Byrne v. France

• Decision Date: 17 December 1895
• Citation: 33 S.W. 178,131 Mo. 639
• Parties: Byrne, Appellant, v. France et al
• Court: Missouri Supreme Court

33 S.W. 178

131 Mo. 639

Byrne, Appellant, v. France et al

Supreme Court of Missouri, Second Division

December 17, 1895

Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.

Affirmed.

H. T Gordon, John Doniphan and B. R. Vineyard for appellant.

(1) In construing wills, the object should always be to ascertain the intention of the testator. To do this the court should view the instrument from the surroundings of the testator existing at the time he made it, and consider all of its provisions, giving effect to all of them, and, as far as possible, reconciling them with each other; and in case of absolute inconsistency, giving effect to a later provision which may be in conflict with one previously expressed. Nichols v. Boswell, 103 Mo. 151; Small v Field, 102 Mo. 122. As to repugnancy and inconsistency, see 2 Jar. on Wills [Randolph & Talcott's Ed. 1880], p. 44, and cases cited in note. (2) The fourth clause of the will gave to the wife the use and enjoyment of the real estate and negroes during her life. The fifth clause, in the event of the contingency therein provided for, which in fact afterward happened, transferred the charge of that property to the two oldest sons, who were to take care of the family until the youngest child became of age, which was in 1872. The provisions thus made, coupled with directions of the testator to "then" appraise and sell the property and divide the proceeds equally among the "children or their descendants," clearly contradict the idea of an immediate investment of title in the beneficiaries and provide for a postponement thereof until 1872, the division of the proceeds at that time to be made among the children "or their descendants" then living. The words "then living" are as plainly indicated from the language used as if they were in fact inserted in the will. DeLassus v. Gatewood, 71 Mo. 371; Owen v. Eaton, 56 Mo.App. 563; Thomson v. Ludington, 104 Mass. 193; Olney v. Hull, 21 Pick. 311; Holm v. Low, 4 Metc. (Mass.) 201. (3) This rule of law seems well settled on principle and authority. If a will provides for the payment or distribution at a future age, in the absence of a manifest intention to the contrary, time is regarded as the essence of the gift, and it will not become vested until that age is reached. 2 Jar. on Wills [R. & T. Ed.], 457, and cases cited; Leake v. Robinson, 2 Mer. 363; Leeming v. Sherratt, 2 Hare, 14; Butler v. Butler, 3 Barb. Ch. 304; Leeds v. Wakefield, 10 Gray, 514; Gifford v. Thorn, 9 N.J.Eq. 702; Clayton v. Somers, 27 N.J.Eq. 230; Collier v. Slaughter, 20 Ala. 263; Nixon v. Robbins, 24 Ala. 663; Allen v. Whitaker, 34 Ga. 6; Moore v. Smith, 9 Watts, 403. (4) It does not become important in this controversy to determine whether a contingent remainder is the subject of sale prior to becoming vested or not. The earlier decisions of this court indicate not. DeLassus v. Gatewood, 71 Mo. 371; Emmerson v. Hughes, 110 Mo. 627. While two later ones held otherwise. Godman v. Simmons, 113 Mo. 122; Sikemeier v. Galvin, 124 Mo. 367.

M. A. Reed for respondents.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This suit was begun in the circuit court of Buchanan county. An amended petition was subsequently filed in which the facts alleged are stated by counsel for plaintiff to be substantially as follows:

"This is a suit instituted for the purpose of annulling certain deeds described in plaintiff's petition, and having them removed as clouds upon her title, and of construing the will of her grandfather, through whom the title had come, and for the purpose of protecting plaintiff's rights in the real estate described in the petition, and that defendants and each of them in order to avoid a multiplicity of suits, be enjoined from executing deeds to any of the town lots, into which said real estate has been divided and staked by them. The petition charges that plaintiff's grandfather, John L. Byrne, died in 1860, the owner in fee and in possession of the land therein described, and including that part thereof now in controversy. That he left a will which was duly admitted to probate, which reads as follows:

"'I, John L. Byrne of Buchanan county, Missouri, do make and publish this my last will and testament, hereby revoking all former wills by me made.

"'First. I desire that all my just debts and funeral expenses be paid.

"'Second. I will and bequeath unto each of my children one dollar namely, Thomas Byrne, Mary Byrne, Catharine Byrne, Joseph Byrne, John Byrne, Eliza Byrne, and Susan Ann Byrne.

"'Third. I desire that my wife, Malinda Byrne, shall have at my death all of my personal property to dispose of as she may think proper.

"'Fourth. It is my desire and will that my wife, Malinda, shall have, hold, occupy, use and enjoy all of my real estate and negroes wherever the same may be situated, for and during her natural life, and at her death to go to my children above named or their descendants.

"'Fifth. It is my will and desire that if my wife, Malinda, should die before my youngest child becomes of age, that my two oldest sons shall take charge of my real estate and negroes, take care of the family until the youngest child is of age; then I desire that two competent judges of real estate be appointed to appraise all of my real estate and negroes, then I desire that the real estate and negroes shall be sold at public sale for not less than its appraised value, the proceeds to be divided equally between my children or their descendants.

"'Sixth. It is my will and desire that there shall be no administration had on my estate and that there shall be no guardian appointed for any of my children by the probate or any court having jurisdiction of probate business, but that my wife shall manage all of the affairs of my children up to the time of her death.

"'Seventh. It is further my will and desire that if it should become necessary in any event for administration to be had on my estate I hereby appoint my wife, Malinda, executrix of this, my last will, and further desire that she should not be required to give security as such executrix, if it becomes necessary for her to act in this capacity, but I desire most emphatically that none of my affairs shall go into court.

"'Given under my hand and seal this seventh day of April, 1860."

his

"'John L. X Byrne.'

mark

"The petition then avers that Joseph Byrne, the father of plaintiff and one of the two oldest children of said testator, died in 1869, intestate, leaving a widow, Tillie C Byrne, and the plaintiff as his only child and descendant, though plaintiff was born several months after the death of her father. Later in the petition plaintiff's mother is alleged to have taken a child's share in the real estate of her husband, and that plaintiff arrived at the age of twenty-one years on the eighth day of June, 1891. The petition also avers that Malinda Byrne, the widow of the testator, John L. Byrne, who was plaintiff's grandmother, died in 1864, and Susan Ann Byrne, the youngest child of said testator, arrived of age in the year 1872, three years after the death of plaintiff's father.

"The petition then sets forth in minute particularity certain partition proceedings instituted by Thomas Byrne and Joseph Byrne, plaintiff's father, in 1869, just before the death of the latter and just before the birth of plaintiff, looking to a division of all the real estate of which their father, John L. Byrne, died seized. The petition alleges that the suit was never properly revived in the names of plaintiff and her mother after the death of Joseph Byrne, nor did the court ever acquire jurisdiction of the persons of either, but it nevertheless went on and rendered a decree in partition and appointed commissioners who divided the land among the children, all of whom, except the plaintiff and her mother, took charge of and accepted the parts assigned them respectively. That the commissioners set apart also to plaintiff and her mother fifteen and fifty-nine hundredth acres of this land, which is the portion thereof in controversy in this suit. The petition also avers that the report of the commissioners making said partition was confirmed.

"The petition also sets up certain proceedings in the probate court of Buchanan county which resulted in an administrator's deed from one Kirk, assuming to act as administrator of the estate of Joseph Byrne, deceased, and by which deed said Kirk as such administrator purports to convey to plaintiff's mother 'all the...