Yore v. Yore

¶11. Deed—Construction.

¶2Where land is conveyed to a trustee for the sole and separate use of a married woman, giving her full power to sell and convey the property, and it is provided that, in case she dies without disposing of the property by deed or will, the trust shall cease and determine, and the property shall revert to and vest in her husband, held that, on the death of the wife, the property being undisposed of, an equitable fee-simple title to tho land vested in the husband.

¶32. Same—Statute of LnirT-VTioxs.

¶4Where land is conveyed to trustee for the sole and separate use of a married woman, in trust to pay over to her the rents during her natural life, and no longer, with power on her part to dispose of the property, and it is provided therein that, in case of her death without disposing of the property, then that tho same shall be held by tho trustee for the use and benefit of her children, held that, upon her death, the title 1o the property vested in the children; and the husband having entered into possession of the premises, claiming them as his own, and having' held them continuously for a period of more than 10 years after the death of tlie wife,- the right of entry of tlie children as remainder-men was barred.

¶5This was an action of ejectment by the plaintiffs, as the sole heirs of their fattier, William A. Yore, for the recovery of a one sixth interest in the premises in controversy.

¶6William A. Yore, plaintiffs’ fa flier, was one of six children horn of the marriage of Patrick Yore and Barbara Ann Yore. Barbara Ann Yore died intestate, April 21, 1870, leaving the property undisposed of. William Á. Yore was born in 1847, and died November 9, 1880, so that, at the time of his mother’s death, he was 29 years old. Patrick Yore died July 1-1, 1889, and by his will left nothing to the children of William A. Yore. Patrick Yore married defendant, May 24. 187S>. By marriage settlement dated May 22, 1879, he conveyed the premises in controversy to defendant for life. On the death of Barbara Ann Yore, Patrick Yore entered into tlie possession of tlie premises, claiming them as his own, and so continuously held possession *646to the time of his death. The property is on the southwest corner of Eighth and St. Charles streets in the city of St. Louis, and has a front of 70 feet on the west line of Eighth street. Plaintiffs claimed title under two deeds: (1) Deed from Michael Kelly to John E. Yore, trustee of Barbara Ann Yore, dated January 12, 1S57. This deed conveyed 37 feet to the trustee, beginning at the corner, to the use of Barbara Ann Yore, in trust—First, to receive and pay the rents to Barbara Ann Yore, as her separate property; second, to sell and convey the property in fee simple in such manner as said Barbara Ann Yore might designate. Said deed provided that, if said Barbara Ann Yore should die without having disposed of the property by deed or last will, tbe property should revert absolutely to Patrick Yore, his heirs and assigns. As to this deed the plaintiffs contended that the absolute fee vested in Barbara Ann Yore, and that the remainder to Patrick Yore was of no force and effect, and relied principally on the case of Green v. Sutton, 50 Mo. 186. As to the remainder of the lot, plaintiffs relied upon a deed from Thomas O’Flaherty to James Meegan, trustee of Barbara Ann Yore, which convoyed the property in trust for the sole and separate use of Barbara Ann Yore during her life, and no longer, to receive the rents, with power to sell, mortgage, etc. In case of her death without having disposed of the property, then said property was to he held by the testator for the sole use and benefit of the children of Patrick and Barbara Ann Yore.

¶7G. P. Johnson, J. D. Johnson, D. P. Dyer, and M. P. Hunley, for plaintiffs.

¶8H. D. Wood and A. J. P. Gareshee, for defendant.

¶9Upon the proposition that the construction of deeds must he upon the entire instrument, with a view to -give effect to the whole instrument, and that, by the first deed above referred to, an equitable fee-simple title vested in Patrick Yore on the death of Barbara Ann Yore, counsel cited Long v. Timms, 107 Mo. 519, 17 S. W. 898; Bean v. Kenmuir, 86 Mo. 666; Pollard v. Bank, 4 Mo. App. 408; Carr v. Dings, 58 Mo. 400; Harbison v. James, 90 Mo. 411, 2 S. W. 292; Munro v. Collins, 95 Mo. 33, 7 S. W. 461; Straat v. Uhrig, 56 Mo. 482; Jecko v. Taussig, 45 Mo. 167; Smith v. Bell, 6 Pet. 68; Greffet v. Willman, 114 Mo. 107, 21 S. W. 459; Lewis v. Pitman, 101 Mo. 281, 14 S. W. 52; Gaven v. Allen, 100 Mo. 293, 13 S. W. 501; Wood v. Kice. 103 Mo. 329, 15 S. W. 623; Bassett v. Budlong (Mich.) 43 N. W. 984; Prior v. Quackenbush, 29 Ind. 475; Baxter v. Bowyer, 19 Ohio St. 490; Chew v. Keller, 100 Mo. 368, 13 S. W. 395; and other cases; and upon the proposition that, by tbe statute of uses, a fee may be mounted upon a fee, counsel cited Bean v. Kenmuir, 86 Mo. 666; Straat v. Uhrig, 56 Mo. 482; Wood v. Kice, 103 Mo. 329, 15 S. W. 623; Chew v. Keller, 100 Mo. 368, 13 S. W. 395; 2 Washb. Real Prop. (2d Ed.) *251, *252; Dunwoodie v. Reed, 3 Serg. & R. 452; Saund. Uses & Trusts, *149, *150; Carver v. Jackson, 4 Pet 1. As to the second deed, upon the proposition that Barbara Ann Yore took a life estate, and that upon her death the trustee held the property in trust for the children of Barbara Ann and Patrick Yore, counsel cited Rubey v. Barnett, 12 Mo. 3; Reinders v. Kopplemann, 68 Mo. 482. That the statute of uses did not execute the use in Barbara Ann, see Pugh v. Hayes, 113 Mo. 432, 21 S. W. 23. That Patrick Yore had no right to the possession as tenant by tbe curtesy, see Spencer v. O’Neill, 100 Mo. 49, 12 S. W. 1054. That the adverse possession of Patrick Yore barred the right of entry of the children as remaindermen, see Jackson v. Harsen, 7 Cow. 323; Jones v. Johnson, 81 Ga. 293, 6 S. E. 181; King v. Rhew, 108 N. C. 696, 13 S. E. 174; Pattison v. Dryer (Mich.) 57 N. W. 814; Busw. Lim. par. 401; Probst v. Trustees, 129 U. S. 182, 9 Sup. Ct. 263; Houx v. Batteen, 08 Mo. 84; Bank v. Evans, 51 Mo. 335; Farris v. Coleman, 103 Mo. 353, 15 S. W. 767; Ewing v. Shannahan, 113 Mo. 188, 20 S. W. 1065.