Richardson v. Richardson

• Decision Date: 31 October 1871
• Citation: 49 Mo. 29
• Parties: GEORGE RICHARDSON, BY GUARDIAN, Respondent, v. HENRY RICHARDSON et al., Appellants.
• Court: Missouri Supreme Court

49 Mo. 29

GEORGE RICHARDSON, BY GUARDIAN, Respondent,

v.HENRY RICHARDSON et al., Appellants.

Supreme Court of Missouri.

October Term, 1871.

Appeal from Jefferson Circuit Court.

J. J. Williams, for appellants.

There is in the will an express devise to Ellen of the use and occupation of the whole estate during the lives of Samuel and George, and not for their support alone, but for that of her own children. The estate was a trust in her hands, partly for the benefit of her children, and continues so still. Her death does not destroy the trust. That the words of the will are sufficient to create a trust, see Pierce v. McKeehan, 3 Watts & S. 280; Redf. Wills, 174. The trust was not a personal one, but a substantial vested one for the life of others; and, on her death, passed by operation of law to her husband, clothed with the conditions of the devise. The compromise in evidence was a complete defense to this suit, and the guardian had power to make it. (1 Pars. Cont. 114, note k.) And the action of the court setting it aside on motion was at best a nullity.

P. Pipkin and A. Greer, for respondent.

The estate in Ellen Richardson being a remainder to take effect after the death of both Samuel and George, no curtesy could attach during the life of either of them. (Co. Litt. 20 a;3 Dev. 270; 7 Viner's Abr. 149.)

The condition on which she had the use of the property was her taking care of the brothers. Her husband had no such power to care for them; hence that power ceased on her death. There was no trust estate in her which required the appointment of a trustee. (Callis v. Ridout, 7 Gill & J. 1.) There was no necessity for a trustee. The purposes of the will would be carried out whether Ellen lived or died. Her husband was appointed their guardian.

The will gave no vested interest in the property to Ellen's children. That interest is nothing but the use of the property while the mother took care of Samuel and George-- a mere incident growing out of her use of the property, and ceasing with her death.

No sufficient words were used to create a trust estate for the children. (Redf. Wills, 433; 2 Sto. Eq., §§ 964, 974.)

The only inference to be drawn from the clause that Ellen should have possession of the land, is that if she took care of the two boys and kept them together in her family, she should be recompensed with the use of the testator's whole estate while she was doing it. Suppose Ellen had refused to take care of them, or had become physically or mentally incapable of doing so, could she or her husband claim the right of possession by virtue of her fee in the land so long as either of the boys lived?

The compromise read in evidence is not binding on George Richardson. Under the will Frederitzie had no power to make it. If he had, the agreement was void, because it affected the interest of Ellington, who was not made a party to the proceedings. And it was annulled by decree of the court before suit was brought. (Downing v. Still, 43 Mo. 309, and authorities cited.) As to the sufficiency of the annulling order, see Taylor v. Hunt, 34 Mo. 205.CURRIER, Judge, delivered the opinion of the court.

This is an ejectment. Both parties claim under the will of John Richardson, deceased, and the true construction of the will is the first point for consideration. So far as the land in controversy is concerned, the following are the provisions bearing upon it: First, “I give and bequeath to my two sons, Samuel and George, all” the land described in the petition. * * Second, “I also give to my two sons, Samuel and George, all my personal property, including my negro man Wash; also including all money which may be owing to me on note and mortgage, which is to be loaned out for the benefit of my two sons during their natural lives; and, third, at their decease my daughter Ellen is to have the seventy acres (embracing the land described in the petition), including my house; and, fourth, my son-in-law, Michael Frederitzie, is to have forty acres; and also, my nephew, William Ellington, is to have forty acres on the south side of my land, including the Leeds farm, which is to be divided between the two; my son-in-law getting the Leeds place after the decease of my two sons, Samuel and George; and, fifth, it is my will that my daughter is to keep and have the care of my two sons, Samuel and George, during their natural lives; and in doing so, my daughter Ellen is to have the benefit of all my personal property, together with my negro man Wash, to keep and support my two sons, and all the land is to be in possession of my daughter Ellen for the care and support of herself and her children and my two sons; together with all the interest of all moneys belonging to me that may be loaned or on hand; and, sixth, after the decease of my two sons, all the money and personal property is to be divided equally between my daughter Ellen and my son-in-law Michael Frederitzie; and, seventh, I hereby appoint Michael Frederitzie guardian of my two sons, Samuel and George, and executor to my will.”

The above-quoted provisions are inartificial in their arrangement, and redundant and clumsy in their phraseology, but the testator's intent is quite apparent from them. At the time the will was made, what was his position? He seems to have been a widower, for no mention is made of a wife. He had, as the will indicates, three living children, namely, Ellen (who was the wife of the defendant, Henry Richardson) and two sons who were insane and incapable of taking care of themselves. These children were the prominent objects of his bounty, although he had a son-in-law and nephew, for whom he made some provision, and incidentally refers to the children of his daughter as persons to be supported out of his...