Carr v. Dings
| Decision Date | 31 October 1874 |
| Parties | CHARLES BENT CARR, Respondent, v. WILLIAM DINGS, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Jefferson Circuit Court.
S. Reber, for Appellant.
I. The will of John Kerr at the utmost, gives, and only proposes to give, three-fourths of his property remaining at the death of his widow, to the children of his brother, G. W. Kerr.
( a.) The will gives one-fourth of the estate remaining at the death of the widow, to her. This is the effect of the devise to her of the entire estate for her support and maintenance, with power to dispose of one-fourth at her death as she shall deem fit. It will be observed, that the widow takes not simply a life estate, but the whole, if necessary to her support and maintenancc, with the implied power to dispose of the whole for that purpose. The rule therefore applies, that where an estate is given to a person, not expressly for his life, with power to dispose of the same by will or otherwise, such person takes the fee. (Rubey vs. Barnett, 12 Mo., 3; 4 Kent, 536, 12 Ed.) But if the widow did not take a fourth of the property remaining, at her death, under the will, that fourth belongs to the heirs of John Kerr, i. e., she is intestate as to that fourth, for:
( b.) By the terms of the will the widow is empowered to dispose of one-fourth of what shall remain at her death, and in the language of the will the “residue of what may so remain, shall at time of her death pass to and be vested in the children of my (his) deceased brother, Geo. W. Kerr.” This clause so clearly only gives three-fourths of the property to G. W. Kerr's children, that no argument can make it plainer. The court, therefore, should have instructed, as prayed for by the defendant, that G. W. Kerr's children only take three-fourths of the property, under John Kerr's will.
II. The widow of the testator took the entire estate (after the debts were paid) by virtue of the gift for support and maintenance, with the implied power of disposing of the whole of it. This may be construed as a devise of the interest or estate to her.
John L. Thomas & Bro., for Respondent.
I. The court committed no error in construing the will as it did. This very construction was given to it by Judge Vories, when this case was here before. (Carr vs. Dings, 54 Mo., 95.) This settles the question which by law is not open to review upon a second appeal. (Grumley vs. Webb, 48 Mo., 609; Chambers, Adm'r vs. Smith's Adm'r, 30 Mo., 156.)
II. The intention of the testator is the polar star for the guidance of courts in the construction of wills. What, then, was the intention of the testator in this case? It may be assumed that the testator intended to dispose of his whole property in fee simple, and did not intend to leave any of his estate, or any interest in it, whether for life, for years, or in remainder, undisposed of. In the second place, we argue that Susan Kerr took only a life estate in all the property not required for the payment of debts, with power to dispose of one-fourth remaining at the time of her death. The language of the will, “also in trust after the payment of my debts, to convey whatever may remain of my estate to Susan Kerr, to be used and appropriated by her in and about her support and maintenance, with power to my said wife to dispose of one-fourth of the same remaining at the time of her death, as to her shall seem fit, and the residue of what may so remain, shall, at the time of her death, pass to and be vested in the children, etc.” At common law this language would create only a life estate in Susan Kerr.
The want of the words, “heirs,” or “heirs of her body,” or words of similar import, is fatal to the construction that a fee was given, unless the 55th section of the Missouri Act in regard to Wills, has changed the common law construction to such an extent that the words used will create a fee. This section provides that the words, “heirs and assigns forever,” shall not be necessary in devises of land to carry the fee, when no other expressions are contained in the will, whereby it shall appear that a life estate only, was intended to be conveyed, and no further devise of the premises be made to take effect after the death of the devisee. In the will under consideration, the words, “heirs and assigns,” and “heirs and assigns forever,” are omitted, and there are other expressions contained in the will, whereby it appears that a life estate only was intended to be conveyed, and there is a devise of the premises over, to take effect after the death of Mrs. Kerr. The executor shall convey to her “whatever may remain of my estate, * * * to be used and appropriated by her in and about her maintenance and support.”
If the testator had simply declared that the property should be conveyed to Susan Kerr, and there stopped, probably under the section referred to, she would have taken an estate in fee; but the estate is qualified by the words which follow: “to be used and appropriated in and about her maintenance and support.” Whatever remained of the testator's estate was to be conveyed to, and thus used and appropriated by her. By these qualifying words it appears clearly, that the use of the property was given for life only. These words do not raise a power of disposition. (19 Mo., 415; 28 Geo., 265; Wright vs. Deme, 10 Wheat., 204; 11 East, 220.) But when we come to the latter clause of this devise, the intention of the testator becomes manifest. There is a devise over of the residue of what may remain at the death of the wife. The effect of a limitation over is thoroughly discussed by the Chief Justice, (Marshall) in the case of Smith vs. Bell, (6 Pet., 71; see also Rubey vs. Barnett, 12 Mo., 1).
III. From the language used in this will, viewed in the light of the authorities cited, it is manifest the testator intended to give his wife a life estate in his property only, with power of absolute disposal of one-fourth remaining at her death, as she might see fit, and upon her failure to dispose of the one-fourth the whole passed to and vested in the children of G. W. Kerr.
This was an action of ejectment brought to recover the possession of a tract of land, in Jefferson county, in the petition described.
The petition was in the usual form. The defendant's answer was a denial of the facts stated in the petition, and also set up a special defense, which need not be noticed, as no evidence was offered in support thereof. A trial was had before the court, a jury having been waived by the parties.
It is conceded that the plaintiff, under the evidence, had a right to recover, provided that the last will of John Kerr could be properly construed so as to vest a title to the land in the children of George Washington Kerr at the death of Susan Kerr, the wife of the said John Kerr; the...
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