I am unable to concur in the conclusion reached in the majority opinion, and therefore respectfully dissent.
The deed in controversy is sufficiently set out in the majority opinion and it is unnecessary to set it out herein more fully. An analysis of the deed as a whole has convinced me that it conveyed to Henry Willis an estate conditionally limited in duration to the minority of William T. Willis and subject to termination sooner in the event that Henry Willis died before William T. Willis reached his majority. In the event William T. Willis died before reaching his majority and Henry Willis was then living, Henry Willis took a life estate in the lands conveyed, with remainder in fee in the heirs of Henry Willis. In case William T. Willis reached his majority or Henry Willis died prior to that time, William T. Willis took a life estate with vested remainder in fee in his heirs. In my opinion there is no sufficient reason to be found in the deed for the conclusion that, after the death of both Henry Willis and William T. Willis (a contingency that happened before the filing of these suits), the remainder in fee went half to the heirs of Henry Willis and half to the heirs of William T. Willis.
It appears to me the conclusion I have reached cannot be avoided if full force is given to the entire instrument. The deed provides, "To the said Henry Willis, until the *Page 687 said William T. Willis shall be of lawful age, or until his death, if he shall die before the said William T. Willis." The first clause of this sentence conveys an estate to Henry Willis until William T. Willis arrives at his majority, an estate for a limited term just as much as if the exact date had been stated when William T. Willis would arrive at his majority or the date of the death of Henry Willis during the minority of William T. Willis had been predicted and that date fixed as the termination of the estate of Henry Willis. To say that the last clause means that Henry Willis had an estate in said land until his death, regardless of whether William T. Willis reached his majority prior to that time, is to render meaningless the words "until the said William T. Willis shall be of lawful age." This sentence should be construed to read thus: "To the said Henry Willis, until the said William T. Willis shall be of lawful age, or until his death (Henry Willis's death), if he shall die before the said William T. Willis (said William T. Willis not being of lawful age at that time.)" The portions put in parentheses are my own. William T. Willis attained his majority while Henry Willis was still living and life estate then vested in William T. Willis with remainder in his heirs.
Unless this construction is adopted, no meaning whatever can be given to the succeeding clause "and in the case the said William T. Willis should die as a minor, the said Henry Willis, if hesurvives him, shall have the free and undisturbed use of the hereby conveyed premises for and during his natural life." (Italics my own.) In case William T. Willis reached his majority while Henry Willis was still living, we would have this situation: Life estate in William T. Willis with contingent remainder in fee in his heirs, subject to be defeated by the death of William T. Willis during the lifetime of Henry Willis, in which event the title would vest in Henry Willis for life with remainder in the heirs of Henry Willis. In other words, we might have this situation: Estate for years in Henry Willis at the termination of which an estate for life would vest in William T. Willis and, at his death, life *Page 688 estate in Henry Willis with remainder in the heirs of Henry Willis. This construction would render absolutely unnecessary and useless the subsequent clause making provision for remainder in the heirs of William T. Willis at the termination of his life estate. Such clearly was not the intent of grantor as gathered from the entire instrument. If Henry Willis took a life estate at all, it commenced at the termination of his estate for a term of years at the death of William T. Willis within the period of hisminority and not otherwise.
That this is the proper construction of the deed is further evidenced by the language of succeeding clauses wherein alternate provisions are made by the use of the words "or" and "respectively." When once the life estate of William T. Willis vested, both Henry Willis and his heirs lost all further right, title and interest in the lands conveyed in the deed. The only contingency which would extend the estate of Henry Willis for a term of years into a life estate with remainder in his heirs was the death of William T. Willis "as a minor." This contingency did not happen and when William T. Willis reached his majority he took a life estate in the premises conveyed with vested remainder in his heirs in all the lands conveyed.
It is suggested that the deed in question conveyed the fee to Henry Willis and William T. Willis as tenants in common, out of which estate were carved an estate for a term of years (with possibility of life estate) to Henry Willis and afterwards an estate for life in William T. Willis, if he attained his majority, and that, after the termination of the life estate, the heirs of the tenants in common took the lands. Sufficient answer to this suggestion is found in the language of the deed itself, to the effect that the intent and purpose of the conveyance is to vest a life estate partly in Henry Willis and partly in William T. Willis and the remainder, etc. This shows conclusively that nothing more than a life estate was ever intended to be vested in either Henry or William and completely destroys any suggestion to the contrary to be gathered from the first clause of the deed. *Page 689
It may also be suggested that, as William T. Willis was an illegitimate child, he might reach his majority and die childless and therefore have no heirs and the lands would escheat. Section 311, Revised Statutes 1919 (which has subsequently been repealed and re-enacted, Laws 1921, p. 118), reads as follows: "Bastards shall be capable of inheriting and transmitting inheritance on the part of their mother, and such mother may inherit from herbastard child or children, in like manner as if they had been lawfully begotten of her." The words I have underscored were added in the General Statutes of 1865, and apparently did not take effect until after the date of the deed under consideration, which was dated February 23, 1866. Such words were no doubt added to the section as the legislative answer to the decision of this court in Bent's Admr. v. St. Vrain, 30 Mo. 268, handed down at the March term, 1860, which held that a mother could not inherit from her illegitimate child and the estate escheated to the State. Even if it be true that, under the law in force at the time the deed was executed, William T. Willis could have had no heirs except the heirs of his body, such fact cannot be controlling as against the plain language of the deed as it presents itself for construction. The fact that, in the event William died without children after attaining his majority, the estate would escheat, might have been a sound reason why the deed should not have been so written as to subject the estate to such possibility, but is no reason for construing the deed when it was so written otherwise than as written.
The judgment in all three cases should be affirmed. *Page 690