Phillips ex rel. Guardan v. Forge

This is an action of ejectment for two nundred acres of land, instituted by the minor and adult heirs of Jennie Phillips, born of the marriage with DeWitt C. Phillips. The plaintiffs read in evidence a deed *75from their father, DeWitt C. Phillips, dated in 1863, whereby he conveyed the lands in question, and also-other lands to William D. Waldrup, “in trust for the benefit of his wife, Jennie Phillips, and the heirs of her body born in wedlock with said DeWitt Phillips.” The trustee died in 1863, and Jennie Phillips died in 1S74. The defendant put in evidence a deed dated in 1871, whereby DeWitt Phillips and his wife, Jennie, transferred and assigned to defendant the rents and profits arising and to arise from two hundred acres of the land, to secure a certain judgment debt, held by the defendant against DeWitt C. Phillips. Also a decree in a suit of this defendant against DeWitt C. Phillips and others, whereby the two hundred acres in question were set-apart to the plaintiff in that suit, the defendant here, until the rents should pay the debts, taxes, costs, etc. The suit in which the decree was rendered was begun after the death of Mrs. Phillips, and the present plaintiffs were not made parties thereto.

1. There can be no doubt but the deed to the trustee created an estate in fee-tail special. 2 Black Com.,. 114. The effect of section 5, p. 355, Revised Statutes, 1855, which abolished estates in fee-tail, was to create in Mrs. Phillips a life estate only in the premises, remainder in fee to these plaintiffs. Upon the death of the mother the plaintiffs became entitled to the possession of the premises. It was not in the power of the father or mother, or both together, to do more than dispose of the life estate. It is scarcely necessary to add that DeWitt C. Phillips had no estate by the curtesy, for such an estate is not an incident to a life estate. Burris v. Page, 12 Mo. 359.

The judgment is affirmed.