Waddell v. Waddell

• Decision Date: 18 November 1889
• Citation: 12 S.W. 349,99 Mo. 338
• Parties: Waddell, Appellant, v. Waddell et al
• Court: Missouri Supreme Court

12 S.W. 349

99 Mo. 338

Waddell, Appellant, v. Waddell et al

Supreme Court of Missouri

November 18, 1889

Appeal from Lafayette Circuit Court. -- Hon. J. P. Strother, Judge.

This was a suit by Hannah W. Waddell, widow of John J. Waddell against James White Waddell, Hannah L. Groves and her husband, Frank S. Groves, and John F. Waddell, Robert L Waddell, Alonzo W. Waddell, Arthur K. Waddell and Mattie E Waddell, minor children of James William Waddell (son of John J. Waddell, deceased), for partition of certain lands held by defendant's ancestor, John J. Waddell, under a deed from John Waddell, senior, dated June 6, 1847, conveying to said ancestor a life-estate, and, on his death, "the title in fee simple to go and vest in the children and heirs at law of the said John J. Waddell equally, to be divided among them as tenants in common."

To the petition, the defendants, Hannah L. Groves with her husband Frank S. Groves, and James White Waddell, interposed separate demurrers. The reasons stated in them were, in substance, as follows:

(1) That the petition does not state facts sufficient to constitute a cause of action, for the reason that the operation of the deed of John Waddell, senior, was to create remainders in persons who could not be ascertained until the death of John J. Waddell, which occurrence alone would resolve the uncertainty as to who they should be; and that any interest which Mary Ellen Moore, Edward A. Waddell and Frank C. Waddell may have had in the premises by virtue of said deed, whether vested or contingent, was necessarily defeated by their predecease in the lifetime of their father, John J. Waddell, and could not, therefore, be transmitted to the plaintiff by devise or inheritance.

(2) That the petition is multifarious for the reason that, although claiming that the plaintiff is a tenant in common with each of the defendants, it shows that the defendants are not tenants in common with each other; the said James White Waddell having no interest in one hundred and thirty acres of land, and Hannah Groves having no interest in the remaining northwest quarter of the northeast quarter of section twenty-two (22), and the northeast quarter of the northwest quarter of section twenty-three (23), township fifty (50), range twenty-seven (27), in which James White Waddell has an interest.

The guardian ad litem for the other defendants, who are minors, also filed a demurrer, for the reason that the petition does not state facts sufficient to constitute a cause of action.

The trial court sustained the demurrers, and the plaintiff refusing to further plead, and electing to stand upon her petition, the court rendered final judgment against her, and she appealed.

Reversed and remanded.

W. T. Wood and J. D. Shewalter for appellant.

(1) The children of John J. Waddell had a vested remainder in the land in controversy. "Whenever the preceding estate is limited so as to determine on an event which certainly must happen, and the remainder is so limited to a person in esse and ascertained, that the preceding estate may by any means determine before the expiration of the estate limited in remainder, such remainder is vested. On the contrary, wherever the preceding estate is limited so as to determine only on an event which is uncertain and may never happen, or wherever the remainder is limited to a person not in esse, or not ascertained, or wherever it is limited so as to require the concurrence of some dubious, uncertain event, independent of the determination of the preceding estate and duration of the estate limited in the remainder to give it capacity of taking effect, then the remainder is contingent. Fearne on Remainders, 217; 4 Kent, 201, 205. (2) At the death of two of the children, their estate passed to their mother. "Where the devise is to the mother for life, and then to the children, the right to the remainder vests in the children as they are born, and if any of them die before the determining of the life-estate, their interests vest in their heirs. 14 B. Mon. 176. See Jones v. Waters, 17 Mo. 587; Aubuchon v. Bender, 44 Mo. 560. (2) The petition is not multifarious. A just and equal partition cannot be made unless the entire tract and all interests are before the court, and it makes no difference that other parties have acquired interests from some of the children.

A. F. Alexander and Wallace & Chiles, for the respondents.

(1) The words "children and heirs at law" in the deed of John Waddell, senior, are predicated in respect to persons who shall be living at the time of the death of John J. Waddell, and can therefore be applicable to none of his children except such as shall be living and in existence at that time. Such surviving children would be heirs and would constitute a class which is contained in the general term "heirs at law," as a part is contained in the whole, and as terms which are general and universal, when used in conjunction with their component parts, embrace and contain such partitives, the phrase is equivalent to the general term, "heirs at law." Omne majus trahet ad se quod est minus. Delassus v. Gatewood, 71 Mo. 371; Emison v. Whittlesey, 55 Mo. 254; Thompson v. Luddington, 104 Mass. 193; Olney v. Hull, 21 Pick. 311; 2 Jarman on Wills [5 Am. Ed. 1880] 429; Bingham on Descents, 125, 222, 233; Williamson v. Williamson, 18 B. Mon. 329; 2 Wash. on Real Estate [4 Ed.] sec. 16; Tud. Lead. Cas. 496; Clark v. Mosely, 1 Richardson's Eq. R. 396; Co. Litt. 436; 19 Vin. Abr. 379; Jenk. Cent. 208; Crecelius v. Horst, 78 Mo. 566. (2) The petition is clearly multifarious. Martha G. Waddell, at the commencement of the suit, was not seized as a tenant in common in eighty acres of the land. She possessed no interest therein as is shown by the petition; and her daughter, the defendant, Hannah L. Groves has never been entitled to any interest therein. Stalcup v. Garner, 26 Mo. 74; Doan v. Holly, 25 Mo. 357; Rogers v. Miller, 48 Mo. 378; Lambert v. Blumenthal, 26 Mo. 471.

Sherwood J. Ray, C. J., absent.

OPINION

Sherwood, J.

-- This proceeding is one for the partition of certain lands, and necessarily involved in the cause is the proper construction to be given to the deed therein mentioned.

The clause of the deed thus brought in question is as follows: "To have and to hold the said real estate, with the appurtenances, to the said John J. Waddell, and to his heirs forever, in trust, however, for the following purposes, that is to say: The said John J. Waddell, of the second part, is to have, possess and enjoy the said several tracts or parcels of land hereinbefore conveyed, and to be seized of the same, to and for his own exclusive use, benefit and behoof, for and during his natural life, doing nor suffering any unnecessary waste, the said lands and tenements, nor any interest in the same to be liable for any debt or debts of the said John J. Waddell, which he has contracted or may hereafter contract, and on the death of said John J. Waddell, the title, in fee simple, to go and vest in the children and heirs at law of the said John J. Waddell, equally, to be divided between them as tenants in common."

So that the chief question this record presents is whether the remainder created by the deed was vested or contingent. The subjects of vested and contingent remainders, and the difference and distinction between them, meet with frequent and elaborate discussion and illustration in the text-books, as well as in the reported cases. It is unnecessary however, to go at length into the authorities in order to arrive at the proper result in this case, since our own reports furnish us with instances which suffice our present purpose, and serve well to illustrate the distinction between remainders vested and those contingent.

Thus in Jones v. Waters, 17 Mo. 587, where land was devised by the testator to his wife for and during her natural life and after her death to descend to her "children" by him, equally share and share alike, it was held that these words created a vested remainder in the children, and that one of them, who predeceased his mother, had an interest subject to sale; and it was remarked that the devisees in remainder were ascertained by the will, and they were to have the enjoyment of the estate as soon as the estate for life ended; and that the devise of the remainder was not, to such as the...