author: BROWN, C. — PEE CURIAM. —

text:
    LULU L. MILES et al., Appellants, v. MARTHA E. ROBERTSON et al.
    Division One,
    June 2, 1914.
    1. DEEDS: Delivery. Delivery of a deed may be shown by acts without words, or words without acts, or by both combined; and it may talte place and the deed still remain in the possession of the grantor. However, when the actual tradition takes place, there is no further use for fiction or construcr tion.

      2. -: -: This Case. For years a sister had kept house for her unmarried brother and had invested about $1500' in improvements on his farm, whereon they lived. When the-brother had grown old and feeble, he came into the house one day and gave to the sister a general warranty deed to. the farm, saying: “Here is your deed. Lay it away until the change comes. If I go first, you will have a home, and if you1 die first I will make you secure. The land then still remains, in me.” She put the deed in her trunk and it stayed there until she had it recorded a few days after the brother died. After making the deed the brother sold the land and deeded it himself, but took it back upon the purchaser’s failure to pay. Held, a valid delivery of the deed to the sister, which immediately passed the title to her.

      Appeal from Phelps Circuit Court. — Hon. L. B. Woodside, Judge.
    Affirmed.

      Jones Bros., C. H. Shubert and Watson & Holmes for appellants.
    (1) The court erred in hólding that the deed of A. C. Robertson to Martha E. Robertson was effective to convey the title of the land to her and admitting said deed in evidence over objection of plaintiff. Seibel v. Higham, 216 Mo. 131; Huey v. Pluey, 65 Mo. 689; Givens v. Otte, 222 Mo. 395; 9 Am. & Eng. Ency. Law, pp. 153-4; Miller v. Lullman, 81 Mo. 311; Tyler v. Hall, 106 Mo. 313; McCune v. Goodwillie, 204 Mo. 338; Williams v. Latham, 113 Mo. 174; Cook v. Newby, 213 Mo. 489; Mudd v. Dillon, 166 Mo. 110; Terry v. Glover, 235 Mo. 552; Chambers v. Chambers, 227 Mo. 262. (2) The court erred in finding that there was a delivery of the deed from A. C. Robertson to Martha E. Robertson. Seibel v. Higham, 216 Mo. 131; Bouvier’s Law Diet., “Delivery;” Tiedeman on Real Property (3 Ed.), 577; 3 Washburn on Real Property, p. 254; Sneathen v. Sneathen, 104 Mo. 201; 1 Devlin on Real Estate (3 Ed.), sec. 279, p. 453; Wilson v. Wilson, 158 111. 567. (3) Under the evidence of Martha E. Robertson, herself, there was no delivery of the deed to her by A. C. Robertson. There could be no delivery in this case unless the delivery had been perfected in the lifetime of deceased, A. C. Robertson. No one was authorized to deliver it after his death. Terry v. Glover, 235 Mo. 552.

      Bland & Murphy for respondents.
    (1) The controlling question in the case is, whether or not A. C. Robertson delivered the deed from himself to the respondent, and whether the delivery, if made, was an unconditional one; that is, did he reserve the right to recall the deed, or did he part with all dominion over it. The undisputed evidence is that he not only executed the deed, and made' a manual delivery of it to the respondent with instructions to keep it, “that it is your deed,” but that he communicated his purpose to make it to her before doing so, and called Yowell and Lorts as witnesses to the deed, and told them of his reasons for making it, viz.: to secure a home for respondent after he should pass away. The deed is a general warranty deed containing no reservations or restrictions. By permission of the court, appellants, over objections of respondents, were allowed to show by oral evidence that Robertson, while he made an unconditional manual delivery of the deed to respondent, intended that the deed should not take effect immediately, and not at all if he should survive the respondent. He might have reserved a life estate in the land if he had so expressed his purpose in the deed. O’Day v. Meadows, 194 Mo. 588; Buxton v. Kroeger, 219 Mo. 256; Williams v. Latham, 113 Mo. 165; Stanford v. Stanford, 97 Mo. 231; Wilson v. Cársico, 14 Ind. 533; Gish v. Brown, 171 Pa. St. 479; Burry v. Prank, 98 Cal. 446; Prank v. Frank, 90 Iowa, 318; Stough v. Wilder, 119 N. Y. 530. Such a reservation would indicate an intention on the part of the grantor to pass the remainder interest immediately. But nothing of the kind is indicated in the deed, and the oral evidence which respondent unsuccessfully moved to have struck out was inadmissible for the purpose of grafting upon the deed conditions which contradicted its terms. Or to limit or qualify the effect of its unconditional delivery to respondent, for there can be no such thing as a conditional delivery of a deed to the grantee. Wadsworth v. Warren, 12 Wall. 307; Rogers v. Ramey, 137 Mo. 598; Aldrig v. Hopgood, 39 Vt. 621; Railroad v. Howard, 13 How. 334; Stromson v. Campbell, 114 111. 19; Baker v. Baker, 159 111. 394. But the learned circuit judge discarded, this oral evidence, and correctly found that the deed was delivered to the respondent unconditionally by the grantee, and this court we apprehend will not consider this oral evidence of any validity when it comes to a decision of the case. (2) Though there may have been a verbal understanding that the deed was not to take effect until after the death of A. C. Robertson, the grantor, yet as there was an actual delivery by him to the grantee the title immediately passed to her. Coal Co. v. Gulf Coast Co., 51 So. (Ala.) 570; Worrall y. Munn, 5 N. Y. 229, 55 Am. Dec. 330; Berry v. Anderson, 22 Ind. 39; Weber v. Christen, 121 111. 91, 2 Am. St. 71; Tollmer v. Rohser, 112 Pac. (Cal.) 544; People v. Bostwiek, 32 N. Y. 445; Foley v. Cowgill, 5 Blackf. 18, 32 Am. Dee. 49; Hicks v. Goode, 12 Leigh, 479, 37 Am. Dec. 677; Trust Co. v. Whitem, 169 Mo. App. 5; Clark v. Criswell, 112 Md. 339; Chambers v. Chambers, 227 Mo. 162.
   BROWN, C. —

This action was begun in the circuit court for Phelps county July 2, 1910, to secure the determination by the court of the interests of the respective parties in about 170 acres of land in that county. There was also a separate count for partition of the same land. The plaintiffs are Lulu E. Miles and Ida M. Collins, who state that they are the owners of an undivided 140-840 of the land; and the defendants are Martha E. Robertson, alleged to be the owner of an undivided 649-840; John Hale 20-840; Maude Roster of 10-840; and Walter Beeler, Grace Beeler and Homer Beeler of 7-840 each.

The respective titles of the parties are stated as follows:

“That on the 15th day of January, A. D. 1909, Albert C. Robertson departed this life intestate at Phelps county, Missouri, seized and possessed of the fee simple title to the above-described real property; that the said Albert C. Robertson left surviving Mm no widow or children, and no father or mother, but leaving as his sole and only heirs, Ms sister, the defendant, Martha E. Robertson; Ms sister, Margaret Love, and Ms sister, Mary Blain; and the plaintiffs, Lulu L. Miles, formerly Robertson, and Ida M. Collins, formerly Robertson, only eMldren and heirs of W. E. Robertson, a brother of Albert C. Robertson; and W. R. Hale, John Hale, A. B. Hale, Samuel Hale, Caroline Hale, who intermarried with one Parry, eMldren of Sarah Hale; and Walter Yowell, Otto Roster and Maude Roster, grandeMldren of Sarah Hale, composing the sole and only heirs at law of Sarah Hale, sister of the deceased Albert C. Robertson; and B. F. Wood, PI. W. Wood and Dora Wood, eMldren of Lucinda Wood; and Ubert Beeler, Walter Beeler, Emma Beeler, Grace Beeler, and Homer Beeler, grandeMldren of Lucinda Wood, deceased, a sister of the said Albert C. Robertson, deceased, composing the sole and only heirs of the said. Lucinda Wood.
“That the following named heirs of the said Albert C. Robertson have conveyed their interest in the above real estate to Martha E. Robertson, to-wit: Margaret Love, Mary A. Blain, W. R. Hale, A. B. Hale, Samuel Hale, Caroline Hale, B. F. Wood, H. W. Wood, Dora, Wood, Walter E. Yowell, Otto Roster, Ubert Beeler, Elma Beeler and Crawford Beeler, whereby said defendant, Martha E. Robertson, has acquired the-undivided 649-840 interest in said land.” •

The petition further states that the defendant Martha E. Robertson is in possession claiming the-entire title. The three Beelers, defendants, were-minors and non-residents of the State. They answered, through their guardians ad litem, disclaiming knowledge or information of the facts. Martha E. Robertson demed the allegations of the petition and set up that ■she was the owner of the entire title. The other two-defendants did not answer, nor have they appealed.

The plaintiffs replied to the answer of Martha E. Robertson that she claimed absolute ownership under a “purported” deed from A. C. Robertson which was without consideration and had never been delivered.

On the trial Martha E. Robertson admitted that she claimed title to the land as grantee of A. C. Robertson who died January 15, 1909. The deed was introduced in evidence. It was dated June 17, 1899. It conveyed the land in question, with the usual covenants of an indefeasible title in fee and against incumbrances and was witnessed by W. E. Yowell, the same mentioned in the petition as an heir of A. C. Robertson, and by one S. M. Lorts. It was acknowledged before Robert C. Carpenter, notary public for Phelps county, and recorded January 23, 1909.

The real and only question is upon the delivery of the deed. The evidence, about which there was no dispute, was to the effect that Mr. Robertson was a bachelor who at the time of the execution of the deed was old and feeble and described himself as not having long to live. Miss Robertson was a spinster well advanced in years, although not as old as her brother, and had always lived with and kept house for him, except during fourteen years when she was at work in Montana for monthly wages. Upon her return she again went to live with and keep house for her brother, investing about $1500 which she had acquired, in the improvements on this farm, which was their home. On the morning of the day the deed was made he told her that he would go into St. James and fix the deed for her. When he came back, which was before noon, he came through the house 'and presented her the deed saying, “Here is your deed.” He further said, “take it and lay it away and let it lay there until the change comes, and if I have to go first you will have something to secure you a home, and if you die first I will make you secure. The land then still remains in me.” He said, “I am old and am liable to go first, but the deed is yours.” In answer to a question by plaintiff’s counsel Miss Robertson said that she took his intention to be that if she died first he would still have the land. He told her to put the deed in her trunk. She put it in the till and he never saw where it was put. She saw it three or four times afterward. She said that he said to her that the deed would hold until after he was gone, and then have it recorded, which she did.

After the making of this deed he sold the land and personal property on it to a Swiss who lived in St. Louis named Meinschmidt, for $3500, conveying it himself, and taking a deed of trust for three thousand dollars of the consideration in his own name. Meinschmidt did not pay for it and Robertson took it back, and he and Miss Robertson both “came back home.” They were gone a year. Mr. Robertson always had the land assessed in his name but Miss Robertson paid a good part of the taxes. Mr. Robertson always managed it. When he sold to Meinschmidt he was to pay her out of the proceeds, the money she had expended on the farm, and used there after coming home from Montana.

About three days after Mr. Robertson’s death Mr. Yowell, the nephew, came out to see her and she gave him the deed to have it recorded as her brother had told her. Mr. Yowell then saw Mr. Jones, alawyer, who told him that the deed was not a proper deed, and the quicker she could get around and get quitclaim deeds the better. Her nephew looked after this, and most of the deeds were offered without any consideration. „She asked Mrs. Dora Wood, Mrs. Love and Mrs. Blain what consideration they wanted, and they said nothing; but she gave them $25 each.

Mr. R. C. Carpenter, before whom the deed was executed and who took the acknowledgment, testified that Robertson gave him as a reason for making it that his sister had let him have some money and other valuable things and he wanted to secure her or reimburse her for the outlay.

The court found for the defendants and dismissed the petition.

The only question suggested by the record .relates to the delivery of the deed around which this contest is waged. If it was delivered to the grantee there can be no doubt the judgment of the trial court is right, and should be affirmed; otherwise, it must be reversed. The consideration of the question seems remarkably free from a difficulty which frequently characterizes such inquiries, for we have carefully examined the testimony without gathering from it any impression that the parties, irrespective of their personal interests, have not attempted to fully and fairly place before us the true facts. Neither can it be denied that the disposition made by the judgment of the trial court was the one intended by both the grantor and the grantee. Nor will the natural justice and propriety be questioned, of an arrangement by which the home acquired by the joint labor of this brother and sister, and in which they had laid the hearthstone around which the sentiment. of their lives had been warmed into memories of each other, should remain to the one who would be left alone. The question is whether these parties have disregarded rules of conduct which the law has established to guard against the defeat of justice, and thereby caused the miscarriage of their own laudable purpose.

The question of the delivery of a deed is often a difficult one. It has been said that it may be shown by acts without words, or words without acts, or by both combined; and it may take place and the deed still remain in the possession of the grantor. [Bunnell v. Bunnell, 111 Ky. 566, and cases there cited; Burke v. Adams, 80 Mo. 504.] The underlying principle in all these cases is the expression of the intention of the parties that words or acts, or words and acts that fall •short of the actual transfer of the physical custody of and dominion over, the instrument, from the grantor to the grantee, beyond the power of the former to recall it, shall be considered equivalent to ' such transfer. When the actual tradition takes place, the delivery by the grantor into the hands of the grantee to serve the purpose for which it is made, there is no further use for fiction or construction. The instrument by that final act of its execution becomes “ipso facto the present deed •of the party, which could not be if the deed were not in itself perfect and complete as an instrument according to the intention of the parties as gathered from the instrument itself.” [Hicks v. Goode, 12 Leigh, 479.] As was said by this court through Judge Lamm, in Chambers v. Chambers, 227 Mo. 262, “delivery is the life of a deed.” It is consummated when the grantor, to give it some effect, transfers his possession and dominion over it to the grantee, who receives and accepts it. Thenceforth the instrument speaks for itself, free from any conditions or limitations not written in or upon it. Its effect depends upon the law, with reference to which it is presumed to have been made and which the parties are presumed to have known. Its delivery, like its signing, has reference to and is coextensive with the instrument itself. It would be as reasonable to say that a promissory note had not taken effect by delivery because there was, as there frequently is in such' cases, a contemporaneous understanding that payment was not to be exacted at maturity, but that it was to be renewed from time to time to suit the convenience of the maker. Such understandings are usually scrupulously kept, as was the understanding in this case; but in the meantime the instrument itself goes forth bearing the evidence of its own validity, as well as the rule of its own construction. The remarks of the New York Court of Appeals on this subject in Worrall v. Munn, 5 N. Y. (1 Selden) 229, 238, are instructive and interesting. It said: “The agreement was in a perfect condition. It was signed and sealed by Prall.. It was delivered on condition' that it be subsequently approved by Prall. This was a delivery as an escrow: such a delivery can only be made to a stranger. It cannot be made to the party. If made to the party, no matter what may be the form of the words, the delivery is absolute, and the deed takes effect presently as the deed of the grantor, discharged of the conditions upon which the delivery was made; and where such a delivery is made, parol evidence of the conditions, being contrary to the terms of the deed, is inadmissible. Here the intent of Warner was to deliver the agreement to the appellant as an escrow. It was not handed to Henry Worrall as an unexecuted and imperfect paper. There was no direction to him to retain it and not to deliver it to the appellant until it was ratified by Prall. It was not left in his hands for a temporary purpose, and to be returned in case Prall did not assent to it, but it was delivered to Henry Worrall, as the agent of the appellant, as an executed and perfect instrument, on condition that Prall subsequently assented to it. Such a delivery was in law an absolute delivery. [Ward v. Lewis, 4 Pick. 520; Fairbanks v. Metcalf, 8 Mass. 238; Gilbert v. Ins. Co., 23 Wend. 45; Clark v. Gifford, 10 Wend. 313.]”

This grantor made, signed and acknowledged a general warranty deed, conveying the land in question to Miss Robertson. He gaVe it to her with the statement that it was hers; and said it would make her secure. That he intended that it would have some effect — accomplish some purpose — is too evident to afford a subject of intelligent discussion. That is enough; and, as we have already said, the law directs us to the deed for further information on that question. Whatever of restrictive understanding there was between them has been faithfully kept, and the law interposes no obstacle to the accomplishment of the desire of both the living and the dead.

The judgment of the Phelps Circuit Court is affirmed.

Blair, C., concurs..

PEE CURIAM. —

The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All concur, Bond, J., in the result.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    OBEDIAH DRISKILL v. WILLIAM H. ASHLEY, Appellant.
    Division One,
    June 2, 1914.
    1. DEED: Wife’s Land: Made Prior to Married Woman’s Act. A deed of a married •woman in which her husband did not join, made prior to the Married Woman’s Act of 1889, purporting to convey the separate legal estate of the wife in the land' described, was void and conveyed no title to the purchaser. But a deed naming the wife alone as the grantor, signed and acknowledged by both her and her husband, was not the sole deed of the wife, but one in which her husband joined. It was, within the meaning of the then statute (R. S. 1879, sec. 669), “their joint deed.” It was not necessary that the name of the husband appear in the body of the deed as a grantor.
    2. ESTOPPEL: Accepting Deed With Knowledge of Prior Conveyance. Where the one acre was conveyed in 1888 by defendant’s mother to her husband and the plaintiff, in order that plaintiff might erect a church thereon, which was done, and-which he controlled and used and rented for a school and collected the rents, for about - ten years, when it burned and was not rebuilt, no estoppel arises in favor of defendant from the fact that plaintiff did not put his deed of record until 1909, and that in 1908 defendant’s mother and her husband included the one acre in a conveyance of five acres to defendant, or from the further fact that, -for want of knowledge of the lines of the ácre tract, a part of a store erected by defendant was placed thereon.
    3. CHURCH: Abandonment: Reformation of Deed. A deed expressing a consideration of one dollar, and conveying the property without restrictions, will not be reformed on the ground that it merely conveyed the one acre to the grantees as trustees for church purposes and the land having been abandoned for that purpose the title reverted to the grantor, except upon 'positive proof that it was conveyed for that sole purpose.
    Appeal from Hickory Circuit Court. — Hon. C. H. Skinker, Judge.
    Affirmed.

      Henry P. Lay, W. L. Pitts and J. W. Montgomery for appellant.
    (1) Prior to the Married Woman’s Act of 1889, the deed of a married woman in which her husband did not join was void, and did not convey her land. See. 609, R. S. 1879; Huff v. Price, 50 Mo. 228; Bartlett v. O’Dohoghue, 72 Mo.' 563; Sutton y. Casseleggi, 77 Mo. 404- To constitute the husband a party grantor to his wife’s deed it was necessary that he be described as grantor, either expressly or by necessary inference. It was not sufficient that he sign and acknowledge. Jewett v. Davis, 10 Allen (Mass.), 68; Bradley v. Railroad, 91 Mo. 498; Whitley v. Stewart, 63 Mo. 360; Martindale on Conveyancing (Ed.- 1882), 62; 9Am. & Eng. Ency. Law (2 Ed.), 111. Under these authorities it is necessary that the husband be joined in the deed as joint grantor; for if he only signed and acknowledged it' it is presumed that the wife alone was intended to be the grantor. 9 Am. & Eng. Ency. Law (2 Ed'.), Ill; Jewett v. Davis, 10 Allen (Mass.), 68. The later case of Peter v. Byrne, 175 Mo. 233, is not in conflict with the foregoing authorities. (2) The deed of a wife, executed prior to 1889, to her husband, or to her husband jointly with others, did not convey the legal title to her land, and would not support ejectment. That this is true as to a deed from the wife to the husband is elementary, and needs no citation of authorities. We have found no case where the wife attempted to convey to her husband jointly with another. It is inconceivable, however, that such a deed, under the law as it stood prior to 1889, would have passed the legal title either to the husband or his joint grantee. In 1888, it was conclusively presumed that the wife needed protection in . her dealings both with her husband and with strangers, and that a deed from her, in which he did not join as a party with her, and not against her, was ineffective to pass her title. (3) It being conceded that the land in controversy was in fact dedicated to the public for religious purposes; and it further conclusively appearing that such use entirely ceased at least fourteen years before the institution of this suit, the title to the land with the right to possession thereof reverted to the donor, even though no express provision for such reversion was contained in the deed. Campbell v. Kansas City, 102 Mo. 326. (4) A deed will be reformed to conform to the actual intention of the parties, clear proof of such intention being furnished. Crawley v. Crafton, 193 Mo. 421; Williamson v. Brown, 195 Mo. 313. (5) The plaintiff and Clement S. Driskill, as trustees, constituted but one person, as respecting the property in question. They had no separate rights in relation to it, and the plaintiff cannot maintain an action to recover it without making his co-trustee a party, either plaintiff or defendant. Nor will a judgment in his favor for a half interest be upheld. Brinekerhoff v. Wemple, 1 Wend. (N. Y. Com. Law) 474; 28 Am. & Eng. Ency. Law (2 Ed.), 986. (6) The deed under which plaintiff seeks to recover, while dated in 1888, was not filed for record until August 24, 1909, one year after defendant’s deed was filed, and long after the improvements were made on the land, and there is no evidence that the defendant had actual notice thereof; said deed is therefore invalid as to him. Sec. 2811, R. S. 1909; Fox v. Hall, 74 Mo. 315; Hickman v. Green, 123 Mo. 166.

      F. M. Wilson and Rechow & Pufahl for respondent.
    A deed by a married woman of her real estate, where the husband joins in the execution, signing, acknowledgment and delivery of such deed, is sufficient to transfer the title, notwithstanding the fact that the husband’s name does not appear in the body of the deed. Peter v. Byrne, 175 Mo. 233; Dentzel v. Waldie, 30 Cal. 138; Pease v. Ridge, 49 Conn. 58; Stone v. Montgomery, 35 Miss. 83; Elliot v. Sleeper, 2 N. H. 525; Clark v. Clark, 16 Ore. 224; Thompson v. Loverein, 82 Pa. 432; Bonter v. North Cato, 20 U. C. C. P. 76; Hargis v. Ditmore, 86 Ky. 653; Woodward v. Seaver, 38 N. H. 29; Johnson v. Montgomery, 51 111. 185; Miller v. Shaw, 103 111. 277; Yocum v. Lovell, 111 111. 212; Schley v. Pullman Co., 120 U. S. 575; Evans v. Summerlin, 19 Fla. 858; Chapman v. Miller, 128 Mass. 269; Hillis v. Bearse, 9 Allen, 403; Child v. Sampson, 117 Mass. 62; Burge v. Smith, 27 N. H. 332; Ingoldsby v. Jean, 12 Cal. 564; Mead v. Billings, 10 Johns. 99; Hrouska v. Janke, 66 Wis. 252; Friedenwold v. Mullan, 10 Heisk. 266; Morgan v. Snodgrass, 49 W. Va. 387; Ochoa v. Miller, 59 Tex. 460; Armstrong v. Stovall, 26 Miss. 275; Holeman v. De Nyse, 51 Ala. 95; 1 Devlin on Deed (Ed. 1887), sec. 204; 3 Wash. Real Property, sec. 2120.
   GRAVES, J.

I. It is urged the trial court erred in admitting the deed upon which plaintiff relied for title. The admitted common source of title is Eachel Ashley. In November, 1888, Eachel Ashley made a warranty deed to the land in dispute to the plaintiff, Obediah Driskill, and Clement S. Ashley. Clement S. Ashley was her husband." He signed and acknowledged the deed, but his name does not appear in the deed as one of the grantors. The deed recites a consideration of one dollar. The defendant objected to the introduction of this deed, because it was made prior to the Married Woman’s Act of 1889, and is, as such defendant claims, a conveyance by the wife alone, which class of conveyance in 1888, it is urged, was void. This is urged as one of the. big and vital points in the ease. It should be conceded that in 1888 the deed of a married woman, in which the husband did not join, was void and conveyed no title to the purported grantee. [Huff v. Price, 50 Mo. 228; Bartlett v. O’Donoghue, 72 Mo. 563; Sutton v. Casseleggi, 77 Mo. 397.] This concession, however, does not settle the point involved. The real question is whether or not this is the sole deed of the wife, or, to state it differently, whether or not the husband did join the wife in this conveyance. He signed the deed, and he acknowledged the deed. His name appears in the acknowledgment, as well as at the bottom of the deed. The statute then in force (R. S. 1879, sec. 669) so far as applicable reads: “A husband and wife may convey the real estate of the wife, and the wife may relinquish her dower in the real estate of her husband, by their joint deed, acknowledged and certified as herein provided.”

The question therefore is, whether under this statute the name of the husband must appear in the body of the deed as a grantor. At most the husband had but curtesy initiate in the premises. The land was held by the wife as her separate legal estate. We are impressed with the idea that the weight of authority is against the contention of defendant’s learned counsel as to the validity of this deed. The question is practically settled by the case of Peter v. Byrne, 175 Mo. 233, wherein Fox, J., collects the authorities from other States. There is but a slight difference between the deed under review there and the one with which we have to deal. In that deed the grantor named was “Sarah M. Peter, wife of Americus Peter.” The italicized words are merely descriptive of the person, but in their use lies one of the differences between that deed and the one at bar. The other difference is that the plurals “parties of the first part” are used throughout the deed, whereas in the deed before us the singulars are used. Nowhere was the name of the husband, Americus Peter, used in the body of the deed, although he signed and acknowledged it, as did the husband in this case. In the Peter-Byrne case our Brother Wood-son, then presiding nisi, held that such deed conveyed a good title, and his judgment was affirmed here in a carefully written opinion by our Brother Fox, wherein the authorities are exhaustively reviewed. It is urged now that the Peter-Byrne case is not in point, because of the difference between the two deeds which we have pointed out, but this contention cannot prevail in the view of the reasoning of Judge Fox, and the authorities he cited with approval. He cites with approval and quotes from the following eases: Elliot v. Sleeper, 2 N. H. 525; Woodward v. Seaver, 38 N. H. 29; Pease v. Bridge, 49 Conn. 58; Schley v. Pullman Car Co., 25 Fed. 890; Roberts v. McIntire, 84 Me. 362; Evans v. Summerlin, 19 Fla. 858; and Stone v. Montgomery, 35 Miss l. c. 107. After quoting from the foregoing cases the learned judge then adds:

“Numerous other cases maintain the same position, with few exceptions. The expressions of all the courts upon the question directly involved in the construction of this deed, are harmonious. [Ingoldsby v. Juan, 12 Cal. 564; Dentzel v. Waldie, 30 Cal. 138; Mardes v. Meyers, 28 S. W. 693; Miller v. Shaw, 103 Ill. l. c. 292.]
“There is a clear distinction between the cases where the husband, undertakes to convey the real estate of the wife and the deed fails to disclose the wife as one of the grantors. As before stated, the wife labors under certain disabilities, and the courts, with the view of protecting her rights, insist that the instrument shall disclose the performance of every act on her part necessary to convey her estate.
“In the case of Hrouska v. Janke, 66 Wis. 252, the principal cases relied upon by appellant in this case are reviewed, and the court announces that they are distinguishable from the eases of the character before us for determination.
“ This deed should be construed in accord with the clear intention of the parties who executed it. Judge Burgess very appropriately said in case of Walton v. Drumtra, 152 Mo. l. c. 497:
“ ‘The rigid rules of construction applied to deeds and wills in former years, have in modern times been somewhat modified, so that deeds are now construed so as to carry into effect the intention of the parties thereto and wills the intention of the persop. executing them.’ [See, also, Mills v. Catlin, 22 Vt. 98.]
“After sixteen years of undisturbed, possession of this property, under an instrument executed by the husband and wife, acknowledged by them to be their free act and deed, to hold that, because the husband’s name does not explicitly appear in the introductory clause of the deed, it was invalid, because not jointly made, would, in our opinion, be doing violence to the spirit of the statute, as well as an absolute abandonment of substance and a complete surrender to form.”

To get the real views of this court in the PeterByrne case a short review of the cases mentioned and approved therein becomes pertinent. In Elliot v. Sleeper, 2 N. H. 525, the court said:

“And for the purpose of our present inquiry, it may be admitted that the usage, however diversified in its forms, always requires the husband and wife so far to join as to convey at the same time, on the same paper, and both in language suitable to pass the title of real estate. Whether this requisition has here been fulfilled, is a question of some difficulty, on both authority and principle. It cannot be doubted that the signature, sealing, and acknowledgment of this deed by the husband, being on the same paper with those of the wife, and in the usual form, are in themselves sufficient. But it is objected, that he is not named in the deed as a grantor, and that without being so named, the deed is not his deed, and in respect to him is altogether inoperative. But it seems well settled that whoever signs and delivers an unsealed writing, is bound by the promises contained in it, though his name may not appear on the paper, except in his signature. [Little v. Weston, 1 Mass. 156; Fischer v. Leslie, 1 Es. Cases, 426.] This seems'founded on the obvious and reasonable principle that such acts amount to an adoption of all which precedes the signature, and that no other legitimate cause for these acts can be assigned than a design to make all the promises to which the signature is affixed the promises of the subscriber ... In sealed instruments, such as bonds and wills, the same principle applies and appears to be supported by numerous authorities.”

The situation in that case was much as in the ease at bar. The doctrine of the Elliot case was reaffirmed by the New Hampshire court in Woodward v. Seaver, 38 N. H. 29, and both cases quoted from and their doctrines approved by this court in the Peter-Byrne case, supra.

In Schley v. Pullman Palace Car Co., 25 Fed. 890, we have a deed practically on all-fours with the deed now in question. The wife’s name was the only one which appeared in the body of the deed, but the husband signed and acknowledged the same, and in the certificate of acknowledgment (as here) it appeared that they were husband and wife.. In that ease Gresham, J., said:

“It is insisted by counsel for the plaintiff that the statute required the husband to be a joint grantor with his wife; that his mere signing, sealing, and acknowledging the deed was not sufficient when his name did not appear in the granting clause or body of the instrument; and that it was therefore inoperative and void. It was only in substantial compliance with this statute that the wife could convey title to her lands. The husband was required to join her in the execution of a deed. Did the husband so join in the execution of this deed? That he intended to do so, and thought he had, admits of no doubt; and it is equally clear that both the wife and husband undertook in good faith to convey their entire interest and estate in the premises to the grantees. The husband signed, sealed, and acknowledged the deed, to enable his wife to convey her title, and to convey any claim or right, present or contingent, that he had in the land. The wife and her husband rested and no doubt died in the belief that they had joined in the execution of a deed in compliance with the statute; and it remained for some one, after .the lapse of twenty-nine years, to discover, as he supposed, that they had utterly failed to accomplish what they undertook to do, and what they supposed they had done. Courts should uphold deeds and other contracts when the intention of the parties is clear. Although the husband’s name does not appear in the body of the deed, he signed, sealed, and delivered it, and thus joined his wife in its execution.” This language we quoted with approval in the Peter-Byrne ease, supra.

Again in the Peter-Byrne case we quoted with approval the following language from Stone v. Montgomery et ux., 35 Miss. l. c. 107:

“The last objection urged against the deed is, that the husband is not a party grantor, and named as such in the body of it; and, therefore, that it is not the joint deed of husband and wife, and is insufficient, under our statute, to convey her separate property. It would be a sufficient answer to this objection, that it was not set up either in the original nor amended bill. On the contrary, the deed is treated in the pleadings as the joint deed of the husband and wife. But, if the objection had been made in the pleadings, it would be untenable. The property is admitted to belong to the wife, to her sole and separate use; and of course the husband had merely a secondary interest in it. It was her act which was essential to the conveyance. But he signed the deed and acknowledged it as his act and deed, for the purposes stated in it. That was sufficient to show his consent and co-operation in the conveyance in the most certain form; and the reason of the statute, in requiring the conveyance to be made by the joint deed of the husband and wife, is that it may be made with his aid and consent. His signing, delivery, and acknowledgment of the deed, would estop him from setting up any claim to the property against the grantee, and show that, the title of the wife was conveyed by his co-operation. Under such circumstances, the deed is sufficient under the statute to convey the wife’s estate.”

It is therefore clear that in the Peter-Byrne case, supra, this court was endorsing the doctrine that the deed of the wife to her legal separate estate was good when such deed was signed and acknowledged by the husband, although his name did not appear in the body of the deed as grantor.

In Pease v. Bridge, 49 Conn. l. c. 60, it is said:

“The title of the respondent to the premises in question is by deed, purporting in the body of it to be the joint deed of Alice Gager, wife of Charles E. Gager, Julia A. Bradley, wife of L. A. Bradley, and William Weirs; it is signed, sealed and acknowledged by those persons; also by Charles E. Gager and L. A. Bradley. The petitioner insists that the absence of the names of the two husbands from the body of the deed invalidates the conveyance so far as the interest of their respective wives is concerned; and asks for the removal of the cloud thereby placed upon his title.
“But this claim is without foundation. Except in cases where there is a statutory requirement of some other or further formality, the act of signing a written contract is, as a matter of law, the adoption of all that is contained therein — the assumption of all the obligations which its language expresses. No other intent can be legitimately imputed to the signer, and whenever it is-permissible the law will give effect to intents. Our statute provides that ‘all conveyances of the real estate of married women executed by them jointly with their husbands, and duly acknowledged and recorded, shall be valid and effectual to transfer such estate.’ [Gen. Statutes, p. 353, sec. 10.]
“The land was the property of the wife; power to convey is given to her, to be effectively exercised, it is true, only when the husband joins in the execution— when he signs her deed of conveyance and duly aeknowledges the act. By signing, he gives proof that he has had an opportunity to protect her from an improvident contract, and that he surrenders to her grantee all the right, title and interest which he as husband has in the land. The statute it will be observed only requires that he shall execute; in legal language he who signs executes; and we may not add to the statutory requirements another, namely, that his name shall also be inserted in the premisies of the deed.”

Most of this language was quoted with approval in the Peter-Byrne case, supra.

In the case of Friedenwald & Co. v. Mullan, 10 Heisk. 226, the Tennessee court thus speaks:

“The purpose or reason why the law requires that the husband should join in the deed with his wife is, that his assent to the conveyance might appear, and that it might also appear that he was present to protect her from imposition. [3 Head. 388.] Why should he, upon the face of the deed, he required to say that he conveys and is seized and possessed, and has a good right to convey, when these covenants as to land belonging to his wife are not true? All that is required of him to signify his assent and presence is his signature. That binds him to all the recitals contained in the instrument, and makes it as much his deed or obligation as if his name was inserted in the body of it. By his signing, delivery and acknowledgment of the deed he would be forever estopped -from setting up any claim to the property conveyed.”

In Ochoa v. Miller, 59 Tex. l. c. 462, that court said: “The deed from Calistra Dias, and her husband Santos Dias, should have been admitted in evidence. The signature of Santos Dias to the deed, and his acknowledgment, was sufficient to show he had joined with his wife in the conveyance.” In this case the name of the husband did not appear in the body of the deed, but like the case at bar, he signed and acknowledged the same.

In Morgan v. Snodgrass, 49 W. Va. l. c. 393, the court says:

“Smith and Morgan say that the second deed is good as a deed, and good as executory contract for the sale of the land, and that it is a defense to the action of ejectment by the statute of equitable defense to ejectment, Code 1891, chapter 90, section 20, and that this gives ground for injunction, as it was recorded before Snodgrass purchased, and he admits actual knowledge of it. Snodgrass opposes this claim by the position that our statute provides that no married woman can convey or sell her.land ‘unless her husband consents thereto by joining in the deed or other writing by which the same is sold or conveyed.’ It is claimed that the husband did not legally join in this deed. It is a deed naming only Drophy Walters as grantor and L. S. Walters as grantee, not at all in any part of its body naming her husband as a party or in anywise. It is, however, signed by both. The case of Adams v. Medsker, 25 W. Va. 127, and others are cited to support this position. That case holds that a deed not mentioning certain persons, though signed and acknowledged by them, is inoperative as to them. This is clearly so as to grantors and grantees; that is, where they are to grant or to take estate by the deed. But this rule does not apply where such is not the case, and where the only requirement is that the person manifest his consent to the deed. The husband has no estate to convey. He has contingent curtesy. Whether this deed passes that we do not say. It is always better conveyancing to make him a formal party, so as to pass his estate by curtesy. The husband, for our present question, is to be held, not as granting anything, but simply consenting to his wife’s grant. The second edition of that great work, American and English Ency. Law, vol. 9, page 111, makes this distinction explicitly, saying that where the husband has a vested interest to pass he must be named as a grantor; but where it is only necessary to manifest his consent, he is not a grantor, and whilst he must join in the instrument, ‘he need not be named as such (grantor) in the bod^ of the deed; joining in the execution is alone sufficient.’ [See first edition same work, vol. 5, page 428, n. 5.]”

Many more cases could be cited, but they will be found elaborately collated in the brief by the learned counsel for the plaintiff, and those interested further can refer to the Reporter’s notes on this opinion for the additional cases. The trial court committed no error in admitting this deed in evidence, nor in holding that upon its face it conveyed the interest of Mrs. Ashley to the plaintiff and the husband, Clement S. Ashley.

II. There is no evidence to support the claim of adverse possession for the statutory period, and this question is not pressed in the brief here. Nor is there but little evidence upon the question of estoppel. It is true that the Driskill deed was not put upon record until August 27,1909, and that Mrs. Ashley joined therein by her husband, conveyed to the son, defendant herein, a five-acre tract, including this acre or at least a portion of it, in 1908, yet it is clear that it was understood that Driskill had purchased this land for the purpose of erecting a church thereon, and that he did in fact erect a church thereon, and controlled and used this church for about ten years, when it burned and was not rebuilt. The church building was rented for several years for a schoolhouse, and Driskill did the renting and collected the rent. It is also true that defendant put up a store building and got a part of the building on this acre tract, but it is evident that this was done because of a want of knowledge as to the lines of the acre tract. There is no other evidence of substantial improvements. The claim of estoppel will have to be ruled against the defendant.

III. It is further urged that if we hold against the defendant upon the validity of the deed, then we should hold that the deed merely conveyed the property to Driskill and Clement S. Ashley as trustees for church purposes, and'that as. the property had been abandoned for such purposes, the absolute title reverted to Mrs. Ashley, and her deed to the son conveyed .a good title. The evidence in this case is not such as will authorize us to reform this deed in equity. It is true that the evidence shows that Driskill said that he wanted the land to build upon it a church house, but it falls far short of the legally sufficient proof to authorize us to change the positive terms of the conveyance. Courts cannot deal lightly with the solemnly expressed terms of a written instrument. There may be some evidence from Mrs. Ashley tending to support this idea, but the evidence of Driskill and the justice of the peace who wrote the deed, 'doés not bear out that theory. The chancellor nisi on this equitable branch of the case has his judgment well within the evidence, and we shall not disturb it.

We.find no substantial error in this record and the judgment should be affirmed. It is'so orderéd.

All concur.


author: BOND, J.

text:
    E. W. TURNER v. TYLEE LAND & TIMBER COMPANY, Appellant.
    Division One,
    June 2, 1914.
    1. APPELLATE JURISDICTION: Constitutional Question. The Supreme Court will not take appellate jurisdiction of an appeal from a monetary judgment for $7000, unless some constitutional question is vitally involved in the case which had not been decided by this court at the date of the appeal.
    2. -: -: Factory Act. Where 'the Supreme Court had twice decided that Sec. 6483, R. S. 1909, requiring the belting, shafting, gearing and drums in all manufacturing establishments, when so placed as to be dangerous to persons therein or thereabouts, to be safely guarded when possible, is constitutional, before an appeal from a judgment for $7000 in favor of a person so employed was taken, the Supreme Court will not assume jurisdiction on the alleged ground that said statute is unconstitutional, but will transfer the case to the proper court of appeals.

      Appeal from Dunklin Circuit Court.- — Hon. W. S. C. Walker, Judge.
    Transferred to St. Louis Court of Appeals.

      John A. Hope and Ernest A. Green for appellant.
    The statute upon which plaintiffs alleged cause of action was founded, is unconstitutional in that the title to the legislative act creating said statute does not disclose its true contents. Furthermore, said act is violative of both the Federal and State Constitutions in denying to defendant the equal protection of the laws, and is special and class legislation. Laws 1891, p. 159; Sec. 1, art. 14, Amendments to U. S. Constitution; Secs. 28,53 and 54, art. 4, Constitution of Missouri; Simpson v. Iron Works, 249 Mo. 376; Williams v. Railroad, 233 Mo. 680; Durkin v. Coal Co., 171 Pa. St. 193, 50 Am. St. 801, 29 L. R. A. 808.

      Ward & Collins for respondent.
    This court, on all occasions when this question was raised, has declared that the statute was constitutional. Lore v. Am. Mfg. Co., 160 Mo. 608; Lohmeyer v. Cordage Co., 137 Mo. App. 624; Austin v. Shoe Co., 158 S. W. 709; Simpson v. Iron Works, 249 Mo. 376.
    STATEMENT.
    This is an action for personal injuries alleged to have been sustained by a violation by defendant of the requirements of section 6433, Revised Statutes 1899, to-wit:
    “Sec. 6433. — The belting, shafting, gearing and drums, in all manufacturing, mechanical and other establishments in this State, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments.”

      The above section, with addition of two words, was carried into, and is now section 7828, of the Revised Statutes of 1909.
    The evidence tends to show that the plaintiff was employed to run a bolting saw in defendant’s stave mill and factory, and as a part of his duties was required to clear away and remove within reach of the blowpipe so as to be carried off, the dust and trash which fell below the saw in the course of its workings; that the plaintiff was injured on the — day of March, 1907, while working under said saw and removing the accumulations of dust and trash, by being struck on the head by the revolution of a clutch coupling which was attached to a horizontal shaft and connected with the saw. The clutch coupling and the shaft were not boxed up or guarded. There was evidence tending to show that this might have been done without affecting their operations.
    Plaintiff’s skull was fractured and two holes made therein, and there was evidence to show he suffered great pain and permanent injuries.
    Defendant pleaded contributory negligence, assumption of risk, that the statute invoked did not apply and that it was unconstitutional.
    There were two trials. On the first, in Pemiscot county, plaintiff had judgment for $8000. After the grant of a new trial, there was a change of venue to Dunklin County, where plaintiff had judgment for $7000 on June 21,1911, from which judgment defendant appealed to this court on the theory that a constitutional question was involved.
   OPINION.

BOND, J.

(After stating the facts as above.) — We cannot take jurisdiction pf this appeal unless some constitutional question was validly raised on the trial and undecided by us at the date of the appeal, since the amount in dispute is within the appellate jurisdiction of the St. Louis Court of Appeals, in whose territorial jurisdiction the judgment was rendered. [Dickey v. Holmes, 208 Mo. 664.]

The section of the statute in vogue when the cause of action arose was first enacted in 1891. [Laws 1891, p. 159.] It has been upon the statute books with the slight addition contained in the present revision (R. S. 1909, sec. 7828) for a little less than a quarter of a century. Its beneficent character and general constitutionality were commended and affirmed by Gantt, J., speaking for Division Two in 1901. “The constitutionality of such laws is no longer in doubt. Laws like this, created for the safety of those whose necessity compels them to submit to hazards which they would otherwise be unwilling to assume, have been sustained in all the States of the Union, such as provisions for fire escapes, inspection of boilers, ventilation of mines, and for covering and otherwise protecting machinery. [Durant v. Lexington Coal Co., 97 Mo. 62; People ex rel. v. Warden City Prison, 144 N. Y. 529; People v. Smith, 108 Mich. 531.]” [Lore v. Am. Mfg. Co., 160 Mo. l. c. 622.]

Again, in Lohmeyer v. Cordage Co., 214 Mo. 685, decided in 1908, constitutional objections similar to these in the present case were urged in the fourteenth ground of a motion for a new trial. [Special Legislation, 14th Amendment, U. S. Const., and want of due process.] And this Division, while holding that such objections were not properly preserved, yet” adopted and reaffirmed the language above quoted as an answer to the contentions.

Each of these two cases, in the respective divisions of this court, had put at rest any question as to the validity of the particular section of the factory act upon which this suit was based, before the taking of the present appeal. It is evident that the case of Williams v. Railroad, 233 Mo. l. c. 682, cited by appellant, does not aid its contention that the section involved in this case is unconstitutional. That case did not refer to the section under review here at all. The suit there was not based on the section now invoked for the constitutionality of this section had been previously determined as shown above. [See dissenting opinion in Simpson v. Iron Works, 249 Mo. l. c. 397.] The Williams case referred only to a provision of the factory act which related to railway structures. Necessarily its ruling in that respect had no bearing on the constitutionality of the distinct and independent section requiring the guarding of machinery in manufactures and mechanical establishments, which was the basic idea of the factory act and has been uniformly upheld and enforced in this court (Huss v. Bakery Co., 210 Mo. 44; Simpson v. Iron Works, 249 Mo. l. c. 391) and in the court of appeals (Colliott v. Am. Mfg. Co., 71 Mo. App. 163; Lohmeyer v. Cordage Co., 137 Mo. App. 624).

Our conclusion is that the constitutionality of the section under which the present action is framed was not an open question when defendant took its appeal from the judgment of the trial court, and the cause is therefore transferred to the St. Louis Court of Appeals.

All concur.


author: LAMM, J.

text:
    NESTOR C. TEVIS et al. v. JEREMIAH H. TEVIS et al., Appellants.
    Division One,
    June 2, 1914.
    1. EQUITY: Instructions: Point No Point. Instructions and demurrers to evidence in a case of equitable cognizance fill no useful office and “point no point.” Even in a law suit tried to the court without a jury on facts constituting an agreed case, instructions are out 'of place. Though instructions requested 'are ignored by the chancellor, exceptions challenging the decree in equity as not doing equity and as contrary to the evidence entitle appellants to a hearing de novo on the merits on appeal.
    2. -: Suit to Interpret Will and Declare Title. A suit to construe a 'will, and to ascertain and determine the title to land devised thereby, and to vest it in plaintiff according to a right created by the will to elect to take the land upon the payment of a named sum of money, is a suit of equitable cognizance.
    3. WILL: Right to Purchase: Tender Before Suit. Where the will gave to a certain devisee the right to purchase the land upon the payment of a named sum of money, and he in his petition, asking that the title be vested in him, avers that he • notified the defendants of his election to purchase and offered to pay them the money, and their answer contains a general denial and averments repudiating his interpretation of the will, a technical tender is not of substance; and the record showing that the money was tendered and paid into court at the trial, the question of tender becomes immaterial, and a decree for plaintiff will not be reversed simply because no formal proof was made of tender before the suit was brought. Equity does not require the doing of a useless and vain thing.
    4. -: Right to Elect: Residuary Clause: Property Not Specifically Devised. Where the will gave to plaintiff an undivided half interest in certain land, and the use of the other half upon condition that he pay to another son an annuity for his life, and gave him the right upon that son’s death to purchase the remaining half upon the payment of a named sum of money, and then charged his four other children with certain advancements and directed that each of said four children “be first made equal out of my estate, and after this is done X direct that all of my property, real, personal and mixed, except that heretofore specifically devised, be equally divided between” said four children, and there was other real estate and personal property which was used to equalize those •four, the said four children did not share in the tract of land first “specifically devised” to plaintiff, but said residuary clause itself excepted said undivided half interest from the devise made by it.
    5.-: -:--: -: Repugnancies. Plain provisions of a will will not be destroyed by subtle refinements breeding repugnancies and uncertainties when by disregarding them a consistent whole may be evolved.
    6.-: Heirs at Law. Heirs at law are those who after their ancestor’s death intestate have a statutory right to inherit all lands, tenements and hereditaments which belonged to him or of which he was seized at the time of his death.
    7. -: Option to Purchase: Residuary Clause: Right to Share in Purchase Money. The will gave to Nestor, a son, the use of certain land and charged it with the payment of an annuity to testator’s son John during his life, and then provided that upon John’s death Nestor should have “the right to purchase” the land upon the payment of a named sum, “which sum, or in case said Nestor shall elect not to purchase the land then said land, shall vest in the bodily heirs of John, and if there shall be no heirs of his body then living the money or the land shall pass to and vest in my heirs at law.” John died without leaving bodily heirs. The will then charged four other children with certain advancements, and directed that they be made equal, “and after this is done I direct all my property, real, personal and mixed, except that heretofore specifically devised, be divided equally between” said four children. Held, that Nestor, being an “heir at law” of testator, and having elected to purchase the land, shared equally with the other four children in the purchase money, notwithstanding the said residuary clause and the use of the word “purchase.”
    8. -: Purchasing from One’s Self. Strictly speaking one cannot purchase from himself; and it may be that where the will gives to a named son “the right to purchase” certain land upon the payment of a named sum of money and he exercises that right, an intention may be gathered from the whole will that he was to pay that sum to the other heirs, though it does not specifically so state. But where the plan of the will is not built around that idea, but it indicates that in case of purchase the money was to go to testator’s “heirs at law,” of whom he was one, the holding will be that there was an abatement of his share of the named sum to be paid.
    9. -: Contingent Remainder. The will gave to testator’s son Nestor use of the land for life, charged with an annuity in favor of John, and then provided: “Upon the death of my son John, my son Nestor shall have the right to purchase said land for $2400, which sum of money, or in case said Nestor shall elect not to purchase the land, then' said land, shall vest in the heirs of the body of said John, and if there shall be no heirs of his body then living, the. money or the land shall pass to and vest in my heirs at law.” Held, first, that Nestor had the right to pay the $2400 and take the land regardless of whether John left living heirs of his body or not; second, if John left living bodily heirs at the time appointed for Nestor to take, to-wit, at John’s death, then such bodily heirs took either the money or land, as the case might be; third, on tbe contingency that there were no bodily heirs of John him surviving, the testator’s heirs at law took the land, if the option was not exercised, and the money if it was; and, fourth, John having died without living bodily heirs, the will of John’s sister, who died prior to his death, devised no interest either in the land or money, since it could not be determined until John’s death what persons would take. The chance of John’s brothers and sisters having any interest in either land or money depended altogether on John’s death without living bodily heirs, and that fact could not be ascertained until his death.
    10. -: -: Deed of Remainderman. A deed made by the devisee of a will who had only a contingent remainder in the land which never vested during the testator’s lifetime, fails as a grant.
    Appeal from Cooper Circuit Court. — Hon. John M. Williams, Judge.
    Reversed and remanded (with directions).

      H. C. Wallace for appellants.
    (1) The evidence' fails to show that a tender of the sum of twenty-four hundred dollars, or any other amount, was made to these defendants before the filing of plaintiff’s petition, or prior to the trial of the case, although it is alleged in the petition the sum of $2400 was offered to defendants. On the contrary, the record only shows that plaintiff deposited such sum with the clerk of the circuit court after the evidence in the ease was heard. “If there is anything, such as making of payments, necessary to be done in order to make his cause of action complete, such thing must be done, before suit is commenced, for, if it is done afterwards, even before the trial, it is then too late and of no avail so far as the then proceeding is concerned.” Lawler v. Vette, 166 Mo. App. 352; Heard v. Ritchey, 112 Mo. 516; Turk v. Stall, 53 Mo. 437. (2) Under the law and the evidence in this case plaintiff was not entitled to recover. Item third of the will provides that after the payment of certain amounts to make his children equal, all of his property, real,' personal and mixed, except that hereinbefore specifically devised, shall be divided equally between the said Daniel, Emma, Jeremiah and Anna. There is no- specific bequest of the land described in plaintiff’s petition to the plaintiff. In item two of said will testator bequeaths to plaintiff the undivided one-half interest in the land mentioned in plaintiff’s petition, with a proviso or option in the plaintiff at the death of John, to purchase the remaining undivided one-half interest for the sum of $2400. These appellants contend that this is not a specific bequest of the remaining undivided one-half interest in said land, and that the residuary clause bequeathing all the property of testator not hereinbefore specifically devised to these four children, must prevail over the provision of item second of said will, and that these appellants are the owners of such undivided one-half interest in said land. That the clause in item second of said will giving the respondent the right to purchase such undivided interest in said land for the sum of $2400 is in conflict with the residuary clause in item third of said will and therefore inoperative and void. The purchase of the undivided one-half interest in the land being merely optional with respondent, and the $2400 not being the property of testator at the time of his death, there was neither a .specific bequest of the money nor of such undivided interest in the land described in the second item of said testator’s will. There is no particular estate created of such undivided interest in said second item of said will, nor is the same devised to any particular person. 18 Am. & Eng. Eney. Law (2 Ed.), pp. 714, 715, 722; Waters v. Hatch, 181 Mo. 288. The invalid portion of a will may be rejected. Sevier v. Woodson, 205 Mo. 202; Wells v. Fuchs, 226 Mo. 97. The residuary clause carries a lapsed or void legacy. Givens v. Otte, 222 Mo. 415; Mueller v. Buenger, 184 Mo. 478. (3) If item two can stand and be held not to be inoperative or in conflict with the residuary clause in the third item, it created a contingent remainder in the undivided one-half interest in the land described in said. second item, the other half interest being devised to Nestor. Under this clause of the will it could not be determined until the death of John what persons were to take this undivided half interest. The undivided half interest was, first, to vest ih the heirs of the body of John Tevis, should any be living at the time of his death, “and if there be no heirs of his body then living, the money or the undivided interest in the land shall pass to and vest in my heirs at law.” The time for this undivided interest in the land to vest was at the death of John Tevis; the persons in whom it was to vest could not be ascertained until the death of John Tevis. Dickerson v. Dickerson, 211 Mo. 490; Rodney v. Landau, 104 Mo. 257; Emmerson v. Hughes, 110 Mo. 630; Buxton v. Kroeger, 219 Mo. 241; Waddell v. Waddell, 99 Mo. 338; Emmerson v. Whittlesey, 55 Mo. 258; Delassus v. Gatewood, 71 Mo. 371; Sullivan v. Garasche, 229 Mo. 496. (4) If the money can be substituted for the land, then the remainder in said sum of $2400 was contingent. The remainder in the land or money under the provisions of second item being contingent and not having vested during the lifetime of Anna McRosky, she had no interest in this property, at the time of her death, by virtue of the will, and hence her will did not pass any title to the land or money involved in this suit. Her husband, defendant Bledsoe McRosky, acquired no interest in the property in controversy by the will of his deceased wife. Sullivan v. Garasche, 229 Mo. 496; Dickerson v. Dickerson, 211 Mo. 483; Buxton v. Kroeger, 219 Mo. 224; Goodman v. Simons, 113 Mo. 132; Taylor v. Adams, 93 Mo. App. 277. (5) The intention of testator was that his son Nestor should pay to the persons to whom entitled at the death of John Tevis, the full sum of twenty-four hundred dollars. Testator did not intend that the respondent should pay the sum of $2400 for such undivided interest in the land, and at the same time receive a part thereof himself. Such a construction of the will would conflict with the third item of such will, wherein it is provided that all property, not thereinbefore specifically devised, 'be divided equally between the said Daniel, Emma, Jeremiah, and Anna. There being no specific devise of said sum of $2400, it not being the property of testator at the time of his death, the residuary clause in the third item of said will controls the disposition of such sum of money.

      John Cosgrove and W. M. Williams for respondent.
    (1) A tender was not a condition precedent to the suit. The plaintiff was not required to determine at his peril how the money should be divided; further, a party is never bound to do a useless thing, and it is apparent that a tender in accordance with the finding of the court and the contention of the plaintiff would not have been accepted. However, the answer does not set up the want of a demand for the deed or the absence of a tender, and the point cannot be made for the first time in this court, even if it was a ease requiring a tender to create the cause of the action, which it is not. Deichmann v. Deichmann, 49 Mo. 107; E. S. 1909, sec. 2283; Harrison v. Lakenan, 189 Mo. 581. (2) There is no conflict between the third paragraph, containing the residuary clause, and paragraph two of the will, disposing of the land in controversy. 1 Under-hill on Wills, 567. It is immaterial to discuss or determine whether the disposition of the land under the second paragraph is technically a specific devise or legacy. The intention of the testator must govern, and it is plain that he intended by the third clause to give to the four children therein named only the property not otherwise disposed of in the second item of his will. His will is the law of his property “and the true intent and meaning of the testator must govern.” R. S. 1909, sec. 583. (3) The testator devised the undivided half of the land involved here, upon the death of John Tevis without heirs of his body, to the heirs at law of the said testator. The plaintiff Nestor was one of these heirs, and if he had not elected to take the land for $2400, would undoubtedly have been entitled to an undivided one-fifth of the real estate. The $2400 under the will was fixed as the value of the entire half interest and in the event of an election to purchase for that sum, took the place of the land and belonged to the same persons to whom the land was devised. The plaintiff was one of the children and heirs at law of his father and entitled to his share in the land or the money which takes its place, and the trial court did not err in so holding. (4) The “heirs at law” of Simeon P. Tevis were the persons answering that description at the time of his death. It is immaterial that the enjoyment of the estate was contingent upon the death of John without heirs of his body. The property, in that event, was given to the heirs at law of the testator- — not to those who might have been his heirs if he had died at the same time as his son John, who was to enjoy the rents of the land during his life. Rozier v. Graham, 146 Mo. 360; Stokes v. Van Wyck, 3 S. E. (Va.), 387; Kellett v. Shepard, 28 N.E. (III.) 751; In re Tucker’s Est., 21 Atl. (Vt.) 272; Johnson v. Weber, 33 Atl. (Conn.) 506; Abbott v. Bradstreet, 85 Mass. 587; Bunton v. Speck, 21 Pac. (Kan.) 288.
   LAMM, J.

Equity. This is a suit by Nestor C. Tevis to divest title to certain land out of defendants on the payment of purchase money in accordance with a will and to vest title in plaintiff, and for distribution of that money.. From a decree granting the relief prayed in plaintiff’s bill, defendants (barring Bledsoe McRosky who rested content) appealed.

Pending that appeal plaintiff died, and on apt steps the cause stands revived in the names of his administrator, Robert S. Tevis, and his heirs, Julia A., Lillie M., Simon P., and said Robert S. Tevis. Those names are read into the caption as respondents, but for convenience we speak of the original plaintiff as respondent.

It is conceded the proper parties are before the court, hence their several relationships to each other and several interests in the subject-matter (all set forth in the pleadings 'on both sides) are unimportant.

In small compass, the case is this:

In 1893 one Simeon P. Tevis died in Cooper county seized of the land in question situate in that county, and leaving a will. As the case turns on that will, attend-to it:

“I, Simeon P. Tevis, of the county of Cooper in the State of Missouri, hereby revoking all former wills and codicils by me made, do make, publish and declare my last will and testament in manner following, that is to say:
, “Item First. I direct that-all my just debts and funeral expenses be paid by my exeeutor as soon after my death as the same can be legally done.
“Item Second. I give and devise unto my son Nestor C. Tevis, an undivided one-half of the following described real estate situate in Cooper county, Missouri: The west half of the southwest quarter and the west half of the east half of the southwest quarter of section twenty-three, and the west half of the northwest quarter and the northeast quarter of the northwest quarter of section twenty-six-, all in township forty-seven, of range seventeen, my said son Nestor C. Tevis to have the same absolutely.
“It is further my will and I hereby direct that my said son Nestor C. Tevis, his heirs or assigns, shall have the use of the remaining undivided half during the lifetime of my son John Tevis, and my said son Nestor C. Tevis, his heirs or the persons holding under him shall pay annually beginning at the expiration of one year from my death the sum of two hundred and eighty-eight dollars to my said son John Tevis, and I hereby charge the said annual payments as a lien upon said lands. These payments shall be continued during the lifetime of my son John Tevis. Upon the death of my son John Tevis, my son Nestor C. Tevis, or his heirs, shall have the right to purchase said undivided half of the aforesaid land for the sum of twenty-four hundred dollars, which sum of money, or in ease said Nestor C. Tevis, or his heirs, shall elect not to purchase the land, then said undivided half interest shall vest in the heirs of the body of said John Tevis, and if there shall be no heirs of his body then living, the money or the undivided interest in the land shall pass to and vest in my heirs at law.
“Item Third. I charge my other children with the following advancements, that is to say: Daniel Tevis, eight hundred and fifty dollars; Anna MeRosky, fifteen hundred and fifty dollars, and in this sum is included one thousand dollars which I have this day sent her; and my grandchild, Emma Hubbard, for advancements to her and her mother, five hundred and fifty dollars. I hereby direct that each of the four persons last named be first made equal out of my estate, paying to Daniel, Emma Hubbard, and Jeremiah respectively a sufficient amount to make them equal with the amount advanced to Anna MeRosky, and 'after this is done I direct that all of my peroperty, real, personal and mixed, except that hereinbefore specifically devised, be divided equally between the said Daniel Tevis, Emma Hubbard, Jeremiah Tevis and Anna MeRosky.
“Item Fourth. I hereby nominate and appoint my friend Charles T. Leonard executor of this my last will and testament, and I hereby authorize my said executor to sell and convey any and all of my real estate and to dispose of the proceeds as hereinbefore directed.
“In witness whereof I have hereto set my hand this 8th day of January, 1891.”

Plaintiff is testator’s son, the Nestor C. mentioned in item two of the will as devisee of a one-half interest in the land described in that item. The other half is the subject-matter of this suit.

Testator’s son, John, mentioned in that item, died in 1910, unmarried and without heirs of his body surviving him, having received each year from plaintiff the annuity of $288 charged in his favor upon that land by the will.

On John’s death, Nestor C. (having had the use of the land during John’s lifetime as directed by the' will) invoked the right created by the will to have the one-half interest so used by (but not devised to) him at and for the will-fixed sum of $2400. Having so elected to purchase, plaintiff brought the instant suit to divest title out of defendants and vest title to the said undivided one-half interest in him, bringing the money into court for distribution; and, inter' alia, alleging that under the terms of the will he was entitled to share with the other heirs, devisees, etc., in that money.

The petition counting, as it does, on item two of the will and compliance with its terms, whereby plaintiff alleges an election to purchase, a right to share in the purchase money and to have title vested out of defendants and into him, its averments are sufficient to have granted the relief prayed for, if a sound interpretation of the will permit it, hence a reproduction of the entire petition is unnecessary to an understanding of the case.

The answer of defendant McEosky is not abstracted. The answer of the appealing defendants, after making certain admissions and denials, sets forth, the entire will and by averment puts a construction on it contra to that of the petition, to-wit, that the provision of item two, beginning with the words “upon the death of my son John Tevis” and ending with the words “vest in my heirs at law,” the last words of the item (quoting) “is vague, uncertain, ambiguous and indefinite, so that the remaining undivided one-half of said land is not specifically devised, nor is there any certain or specific gift of the said sum of twenty-four hundred dollars, or any certain devisee or legatee, and there is no specific gift of either the said sum of twenty-four hundred dollars, or the undivided half of said land, or any certain devisee, and the said clause is in conflict with the residuary clause in the third item of said will, and is therefore void and of no effect.”

The answer then continues as follows: “That in the third item of said will said testator, after charging some advancements, made a residuary clause as follows: ‘and after this is done I direct that all of my property, real, personal and mixed, except that specifically devised, be divided equally between the said Daniel Tevis, Emma Hubbard, Jeremiah Tevis and Anna’McRosky, ’ and in the fourth item of said will testator empowers and authorizes his executor to sell all of his real estate, by the following clause, viz.: ‘ and I hereby authorize my said executor to sell and convey any and all of my real estate and to dispose of the proceeds as hereinbefore directed.’

“Wherefore, these defendants state that by the terms and provisions of said will the undivided one-half of said land described in plaintiff’s petition not specifically devised to said Nestor C. Tevis, by the terms of said will, vested in the said Daniel Tevis, Emma Hubbard, Jeremiah Tevis and Anna McRosky on the death of said testator.”.

It is next averred in the answer that Mrs. McRosky died testate, her will devising all her property to defendant, Bledsoe McRosky. That subsequently Bledsoe sold and conveyed his interest in the Simeon P. Tevis estate to defendant Jeremiah Tevis, making the defendants (excepting Bledsoe) the owners of the individual one-half interest not specifically devised to Nestor C. Tevis, and then concludes as follows:

“Wherefore these defendants pray for an order, judgment and decree of this court for the determination of the validity of the items of said will hereinbefore mentioned and if for any reason the same or any part thereof -be invalid or inoperative, that said portion of said will be so held, adjudged and decreed, and that the legal effect of such invalidity on the remaining portion of said will be declared, that the invalid portion of said will be declared void, and that said will be •construed, and for a decree adjudging the rights of plaintiff and these defendants in and to said real estate therein described, and in said plaintiff’s petition described, and that the title to said undivided half of said real estate not so specifically devised to Nestor C. Tevis be vested in these defendants, and for such other and further orders, judgments and decrees touching the premises as to equity and justice may seem meet and proper.”

At the trial it stood conceded there was real estate belonging to testator not described in the second item of his will, which sold for, say, $3600; that the personal estate of testator amounted to, say, $3900; and that out of the proceeds of said last-mentioned realty and said personalty Daniel and Jeremiah Tevis and Emma Hubbard were equalized with Anna McRosky as required' by item three of the will.

The court, taking plaintiff’s construction of the will, decreed title to the land described in item two into him, and then went on and divided the $2400 deposited by him as purchase money into five parts, distributing it as follows: $480 to plaintiff; $480 -to Jeremiah Tevis; $480 to Emma Hubbard; $480 to Bledsoe McRoskey (Ms wife, devisee Anna MeRosky, having died childless and testate after testator’s death, making Bledsoe her sole devisee and legatee) and 1240 each to Irving Tevis and Anna M. Williams (said Irving and Anna M. being the only heirs of devisee Daniel Tevis, who died after testator and before suit).

The facts are undisputed. The controversy, as said, is over the interpretation of the will. The material assignments of error will sufficiently appear in the course of the opimon.

I. Of instructions and a demurrer to the evidence.

The cause is of equitable cognizance in fact and eo nomine; for the petition seeks equitable relief, so does the answer. In this condition of tMngs appellants, complain here of the chancellor’s refusal of a demurrer to the evidence at the close of the whole case, as well as of his refusal of four prayers in the form of declarations of law. Their learned counsel industriously (but with labor lost) briefs assignments of error predicated on such rulings. We need not reproduce the instructions; for we need not consider them or the demurrer. Not only are instructions out of a place in a law suit tried to the court without a jury on facts constituting an agreed case, as here (Eckle v. Ryland, 256 Mo. 424), but it is venerable and acceptable doctrine, well grounded in reason, that instructions and demurrers to evidence fill no useful office at all in eqrnty. Those devices for admimstering justice, when useful, are singular to law, not equity. [Troll v. Spencer, 238 Mo. l. c. 92.] A judge of tMs bench invented the phrase, “.point no point.” If that striking pMase is entitled to live in judicial language, then assignments of error on the giving or refusing of instructions in equity may be assigned to that head.

Fortunately for appellants they did not rest alone on error in instructions, but took exceptions below and bring them here challenging the decree in that it did not do equity and was contrary to the evidence. Those exceptions are efficacious, entitling appellants to a hearing de novo on appeal and seeking the merits.

II. Of a tender.

Appellants complained of no “tender” before bringing suit. The complaint is without substance, because: The contention gathers head from the supposed failure of proof. The petition alleges that plaintiff elected to take the undivided half of the land in accordance with the right and the privilege conferred upon Mm by the terms of the will “and so notified the defendants and offered to pay them said money, but that defendants refused to accept the same or to convey said land to the plaintiff.” The answer contained no admission of a tender, and in that particular rests on a general demal; but (and tMs is close home) it made averments in the nature of a repudiation of plaintiff’s interpretation of the will. [Deichmann v. Deichmann, 49 Mo. 107.] Their interpretation, then and now, was so radically different from plaintiff’s that a technical tender was not worth while. [Vide, Deichmann case.] The maxim is: EqMty requires no vain and useless thing to be done. It looks to substance, not form. So, the question of tender or no tender was not raised below and the absence of one was not a trial theory. At the trial the following record was made without objection or exception— appellants standing mute: “Judge Williams: We now want the record to show that plaintiff now offers to pay in court and does pay in court, subject to its order, the $2400 tendered in the petition. The money was then deposited in the court subject to the order of this court.” In the face of such pleadings, such record, and such deposit, the question of tender is immaterial. To send this ease back for proof of a formal tender before bringing suit, would merely prolong the litigation and be an unavailing act sounding to folly.

The point is disallowed to appellants.

III. Did the court interpret the will correctly and make a proper disposition of the purchase money?

The subject-matter under this head is approached in briefs from different angles. We will not follow the classification of appellants’ counsel, but will dispose of questions determinative of the case from our own viewpoint.

(1) In the first place, all sides agree there is a residuary clause in the will (item three), and that four named persons, to-wit, a granddaughter, Emma Hubbard, and three children of testator, to-wit, Daniel and Jeremiah Tevis, and Anna MeRosky, are the beneficiaries of (i. e., the residuary legatees or devisees under) this clause. The main question then is, What property passes by this residuary clause? It is argued on behalf of appellants that the one-half interest in the 240 acres of land mentioned in item two, not devised absolutely to Nestor C., belongs in the residuary clause, and therefore plaintiff is not entitled to any share in that undivided interest nor has he the right to elect to take the same. That conclusion hinges on the theory that the half interest is not “ specifically devised,” hence it falls into the residuary estate. But we are not persuaded to that view of it. The statutory rule is that courts and others concerned in the execution of last wills shall have due regard to the direction of the will and the true intent and meaning of the testator in the matter brought before them. [R. S. 1909, sec. 583.] That statute was but declarative of a settled judicial rule for construing wills. The intent of testator is arrived at by taking all the provisions of his will together. His words are to be taken in their ordinary meaning and in the sense indicated by the body of the instrument. The provisions of the will are to be so construed together that all may be operative and none of them perish unless they contravene some settled principle of law.

Giving heed to those guiding principles, we see that in the residuary clause is a provision that after Anna, Daniel, Emma and Jeremiah are equalized in advancements, then “all of my property, real, personal and mixed, except that hereinbefore specifically devised” he divided equally between the four. The record shows a considerable estate in lands and personal property not specifically devised, hence the residuary clause is made operative without putting a strained construction on other provisions. It shows, too, that the four named devisees were equalized in advancements and shared in the residuary estate, hence they took benefits under it.

Now, item two of the will carved out of the general estate 240 acres and disposed of the whole tract; one-half interest was devised absolutely to Nestor C. The same item makes specific provisions disposing of the other half interest. Por instance, it directs to whom it should go and under what circumstances and contingencies. Is all that not specifying? And when a testator has specified his disposition of a given part of his estate has he not “specifically devised” it? We have no doubt of testator’s intention and that is as far as we need go, but we should go that far. He intended to make a specified disposition of the whole 240 acres and as it is the only specific devise prior to the residuary clause, when he used the words “specifically devised” he referred to that land and the whole of it.

Take another view: To say that this testator in his plain and simple will did not except that one-half interest in the 240 acres by the phrase “except that hereinbefore specifically devised” and hold it out of the residuary clause, is to bring about a contradiction and a destructive repugnancy in the provisions of his will. On the other band, excluding that half interest from the residuary clause violates no technical rule known to us and such construction (and this alone) makes item two of the will effective and the whole will operative. The other construction creates such a repugnancy as destroys the plan of the will and makes the provisions of item two perish. It is an unwholesome doctrine in construing wills to first unnecessarily breed repugnancies and uncertainties by subtle and speculative refinements and then when so bred to destroy a plain and perfectly proper provision by means of such uncertainties and repugnancies. We rule - there are no such contradictions,'repugnancies or uncertainties as make invalid any provisions of item two of the will.

(2) Aside from the contention just disposed of it is not contended there is anything unjust in fact or irregular in law in the right given Nestor C. to take the other half interest on- the payment of $2400, or that such provision 'cannot be specifically enforced, but if we so interpret the words “specifically devised” as to exclude that half interest from the residuary clause, and make the provisions of item two effective in the matter of a right to elect to take it at the named price, then, and in that event, it is argued that the purchase money goes into the residuary estate. We do not agree to that view of it. In interpreting a will, before the court says anything it should see what testator himself has said. Speaking broadly, the bounden duty of the court is to say the same thing testator has said unless his language creates a situation obnoxious to some rule of law. Take this case: After providing that Nestor C. should have the use of the half interest on condition he pay an annuity of $288 to his brother John during his life (which he faithfully did), the will takes up the question of the disposition of that half interest on John’s death. The plan of testator was to give a valuable right of election to Nestor C. to take it for $2400. As we have already ruled, that right of election is clear and free from all ambiguity. It contravenes no property rule. But there was a contingency in testator’s mind, to-wit, that Nestor C. might not want to exercise the right of election. What was to be done on that contingency? Look to the will. In that event that half interest went to the heirs of the body of said John Tevis. Át that point another contingency sprang in testator’s mind, namely, John Tevis might have no heirs of his body then living. What then was to be done? Again, look to the will. The admonitory cry: “the will, the will . . . read the will,” accords with both law and drama. At that point testator proceeded to dispose of the money to be paid by Nestor C. on exercising his election to take the land, on the one hand, and also proceeded to dispose of the undivided interest in the land on the contingency the right of election was not exercised by Nestor C., and on the contingency there were no heirs of the body of John Tevis then living, the will reading: “The money or the undivided interest in the land shall pass to and vest in my heirs at law.” There is no ambiguity or irregularity about that. The only question is: Who were his “heirs at law?” Heirs at law are those who after their ancestor’s death intestate have a right to inherit all lands, tenements and hereditaments which belonged to him or of which he was seized. [Bl. L. Dict. (2 Ed.), tit., “heirs at law”; Rosier v. Graham, 146 Mo. l. c. 360.] If one finds those persons on whom the law easts the inheritance on their ancestor’s death (if there were no will) then one has found the heirs at law of such ancestor. The use of both terms, “heirs of the body” and “heirs at law” are not without significance in showing a use of accurate terminology in the will. In this case, Nestor O. Tevis falls within the class “heirs at law.” It happens in this ease that the residuary legatees also fill the description of that class. It follows that the two together constitute the heirs at law, who in a certain contingency, to-wit, the existence of no heirs of John Tevis’ body, took the land or the money. Observe, in the scheme of the will the money stood for the land and went to the same class, to-wit, “my heirs at law.” This is so, notwithstanding that in one place the will uses the term “purchase.” Strictly speaking one cannot buy from himself and in that sense there might be room for the speculation that testator intended the $2400 to be paid for the purchase from the other heirs at law. But that is not the plan of the will. It does not build itself up around the one narrow concept of “purchase.” The will says nothing about purchase from the other heirs at that price. Contra, the price is for the land — all there is of it. It is equivalent to an appraised value for the whole title and testator evidences his intent by distinctly providing in the next breath that the money or the land should go to his heirs at law. In one view of it and allowing full scope to the idea of purchase, there would be an abatement to the amount of Nestor C. Tevis’s share of the appraised value and that would give the same result in specific performance as allowing him to share in the total price as the will does.

In dismissing the point, take a supposed case: Suppose, as put by respondent’s counsel, Nestor C. had not elected to take the land at the appraised price, what would become of it? Under the will would he not inherit his share in that land as an heir at law? Clearly so. In that view of it the conclusion is irresistible that, as the money is in the same boat with the land and subject to the selfsame directions in the will, it goes precisely as the land would have gone.

We are of opinion that plaintiff shares in the money. Accordingly we so hold and rule the point against appellants.

(3) The next and final question is: Did the chancellor make a correct distribution of the $2400? Appellants contend lie did not. The point involved is exceedingly nice and seeks more of the record. Anna McRosky as said, died in April, 1899, testate, without children surviving, making her husband Bledsoe, sole beneficiary under her will. Now, John Tevis died after his sister Anna McRosky, to-wit, on the 7th day of May, 1910. Assuming for the purposes of the point, that the money does not pass under the residuary clause (as we have just held), but passes under item two of the will (as also held), then the question springs: Did Anna McRosky take a vested interest which she could devise, or only a contingent interest, to-wit, the chance of having a share on the happening of the contingency that John Tevis died without heirs of his body? Testator held in his mind the contingency that John might have heirs of his body and the converse, to-wit, that he might not. For the purposes of jurisprudence the proposition may be allowed as sound on such a record as this, that while there is life left to a man there is hope — of heirs. Accordingly, the event could not be determined until John’s death. With the premises in mind, let us again look to the will, reading: “Upon the death of my son John Tevis my son Nestor C. Tevis, or his heirs, shall havé the right to purchase said undivided half of the aforesaid land for the sum of $2400, which sum of money, or in case said Nestor C. Tevis, or his heirs, shall elect not to purchase the land, then said undivided half shall vest in the heirs of the body of said John Tevis, and if there shall be no heirs of his body then living, the money, or the undivided interest in the land, shall pass to and vest in my heirs at law.” An analysis of this controlling provision of the will establishes several propositions, thus: The first proposition is that Nestor C. Tevis had the right to pay his money and take title regardless of whether John left living heirs of his body or not. The next proposition is that if John left living heirs of his body at the time appointed for Nestor to take, to-wit, at John’s death, then such heirs of his body took either the money or the land, as the case might be. The next proposition is that on the contingency there were no heirs of John’s body (and only on that contingency) the heirs at law took under the will. We can make nothing out it except that the heirs at law had the mere chance of having on the happening of the mentioned contingency. The persons who were to take on that contingency could not be determined until John’s death without heirs of his body. Such interest was therefore a contingent interest and not devisable prior to the death of John, and we so hold. . We have been so lately over this question in Eckle v. Ryland, supra, q. v., that extended or further exposition would be unprofitable.

It follows that Anna McRosky having died prior to the event determining the takers and leaving no children surviving her, she took nothing,' hence Bledsoe, her husband, took nothing under her will. Ergo, it was error to make him a distributee as the chancellor did.

Bledsoe McRosky conveyed on the 26th day of June, 1902, a certain interest in described portions of the estate of Simeon P. Tevis to Jeremiah Tevis, one of defendants. Questions are raised about the scope and effect of this conveyance. Those questions are not reached; this, because Bledsoe held under the will of his wife Anna and, since her will was inoperative, his deed to Jeremiah fails as a grant.

The premises all in mind, the conclusion must be that the decree is wrong in its distribution. Accordingly it is reversed and the cause is remanded because of error in the order of distribution. The chancellor is directed to divide the money deposited in court into four parts instead of five, giving one-fourth to Jeremiah, one-fourth to the granddaughter, Emma Hubbard, one-fourth to the heirs of Nestor C. Tevis (who are respondents here under the order of revivor) and one-fourth to the heirs and widow of Daniel Tevis, deceased, who are parties defendant. And otherwise make his decree conform to this opinion. It is so ordered.

All concur.