving Jennie. They argue that under Sec. 3496, R.S. 1939 (Sec. 2870, R.S. 1909), the term "heirs" was not necessary to pass the fee to Sallie; that under Sec. 3498, R.S. 1939 (Sec. 2872, R.S. 1909), a fee tail estate is converted into a life estate in the first taker, with remainder in fee simple to those who would at common law take at the happening of the contingency and that they, being the lineal issue of Sallie, the contingent remainderman, took under Sec. 3500, R.S. 1939 (Sec. 2874, R.S. 1909), on the death of Jennie without heirs of her body, the contingency. They conclude they take by purchase under the will of Joseph Hunter and not by descent from Sallie, their mother, construing said devise — "to my daughter, Sallie Byrd" — as being in legal effect: "to Sallie Byrd and the lineal issue of her body so long as said lineal issue shall live." They cite Payne v. Payne, 119 Mo. 174, 177(1), 24 S.W. 781 (1); Winget v. Gay, 325 Mo. 368, 373, 28 S.W.2d 999, 1000[5]; Stockwell v. Stockwell, supra; Inlow v. Herren, supra.
"The term `heirs,' or other words of inheritance, shall not be necessary to create or convey an estate in fee simple, and every conveyance of real estate shall pass all 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." Sec. 3496, R.S. 1939.
"In cases where, by the common or statute law of England, any person might become seized in fee tail of any lands, by virtue of any devise, gift, grant or other conveyance, or by any other means whatever, such person, instead of being seized thereof in fee tail, shall be deemed and adjudged to be, and shall become, seized thereof for his natural life only; and the remainder shall pass in fee simple absolute to the person to whom the estate tail would, on the death of the first grantee, devisee, or donee in tail, first pass according to the course of the common law, by virtue of such devise, gift, grant or conveyance." Sec. 3498, R.S. 1939.
"Where a remainder shall be limited to the heirs, or heirs of the body, of a person to whom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be the heir or heirs of the body of such tenant for life shall be entitled to take as purchasers in fee simple, by virtue of the remainder so limited in them." Sec. 3500, R.S. 1939.
Defendants say that plaintiffs, children of Sallie Byrd, take neither by descent nor purchase any interest in the contingent remainder devised to Sallie Byrd; and that Sallie Byrd having predeceased Jennie Houck, her contingent remainder lapsed and passed under the residuary clause of the will and under the deed of the residuary devisees to Jennie Houck. They argue that plaintiffs, not being included in the devise in question, cannot take under the will by purchase with the aid of the statutes, and that it is the nature of a contingent remainder to be not descendible. They cite, among others, Lewis v. Lewis, 345 Mo. 816, 825 et seq., 136 S.W.2d 66, 70, et seq., and cases there cited; Re Coot's Estate, 253 Mich. 208, 234 N.W. 141 (certiorari denied, 284 U.S. 665, 76 L.Ed. 563, 52 S.Ct. 42).
The view we take of the case obviates any necessity of a discussion of what has been written on whether a given contingent remainder is descendible, devisable, or alienable; which, according to our view, depends on the particular language employed in creating the estate and the intent of the grantor. Consult 2 Fearn on Remainders (4th Am. Ed.), 434; 4 Kent's Commentaries (14th Ed.), *261; 2 Washburn, Real Property (6th Ed.), p. 527; 31 C.J.S., p. 101, Sec. 88, c.; 33 Am. Jur., p. 618, Sec. 152, p. 614, Sec. 149, p. 611, Sec. 148; 16 Am. Jur., p. 794, Secs. 27, 29. It is not for us to interpolate words in Joseph Hunter's will. Stolle v. Stolle (Mo.), 66 S.W.2d 912, 917; Ringquist v. Young, 112 Mo. 25, 34, 20 S.W. 159, 161; Bernero v. St. Louis Union Trs. Co., 287 Mo. 602, 624, 230 S. [695] W. 620, 624[2]. The draftsman of the paragraph under discussion knew as readily how to include the "lineal issue" of Sallie Byrd as the heirs of the body of Jennie Houck. Section 3496, R.S. 1939, makes the word "heirs" unnecessary to the grant of a fee. It does not interpolate words not used into the grant.
Plaintiffs do not take as purchasers under the will of Joseph Hunter. "The words `purchase' and `descent' are employed to designate the only two methods of acquiring title to real property . . .; but they are readily distinguished as each is the opposite of the other, title by descent being acquired by mere operation of law and title by purchase being acquired by act or agreement of the parties, or, as frequently stated, by any means other than descent." 26 C.J.S., p. 991, n. 16. There is no limitation whatever as to them specifically or as a class in the devise. They do not take from the devisor. Had said devise read "to Sallie Byrd and the lineal issue of her body so long as said lineal issue shall live," as plaintiffs would have us read it, a different legal situation might well result and what is said in plaintiffs' brief might be applicable. 31 C.J.S., p. 35, Sec. 21, defines "a `fee tail' or `estate tail'" as "an estate of inheritance which, instead of descending to heirs generally, goes only to heirs of the donee's body." See Inlow v. Herren, 306 Mo. 42, 65, 267 S.W. 893, 899[10]; 19 Am. Jur., p. 507, Sec. 47. The provisions of Secs. 3498 and 3500, R.S. 1939, which treat of estates in "fee tail" and remainders "limited to the heirs or heirs of the body, of a person to whom a life estate in the same premises shall be given," respectively, are not applicable to the devise to Sallie because she did not "become seized in fee tail"; nor was she "the person to whom the estate tail would, on the death of the first . . . devisee . . . in tail, first pass according to the course of the common law . . ."; nor was she "a person to whom a life estate" was devised. The instant devise involved an estate tail as to Jennie and the heirs of her body (converted into a statutory life estate in Jennie with remainder in fee simple in those classifying as heirs of her body by Sec. 3498, supra); but an alternative or substitutional remainder in fee simple as to Sallie. Plaintiffs' authorities are distinguishable on the facts.
Since plaintiffs do not take as purchasers, let us assume that the estate devised to Sallie Byrd was descendible and plaintiffs might take under our statutes of descents and distributions that portion of the estate "undisposed of" (Sec. 306, R.S. 1939) by their mother. The record does not establish whether Sallie Byrd died testate or intestate. She and her husband joined with Lee Hunter and his wife, Abram R. Hunter and his wife, and Emeline Hunter, the widow, in the general warranty deed conveying the lands involved to Jennie Houck bearing date of October 28, 1911, and recorded May 8, 1912. If Sallie Byrd's interest in the lands was descendible, her interest also was alienable and devisable, as Joseph Hunter's will placed no restriction with respect to either incident upon his devise to Sallie.
The foregoing disposes of the case, plaintiffs taking, if at all, by descent and being in no better position than Sallie Byrd to attack the agreement between the residuary devisees and the resultant deed to Jennie Houck. They charge said deed was the result of a conspiracy to defraud plaintiffs and illegal, and devote much space thereto. The attack, as developed, goes on the theory the fraud was perpetrated on them as contingent remaindermen by purchase under the will of Joseph Hunter and not on the theory the fraud was perpetrated on their mother. The record, undisputed, established that she understood fully what she was about and that a sufficient consideration to sustain the agreement and deed passed from Jennie, as well as other residuary devisees. Statements are in plaintiffs' brief indicating an attack on Joseph Hunter's will might have been successful. There is no showing a will contest would have been futile. There was evidence establishing the signatures of Sallie Byrd and her husband to the agreement and the deed, the latter being acknowledged by them. Plaintiffs had the burden of going forward with the evidence. Our statement outlines the more material facts connected with the transaction. After studying the entire record we find nothing that would justify our overturning the finding nisi on the issue and reestablishing the status of the parties thereto prior to the execution of the agreement and deeds. If plaintiffs take by descent, such steps are essential to their success in this litigation. This does not give consideration to defendants' main contentions.
[696] Plaintiffs' contention that Jennie Houck sought to take under the will of Joseph Hunter and at the same time renounce the will is without merit. The defense is that defendants rightly acquired and hold title through the will and the subsequent muniments in their chain of title.
The deed of April 16, 1903, from Joseph Hunter and wife to Jennie Houck, conveying the fee, was never delivered by Joseph Hunter. As defendants are not claiming under said deed but under Joseph Hunter's will, the validity or invalidity of said deed is of no practical consequence here.
Plaintiffs recognize they must take as purchasers under "paragraph 4" of Joseph Hunter's will to prevail and not by descent from Sallie Byrd, their mother. We have pointed out they do not take as purchasers under said will. Any right to take by descent through their mother was extinguished by the warranty deed to Jennie Houck in which their mother and her husband joined. This is true whether the interest passing under the mother's deed came to her under "paragraph 4" or under the "residuary clause" of testator's will.
The judgment is affirmed. Westhues and Barrett, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.