Armor v. Frey

• Decision Date: 15 March 1910
• Citation: 126 S.W. 483,226 Mo. 646
• Parties: ADRIAN W. ARMOR et al., Appellants, v. JOSEPH FREY
• Court: Missouri Supreme Court

126 S.W. 483

226 Mo. 646

ADRIAN W. ARMOR et al., Appellants, v. JOSEPH FREY

Supreme Court of Missouri, Second Division

March 15, 1910

Appeal from Newton Circuit Court. -- Hon. F. C. Johnston, Judge.

Reversed and remanded.

James B. Park and John T. Sturgis for appellants.

(1) Where no definite estate is in terms given to the first taker -- no express words of inheritance or such as imply a fee being used or power of sale given -- then a limitation over upon his death is always construed as indicating an intent that such first taker shall have a life estate only. A devise without words of limitation is confined to a life estate by a devise over on the death of the devisee. Gardner on Wills, p 472, sec. 124; Rood on Wills, p. 370, sec. 540; Page on Wills, secs. 572 and 574; 30 Ency. Law (2 Ed.), p. 741; Underhill on Wills, p. 623, sec. 469; R. S. 1899, sec. 4646; Cross v. Hock, 149 Mo. 325; Bean v Kenmuir, 86 Mo. 666; Schorr v. Carter, 120 Mo 409; Harbison v. James, 90 Mo. 411; Walton v. Drumtra, 152 Mo. 501; Dozier v. Dozier, 183 Mo. 137; Thompson v. Craig, 64 Mo. 312; Harbison v. Swan, 58 Mo. 147; Farrar v. Christy, 24 Mo. 453; Wead v. Gray, 78 Mo. 63; Chiles v. Bartleson, 21 Mo. 344; Thomas v. Miller, 43 N. E. (Ill.) 848; Griffiths v. Griffiths, 64 N.E. 1069; Munro v. Collins, 95 Mo. 33; In re Keniston's Will, 73 Vt. 75; Smith v. Bell, 6 Peters 68; Giles v. Little, 104 U.S. 291; Partee v. Thomas, 11 F. 769; Rice v. Moyer, 97 Ia. 96; Defreese v. Lake, 109 Mich. 415; Healy v. Eastlake, 152 Ill. 424; Johnson v. Johnson, 38 N. E. (Oh.) 61; Kent v. Morrison, 153 Mass. 137; Baxter v. Bawyer, 19 Oh. St. 490; Anderson v. Hall, 80 Ky. 91; Martin v. Barnhill, 77 S.W. 1097; Pate v. Bushong, 63 L. R. A. (Ind.) 593; Fenstermaker v. Holman, 62 N. E. (Ind.) 699; Jones v. Stites, 19 N.J.Eq. 326; In re Littlewood's Will, 96 Wis. 608; Taylor v. Martin, 18 A. 920; Stone v. McEckron, 57 Conn. 194; Taylor v. Bell, 28 A. 208. (2) Every clause in a will shall have some operation and be effective for some purpose. All the clauses of a will are to be given effect if possible and when absolutely repugnant the last clause is to prevail. Defendant's construction of the will so as to give the first takers a fee simple entirely eliminates and gives no effect to the later or ninth clause, making the devise over on the death of the first taker. This is not allowable. Page on Wills, sec. 574; 2 Jarman, Wills, pp. 44-46; Naylor v. Goodman, 109 Mo. 543; Gardner on Wills, pp. 373, 374; Bean v. Kenmuir, 86 Mo. 666; Dozier v. Dozier, 183 Mo. 137; Clotilde v. Lutz, 157 Mo. 439; Schorr v. Carter, 120 Mo. 409; Mersman v. Mersman, 136 Mo. 244; In re Keniston's Will, 73 Vt. 75. (3) It is the settled law of this State, and generally, that a life estate may be created by implication as well as by express words. A devise over on the death of the first taker, unless restrained by other parts of the will more positive and controlling, is always construed as creating a life estate. This is but a concrete application of the rule that the intention of the testator governs and that such intention is to be gathered from the whole will. Page on Wills, secs. 572, 574; 30 Ency. Law (2 Ed.), p. 741; Dozier v. Dozier, 183 Mo. 137; Cross v. Hock, 149 Mo. 325; Walton v. Drumtra, 152 Mo. 486; Roth v. Rauschenbusch, 173 Mo. 582; Chiles v. Bartleson, 21 Mo. 344; Schorr v. Carter, 120 Mo. 409; Smith v. Bell, 6 Peters 68; Defreese v. Lake, 109 Mich. 415; Griffiths v. Griffiths, 64 N. E. (Ill.) 1069. Such is the effect of section 4646, Revised Statutes 1899; for if the absence of a "further devise . . . of the devised premises to take effect after the death of the devisee" indicates a fee simple then the presence of such clause necessarily indicates a life estate in such devisee. (4) The limitation over on the death of the testator's children is "to his or her children, and wife in case of a son, in such parts and proportions as he or she may direct by last will and testament." An unlimited power of disposal by deed or will indicates an estate in fee; but a limited power of appointment or disposal among a class, themselves the object of testator's bounty, indicates a life estate and is such a power as usually goes to a life tenant. 24 Ency. Law (2 Ed.), 446; Gardner on Wills, p. 552; Phelps v. Phelps, 143 Mass. 570; Taylor v. Adams, 93 Mo.App. 277; Ruby v. Barnett, 12 Mo. 3; 2 Redfield on Wills, p. 278; Cornwall v. Wulff, 148 Mo. 562; Grace v. Perry, 197 Mo. 550; Cruse v. McKee, 73 Am. Dec. (Tenn.) 186; Griffiths v. Griffiths, 64 N. E. (Ill.) 1069; Cathey v. Cathey, 49 Am. Dec. 714; Read v. Reid, 25 Beav. 469; 30 Ency. Law (2 Ed.), 702. (5) Remaindermen may maintain a suit to determine title under section 650, R. S. 1899, although the life tenant is yet living. Utter v. Sidman, 170 Mo. 284; Ball v. Woolfolk, 175 Mo. 278. But any equities, such as the value of improvements or liabilities growing out of collateral warranties, will not be adjusted. These are left to future actions. Wilson v. Lubke, 176 Mo. 210.

Geo. Hubbert and Clay & Sheppard for respondent.

(1) Item number 9 is void for repugnance to the direct and positive gifts by the unlimited terms of the other items. If of any force whatever, this item would control and diminish to a life estate every estate devised by any other item. Such necessary consequence of such interpretation, stamps the appellants' theory of such wholesale destruction of unlimited devises as utterly untenable. "The fundamental rule in the construction of wills is that the intention of the testator, if not inconsistent with some established rule of law, must control, and to ascertain that intention the courts will look to the circumstances under which he makes his will, as to the state of his property and family." Murphy v. Carlin, 113 Mo. 117; McMillan v Farrow, 141 Mo. 62; Elliott v. Elliott, 10 Am. St. Rep. 54; Noe v. Kern, 93 Mo. 367; Phelps v. Bates, 1 Am. St. Rep. 92; Hall v. Stephens, 65 Mo. 670; 29 Am. and Eng. Ency. Law (1 Ed.), p. 367; Nussbaum v. Evans, 71 Ga. 753; Rose v. McHose, 26 Mo. 590; Peters v. Carr, 16 Mo. 54; Prosser v. Hardesty, 101 Mo. 593; Galloway v. Durham, 81 S.W. 659; McClellan v. McKenzie, 126 F. 701; St. Louis Assn. v. Fueller, 182 Mo. 93; Chew v. Keller, 100 Mo. 362; Underwood v. Cave, 176 Mo. 1; Page on Wills, secs. 574-5; Roth v. Rauschenbusch, 173 Mo. 582; Roberts v. Crume, 173 Mo. 572; Yocum v. Siler, 160 Mo. 281; Yocum v. Parker, 130 F. 722; Balliett v. Veal, 140 Mo. 187; Talbott v. Hamill, 151 Mo. 293; Small v. Field, 102 Mo. 104; Cook v. Couch, 100 Mo. 29; Walton v. Drumtra, 152 Mo. 489; Cornwell v. Orton, 126 Mo. 355; St. Louis Assn. v. Fueller, 182 Mo. 93; Carter v. Long, 181 Mo. 701; Dozier v. Dozier, 183 Mo. 137. In Georgia, where the testator lived and this will was made, if a deed contains expressions which, at common law, would create an estate tail, it is now construed to pass an estate in fee simple to the donee in tail. Durant v. Muller, 88 Ga. 251; 2 Black on Judgments, sec. 872; Rothwell v. Jamison, 147 Mo. 601; Gannon v. Albright, 183 Mo. 23; Gannon v. Pauk, 200 Mo. 75; Moran v. Moran, 5 L. R. A. (N. S.) 323. In the light of that Michigan case we may discern that the judgment of the circuit court in this case is strongly based upon principles well established elsewhere. In the reflections of that light we can but see that the after-expressions in the later clauses of this will are but shadows of limitations over and without real force as against the first devises covering the absolute estates. Roth v. Rauschenbusch, 173 Mo. 582; Wead v. Gray, 78 Mo. 59; Haines v. Talson, 73 Mo. 320. Indeed, cases are many concurring in the doctrine of Redfield on Wills, 278, that a gift over is void after an absolute devise -- as a settled rule of American and English law. Stowell v. Hastings, 59 Vt. 494; Burton v. Gagnon, 180 Ill. 345; Mitchell v. Morse, 77 Me. 423; Van Horne v. Campbell, 100 N.Y. 287; Howard v. Carusi, 109 U.S. 725; Combs v. Combs, 67 Md. 11. Among the later cases in support of the proposition that a devise practically unlimited in its terms will stand effective in fee, against a limitation over in a subsequent clause, because such limitation is repugnant and therefore void, we may cite: McClellan v. Mackenzie, 126 F. 701; Mansfield v. Shelton, 67 Conn. 390; Central v. Harris, 62 Conn. 93; Browning v. Southworth, 74 Conn. 224; Wilson v. Turner, 164 Ill. 398; Kohtz v. Eldred, 208 Ill. 60; Mulvane v. Rude, 146 Ind. 476; Channell v. Aldinger, 121 Ia. 292; Jordan v. Woodin, 93 Ia. 453; Spencer v. Scovil, 96 N.W. 1019; Barth v. Barth, 38 S.W. 511; Cox v. Anderson, 69 S.W. 953; Mersereau v. Camp, 92 A.D. 616; Snedeker v. Congdon, 41 A.D. 433; Gilchrist v. Empfield, 194 Pa. St. 397; Cooke v. Bucklin, 18 R. I. 666; Brown v. Strother, 102 Va. 145; Reeves v. School District, 24 Wash. 282. And where there is any reasonable doubt as to whether the testator intended to give a fee or a life estate to vest in the first taker, an expression of power of disposal in such taker, such as appears herein, is conclusive in favor of the fee vesting in him. Walfer v. Hemmer, 144 Ill. 544; Van Gorder v. Smith, 99 Ind. 404; Outland v. Bowen, 115 Ind. 150; Essick v. Caple, 131 Ind. 207; Mulvane v. Rude, 146 Ind. 476; Law v. Douglass, 107 Ia. 606; Combs v. Combs, 67 Md. 17; Dodson v. Sevars, 52 N.J.Eq. 611; Cook v. Walker, 15 Ga. 457; Banzer v. Banzer, 10 Misc. (N. Y.) 24; In re Kimball, 20 R. I. 619; Pillow v. Rye, 1 Swann (Tenn.) 185; Meacham v. Graham, 98 Tenn. 190. The power of appointment by will, mentioned in item 9, in favor of the children of the donees, is argued by appellants to be significant of an intention to remove the estates from the line of descent under the law. And indeed that seems to be their chief reliance. But really the...