Chew v. Keller

• Decision Date: 10 March 1890
• Parties: CHEW et al. v. KELLER.
• Court: Missouri Supreme Court

13 S.W. 395

100 Mo. 362

CHEW et al. v. KELLER.

Supreme Court of Missouri.

March 10, 1890.

WILLS — CONSTRUCTION — NATURE OF ESTATE — REMAINDERS.

Testator devised all his real estate to his wife for life, with power to convey one undivided half thereof in fee-simple absolute. The will then provided that the other undivided one-half should go in equal parts to certain devisees, "to have and to hold in said parts unto them as tenants in common, to them and their heirs, forever; but the said devisees are not to take possession of their said parts until the death of [the wife] and upon her death [the devisees] shall take said parts so devised; * * * and, in case either of them shall die before [the wife,] then the heirs of such person so dying shall take his or her portion so devised." Held, that the devisees took a remainder in fee free from any condition, and, in event of the death of one of them before the wife, his heirs took his portion by descent, and not as purchasers.

Appeal from St. Louis circuit court; L. B. VALLIANT, Judge.

This was an action for specific performance brought by Clara B. Chew and others against John A. Keller. There was judgment for defendant, and plaintiffs appealed.

R. M. Nichols, for appellants. Boyle, Adams & McKeighan, for respondent.

BLACK, J.

This suit has for its object the specific performance of a contract for the sale of the two-ninths of the undivided one-half of the described real estate situate in the city of St. Louis. The plaintiffs are the vendors, and the defense is that they have no title to the property; and whether they have any title depends upon the construction to be given to the will of Jesse G. Lindell, who died in February, 1858, the will being dated in January of that year. Jesse G. Lindell left a large landed estate of the assessed value of $600,000, incumbered by mortgages to the amount of $55,000. He left a widow, Jemima Lindell, but no children. By his will he devised all of his property, real and personal, to his wife for life, giving to her power to mortgage any of it, to renew mortgages, and to make leases for a term not exceeding 40 years. It then provides: "And I further declare it to be my will that the said Jemima shall have power to dispose of one equal undivided half of all my real estate, in fee-simple absolute, by her will, to whomsoever she may think fit; and, if she shall die intestate, then said equal undivided half of my real estate shall descend to her, the said Jemima Lindell's, heirs at law. And I further devise and bequeath the other equal undivided half of my real estate unto Levin Baker two-ninths thereof, Eliza Lindell one and a half ninth thereof, Mary Lindell one and a half ninth thereof, Sarah Coleman one-ninth thereof, Robert Baker one-ninth thereof, Hetty Collins one-ninth thereof, Peter Lindell, Jr.'s two sons, Jesse and Peter, each one-half of one-ninth thereof, to have and to hold in said parts unto them, as tenants in common to them and their heirs, forever; but the said devisees last named are not to take possession of, or be entitled to enter into possession of, their said parts undivided, of the undivided half of my said real estate, until the death of the said Jemima Lindell; and upon her death the said devisees, Levin Baker, Eliza Lindell, Mary Lindell, Sarah Coleman, Robert Baker, and Hetty Collins, my nephews and nieces, and Jesse and Peter Lindell, my grand-nephews, last named, shall take the said parts so devised to them, respectively, as tenants in common; and, in case either of them shall die before the said Jemima, then the heirs of such person so dying shall take his or her portion so devised." A subsequent clause gives the wife power to sell real estate, to pay off mortgages which may not be renewed or paid by giving new mortgages, and then states: "And, if such sales are made for such purposes, then the real estate remaining after such sales shall pass to, and be devised in, the manner above specified; one-half thereof going to the said Jemima and her heirs absolutely, and the other half thereof to the said other devisees at the death of the said Jemima and their heirs, in the manner and form as above specified." Levin Baker, to whom was devised two-ninths of one-half in remainder, was married, and had one child at the date of the will. He was adjudged a bankrupt in 1876, and his interest in the property in question was sold by his assignee in bankruptcy in 1881, and he died in 1883, leaving a son and two daughters, who are the plaintiffs; the daughters being joined in this suit by their husbands. Jemima Lindell survived Levin Baker. The claim of the plaintiffs is that, as their father died during the life of Jemima Lindell, they take as purchasers under the will, and not by descent from their father. If this be the true meaning of the will, then they are the owners of the two-ninths of the undivided one-half of the property in suit.

There can be no doubt but Levin Baker took an estate in remainder by the Lindell will, and the first inquiry is whether it was vested or contingent. The vested or contingent character of a remainder is determined, not by the uncertainty of enjoying the possession, but by the uncertainty of the vesting of the estate. Says Kent, a vested remainder is a fixed interest, to take effect in possession after a particular estate is spent. It is the present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines. That distinguishes a vested from a contingent remainder. 4 Kent, Comm. 203; 2 Washb. Real Prop. (4th Ed.) 547. And so it was held by this court in Jones v. Waters, 17 Mo. 587. The law favors vested estates, and, where there is a doubt as to whether the remainder is vested or contingent, the courts will construe it as a vested estate. Collier's Will, 40 Mo. 287. Adverbs of time, as "when," "there," "after," "from," and like expressions, do not make a contingency, but merely denote the commencement of the enjoyment of the estate. 4 Kent, Comm. (11th Ed.) 230, note; Doe v. Considine, 6 Wall. 458. The expressions that they, Levin Baker and others, are not to take possession of the property devised "until the death of Jemima Lindell." and that "upon her death" the devisees shall take the parts as tenants in common, all relate to the times when the devisees shall have possession, and have nothing to do with the vesting of the estate. There can be no doubt but Levin Baker took a vested fee in remainder. There can be no remainder limited after an estate in fee, though there may be a future use or executory devise. One class of executory devises is where the devisor parts with his whole estate, but, upon some contingency, qualifies the disposition of it, and limits an estate on that contingency. 4 Kent, Comm. 269. Though Levin Baker did take a vested fee in remainder, still it was competent for the testator to limit an estate upon that fee, to take effect in the event that he died before Jemima Lindell,...