The St. Louis Republic. [volume] (St. Louis, Mo.) 1888-1919, 1902-04-27
%PRIMOCENITURE IN
MISSOURI STATUTES.
Recent Decision on an Old State
Law Indicates That Entails
~ Are Possible.
PHRASE, HEIRS OF THE BODY"
Revision of 1865 Unaccountably
Revived Old Statute Under
Which English Common
Law Rule Applied.

n
From the communication below. sent 10
The Republic by Mr.. Joseph 6. Holiday of
ST Louis. 1t appears that under the pres
ent law Of Missouri the English rule Of
primogeniture can he rut into force by any
,estator choosing to create an estate de-
scendine through eldest sons. The same re-
sult may be Internationally produced by
writing a will in ignorance OF the meaning
Of the legal phrase. Heirs Of the body"
The communication follows:
To the Editor of The Republic.
ST. Louis. April "a recent decision of
the Supreme Court OF this State deserves
more general attention than it has hitherto
received. for the reason that the effect
Of said decision Is TO re-establish in fun
, vigor. as a part Of our existing system OF
laws. the English rule OF prinogeniture.
There is an old phrase. Heirs of the
body" which has been used from time inn
memorial in legal Ii is still
used, and will continue 10 be used, by
many. in ignorance of its effects. unless
they are Informed thereof. That is my ex-
cusc for this communities ton.
Smith may. to-day. be drawing his will
and leaving his real estate to his son John
and the heirs of his body without being
In the least aware that the effect OF such
a devise is to give the estate (after johns
DEATH to Johns eldest son. to the excIu-
sion of all other children OF course, it is
possible that by making this matter pub
lie an instrument may be put into the
hands of some local Vanderbilt or Rookie
Teller with which to build up a vast es-
tate by na1Iding it down to the eldest son,
who may do the same when he is through
with 1t. but that cannot be helped, and it
is better that one such dynasty be estab-
lished than for one hundred innocent men
to be disinherited through the ignorance
of their ancestor.
By the common law of England. or rather
the statute of 13, Edward /. a grant to a
and the heirs of his body cAeated what
was known as an estate in fee tail, one
of the principal features of which was
the perpetuating of an estate through a
long line of descent. When our indenend-
dence was established the several States
from time to time passed statutes abot l.
Ing this relic of absolutism; and the Legis- |
latune of Missouri, in the revision of 1895,
abolished entails by an act which, in one
torm or another, has continued ON our
statute books to the present time.
Missouri Statutes.
But from the beginning there has been
muohs difficulty in providing a clear and
satisfactory substitute for the thing aboi-
lshed- 1t was provided in the act OF 1875
that, by a conveyance to "A and the heirs
OF MS body" A should get only a life es- |
tate IN the. land conveyed, and tine re-
mainder should, at AS death. 90 TO the
person to whom the estate tail would first
pass according to the course of the COM |
mon Jaw The act of 1875 is substantial
~ the same.
As there is no doubt that the first person |
10 Wnom such an estate would pass ''ac-
cordinG TO the course of the common law
ls tbe eldest son, as soon as this became |
G;eariy understood little time was lost in |
making such changes in the statute as
would make 1t more In harmony with our
Iepnnilcan institutions; and in the revision |
OF 1875 the statute was amended in that
particular to read as follows: AND upon
the death OF such grantee or deyisee the |
SAT- az. ianas and shall go and be
vested IN the children of such grantee or
deNisee. equally TO be divided between |
would go to the children peneraIIy sbara |
and share alike, instead OF to the eldest |
Tire statute was left in This sba,e ,,r,,,
1855. when. for reasons known only 10 the !
LEGISLATORS themselves. the statute of 1875 |
was readopted almost word for word. and |
has remained unchanged to the pras ant |
time. (See r $. Mo. 1899. Sec. 4592.)
IT Is not q little remarkable. considering |
our books. and the frequent use of this |
phrase heirs of the body in wills and
deeds, that this question has been so sell
oom raised In our courts. For We believe
that from 1S49. when our Supreme Court, in |
the case of Burris V. Page. Il Mo. 2s2. ap- |
piled the rule of primogeniture 10 a deed |
made under the statute of 1875 there has
been no further reference thereto until the
case 81 Rozier v. Graham was decided by
NNps - III httNiIb'I. 1870. 1
In that case a deed to Sarah Stilwell and
the heirs of her body was construed in |
when the deed Was made, and the court
held that. Sarah being still living, 1t could
not be told who would take even accord
ing to common law until her death. sne |
they refused to anticipate that event. The
destruction of the statute according to the
rulesof primog% eniture was strongly urged
In the argument of counsel, and the court. |
while holding that in the view they took
OF the case that question was not properly
yet took occasion to gay that however
plausible the theory evolved from the mere
words of the statute, no such construction
ever has been given that statute in this
State or ever will be. There are no mourn
ers for the doctrine Of primoseniture in
=" I.nte Decision.
In volume 1G4 Of our Supreme Court re-
norts. lust issued. / find. on page 1886. a case !
emitted, Frame v; Humphreys; the decision
June. 1901. The first head-note in this case
is as follows:
her body under the statute Of iS5. which is
.eTy dia n.as1s i f5oT The cur sal PTes Mary s' anm aud SGnH a fea
sinnuie absolute to her oidest rhnd then living,
s Nh " sub ses snep dee niq By n her and her HUSBAND.
and a 1uit-claim deed by, hsr eldest chilli; made
estate % their com,nSR grantee onor+,, :,
condenslng the opinion for ;his head note,
went beyond the record in saying that the
statute OF 1885 was very different from our
present Stdlutt. S=flct IHN ppinIpu itsNi
nowhere refers to the present statute, and
a reading OF our present statute shows that
1t Is not only not very different from the
act Of 1885. but that in all substantial re-
spects It is the same statute.
1t is true that the court says that the
common law rule of primogeniture. as a
law of decent. which had been preserved
10 the act of 1855. was swept from our
statute books by the revision of 1S45. but
this does not necessarily mean that the
court was OF the impression that the act of
1s45 had remained unchanged to the present
time
No We must presume that the learned
court knew when 1t was constituting the act
of 1895 that such construction would equal
iy apply TO the present statute of 1899.
But this is really Il matter of little I'M