Maguire v. Moore

• Decision Date: 08 February 1892
• Citation: 18 S.W. 897,108 Mo. 267
• Parties: MAGUIRE v. MOORE et al.
• Court: Missouri Supreme Court

18 S.W. 897

108 Mo. 267

MAGUIRE v. MOORE et al.

Supreme Court of Missouri, Division No. 1.

February 8, 1892.

WILLS — CONSTRUCTION — NATURE OF ESTATE — APPEAL — DEATH OF PARTY — ABATEMENT.

1. Testator left his property in trust for his wife and children, and directed that when all his children were dead the real estate should be sold to the best advantage, and the proceeds equally divided among his wife, or the heirs of her marriage to testator, or the heirs of her former marriage, and testator's grandchildren, or their heirs living at the time. Held, that the widow took a contingent remainder, dependent on her surviving testator's last child, and that the child, if any, of the former marriage, also took a contingent remainder, dependent on his surviving his mother and testator's last child.

2. The grandchildren, on the death of testator's last child, take the property per capita and not per stirpes.

3. The death of one of several plaintiffs in error or of one of several defendants in error does not abate a suit or necessitate a revival of it in the supreme court. Prior v. Kiso, 9 S. W. Rep. 898, 96 Mo. 316, followed.

Error to St. Louis circuit court; DANIEL DILLON, Judge.

Proceedings by John Maguire against Ellen L. Moore and others for a construction of a will. From the judgment construing the same, defendants bring error. Reversed.

Jas. O. Broadhead, for plaintiffs in error. C. P. & J. D. Johnson, for defendant in error.

SHERWOOD, C. J.

Maguire, the executor of the last will of John S. Moore, deceased, instituted the present equitable proceeding for the construction of said will, which is as follows: "I, John S. Moore, of the city of St. Louis, and state of Missouri, being of sound mind and body, do hereby make, declare, and publish this as my last will and testament, hereby revoking any and all wills and testaments by me made. I desire to make the following disposition of my estate: Item 1st. I desire that whatever money I may have on hand or in bank, or that may be realized from outstanding accounts or notes, shall be divided equally between my wife, Ellen L. Moore, and Mrs. A. V. Long, and the children of Mrs. M. M. Thornton, (they receiving her fifth interest.) When all of my children are dead, then my estate is to be equally divided between my wife, and her heirs and assigns, and the heirs and assigns of my children, after paying my funeral expenses, and all debts I may owe, except those secured by deeds of trust on my real estate. Item 2d. I direct that the first five hundred dollars realized from interest on sale of my stock in the building association of the Missouri Medical College be appropriated to placing a stone curbing around my lot in Bellefontaine Cemetery, and the erection of a suitable monument to my memory; the balance realized from said stock to be divided as my cash above stated. Item 3d. I give and bequeath to my grandson Willie Thornton my medical library and surgical instruments, and to my grandson John Thornton my canes and jewelry, excepting my watch, which I bequeath to my grandson Sidney Moore. My other personal property I wish divided equally between my wife, Ellen L. Moore, and my son John C. Moore, or their heirs and the heirs of my daughter Helen M. Barret. Item 4. I desire that my real estate in the city of St. Louis, Missouri, and in Cairo, Illinois, shall continue to carry the incumbrance which may be upon the same at my death during the life-time of my children, and that my wife and my children, or their heirs, shall receive quarterly from my executors one-fifth each of the net income from the rental of my real estate, (the children of my daughter Mrs. M. M. Thornton, deceased, receiving her fifth.) After the death of the last of my children, I desire that my real estate shall be sold to the best advantage, and the proceeds equally divided among my wife, or her heirs, and my grandchildren, or their heirs living at the time. Item 5. I give and bequeath to my faithful servant, Louisa Randolph, the sum of fifty dollars, payable to her one year after the date of my death. Item 6. I hereby appoint John Maguire, real-estate agent, number 519 Walnut street, my executor of this, my last will and testament, and, in the event of his death or resignation, then such person as the court may appoint. Item 7. Having advanced my son John C. Moore twenty-two hundred dollars, ($2,200,) I desire that amount be deducted from the shares of his heirs in the final division of my estate. Item 8. I hereby desire it to be distinctly understood that wherever the words `my wife or her heirs' appear, that I mean the heirs of her present marriage to me, or her former marriage. Witness my hand and seal this twenty-fifth day of July, 1882. JOHN S. MOORE. [Seal.] Signed, sealed, and declared by the aforesaid John S. Moore to be his last will and testament in the presence of us, who, at his request and in his presence, and in the presence of each of us, have subscribed our names as witnesses heretofore this twenty-fifth day of July, 1882. LOUIS H. LOHMEYER. WM. A. MAGUIRE. Having forgotten to mention in Item 3 that the heirs of my daughter Mrs. M. M. Thornton shall be entitled to an equal share in the stocks of the Missouri Medical College belonging to me, I hereby give and bequeath unto them, the said heirs, an equal share of said stock. Witness my hand and seal this 25th day of July, 1882. JOHN S. MOORE. [Seal.] Signed, sealed, and declared by the aforesaid John S. Moore to be an addition to his last will and testament in the presence of us, who, at his request and in his presence, and in the presence of each of us, have subscribed our names as witnesses hereto this 25th day of July, 1882. Louis H. LOHMEYER. WM. A. MAGUIRE. Codicil No. 1. I hereby change the bequest in Item No. 1 of the within will. Instead of giving my wife, E. L. Moore, one-fifth of my estate absolutely, I give her one-third of the income of my estate during her life-time in lieu of dower. JOHN S. MOORE. [Seal.] Signed, sealed, and declared by the aforesaid John S. Moore to be an addition to his last will and testament in the presence of us, who, at his request and in his presence, and in the presence of each of us, have subscribed our names as witnesses hereto this 14th day of June, 1884. JOHN H. MAGUIRE. JOHN MAGUIRE."

The construction given by the lower court to this will was the following: That the widow takes one-third of the personalty for life, and one-fifth of the real estate for life; that each of the children living, and the heirs of any deceased child taking per stirpes, are entitled to one-fourth of the remaining two-thirds of the personalty absolutely, with a vested remainder, dependent upon the life-estate in the widow in one-fourth of the remaining one-third of the personal estate, and that the widow in addition takes a life-estate in one-fifth of the realty; that upon the death of the last of the children the realty is to be sold, and the proceeds divided between the heirs of the four children taking per stirpes and the widow, or, in case of her death, her heirs, taking in the same manner; that from the proportions going to the heirs of John C. Moore is to be...