author: ROY, C.

text:
    THE STATE v. CHARLES BLACKBURN, Appellant.
    Division Two,
    February 16, 1918.
    1. EVIDENCE: Giving of Check: Pretense: Declaration of Deceased. Where defendant has testified that a check given by him to deceased was a mere pretense, made to conceal an alleged land deal, the State has the right to show what was the intention of the deceased in respect to the matter, by showing his statements to others and his conduct in reference thereto.

      2. -: Intent: Condition of Mind: Declarations of Deceased. The present condition of deceased’s state of mind as to intent and purpose may be shown by his language and conduct evidencing such purpose, in a murder trial, and where such intent is relevant such declarations are direct evidence, and not hearsay; but by instructions may properly be limited to a showing of such intent.
    3. -: External Matters: Declarations. But the declarations made by deceased prior to the homicide concerning external matters and not pertinent to show his state of mind, are hearsay and incompetent.
    4. -Admissions of Defendant: Statements at Coroner’s Inquest. Statements at the coroner’s inquest by defendant, who had been summoned by the State, was sworn as a witness for the State, was suspected of the murder at the time by the representative of the State, was not represented by counsel, was not informed of his right to refuse to answer questions and was subjected to a long adverse examination, are incompetent evidence, and their admission is in violation of his constitutional protection against self-incrimination.
    5. -: Value of Farm. Evidence as to the value of the farm which defendant claims to' have sold to deceased is competent in the murder trial, for the purpose of showing no such contract of sale was ever made, on the theory that a good business man would not probably contract to pay $11,500 for a farm worth not more than $7,500.
    6. -': Failure to Join in Search For Deceased. Evidence that defendant failed to join in the search for deceased whose dead body, covered with leaves, shot in the head, the skull broken by some other instrument, was found close to the road leading from defendant’s farm to the near-by town where his family resided, twelve days after he had disappeared, only a day or two' after he had sold his cattle to defendant and according to defendant’s story had bought his farm, is a competent circumstance to be shown in evidence; but its weight is for the jury.
    Appeal from Camden Circuit Court. — Hon. G. H. Skinker, Judge.
    .Reversed and remanded.

      Frank H. Farris, Phil Donnelly, I. W. Mayfield and W. P. Mayfield for appellant.
    (1) The admission of the testimony of witnesses Winfrey, Fry, Smith, Evans and others, as to the statements of deceased made on the afternoon of November 9, 1915, and on other days prior to the morning of November 10th, at which time the deceased is supposed to have met his death, and at places from one to five miles distant from the scene of the killing, were wholly incompetent and prejudicial to the defendant, for such statements were not a part of the res gestae, were not dying declarations, were not made in the presence of the accused, and all of them were hearsay. State v. Wilson, 250 Mo. 329; State v. Kelleher, 224 Mo. 167; State v. Church, 199 Mo. 634; State v. Brown, 181 Mo. 216; State v. Terry, 172 Mo. 219; State v. Hendricks, 172 Mo. 673; State v. Locket, 168 Mo. 487; State v. Hudspeth, 159 Mo. 204; State v. Duestrow, 137 Mo. 321; State v. Thompson, 132 Mo. 321; State v. Punshon, 124 Mo. 457; State v. Nocton, 121 Mo. 552; State v. Eaven, 115 Mo. 442; State' v. Eider, 95 Mo. 486; Carroll v. Frank, 28 Mo. App. 70; State v. Walker, 78 Mo. 388; State v. Umfried, 76 Mo. 407; State v. Thomas, 68 Mo. 612; State v. Evans, 65 Mo. 578; State v. Brown, 64 Mo. 371; 12 Cyc. 429; Eex v. Thompson, Anno. Cases 1913 A, 530. (2) The admission of testimony as to alleged statements made by the defendant at the Coroner’s inquest was error; he was summoned as a witness and sworn, put under the duress of an oath, was not represented by counsel, was suspected of the crime and not advised thereof, nor of his right to refuse to testify, was examined, cross-examined, browbeaten, threatened, ' treated with contempt and disrespect, surrounded by a mob, and statements made under such conditions are inadmissible against him. 21 Cyc. 994; State v. Thomas, 250 Mo. 211; State v. Thornton, 245 Mo. 440; State v. Marion, 235 Mo. 375; State v. Young, 119 Mo. 517; Ex parte Gauss, 233 Mo. 282. (3) The admission of testimony in rebuttal, or, for that matter, on direct examination, of the value of defendant’s farm, was inadmissible for any purpose; the price, if any, to be paid by deceased was a matter of contract between him and the defendant, and deceased’s idea of the value of the land and, in fact, the value of the laud to the deceased, may have been far in excess of the value fixed by others or of what they honestly believed its value to be; and their opinion as to its value was an attempt to make their value the opinion of the deceased, and to create the impression that because deceased was paying a greater sum of money for the land than some of his neighbors thought it worth was evidence defendant killed him. Inadequacy of consideration is no ground for refusing the enforcement of a civil contract, either in law or equity, and standing alone is not evidence of fraud or undue influence. 9 Cyc. 367, 463; Brownlow v. Wollard, 66 Mo. App. 641; Chenowith v. Express Co., 93 Mo. App. 193; Scriba v. Neely, 130 Mo. App. 261. (4) The admission of testimony that the defendant did not hunt or assist in the search for deceased was also error. The defendant is not called upon to speak, nor the law does not require him to act until a charge is made to him and against him. State v. Gordon, 199 Mo. 592. (5) All of the testimony on part of the State, standing-alone, is not sufficient to overcome the presumption of innocence and to establish defendant’s guilt beyond a reasonable doubt, and the testimony as a whole is as consistent with the theory of innocence and more so than it is with any theory of defendant’s guilt. It simply establishes, two facts, that deceased was killed, when and by whom is a matter of conjecture, and that defendant and deceased had been and were shortly before the killing negotiating a lawful business transaction, and the State assumed and the jury took as true, that these two facts were sufficient upon which to convict the defendant and take from him his liberty for life. The verdict is not supported, the judgment is not just, and the cause should be reversed. State v. Gordon, 199 Mo. 593.

      Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for the State; Bid C. Roach and L. G. Mayfield of counsel.
    (1) The appellant having- filed no brief in this case, we will follow the assignments of error, as set up in appellant’s motion for a new trial and in arrest of judgment. The court did not err in overruling appellant’s instruction in the nature of a demurrer to the evidence, offered at the close of the State’s case. State v. Swain, 239 Mo. 728; State v. Wertz, 191 Mo. 578; State v. Stewart, 116 Mo. App. ,330; State v. Warner, 74 Mo. 85; State v. Pollard, 174 Mo. 614. (2) The seventh assignment, that the verdict is not supported by any substantia] evidence, is refuted by the record. State v. Scott, 214 Mo. 261; State v. Howell, 100 Mo. 659; State v. Maurer, 255 Mo. 168. (3) The statements of deceased to witnesses Winfry, .Fry, Smith, Evans and others were properly admitted in evidence. State v. Thompson, 132 Mo. 322; State v. Thompson, 141 Mo. 416.; State v. Kennedy, 207 Mo. 539; State v. Kennade, 121 Mo. 413; Gomaz v. State, 170 S. W. (Tex.) 713; Pound v. Georgia, 43 Ga. 129; State v. Pearce, 87 Kan. 463; Martin v. State, 77 Ala. .10; Spivey v. State, 169 S. W. (Ark.) 951; Hunter v. State, 40 N. J. L. 436; Merritt v. State,* 45 S. W. (Tex.) 21; Keener v. State, 18 Ga. 224; State v. Vincent, 24 la. 573. (a) The general rule of res gestae. State v. Thompson, 132 Mo. 322; State v. Day, 100 Mo. 248. In the very nature of things the res gestae must vary as the fact of each case vary. State v. Thompson, 132 Mo. 322; Fowler v. Railway, 182 111. App. 132; Pound v. Georgia, 43 Ga. 130; Price v. State, 98 Pac. (Okla.) 452. (b) The subsidiary act need not transpire at the same instance with the main one, or always even on the same day; and, in reason, as well as in accordance with the current of the authorities, the time which divides the two is not the controlling consideration, though it may be taken into the account. Is it presumable that, distinctly and palpably, it influenced or was influenced by the main act, or proceeded from the same motive? If so, it is admissible, otherwise not. 2 Bishop’s New Crim. Proe., sec. 1085; 1 Greenleaf on Evidence (16 Ed.), see. 108; State v. Day, 100 Mo. 248; Davids v. People, 192 111. 189; Price v. State, 98 Pac. 447; State v. Kennade, 121 Mo. 413; 6 Ency. Ev. 614. (c) Any evidence that tends to show motive for killing the deceased is always relevant as rendering more probable the inference that he did kill him. Underhill, Crim. Ev. (2nd Ed.), sec. 323; State v. Miller, 156 Mo. 86; State v. Hyde, 234 Mo. 226; Smithson v. State, 137 S. W. (Tenn.) 490; 1 Greenleaf’s Ev. (Lewis Ed.),-see. 108. (4) Voluntary statements of the appellant, made when a witness at the coroner’s inquest, are properly admitted in evidence. State v. Thomas, 250 Mo. 212; State v. Thornton, 245 Mo. 440; State v. Marion, 235 Mo. 375; State v. Young, 119 Mo. 516; State v. Wisdom, 119 Mo. 551; State v. Mullens, 101 Mo. 520; People v. Kelly, 47 Cal. 125. The contention that the verdict is insufficient to support the judgment is groundless. State v. Lawler, 220 Mo. 33; State v. Whitton, 68 Mo. 91; State v. Patterson, 116 Mo. 511; State v. Kattlemann, 35 Mo. 107; State v. Schmidt, 137 Mo. 270; State v. Van Wye, 136 Mo. 243.
   ROY, C.

Defendant was charged by information with the murder in the first degree of Jasper Francis on November 10, 1915. He was convicted and his punishment fixed by the jury at life imprisonment. He has appealed.

The evidence for the State tends to show the following facts: Both the deceased and defendant were farmers and stockmen, with farms on the same road 'leading out of Stoutland, the defendant’s being about two and a half miles from town, and that- of Francis being about four miles further on. The deceased was a bachelor about forty-six years olcj, in comfortable circumstances financially, a director in the bank at Stoutland. The defendant was about forty-three years old. His farm contained two hundred and sixty acres and was worth about $7500. His wife owned a house and about five acres of land in town, where they lived. He spent much of his time on the farm, often passing the night there. His farm was encumbered for $4000 and some interest. The home in town was encumbered for $2000, and he owed the hank about $3000 in notes signed by himself and wife. The hank was pressing him for a payment of at least a portion of that money About October 30, 1915, defendant and deceased made a trade by which deceased sold and delivered to defendant cattle for $1400, and received in part payment thereof a span of mules at $200. It seems that defendant did not then pay the balance .of $1200 due of the cattle. Eolia Smith, assistant cashier of the bank, testified that in the latter part of the week preceding the death of Francis, the latter appeared in the bank, asked the amount of the defendant’s indebtedness to the bank, and was informed that it was about $3000; whereupon Francis said: “Charley has sold his farm and has got the paper and you boys want to get your money. I know he has sold his farm because I wrote up the note for him and check a few days ago. The note is for $3000, and the check for $1500. He has sold his farm to Joe Givins, and is receiving this note and check for $1500, and he is assuming $3000 against the land, making $7500. Your note will be due the first thing, and you boys want to get in and get your money.” On Sunday, November 7, the defendant ship-lied the cattle to the St. Louis market, ordering the returns to be sent to Lebanon instead of to the bank at Stoutland. On the next day Francis, not knowing that the cattle had been shipped, presented to the bank for payment a check drawn in Iris favor by the defendant for $1200. It was not paid for lack of funds to the defendant’s credit. It was left with the bank for collection. On the next day, Tuesday, November 9th, Francis 'met Evans, the. cashier of the bank, at a sale in the country, and was informed by the latter that the defendant had shipped the cattle. That evening, about sundown, Francis was in Stoutland. Evans was a witness for the defendant. On cross-examination he was asked what Francis said and did at that time with reference to the collection of that cheek. Defendant’s counsel objected on the ground that it called for hearsay evidence which was not a part of the res gestae, and not a dying declaration. The objection Avas overruled, and the witness stated that he and the deceased talked about why the returns for the cattle were not there, and that deceased stated that he would wire the commission company to find if the cattle had been sold and where the returns had been sent, and that deceased went to the station to see the agent saying, after seeing the agent, that he would go by Blackburn’s and tell him that something had to be done. Over similar objections by defendant, the State was allowed to prove by Reube Wintry that deceased spoke of the $1200 cheek and said that he thought, that Blackburn was trying to cheat him out of the cattle;- and was allowed to prove by Rolla Smith, assistant cashier of the bank, that deceased in the bank, on November 9th, said that if the returns did not come by morning he would garnish' everything that Blackburn had.' And was allowed to prove by John Fry, station agent at Stoutland, a conversation with Francis as follows:

“Q. What is it? A. He asked me if Charley Blackburn had shipped the oar of cattle; I told him he had; that he had shipped them on the Sunday previous. Then he asked me who he had shipped them to; I told him to Cla.y-Robinson & Co. He then wanted to wire to Clav-Robinson & Co. in regard to the returns. The hour was late and I recommended him, on account of the lateness of the hour, to wait or put it off until morning, when probably the returns would get in; that it would not be necessary to wire, and even if he did, it would be about the same time in the morning before the message would be delivered if it was sent at that late hour of the day. He said then he believed he would do that, and that he would go over and see Yirgil Evans at the bank.
“Q. Did he state anything else; is that all of his statement to you at that time? A. No sir; that was not all that was said.
“Q. Did he state why he was anxious to wire to Clay-Robinson & Co? A. He told me he had exchanged the cattle with Charley Blackburn for $1200 and hco mules; that he held Blackburn’s check for $1200, and the funds were not yet in the bank to pay the• check; that Blackburn had said to him he would arrange for the money and that it would be in there in a few days. He said as long as the cattle were running upon Blackburn’s land he did not care, but since he has shipped them, ‘I am going to do something about it.’ ”

And by Charles Winfry a conversation with Francis as follows:

“Q. “Yes sir. A. When we started from the sale he says, ‘Charley Blackburn has shipped those cattle and I did not know anything about it until I got down here to the sale.’ He said, ‘Virgil Evans told me.’ He said, ‘He was at my house this morning and he never told me a word about it. He said he was going to Joe Givins’s to see about the money that Joe had sent and sent to the wrong place; it is a funny thing to me that he don’t know where Btoutland is at.’ He says, ‘I am going on to town and see if that draft has come; if not, I am going back by Charley Blackburn’s and tell him what is what; I am not going to lose my money on those cattle.’ He says, ‘I will garnishee everything he has got before tomorrow night if I don’t get the money; all I have got to show is the two little mules and this check’ that he had up at the bank. He said Charley Blackburn was talking of buying his place, but he could not pay for what he already had.’’

We have put in italics portions of that evidence to which we will call special attention in the opinion.

The last seen of Francis alive was as he was on his way home just as he was leaving town that evening. About twelve days later his dead body was found about twenty yards from the road between the defendant’s house and town, covered with leaves. There was a shot in the head, and the skull was fractured by some' other weapon. There was clotted blood by the roadside. Mrs. Kissinger, who lived near the place, testified to hearing a gun shot about the place where the death occurred, on the morning of- November 10th, about five o’clock.

Claude Castile and his wife testified that they lived next door to the defendant in town, and that on the morning of November 10th, about six o’clock, they saw defendant in his yard in town, and that, in reply to a question, he told them that he had come in town that morning.

On November 11th, the defendant appeared at the bank, having in' his possession a note for $3000 dated October 30, 1915, due sixty days after date, a check for $1500 dated November 2, 1915, and a check for $1200, dated November 6, 1915. All those instruments were payable to himself and purported to be signed by Francis. He exchanged with the bank the $1200 check signed by Francis for the $1200 check signed by himself, which was then held by the bank for collection. He exchanged the note for $3000 signed by Francis for his own notes to the bank. The $1500 check signed by Francis was put to defendant’s credit, thereby overdrawing the account of Francis, and a few days after he checked out the most of it.

Soon after the discovery of the dead body, the coroner’s inquest was held. The examination of witnesses at that inquest was conducted by State’s counsel, who suspected defendant of the offense. The defendant was subpoenaed and sworn as a witness and submitted to a long and adverse examination. Everything he said was in answer to such questions. He was without counsel, and was not advised of his right to refuse, to answer questions, nor was he advised that his answers might be used against him. He was there treated as a defendant. At the trial the State was permitted to prove that the defendant, in answer to questions at such inquest, stated that lie gave the check for $1200 to Francis for cattle, and also said that the two $1200 checks were given as a bonus' in a land deal. Defendant objected to such evidence on the ground that such statements were not, under the facts shown, voluntary. The objection was overruled. The defendant, on the trial, testified that about October 30, 1915, he sold his farm to Francis for $11,500 to be paid thus:

Balance on cattle ......................$ 1200.00

Check................................ 1500.00

Note................................. 3000.00

Francis to assume on land .............. 3000.00

Francis to give mortgage for ........... 2000.00

$10,700.00

and that Francis was to pay balance in money. He stated that a few days after such deal Francis wrote, signed and delivered to him the note for $3000 and the check for $1500; that Francis made a memorandum of the contract, but that it was not signed by either of them; that they were to close the deal and make the deed later on. .During his direct examination, he was asked why the two $1200 checks were given. He answered that Francis desired to keep secret for a few days the fact that he had bought defendant’s farm, for fear that if such fact should become known it might prevent the sale which Francis desired to make of his own farm. As to his conversation with Francis he testified:

“He said, ‘Would you care to give me a check for the cattle!’ that is, for the difference between the mules and the price of the cattle; he told me to give him that $1200 check and he would take it up to the bank and turn it over to the cashier, Virgil Evans, and he would tell Virgil about mine and his deal; he said he would put the check in there and if any one came in there and said anything to Virgil about Jap buying my farm and about the cattle and mules being changed he said Virgil could show them' this check, which would show that he had sold the cattle to ine. So when he was talking about my giving him a check I told him it would be all right I guessed; that I didn’t know there would be anything wrong about it. He opened that book up this way (indicating) and began to write out a check for $1200 for me to sign. Just about the time it was completed I says, £Jap, how would it do for me to write out a check for you and you sign it and let me have your check and you hold mine?’ So we agreed to that; we agreed to do it in that way. That is the way the $1200 check business came up.” He stated that such transaction occurred November 6th.

Simpson Francis, a brother of the deceased, testified that on Sunday after the deceased disappeared, he called up the defendant asking him-if he had seen the deceased, and that defendant answered: “He was going to meet me in Lebanon, but he didn’t go. I guess you don’t know what we were going for. I will tell you, I was selling him my farm and I was going up there to pay the mortgage off to Wallace. We are going to Linn Creek Tuesday to finish up the deal.”

The defendant objected to evidence on the part of the State as to the value of defendant’s farm, on the ground that it was purely a matter of contract between the parties. The objection was overruled. There was no attempt on the part of defendant to show that the farm was worth more than $7500. There was testimony both ways as to the genuineness of the signatures of Francis to said note and checks. Those instruments and about fourteen genuine checks of Francis are before us for comparison. We venture no opinion. The “paid” stamp of the bank is placed twice over the signature to the note, very much obscuring it. The cashier of the bank testified that it was the custom to thus stamp paid notes. In this case the note is also stamped by the bank “paid” on the back. The genuine checks before us are only stamped on the back.

The State was allowed to prove that defendant took no part in the search for the deceased after his disappearance over the objection of defendant that such evidence was immaterial.

Soon after the coroner’s inquest the brother of the deceased began suit against the defendant to annul the alleged deal between the defendant and the deceased, and to recover the money. Thereupon there was a settlement between the estate and the defendant by which' the amount of the checks for $1200 and $1500 was restored to the estate and the note for $3000 was surrendered to the estate. Defendant kept the mules. Soon after such settlement this prosecution was begun.

I. Appellant claims that the evidence of the witnesses Evans, the two Winfrys, Fry and Smith as to statements made by Francis in regard to the defendant and the collection of the $1200 check is hearsay, and, for that reason, incompetent. We think that objection well founded as to those portions of that evidence which we have put in italics in the statement. But as to the remainder of that evidence the claim of the defendant is rather a hold one, under the circumstances of this case. Ordinarily a check shows the intention of both -parties thereto that it shall be paid. The defendant claims that in this case such ordinary intent did not exist, that the cheek was, in the contemplation of both, a mere pretense — a harmless one it is true — but only a pretense, made to conceal the alleged land trade. Defendant’s own testimony is to that effect. When the State is met by such a claim backed up by evidence, it certainly has the right to show what the intention of Francis was in that respect, by showing his language and conduct in reference thereto. In Waterman v. Whitney, 11 N. Y. 157, Selden, J., said:

“The difference is certainly very obvious between receiving the declarations of a testator, to prove a distinct external fact, such as duress or fraud for instance, and as evidence merely of the mental condition of the testator. In the former case, it is mere hearsay, and liable to all the objections to which the mere declarations of third persons are subject; while in the latter it is the most direct and appropriate species of evidence.”

We have not overlooked the fact that in that case the subject of inquiry was the testator’s mental condition as to sanity; but the authorities practically agree that the condition of the one’s mind as to intent or purpose may be shown in the same way, by the language and conduct of such person evidencing such purpose or intent. As to the external facts recited in the language of the declarant that language is hearsay; but as to the declarant’s purpose or intent it is direct 'evidence. 3 Wigmore on Evidence, sec. 1725, says:

“But, as a condition of mind, the plan or design may also, it is clear, be evidenced under the present exception by the person’s own statements as to its existence. The only limitations as to the use of such statements (assuming the fact of the design to be relevant) are those suggested by' the general principle of this exception ante, sec. 1714); namely, the statements must be of a present existing state of mind, and must appear to have been made in a natural manner and not under circumstances of suspicion.”

That the intent of a person (where such intent is relevant) may be shown by his acts and words, and that such acts and words are direct, and not hearsay evidence as to such intent, is clearly laid down in State v. Ilgenfritz and Davis, 263 Mo. 615. We think that under the ruling in thatv case, the acts and statements of Francis, except as above ruled, are direct and competent evidence in the case for such purpose. We suggest that on a retrial of the cause it would be proper to instruct the jury that the force of such evidence should be limited to the showing of such intent. [Sotebier v. Transit Co., 203 Mo. 702; Stanard Milling Co. v. Transit Co., 122 Mo. 258.]

II. The admission of the evidence as to alleged statements made by defendant at the coroner’s inquest was clearly an error. He was summoned % the State as a witness at such inquest, and was sworn as such witness. He was suspected of the crime at that time by the representative of the State. He was not represented by counsel, nor was he informed of his right to refuse to answer questions. He was subjected to a long, adverse examination. The constitutional protection of the defendant against compulsory self-crimination was thereby denied. It was so held in State v. Young, 119 Mo. l. c. 520; State v. Naughton, 221 Mo. 398; State v. Lehman, 175 Mo. 619.

III. Defendant contends that the admission of evidence as to the value of his farm was error. It is contended that the question of such value is 011(3 solely of contract between the parties thereto and that it is of no concern to any one else. That may be conceded, perhaps, where the existence of the contract is not in controversy. The making of such contract is not conceded by the State, and such evidence is competent for the purpose of showing that no such contract was ever made, on the theory that a good business man would not probably contract to pay $11,500 for a farm not worth over $7500.

IY. Defendant likewise contends that it was error to permit the State to show that the defendant took no part in the search for the deceased. We are cited to State v. Gordon, 199 Mo. l. c. 592, where it was said:

“Again, our attention is directed to the circumstance that the defendant upon seeing his wife lying motionless and dead did not call to her, nor did he touch her or the gun. We dare say that if conditions similar to those confronting the defendant upon the morning his wife was killed should surround a hundred men, no two of them would act alike. There is no accounting for the conduct or actions of a man under the circumstances surrounding the defendant at the time he went into the kitchen and found his wife dead, and his conduct and actions at that time, under conditions confronting him,, in our opinion, are of little significance. No man can tell what would be the actions of a person similarly situated; therefore, we are unwilling to attach to the conduct and actions of the defendant at that time the importance that learned counsel for respondent so earnestly insist upon.”

The context shows that the court was there discussing the sufficiency of the evidence to sustain a conviction. The admissibility of such evidence was not discussed. It was there said that is was “of little significance.” We hold that the failure of the defendant in this case to join in the search for the deceased was a competent circumstance to be shown in evidence. Its weight was for the jury.

Y. Defendant contends that there is no sufficient evidence to support a conviction. We are sorry to say that we are of a contrary opinion.

The judgment is reversed and the cause is remanded for a new trial.

White, C., concurs.

PER CURIAM: — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    ALPHONSO V. LEMON et al., Appellants, v. NANNIE E. LEMON.
    Division Two,
    February 16, 1918.
    1. CONVEYANCE: Reservation of Dower and Homestead: Widow’s Interest. A warranty deed in tbe usual form, made by a husband and wife, which recites that the wife “does not intend in any wise to relinquish her right of homestead or dower” and that “the estate in remainder is the estate intended to be conveyed, and said first parties are to have the use and profit of said ;place as long as both or either of them shall live,” neither conveyed nor reserved to the wife any estate or interest in either the property or its enjoyment which she did not already have. Without the deed she had both inchoate dower and homestead, and those are the only interests it attempts to reserve to her, and as the husband made no attempt thereafter to grant any interest in the use and profits reserved to him, her rights in the property after his death are exactly the same as if the deed had never been made; and as the property was abandoned as a homestead during the husband’s life, the widow has only dower therein.

      2. -: Wife as Grantor: Interest in Reservation. A wife who joins her husband as a grantor in a deed, in order to take anything by a reservation therein, either (1) must have an existent estate of her own therein and reserve it, or (2) her husband, who actually has an estate therein and excepts an interest thereof from the grant, must convey the excepted interest to her.
    3. -: Wife’s Interest in Reservation: No Deed From Owner. Where the husband, who owned the land, in his warranty deed, in which his wife joined, reserved for himself the rents and uses of the land and excepted a life estate therefrom, and attempted to reserve and except a like interest and estate for her, and did not thereafter convey said reserved interest and excepted estate to her, she never owned it and cannot because of such reservation or exception claim it after his death.
    4. -: Of Inchoate Dower. The joining of a wife with her husband in a deed conveying his lands does not operate by way of a grant of her inchoate dower, but only by way of estoppel. The deed of one entitled to inchoate dower or contingent homestead operates only as a release of the contingent future estate, and not by way of grant.
    5. -: By Written Instruments. Under the statute (Sec. 2787, R. S. 1909) lands and estates therein can be conveyed only by written instruments.
    O. -: Reservation: Exception: Meaning. A reservation in a deed must be made for the benefit of that grantor who, having an interest in the thing granted, may logically reserve from the operation of the grant a part of the estate or thing granted, or some right growing out of or appurtenant to it; and if it pertains to a lifetime use, it dies with the grantor. If the deed carves an exception out of the estate, and that exception is not passed to the grantee, then such exception remains a part of the grantor’s estate, and unless disposed of by a later grant passes on his death to his heirs or devisees.
    7. -: Exception: Passes to Heirs or Devisees. Where the grantor, who was owner of the fee, by a deed in which his wife joined, in the habendum clause, “reserved a life estate in the property,” and then said that “the estate in remainder is the estate intended to be conveyed and the first parties are to have the use and profits of said land as long as both or either of them shall live,” he thereby carved out an exception from the grant of a life estate in the use and profits both for himself and his wife, which did not pass to the grantee upon the grantor’s death, for the use is expressly reserved for the life of another (the wife), but passed to the grantor’s heirs if he died intestate or to his devisees if he died testate, and, though it was not by that instrument granted to his widow, she has dower therein ’ during her life.

      Appeal from Pike Circuit Court. — How. Edgar B. Wool-folk, Judge.
    Reversed and remanded.

      J. O. Barrow and Hostetter & Haley for appellants.
    (1) The conveyance in the case at bar wherein the wife figured as a grantor, joining in the conveyance with her husband, could not, considering the nature and office of a deed, be construed as conveying to her any interest in the land. Logan’s Admr. v. Caldwell, 23 Mo. 372-Land and estates or interest therein can only'be conveyed by a written instrument. Sec. 2787, R. S. 1909; Tapley v. Ogle, 162 Mo. 197. Nannie A. Lemon’s only right or interest in the land at the time of joining in the deed was that of inchoate dower. Inchoate dower is not an estate. It is simply a right. Brannock v. Magoon, 216 Mo. 729; McCrillis v. Thomas, 110 Mo. App. 703. She released only her inchoate dower interest and could not reserve a greater interest than that conveyed. 2 Delvin on Deeds (2 Ed.), p. 1835, sec. 980. Hence.under any theory, she could not reserve a life estate, by reservation or exception, from an inchoate right of dower. She could not as a grantor convey any estate to herself and particularly she could not reserve anything in excess of that which she possessed at the time of the execution of the deed; all she then possessed was an inchoate right of dower. (2) The intent with which a deed was executed, however manifest it may appear, cannot prevail against a positive rule of law. Hogan’s Heirs v. Welcker, 14 Mo. 177. Inchoate dower is not property. McCrillis v. Thomas, 110 Mo. App. 699; Brannock v. Magoon, 216 Mo. 727; DeBar v. Priest, 6 Mo. App. 531; Sec. 2789, R. S. 1909. (3) Abandonment of homestead by husband and wife forfeits homestead right. Duffey v. Willis, 99 Mo. 132. (4) The deed in the granting clause conveyed the property in fee to the grantee arid a life estate was reserved by the grantor out of the fee conveyed. The clause at the end of the deed undertaking to create a life estate in Nannie A. Lemon after the life estate of grantor, Joseph R. Lemon, shall have terminated, is utterly inconsistent with the granting clause and with the other preceding-clauses in the deed and will be held null and void. 1 Delvin on Real Estate (3 Ed.), p. 310; Hughes v. Hammond, 136 Ky. 694, 26 L. R. A. (N. S.) 808; Carl-Lee v. Elsberry, 82 Ark. 209, 12 L. R. A. (N. S.) 959, notes. The Missouri rule of “intention as gathered from the four corners of the instrument” as announced in Utter v. Sidman, 170 Mo. 284, will not be permitted to validate such clause undertaking- to give Nannie A. Lemon a life estate upon Joseph R. Lemon’s reserved life estate because of the utter repugnancy between said clause and the granting clause of the deed. The judgment is erroneous in any event because the court did not determine the interest of plaintiff. He certainly had some interest under the deed regardless of the interpretation placed upon it on account of certain clauses therein. In effect the trial court held he had no interest. This being a suit to determine title it was the duty of the trial court to ascertain and determine by its judgment the interest of all the parties to the suit. Sec. 2535, R. S. 1909; Richards v. Mining Co., 221 Mo. 149; Powell v. Crow, 204 Mo. 481; Seidel v. Cornwell, 166 Mo. 51; Wilson v. Lubke, 176 Mo. 210.

      Gatson & Hollingsworth for respondent.
    (1) The intention is gathered from the four corners of the instrument, giving effect and harmonizing all parts of the deed or instrument if possible. No part or clause of the deed by reason of location is exalted; and no part of the deed, if it will aid and assist in arriving at the true intention of the parties will be ignored. Utter v. Sidman, 170 Mo. 294. “While the words of limitation usually appear in the habendum of the deed, it is not necessary that they should, provided they appear in some other part.” Utter v. Sidman, 170 Mo. 299; Charles v. Patch, 87 Mo. 463. Specific words in a deed will prevail over general words, no matter in what part of the deed or what clause of the deed they may be found. McCulloch v. Holmes, 111 Mo. 446; Bone v. Tyrrell, 113 Mo. 175; Hunter v. Patterson, 142 Mo. 310; Rozier v. Graham, 146 Mo. 352; Miller v. Dunn, 184 Mo. 318. (2) If Nannie A. Lemon had been living-on said 70 acres of land with her husband at the time of his death she could have held said land as a homestead so long- as she lived thereon. In order for the grantee to take any interest in the land, it being under 160 acres of land and of less value than $1500, she was a necessary party to the deed. Sec. 6704, R. S. 1909. If she had not joined in the deed with her husband, the grantee would have taken nothing under the deed. (3) Alphonzo Y. Lemon took the estate in remainder and Joseph R. Lemon and Nannie A. Lemon took a life estate by the entirety or they took or rather reserved to themselves such a life estate so long as both or either of them should live. (4) The grantee in the deed, must be presumed to have known the provision concerning the transferring of a homestead. He further knew of the intention of his father to reserve to himself and to his wife the use and benefit of said land so long as both or either of them should live. Knowing that intention as clearly expressed and declared to be the intention of the parties, such a reservation or exception (whichever it be) to the use and benefit of said land after his death, to his wife must be enforced in equity and good conscience, although, according- to the strict rules of law, appellants contend it could not be done. (5) If it appears from the whole instrument that it is intended by the habendum clause .to restrict or enlarge the estate conveyed by the words of grant, the habendum clause will prevail. 1 Devlin on Deeds (3 Ed.), p. 310; Utter v. Sid-man, 170 Mo. 284; Miller v. Dunn, 184 Mo. 318; 12 L. R. A. (N. S.) 956; 13 Oye. 601; Haines v. Weirick, 58 N. E. 712; Martin v. Cook, 60 N. W. (Mich.) 679.
   FARIS, J.

This is an action to determine title under the provisions of section 2535, Revised Statutes 1909, to certain real estate situate in Pike County, and for partition thereof, in the event that it should he found that plaintiffs have any interest therein. Upon a trial below the judgment was for defendant, and plaintiffs appeal.

Plaintiff O. O. Turner has no interest whatever in. the lands in controversy, save and except that he is the lessee thereof for a term beginning on the 1st day of-March, 1912, and ending on the 1st day of March, 1916, at an annual rental charge of $300 per year. He became a party plaintiff for the purpose of protecting his interest in the matter of the payment of the above rental charge. Since, however, his interest is to be tested by the interest of plaintiff Alphonso Y. Lemon, and of defendant Nannie A. Lemon, we need not consider. him further in what we shall say touching the questions involved upon this áppeal.

Since this case has been pending here upon appeal plaintiff Alphonso V. Lemon has departed this life. His heirs by proper motions have, by our order herein, been made parties plaintiff and appellant in his stead, and the case has been revived in their names. But no occasion arises for a change in the title nf the cause, and we shall therefore for the purpose of this discussion, and for the purpose of brevity, and for the reasons above stated, speak of Alphonso V. Lemon, as plaintiff, and of Nannie A. Lemon, as defendant.

On the 20th day of September, 1905, one Joseph R. Lemon, who was the father of plaintiff and is the common source of title to the land in controversy herein, together with his wife, Nannie A. Lemon, who, as stated, is the defendant herein, made, executed and delivered to the plaintiff the below deed of conveyance to the lands in dispute herein, to-wit:

WARRANTY DEED.
This Indenture, made on the 20th day of September, A. D. One Thousand Nine Hundred and Five, by and between Joseph R. Lemon of Pike County, and State of Missouri, and Nannie A. Lemon his wife of Pike Co. Mo. parties of the first part, and Alphonso V. Lemon of the County of Audrain in the State of Missouri party of the second part,
Witnesseth, That the said parties of the first part, in consideration of the sum of Two Hundred' and Fifty Dollars and love and affection to them paid by the said party of the second part, the receipt of which is hereby acknowledged, do by these presents Grant, Bargain and Sell, Convey and Confirm unto the said party of the second part, his heirs and assigns, the following described lots, tracts or parcels of land, lying, being and situate in the County of Pike and State of Missouri, to-wit:
All the North Bast one fourth of the North West Quarter; also the South three fourths of the North West one fourth of the North Bast quarter all in Section Thirty Five (35) Township Fifty Four (54) Range Five (5) West, containing in all seventy acres more or less.
It is the mutual understanding that Nannie A. Lemon as wife of said, Joseph B. Lemon does not intend in any way to relinquish her right in place as homestead or as dower if said Nannie A. Lemon should survive her husband Joseph B. Lemon.
To Have and to Hold the premises aforesaid, with all and singular the rights, privileges, appurtenances and immunities thereto belonging or in anywise appertaining, unto the said party of the second part, and unto his heirs and assigns, forever; the said Joseph R. Lemon hereby covenanting that he is lawfully seized of an indefeasible estate in fee in the premises herein conveyed; that he has good right to convey the same; that the said premises are free and clear of any incumbrances done or suffered by him or those under whom he claims, and that he will warrant and defend the title, to the said premises unto the said party of the second part, and unto his heirs and assigns forever, against the lawful claims and demands of all persons whomsoever, reserving however a life estate in the above described property. In other words the estate in remainder is the estate intended to be conveyed to second party and first parties Joseph B. Lemon and Nannie A. Lemon are to have the use and profit of said place as long as both or either of them shall live.
In witness whereof, the said party of the first part has hereunto set his hand and seal the day and year .first above written.
Joseph R. Lemon
Nannie A. Lemon.

At the time of the execution and delivery of the above deed of conveyance Joseph R. Lemon, and the defendant, his wife, were residing upon'the land described in said conveyance as a homestead. They continued to reside thereon, occupying this land as a homestead until on or about the 25th day of -February, 1912, when they abandoned the same, purchased a house in the town of Vandalia, moved thereto, and resided thereon until the death of Joseph R. Lemon, in March, 1914. But one witness testifies as to the intention of Joseph R. Lemon and defendant, his wife, in acquiring the house in Vandalia, and in moving from the land in dispute to the Vandalia house. This witness says unequivocally that this removal was made with the intention on the part of said grantors in the above deed to make the Vandalia house their home for the balance of their lives. Upon removing from the land in question here to the new home in Vandalia, Joseph R. Lemon leased the disputed premises to plaintiff O. O. Turner, as heretofore stated.

The answer of defendant sets up a claim, of a life estate in the lands in dispute, averring that she acquired such estate by virtue of the reservations made in the conveyance, which we set out above. The contentions made by plaintiff are that the above conveyance vested in him, as the grantee therein, the fee simple estate in the land in controversy, subject only to the life estate which was reserved for himself therein, by Joseph R. Lemon.

The court found in favor of defendant, adjudging that plaintiffs take nothing by their said suit, and for costs. It is plain that upon the case stated, the only matters presented turn wholly upon the construction to be given the deed, which we set out above; and to this construction what we say will be directed.

I. As forecast, there is but one question presented upon the record in this case. That question is as to the nature of the estate conveyed to the plaintiff by the deed of conveyance, which we set out above. As a corollary to the above question, however, yet another arises, to-wit: what estate, if any, jjid ^-g ¿eec[ ConYey to, or leave residual in the defendant, who, as the wife of the grantor joined therein? Answering this last question first, we are constrained to hold that it conveyed no estate whatever to her, and only left residual in her, exactly what she had before the deed was made, viz., inchoate dower, and a contingent estate of homestead. This latter contingent life-estate having failed and fallen ont of the case by the abandonment as a homestead of the land in dispute in the lifetime of the grantor, we need not • trouble ourselves about it further. [Smith v. Bunn, 75 Mo. 559; Kaes v. Gross, 92 Mo. 647; Duffey v. Willis, 99 Mo. 132; New Madrid Banking Co. v. Brown, 165 Mo. 32.]

II. In form, and save for the language which, fol emphasis, we have italicised, the deed here is the usual and ordinary deed of conveyance with covenants of general warranty. Obviously, it was written upon a blank printed form of such deed, in which, at the 0nly places where blank spaces, meet for this purpose, appeared, the italicised and qualifying language was added or appended. The deed as written reflects the condition of the grantors as of the date it was executed. For this deed was executed some seven years before the grantors abandoned the land as a homestead and moved therefrom to a new homestead in Vandalia, and at a time, we may infer, when the intention of continuing it as a homestead was in the minds of the parties. In the italicised clause which first appears therein, the defendant expressly disavows any intent “to relinquish her right in place ás homestead or as dower.” Explaining this, of course with the existing situation of the parties largely in mind, the second clause says: “In other words, the estate in remainder is the estate intended to be conveyed . . . and Joseph R. Lemon and Nannie A. Lemon are to have the use aqd profit of said place so long as both or either of them shall live.”

But so much is largely arguendo, for we are not left to this reason for the conclusion which we have reached. For, while we can see no reason for the defendant’s joining in the execution of this instrument, except for the purpose of conveying her inchoate" dower and homestead, she expressly disavows these purposes, and we concede that neither her inchoate dower nor her homestead passed, or was lost, or in any way affected, by ber execution of this deed. If she had these inchoate and contingent estates before she executed the deed, she had them as well after she executed it. That she did have inchoate dower (now by the death of her husband, become consummate) we do not doubt, and plaintiffs practically concede this in their brief. She was in the last analysis a useless party to this deed, having, as we have seen, expressly disavowed in the deed itself, the only'reasons for which she was, or could have been a necessary party grantor. If she had not executed this deed at all, the situation would have been in no wise different. But while she conveyed nothing by this deed (having disavowed her intent to convey any part of either of the two inchoate or contingent interests which she actually possessed), she took nothing by it. For by the terms of the deed, she was not a grantee, but a grant- or, and moreover, the words of. the deed are words of reservation, or of exception, and not words of grant. In order for defendant to take anything by this deed, she must either (a) have had the estate herself beforehand and reserved it or had it reserved for her, in this grant, or (b) her husband (who actually had it) must have conveyed it to her by this deed. Since the first condition did not exist and the second never happened, defendant took nothing and there was reserved for her nothing beyond what she had already. [Shelby v. Railroad, 143 Ill. 385; Illinois Central Railroad v. Ind. & Ill. C. Ry., 85 Ill. 211.] Her husband, who owned the land, reserved for himself therein the rents and profits and excepted therefrom a life estate, and attempted to reserve and except for defendant a similar estate and interest for her life. But unfortunately he reserved it in himself, and did not convey nor has he ever conveyed it to defendant. This estate pur autre vie remained in Joseph R. Lemon till his death, and defendant never owned it, nor did she take it by grant; hence she has never had it and cannot now claim it. All this is so because under our statutes lands and estates therein can be conveyed only by written instruments. [Sec. 2787, R. S. 1909; Tapley v. Ogle, 162 Mo. l. c. 197.] And before admeasurement of dower, at least before it becomes consummate, and certainly while such dower is but inchoate, as here, defendant had no estate or interest in this land and her deed, even if she had tried to grant it, instead of expressly reserving it, would have operated against her not as a grant, but' by way of estoppel. [Brannock v. Magoon, 216 Mo. l. c. 729.] The deed of one entitled to inchoate dower or contingent homestead operates only as the release of a contingent future estate and not by way of grant. [McCrillis v. Thomas, 110 Mo. App. 703; Brannock v. Magoon, supra.]

But it is most ably and seriously urged that under the holding in the cases of Utter v. Sidman, 170 Mo. 284; Garrett v. Wiltsie, 252 Mo. l. c. 707; Tygard v. Hartwell, 204 Mo. 200; Hunter v. Patterson, 142 Mo. l. c. 318, and others which announce the rule that in construing a deed of conveyance the intention of the grantor is to be the sole guide of the courts and that such intention is to be gathered from the four corners of the instrument, the judgment below was right and the only judgment which could possibly have been rendered. We find no fault with the rule announced in the above cases. They are cases (designating them generally) wherein the grantor having a certain estate undertook to convey .it, but by reason of ambiguities and conflicts between the divers formal parts of the instrument executed, his intention as to the nature of the estate designed to pass, became doubtful. Here, defendant had no life estate (except that of contingent homestead, which was forfeited by abandonment), and this deed conveyed none to her, therefore she has none now. Therefore, we are unable to see wherein the above cases affect the view we take. Indeed, we follow these cases and construe the deed here by the four corners, as enjoined, in reaching this view; otherwise, we must needs have held that her dower passed.

. This precise question upon principle, while confusing the distinction between an exception and a reservation in a conveyance, has been passed on by this court, and it was held that the wife took no interest or estate by the attempted reservation. [Logan’s Admr. v. Caldwell, 23 Mo. 372.] In the above case the facts and the ruling thereon are shown fully by the below excerpt, to-wit:

“John Logan conveyed a tract of land to the defendant, Caldwell, in fee, with the following clause, by way of exception or reservation, viz.: ‘With this exception, that said John Jjogan reserves the use of said tract of land and farm thereon, or the rents and profits arising from it, during his life and the life of his wife.’ John Logan’s wife survived him, and the question is, whether this clause gives the rents and profits accruing after his death to his wife.
“We see nothing in the language used which can by any implication create any estate or interest in the wife. If the reservation had been during the life of the wife alone, would she have taken any interest! Can the circumstance that it is made during the joint lives of herself and husband vary the effect of it! If a landlord reserves a rent in a lease to B during the life of C, does that, by any implication, entitle C to the rent! We see no difference between that case and the present one. There is nothing in the relationship between husband and wife which can make a difference.” [Logan’s Admr. v. Caldwell, 23 Mo. l. c. 373.]

The identical result we think is reached, so far as the defendant is concerned, regardless of whether we adhere to the extremely technical distinction between a “reservation” and an “exception’,’ in a deed. It will be seen that the deed before us is ambiguous by reason of the words used. In one clause a life estate is “reserved,” thereby creating an exception. In another clause the rents and profits are in effect excepted, thereby creating a reservation. [Snoddy v. Bolen, 122 Mo. 479; Dozier v. Toalson, 180 Mo. 546.] If a reservation was created by the language used, such reservation could not enure to defendant, but must be held to have died with the grantor. [Hornbeck v. Westbrook, 9 Johns. 73; Murphy v. Lee, 144 Mass. 371; Bridger v. Pierson, 45 N. Y. 601; Stockwell v. Couillard, 129 Mass. 231; Strasson v. Montgomery, 32 Wis. 52; Hill v. Lord, 48 Me. 83; Redding v. Vogt, 140 N. C. 571; Bartlett v. Barrows, 22 R. I. 647; Haverhill Bank v. Griffin, 184 Mass. 419; Stone v. Stone, 141 Iowa, 438.] When the hooks and the cases say that a reservation in a grant, in order to he valid must he for the benefit of the grantor, or of some one of the grantors, and that a reservation cannot be made for the benefit of a stranger to the deed, it is meant and the language used connotes, that the reservation must be for the benefit of that grantor who, having an interest in the thing granted, may logically reserve from the operation of the grant a part of the estate or thing granted, or some right growing out of or appurtenant thereto. [Cf. Stone v. Stone, 141 Iowa, 438.]

If an exception was carved out of the estate, and the estate excepted did not pass to plaintiff, then such exception was a part of Joseph B. Lemon’s estate, and it would pass to his heirs. [Logan’s Admr. v. Caldwell, supra; Martin v. Cook, 102 Mich. 267; Burchard v. Walther, 58 Neb. 539; Wood v. Boyd, 145 Mass. 176; Bridger v. Pierson, supra; Smith v. Furbish, 68 N. H. 123; Sears v. Ackerman, 138 Cal. 583.] So, in neither view is defendant in any wise aided. Here the grantor first excepts a life estate for himself; then he is careful to 'explain that only “the estate in remainder is intended to he conveyed to second party ” The grantor then proceeds to reserve the • rents and profits, both for his • own life and for the life of the defendant. Conceding that it is a practical impossibility to ascertain and say with any degree of certainty, whether the estate or interest which did not pass to plaintiff was technically speaking an exception or a reservation, we are yet by the authorities permitted to regard it as an exception. [Martin v. Cook, supra; Burchard v. Walther, supra; Richardson v. Palmer, 38 N. H. 212; West Point Iron Co. v. Reymert, 45 N. Y. 703; Bridger v. Pierson, 45 N. Y. 601; Jones v. DeLassus, 84 Mo. 541; Logan’s Admr. v. Caldwell, 23 Mo. 372.] Indeed, the weight of the language used in the deed, of itself inclines to induce this view, as the language we quote above and as a bare reference to tbe deed itself makes apparent. Begarding tbe estate reserved as an exception, it passed neither to plaintiff nor to defendant by the deed in dispute, but remained, as we have stated, a part of Joseph E. Lemon’s estate, and passed at his death either to his heirs or devisees, according as he may have died testate or intestate [Logan’s Admr. v. Caldwell, supra; Martin v. Cook, 102 Mich. 267; Burchard v. Walther, 58 Neb. 539.]

III. Coming to a consideration of the estate taken by plaintiff under this deed, how stands the case? Since, by reason of the effect of the clause of reservation, and a lack of a conveyance to her, this estate or interest pur autre vie could not pass to the defendant, it is equally as clear from what is said above that it did not pass to the plaintiff. To hold that plaintiff took an estate or an interest so clearly excepted by the one grantor, who prior to executing the grant held the fee in the land, would be to construe the plain language used in a sense wholly contrary to its obvious intent. It may be said that likewise by the plain language used there is shown a manifest intent to reserve an estate in the defendant for her life. Undoubtedly, this is true, but the difficulty with this position is that under the law of this State lands and interests in them can not be granted merely by intent, absent a grant in writing. [Tapley v. Ogle, supra; Sec. 2787, R. S. 1909.]

It follows, we think that when the grantor, Joseph E. Lemon, died there was left residual in his estate, an estate pur autre vie, that is to say, an estate for the life of the defendant. This interest passed to his heirs, if he died intestate; or to his specific or residuary devisees if he died testate. The plaintiff Alphonso Y. Lemon could not as grantee in the deed under discussion sue for either rents,.profits or possession during the life of the defendant, pending whose life the grantor Joseph E. Lemon had reserved an estate pur autre vie. There is no proof here as to whether Joseph B. Lemon died testate or intestate, so we cannot know whether plaintiff Alphonso Y. Lemon took as heir any part of this residual interest or not. We think it clear that pending’ the life of the defendant and the vesting of the remainder in fee in plaintiff (or his heirs, since he is dead) neither the plaintiff nor the defendant is entitled by virtue of this grant to these rents and profits, nor to the possession of this land. But that the right to the same is in the heirs or the devisees of Joseph R. Lemon, subject to the dower of defendant in the land in dispute.

This it has been seen, is the identical view taken by the entire- court in the ease of Logan’s Admr. v. Caldwell, supra, with the unimportant distinction, that two of the three judges took the view that the residual interest was so far personalty as that it passed to the personal representative who could sue for it; while Leonard, J., was of the opinion that it was an interest in real estate, and as such passed to the heirs, and that the latter alone were entitled to sue for it. It is not absolutely necessary herein to rule which view is the correct one. A solution of this simple question seemingly involves an elementary principle, but nevertheless, in passing and solely by way of dictum, we may observe that the view held by Leonard, J., seems to be the better one.

It results that (a) tire rents, profits and possession of the land sued for enure to the heirs, or to the devisees of Joseph R. Lemon, deceased, during the life of the defendant; (b) that such right is, however, subject to the defendant’s dower rights in said land, and (c) that the plaintiff Alphonso Y. Lemon, or (since he is dead) his heirs, are entitled to the remainder in fee in this land after the death of the defendant. To the extent that the judgment nisi differed from the views above expressed, it was erroneous, and the case should be reversed and remanded for such further proceedings as are not inconsistent with what we have said herein. Let this be done.

All concur.