Opinion
December 30, 1929.
1. FOREIGN WILL: Lack of Attestation: Real Estate: Rents: Personalty. The owner of real estate in this State having leased it for ninety-nine years, and then attempted to devise it to a trustee for charitable uses by her will, valid in the State where made, but not attested by witnesses as required by the laws of this State and therefore invalid as a devise of such real estate, such trustee or the charitable beneficiary cannot be adjudged the legal owner of the unaccrued rents on the theory that they are personalty and therefore the will was a valid bequest of them, but the unaccrued rents, as does the real estate, descend to the heirs at law, there being no segregation of the rents from the real estate, either by the will, or by an express provision of the lease.
2. ____: ____: ____: ____: ____: Reversion. Unless it is expressly provided, rent from real estate follows the reversion and passes by descent; and it is not otherwise provided by a lease under which the owner of the fee in reversion simply has the right to collect the rent. There is no right to collect unaccrued rents unless the lease expressly provides for it, but when rent accrues it becomes "fruit fallen," is a personal privilege and no longer an incident of the reversion; and where the lease discloses no intention to take the rent from under the rule, it is to be considered only as an agreement to pay the annual rent which passes with the reversion.
3. ____: ____: Lease for Ninety-Nine Years: Partition. The owner of a lot in Missouri leased it for ninety-nine years. By her will, made in Kentucky, valid there, she attempted to give the lot and the rents accruing after her death to a trustee of a medical society for the benefit of a hospital. The will was held insufficient to pass real estate in this State (White v. Greenway, 303 Mo. 691), because not executed before subscribing witnesses, but sufficient to pass testator's personal property situate in this State. In this suit to partition the lot, the trial court adjudged that the heirs of the testatrix were the owners of the reversion, that the unaccrued rents were personal property, and that under the will the ownership of said rents passed to the medical society, and ordered partition of the lot among the heirs at law subject to the ownership of said rents. Neither the lease nor the will discloses any intention to separate the rents from the estate. Held, that the judgment should be reversed and the cause remanded with directions to enter judgment in favor of the heirs at law, and against the medical society, and to partition the lot.
Appeal from Jackson Circuit Court. — Hon. Willard P. Hall, Judge.
REVERSED AND REMANDED ( with directions).
John W. Wendorff and David Irvine White for appellants.
(1) Rent to accrue in the future is real estate. The rent accruing under the ninety-nine-year lease from Elizabeth S. Irvine to the Baltimore Avenue Investment Company after the death of Elizabeth S. Irvine, follows the reversion and descends to the plaintiffs and defendants herein, the heirs of David Irvine, or to the heirs of Elizabeth S. Irvine, as real estate, under the laws of Missouri, and does not pass to interveners under the unwitnessed, holographic will of Elizabeth S. Irvine, and for that reason the circuit court committed error in adjudging and decreeing that said interveners are entitled to receive the rents which have accrued and which will accrue under said lease after the death of Elizabeth S. Irvine. Allen v. Pullam, 10 S.W.2d 66; Loomis v. Shriner, 165 Mo. App. 25; Vaughn v. Locke, 27 Mo. 290; Page v. Culver, 55 Mo. App. 606; Culverhouse v. Worts, 32 Mo. App. 419; Bealey v. Blake's Administrator, 70 Mo. App. 229; Aubuchon v. Lory, 23 Mo. 99; Shouse v. Krusor, 24 Mo. App. 279; Biddle v. Hussman, 23 Mo. 597; Stevenson v. Hancock, 72 Mo. 612; Pollock v. Loan Trust Co., 157 U.S. 429; United States v. Noble, 237 U.S. 74; 36 C.J. 364, sec. 1205; 3 Schouler on Wills 1973, sec. 2010, and 1974, sec. 2012; 2 Thompson on Real Property 1346; 1 Thompson on Real Property 314, sec. 240; 28 C.J. 848, sec. 22E, p. 852, sec. 36D; 18 C.J. 882, sec. 141; 2 Washburn on Real Property (6 Ed.) 1520, sec. 517. (2) Title to real estate in Missouri can be acquired only according to the laws of Missouri. Since the rental which accrued under the ninety-nine-year lease on said Lot 13, after the death of Elizabeth S. Irvine, is real estate, and since the title to real estate can only be devised or passed by a will executed and witnessed according to the laws of Missouri, the court committed error in adjudging and decreeing that the rent which accrued and which will accrue under the lease after the death of Elizabeth S. Irvine, November 25, 1920, passed by the unwitnessed will of Elizabeth S. Irvine to John W. Crooke, trustee for the Kentucky State Medical Association and the said Kentucky State Medical Association, as beneficiary under said will. White v. Greenway, 303 Mo. 691; Dobshutz v. Dobshutz, 279 Mo. 123; Hughes v. Winkleman, 243 Mo. 92; United States v. Noble, 237 U.S. 74. (3) Since Elizabeth S. Irvine took only a life estate in Lot 13, Block 20, with a power to sell the fee to said lot during her lifetime, and reinvest the proceeds realized from the sale of said lot, and since she failed so to do, the court committed error in not adjudging and decreeing that Elizabeth S. Irvine took only a life estate in said lot, and that the rentals which accrued from said lot after her death passed to and vested in the heirs at law of David Irvine, father of Elizabeth S. Irvine, and did not pass to her administrator or executor, or to the legatees under her will. Coleman v. Haworth, 8 S.W.2d 933; Fanning v. Doan, 30 S.W. 1033; Ernshaw v. Smith, 2 S.W.2d 803; Underwood v. Cave, 176 Mo. 1; Nichols v. Robinson, 211 S.W. 15.
J.J. Greenleaf, Harkless Histed and F.M. Curlee for respondents.
(1) Rent to accrue in the future is personalty, not real estate. The obligation of Baltimore Avenue Investment Company to pay rent for ninety-nine years to Elizabeth Irvine, lessor, and those who subsequently took through her, is purely a personal obligation upon the part of the tenant and constitutes a purely personal chose in action in the hands of the lessor. A lease for ninety-nine years is essentially the same as a lease for one year. By its terms the tenant acquires the right of occupancy, and the landlord acquires nothing but the right to receive money. The title to real estate is in no way affected. Landers Inv. Co. v. Brown, 300 Mo. 348, 251 S.W. 14, 300 A.L.R. 908; 16 R.C.L. 909; 3 R.C.L. Supp. 609; 32 Cyc. 668. (2) The form or character of property may be changed from realty to personalty by the act of the owner or other authorized person. Elizabeth Irvine, by the lease of 1915, divested herself of the right to enjoy the real estate for ninety-nine years and acquired in lieu thereof the tenant's personal obligation to pay rent for that period. She thus had two distinct things, the reversionary interest in the land, which she could dispose of only by the formality of a deed conforming to the requirements of the Missouri real estate law and the right to receive rents under the contract, which she could assign or transfer without such formalities. Her right to collect rent and to transfer that right was fixed at the time of the execution of the rental contract, and the inherent nature of that contract was in no wise changed by her death. 32 Cyc. 672. (3) The right to rents flowing from a leasehold may be separated from the reversion. The lessor may assign the rent and covenant for rent without the reversion, and it is immaterial that the rent assigned is not due. Landers Inv. Co. v. Brown, 300 Mo. 348, 254 S.W. 14; 16 R.C.L. 915; 3 R.C.L. Supp. 609; 35 C.J. 1217; McMenamy Inv. etc. Co. v. Dawley, 183 Mo. App. 1; Vantage Min. Co. v. Baker, 170 Mo. App. 457. (4) The rule that rent to accrue is incident to the reversion is subject not only to the right of the lessor to assign the rents to another, but it is subject to modification by will, and has in some jurisdictions been modified by statute. Landers Inv. Co. v. Brown, 300 Mo. 348, 254 S.W. 14; 16 R.C.L. 915; 3 R.C.L. Supp. 609; 31 A.L.R. 5 (note). The rule that rent follows the reversion to heirs is nowhere based upon the idea that the rent is a part of the reversion. On the contrary, it is referred to as a "fruit of inheritance." The gist of the rule is, as in other rules for construction of wills, that where not otherwise provided an owner who permits realty to descend without separating the rent, or who conveys the realty without reserving rent, intended that the rent should follow the reversion. The rule does not apply where a directly contrary intent is shown by an act of separation by assignment or testamentary gift. The appellant heirs at law are not bona-fide purchasers. They have no rights whatever. (5) The right to collect rents being personal property as distinguished from the reversion, after the rental contract of January, 1915, Elizabeth Irvine had the right to separately assign same during life, or to separately bequeath same by will at her death, provided such assignment or bequest conformed to the requirements of Missouri law for the passing of personal property. (6) Both statute law and judicial decision expressly provide that the non-resident owner of personal property located in Missouri may validly bequeath same by last will and testament, executed in accordance with the laws of the testator's domicile, regardless of the requirement of Missouri laws that additional formalities are necessary to pass Missouri real estate. Sec. 253, R.S. 1919; White v. Greenway, 303 Mo. 691, 263 S.W. 104. (7) Elizabeth Irvine's will conclusively shows an intention upon her part to give the rents to the trustee for the hospital entirely separate from her attemped disposition of the reversion. (8) It was the intention of David Irvine, Sr., that the provisions of his will, which provided a contingent remainder for any children Elizabeth Irvine might leave surviving her, should apply only to testator's Kentucky property. Elizabeth Irvine took an unrestricted and unconditional fee in the testator's Missouri property. (9) Even if the restrictions were intended to apply to the Missouri property, then upon the death of Elizabeth Irvine without living children (the class for whom the contingent remainder was created), the remainder in fee became the property of testator's four children either under the residuary clause of his will, or by the statutes of descent. The agreement and deed of 1872, executed by all of the heirs at law and residuary devisees, conveyed the fee to Elizabeth Irvine in the lots described in the agreement and deed. Walker v. Irvine's Exec., 225 Ky. 699; 40 Cyc. 1565, 1567, 1569, 1818; Dunlap v. Hart, 274 Mo. 600, 204 S.W. 525, 3 A.L.R. 1493; Allison v. Hitchcock (Mo.), 274 S.W. 798; Page on Wills (1926 Ed.) secs. 815, 871, 874, 875, 1061. (10) Even though she had only a life estate with power to convey and hold the proceeds in trust, as contended by appellants, her conversion of the realty for the ninety-nine-year term into personalty was a valid execution of her power and this court would in that state of case still be dealing only with the question of the descent of personalty. Landers Inv. Co. v. Brown, 300 Mo. 348.
Suit in partition. Elizabeth S. Irvine, who claimed to be the owner in fee of Lot 13, Block 20, Ashburn's Addition in Kansas City, Missouri, on January 8, 1915, leased it to Baltimore Avenue Investment Company for ninety-nine years. She died a resident of Richmond, Kentucky, in 1920, leaving a holographic will, valid under the laws of Kentucky. By the will she attempted to give the lot and unaccrued rental to John W. Crooke, Trustee for the Kentucky State Medical Association for the benefit of a hospital. The will was admitted to probate in Jackson County, Missouri. Thereupon, heirs at law of Elizabeth S. Irvine, instituted suit in the circuit court of said county to have the will declared insufficient to pass real estate in Missouri for the reason it was not executed before subscribing witnesses, as required in Missouri. On trial the will was found insufficient for that purpose, and we affirmed the judgment. In doing so we held the will sufficient to pass personal property of Elizabeth S. Irvine located in Missouri. [Susan McD. White v. John C. Greenway, 303 Mo. 691, 263 S.W. 104.] Thereafter this suit to partition the lot was instituted in the Circuit Court of Jackson County, at Independence. On demurrer to the petition the Baltimore Avenue Investment Company dropped out of the case.
It is alleged in the petition that plaintiffs and defendants are the owners of the lot. By leave, the Kentucky State Medical Association and John W. Crooke, trustee and executor, entered their appearance as defendants and answered by alleging ownership, under the will of Elizabeth S. Irvine, of the unaccrued rental under the lease. The court found the plaintiffs and defendants to be the owners of the reversion and further found the unaccrued rental to be personal property and that under said will the ownership of said rental passed to the Kentucky State Medical Association and John W. Crooke, trustee and executor, and ordered partition of the lot subject to said ownership of said rental. Plaintiffs appealed.
Appellant's contentions follow:
(1) That Elizabeth S. Irvine had only a life estate in the lot by the will of her father, and that under said will the title to the lot passed to plaintiffs and defendants on her death.
(2) If she was the owner in fee, then the unaccrued rents under the lease did not pass by her will to the Kentucky State Medical Association and John W. Crooke, trustee and executor.
Assuming, without deciding, that she owned the fee, we will consider the second question presented. It is agreed that unless otherwise provided, rent follows the reversion and passes by descent. Did the owner of this lot otherwise provide? Respondents contend she did so by leasing the lot. They point to no provision of the lease operating as a severance of the rent from the estate, but argue that under the lease she had the right to collect the rent and that this right is personalty.
There is no right to collect unaccrued rent. When rent accrues it becomes "fruit fallen," is a personal privilege and no longer incident to the reversion. An examination of the lease discloses no evidence of an intention to take the rent from under the rule. It is only an agreement to pay the annual rent which passes with the reversion.
Moreover, the will of Elizabeth S. Irvine discloses no intention to separate the rent from the estate. She only attempts to give the lot to the hospital and directs the use of the rental for equipment and maintenance.
No attempt to separate the rent from the fee having been made the legal method of doing so is not a question for consideration.
Respondents cite Landers Investment Co. v. Brown, 300 Mo. 348 254 S.W. 14. In that case Lizzie M. Sittler, the owner in fee of land, with her daughter and only child, Blanche Sittler, leased the same for ninety-nine years. The lease provided that the rental be paid to Lizzie M. Sittler during her life, and on her death to Blanche Sittler, if living, during her life, and upon their deaths, to Lizzie M. Sittler's heirs, administrators, and assigns. The rents were paid to Lizzie M. Sittler, during her life, and then to Blanche during her life, and on the death of Blanche, the controversy arose between James L. Crane, the surviving husband of Blanche, whose marriage took place after the execution of the lease, and the heirs of Lizzie M. Sittler, over the rents accruing under said lease.
It will be noted the rent was separated from the estate by the provisions of that lease. This was not questioned on the trial or in this court. Only the questions presented were ruled and the case is not in point. Other authorities cited do not touch the question.
It follows the judgment should be reversed, and the cause remanded, with directions to enter judgment in favor of the plaintiffs and defendants and against the Kentucky State Medical Association and John W. Crooke, trustee and executor, on their intervening answer, and to partition the lot. It is so ordered. All concur.