Burnet v. Burnet

• Decision Date: 31 May 1912
• Citation: 148 S.W. 872
• Parties: BURNET et al. v. BURNET et al.
• Court: Missouri Supreme Court

148 S.W. 872

BURNET et al. v. BURNET et al.

Supreme Court of Missouri, Division No. 1.

May 31, 1912.

Rehearing Denied June 29, 1912.

1. WILLS (§ 439)—CONSTRUCTION.

A will will be construed according to the intent of its maker, when such intent is discovered and it does not violate any inflexible rule of law or public policy.

2. WILLS (§ 614)—LIFE ESTATE—CREATION.

A life estate may be created by a will without using express words.

3. WILLS (§ 440)—CONSTRUCTION.

Under Rev. St. 1909, § 579, providing that an estate in fee simple is created where the will contains no expression whereby it shall appear that an estate for life only was intended, the court, by necessary implication, is left with power to determine, from the language of the will taken as a whole, the intent of the testator and the nature and extent of the estate devised.

4. WILLS (§ 614)—CONSTRUCTION—LIFE ESTATE.

Where testatrix had no direct descendants, but had a sister with three living children and one dead who was survived by two children, a will which bequeathed her estate to her sister and stated a desire that whatever should be left undisposed of at her sister's death should go to her descendants per stirpes, and that, in case testatrix survived her sister, her estate should go to her sister's children and grandchildren, naming them, indicated an intention to provide for such children and grandchildren in any case, and the estate received under the will by her sister, who survived her, was a life estate only.

5. WILLS (§ 616)—LIFE ESTATE—NATURE — RIGHTS OF REMAINDERMAN.

Where a life estate is created, either by implication or in express words, with a remainder over, the life tenant had no power to defeat the remainder unless such power is expressly or impliedly given by the will, and such additional power, if given, must be strictly construed, and any attempt to exercise it beyond its just scope will not affect the rights of the remainderman.

6. WILLS (§ 616)—POWERS OF LIFE TENANT —DEED OF GIFT.

While, under a will providing that "whatever may be left undisposed of" at the death of the life tenant shall go to her descendants, the life tenant had full power to dispose of the property for her use, comfort, or enjoyment, she had no power to give it away, and a deed of gift made by her of property belonging to the estate was invalid.

Brown, C., dissenting.

Appeal from St. Louis Circuit Court; J. E. Withrow, Judge.

Action to quiet title by Warren A. Burnet and another, minors, by Frederick S. Timberlake, their curator, against George Burnet and another. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

This is an action to quiet title submitted to the trial court upon an agreed statement of facts, in substance, to wit: That Eliza E. Andrews of St. Louis. Mo., made her will and added a codicil thereto on the 14th day of June, 1899; that she died in 1901; that the tenth clause of her will was, to wit: "I give, devise and bequeath the residue of my estate to my said sister, Sarah F. Burnet, and it is my desire that whatever of said residue may be left undisposed of at her death shall go to her descendants per stirpes. In the event that I survive my said sister Sarah I give, devise and bequeath said residue of my estate to her children, George Burnet, Jr., Henry L. Burnet and Mary F. Outten, one-fourth each, and the remaining one-fourth to Warren and Samuel Burnet, children of her deceased son, Samuel F. Burnet. Should any of said children either of my sister or of her deceased son Samuel F. die before any right vests in them under this tenth clause of my will, the share of every such deceased child shall go to its issue, if any, and in default of such issue, then to the descendants of my said sister Sarah per stirpes." That Sarah F. Burnet died in June, 1905, leaving a son, George Burnet, and a married daughter, Mary Outten, and two grandchildren, Warren A. Burnet and Samuel F. Burnet, sons of her deceased son, Samuel F. Burnet; that her son Henry L. Burnet died in 1903, leaving no descendants, and the parties to this cause are his only heirs.

This suit was originally instituted by the curator of the two grandsons, Warren A. Burnet and Samuel F. Burnet, of the said Eliza F. Andrews, on the 2d day of August, 1905, against George Burnet and Mary Outten, son and married daughter of the said Sarah F. Burnet. Defendant George Burnet has since died, and the cause has been revived against his heirs at law; and the two plaintiffs, having reached their majority, have come in under their own names. That the land in controversy in this action is controlled by the terms of said clause of the will, for the reason that a note for $2,300 and interest, dated February 23, 1901, was a part of the property devised under said clause of the will, and said note was secured by deed of trust on the real estate described in this petition, which real estate was also subject to a prior deed of trust for a note for about $450 and interest, held by a stranger; that the said Sarah F. Burnet, devisee in said clause of the will, used a portion of the residuary estate in purchasing said outstanding note for $450, and subsequently enforced a sale under the deed of trust given to secure the $2,300 note, and became the purchaser of said land at the trustee's sale, and paid therefor by allowing a credit on said note for the amount bid at such sale; and, being thus possessed of the title of the land in dispute, she, on the 25th of January, 1905, executed and delivered a deed purporting to convey it in fee to her son George Burnet, then alive, who took possession of said land; that the consideration named in her deed was $5. The agreed statement of facts is further, to wit:

"(11) That George Burnet (his heirs now) are now in possession of said real estate, claiming to own the same in fee simple, and are and have been collecting and receiving the rents and profits thereof since the date of said conveyance, and deny that plaintiffs or defendant Mary Outten have any interest or title in the said real estate.

"(12) Defendant Mary Outten approved of said conveyance to George Burnet and now approves and ratifies said conveyance by Sarah F. Burnet to said George Burnet and claims and demands no right, title, interest, or estate in said real estate against the heirs of George Burnet, so that the question is whether, under the above facts, the plaintiffs have each a one-sixth interest in said land and the rents and profits thereof, as aforesaid.

"(13) If they have, defendant George Burnet, then alive, agrees to furnish to them a full and true statement of the rents and profits thereof since said conveyance to him, and that a money judgment for one-third the net total amount thereof may be rendered against him, in favor of said plaintiff, and be a lien on his share in said land."

The petition set forth that the two plaintiffs were then minors and were the children of a deceased son of Sarah F. Burnet, and alleged that they were entitled as his heirs, by representation, to one-sixth of the real estate described in the petition, which, it is further alleged, the said Sarah F. Burnet had acquired in the manner above stated and became a life tenant thereof under the terms of the residuary devise to her in clause 10 of the will of Eliza F. Andrews; that the said George Burnet, then living, was in possession of the said estate, and claiming to own the same in fee, and was collecting the rents and profits thereof since the death of the said Sarah F. Burnet, and denied the right of plaintiffs to any interest or title in said real estate. The petition prayed for an ascertainment and determination of the title and interest of plaintiffs and defendants, respectively, in said land, and for a decree of one-sixth interest therein to each of the plaintiffs, and that each of the defendants be adjudged to own an undivided one-third interest therein; that an accounting be had to determine the rents and profits received by said George Burnet since the death of the said Sarah F. Burnet; and that the amount of the interest of plaintiffs under such accounting be charged as a lien against the interest of George Burnet; and for other and further relief. To this petition the defendant George Burnet (then alive) filed an answer containing a general denial, except certain admissions of the statements in the petition as to the death of Eliza F. Andrews and Sarah F. Burnet, and as to the heirship and relation of the parties to the suit. The answer further set up the method by which Sarah F. Burnet acquired title to the specific land in dispute, and alleged that she had thereafter conveyed the same to the defendant, as she was entitled to do by virtue of the vestiture in her of a fee-simple title to the property described in clause 10 of the will of Sarah F. Andrews. The defendant Mary Outten answered, separately, in substance that, under clause 10 of said will, the property therein devised belonged absolutely to Sarah F. Burnet, who during her lifetime conveyed the same to defendant George Burnet, and that she (Mary Outten) disclaimed any interest therein.

The cause was submitted to the court on the pleadings and the agreed statement of facts on the 22d of April, 1907, and thereafter, on the 13th of May, judgment was rendered in favor of defendants. After the overruling of a motion for a new trial, plaintiffs perfected their appeal to this court.

S. T. G. Smith and Thomas Meng, for appellants. Will Brown and Robt. L. McLaran, for respondents.

BOND, C.

1. The question presented by this appeal is the meaning of the testatrix as expressed in the tenth clause of her will. The subject-matter of the devise contained in that clause was personal and real estate. When it was made, the testatrix had no direct descendants, but had a sister, Sarah F. Burnet, who was the mother of three living children and the grandmother of the two plaintiffs, whose father, the son of said Sarah F....