Naylor v. Godman

• Decision Date: 22 February 1892
• Citation: 19 S.W. 56,109 Mo. 543
• Parties: Naylor et al. v. Godman et al., Appellants
• Court: Missouri Supreme Court

19 S.W. 56

109 Mo. 543

Naylor et al. v. Godman et al., Appellants

Supreme Court of Missouri, First Division

February 22, 1892

Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

Samuel Boyd for appellants.

(1) In construing the will in this case, the intent of the testator must govern, and that intent must be ascertained from the whole will, taking into consideration the situation of the testator, the objects of his bounty and the circumstances surrounding him at the time the will was drawn. Nichols v. Boswell, 103 Mo. 151. (2) From the third clause of this will it sufficiently appears that the objects of the testator's bounty were not only the children of his daughter, Mary R. Godman, but their children, and that his intent was that the children of Mary R. Godman should have a life-estate only, and that the remainders should go to her grandchildren. The intent, so far as that clause shows it was to create what, at common law, would have been an estate tail, and, considering that clause alone, in the event of the death of any one of the named persons, without issue, after the death of the testator, under our statute the property would go to his or her heirs. R. S. 1889, secs. 8836, 8838; 1 Leading Cases American Law Real Property, 97; 3 Jarman on Wills, 174; Farrar v. Christy, 24 Mo. 453; Kenney v. Mathews, 69 Mo. 525; Farrar v Christy, 33 Mo. 44. It will be observed from the agreed statement that, at the time the will under consideration was made, the children of Mary R. Godman had no children. (3) The fourth clause of the will by the words, "die without issue," and "surviving brothers and sisters," has reference only to the death of one or more of the devisees named before the death of the testator, and was for the purpose of substituting the surviving brothers and sisters as the persons to take, immediately upon the death of the testator, and to prevent his dying intestate as to any part of his estate. (4) Words in a will which refer to the death of a devisee, and where the gift to such devisee is immediate -- that is, to take effect in possession at the death of the testator -- are always construed to mean death of devisee before death of testator, unless the contrary is clearly expressed by the will. 3 Jarman on Wills [Ed. of 1881 with Am. Notes] 605-611; Wilson v. Bryan, 14 S.W 533; Reams v. Spann, 26 S.C. 561; Coe v. James, 54 Com. 511; Pressley v. Davis, 7 Rich. Eq. (S. C.) 105; Duncan v. Kennedy, 9 Bush, 580; R. S. 1889, secs. 8879, 8838.

W. H. Letcher and W. R. Gist for respondents.

(1) The declarations of law given by the court prescribe a correct rule of construction as applied to the clauses of the will in controversy under consideration. (2) The limitation in the fourth clause of the will creates a perpetuity which is repugnant to the law. McDowell v. Brown, 21 Mo. 57. And must, therefore, be eliminated from the will, leaving the other portions of the instrument operative. Schouler on Wills, sec. 466; R. S. 1879, sec. 3941. (3) The construction sought to be placed on the third and fourth clauses of the will by appellants' counsel is not correct. It would defeat the evident intention of the testator, and give to the devisee a fee-simple estate, when the will expressly says that it shall be "during his (or her) life, with remainder to his children in fee" when speaking of males; "children of her body in fee" when speaking of females. In order to support appellants' contention, the words "for life" must be entirely disregarded, and the remainder must be held to vest not in the surviving brothers and sisters, as stated in the fourth clause, but in the heirs of the first taker, whether he leave children or not; thus enforcing the rule in Shelly's case which has long been abolished. (4) The first executory limitation of a fee which vests destroys all subsequent limitations. The power of disposition is then and thereby exhausted. Fearn, 515. (5) The limitation is too remote, as the absolute power of alienation cannot be suspended beyond two lives in being at the death of the testator, and upon the death of one or more of the devisees in said will, without issue, the surviving brothers and sisters take the fee or remainder in fee. R. S. 1879, sec. 394; Wood v. Wood, 5 Paige's N. Y. Ch.

Sherwood, P. J. Barclay, J., absent.

OPINION

Sherwood, P. J.

Action for partition of certain real estate. The cause is bottomed on the proper construction of the following clauses of the will of A. C. Marsh:

"Third. That my whole estate of whatsoever kind be converted into money, and after the payment of all necessary expenses and charges of such commission and settlement the balance of the money be invested by my executors in lands for the use and benefit of the children of my daughter, Mary R. Godman, of Saline county, Missouri, in proportion as follows, to-wit: One-sixth of the sum for the use and benefit of my grandson, William C. Godman, during his life, with remainder to his children in fee; and one-sixth for the benefit of my grandson, Burton L. Godman, during his life, with remainder to his children in fee; one-sixth for the use of my granddaughter, Josephine Clay Godman, during her life, with remainder to the children of her body in fee; one-sixth for the use of my granddaughter, Mollie Godman, during her life, with remainder to the children of her body in fee; one-sixth for the use of my grandson, Beal Godman, during his life, with remainder to his children in fee; one-sixth for the use of my granddaughter, Martha Godman, during her life, with remainder to the children of her body in fee.

"Fourth. It is my will that, if any one or more of my said grandchildren shall die without issue, the share of the one or more so dying shall vest in and become the property of the surviving brothers and sisters of deceased, equally subject to the same limitations as the devise was made to the deceased."

The ninth clause of the will is the following:

"Ninth. It is my will that my executors purchase lands, and invest the funds arising from sale of Cooper's Run farm, and collections otherwise, to be made as speedily as possible. It is my wish and direction to them to make the purchases of all the lands herein directed to be bought, within twelve months after my decease, if practicable to do so. If the whole cannot be purchased in that time, then to buy so far as they have moneys collected."

On the trial the cause was submitted on the following agreed statement of facts:

"A C. Marsh died in the state of Kentucky, about the year 1876, testate.

"That the plaintiff, Mattie Naylor, and defendants, W. C. Godman and Josephine Way and Burton L. Godman, Mollie Emerson and Beal Godman, were the children of Mary R. Godman, named in the third clause of said will, and that all of them were living at the death of the testator, A. C. Marsh.

"That Burton L. Godman died before there was any division of the property mentioned in Marsh's will and before the executor had invested the entire assets of the estate in real estate, as required in the third clause of the will, without issue.

"That none of the children of Mary R. Godman had children or descendants at the time of the execution of the will, but that W. C. Godman did have one child at the time of the testator's death.

"That the land mentioned in the petition in this case was purchased by the executor of A. C. Marsh, and assigned to Beal Godman in the distribution as the one-sixth devised to him and his children by the third clause of said will.

"That Mollie Emerson died about 1882, leaving one child, Eddie H. Emerson.

"That...