Collins v. Whitman

• Decision Date: 04 June 1920
• Docket Number: No. 21397.,21397.
• Parties: COLLINS v. WHITMAN et al. (SIDDENS, Intervener).
• Court: Missouri Supreme Court

222 S.W. 840

283 Mo. 383

COLLINS v. WHITMAN et al. (SIDDENS, Intervener).

No. 21397.

Supreme Court of Missouri, Division No. 2.

June 4, 1920.

Rehearing Denied June 25, 1920.

Appeal from Circuit Court, Gentry County; John M. Dawson, Judge.

Suit by Hattie Collins against Walter Whitman and others, in which Alverda Siddens intervened. From judgment for plaintiff, the intervener appeals. Reversed and remanded, with directions.

This suit was instituted in the circuit court of Gentry county, Mo., on July 7, 1917. It is an action in ejectment to recover possession of the undivided one-half of certain lands located in said county and described in petition. The date of ouster is named as December 8, 1916. The monthly value of the rents and profits of said premises is $60, etc.

Defendants Walter Whitman and Fred Whitman answered, and admitted therein that they are in possession of said land. They deny every other allegation in plaintiff's petition.

Appellant, Alverda Siddens, filed in said cause, an application to become a party defendant, alleging therein that she was the owner of said real estate, and that defendants had no interest therein except as tenants, etc. Said application was sustained, and Alverda Siddens filed herein her answer and cross-bill, denying each and every allegation of petition. For further answer and cross-bill, she alleged therein that she is the owner in fee of the real estate described in petition; that the plaintiff herein claims some title, estate, and interest in said real estate, the nature and character of which is unknown to this defendant, but the latter alleges that said claim of plaintiff is adverse and prejudicial to this defendant. Thereupon the court is asked to try, ascertain, and determine, the estate, title, and interest of the parties plaintiff and defendant herein severally in and to said real estate, and to grant this defendant general relief, etc.

Other parties, upon their own application, were permitted to be joined as defendants herein. They filed an answer similar to that of defendant Alverda Siddens.

On December 19, 1917, said cause was reached for trial, a jury was waived, and the cause submitted to the court upon an agreed statement of facts. It appears from the latter that James M. Siddens, of the county aforesaid, is the common source of title, and died on June 6, 1911, the owner of the land in controversy, with other land. He left, as his only heir, a son, James Harvey Siddens. The will of James M. Siddens was probated in Gentry county, Mo., on June 15, 1911, and reads as follows:

"I, James Siddens of Gentry County, Missouri, do make and publish this my last will and testament.

"1st. I give, bequeath and devise to my beloved wife, Mary E. Siddens, and my son, James Harvey Siddens, all property, real, personal and mixed of which I may die seized or possessed, to have and to hold for and during their natural life, or so long as they or either of them may live, and at the death of either one of the said parties the whole of said estate shall pass to and vest in the survivor, whichever that may be, who shall have, hold and enjoy the same, for and during his or her natural life, and upon the death, of both my said wife and my said son, it is my will that said property shall pass to and vest absolutely in such child or children and heirs of my said son, James Harvey Siddens, as shall be born to him by any woman, save and except any child or children born of his present wife, Hattie Siddens. It is my will that neither the said Hattie Siddens or any child or children of which she may be or become the mother shall have or receive any interests whatever, of, in or to my said estate, or any part or parcel thereof.

"I hereby appoint my wife Mary E. Siddens and my son James Harvey Siddens, my executors, without bond, of this my last will and testament.

"In witness whereof, I have hereunto set my hand this July 9, 1898. James M. Siddens."

Thereafter Mary E. Siddens, wife of above testator, filed her renunciation of the provisions of said will in her favor, and elected to take a child's part.

James Harvey Siddens was married to defendant Alverda Siddens on October 17, 1900, and no children were born to James Harvey Siddens except Opal Siddens Morrow, hereafter mentioned. James Harvey Siddens died testate in Gentry county, Mo., on March 17, 1916, and thereafter his will was admitted to probate, March 23, 1916, in which he devised and bequeathed $5 to his daughter, Opal Siddens (now Opal Siddens Morrow), and gave all the remainder of his property, real, personal and mixed, to his wife, the appellant, Alverda Siddens. James Harvey Siddens was previously married to Hattie Bare (now Hattie Collins, the plaintiff herein), on June 21, 1898, but they never lived together as husband and wife. Opal Siddens Morrow is the only child of James Harvey Siddens and Hattie Siddens (now Hattie Collins), and was born after their marriage. On September 17, 1900, James Harvey Siddens and Hattie Siddens were divorced.

On November 14, 1916, Opal Siddens Morrow conveyed to the plaintiff, Hattie Collins, the land in controversy, with other land heretofore mentioned.

The other defendants named in this record, save and except Alverda Siddens, constitute all of the collateral heirs of James M. Siddens, they being his brother, nephews, nieces, etc.

On June 21, 1898, and prior to the divorce of James Harvey Siddens, his father, James M. Siddens, and his mother, Mary E. Siddens, made a settlement upon said Hattie Siddens, who was then his wife, by conveying to her certain real estate, and she executed a written instrument releasing the said James Harvey Siddens and his estate, and agreed therein to support and maintain the child to be born.

The defendant Alverda Siddens asked, and the court refused, four instructions, numbered 1 to 4, inclusive, which will be considered later.

On September 17, 1918, the court found the issues in favor of plaintiff, and rendered its judgment accordingly. The defendant Alverda Siddens on the date last aforesaid filed herein her motions for a new trial and in arrest of judgment. Both motions were on above date overruled, and the cause duly appealed by her to this court. None of the other defendants appealed.

D. D. Reeves, of Albany, and J. W. Perry, of Kansas City, Kan., for appellant.

Charles E. Gibbany, of Albany, and Lucian J. Eastin, of St. Joseph, for respondent.

BAILEY, C. (after stating the facts as above).

1. In passing upon the merits of this controversy, we must not lose sight of section 583, R. S. 1909, which reads as follows:

"All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them."

It is perfectly manifest, from reading the will of James M. Siddens, heretofore set out, that he intended by said instrument to dispose of all his property, real, personal, and mixed, as there is no residuary clause therein. It is equally as clear from said instrument that he did not intend this plaintiff, or any child of hers, should take any part of his estate, which he was attempting to dispose of by his will. It is no less certain that, if the decree of the lower court in favor of plaintiff is permitted to stand, it passes the estate in controversy to the very individuals whom James M. Siddens, by the above instrument, declared should not take it. He had already made a settlement upon plaintiff for the benefit of herself and daughter, Opal Siddens Morrow, and hence provided in said will:

"That said property shall pass to and vest absolutely in such child or children and heirs of my said son, James Harvey Siddens, as shall be born to him by any woman, save and except any child or children born of his present wife, Hattie Siddens. It is my will that neither the said Hattie Siddens or any child or children of which she may be or become the mother shall have or receive any interests whatever, of, in or to my said estate, or any part or parcel thereof."

On the other hand, testator attempted to bestow upon his son, James Harvey Siddens, and his child or children, if any were born capable of receiving it, the entire estate sought to be conveyed. The mere fact that James Harvey Siddens was given a life estate by the will under the circumstances aforesaid is no indication that testator was averse to said son taking the estate in remainder at testator's death, subject to be divested should a child or children of the son be born capable of receiving the property under the will,

Keeping in mind these general observations, which should be considered in determining the merits of this controversy, we pass to other questions involved.

2. It is well settled, upon both principle and authority, that the law favors the vesting of estates, in the absence of an expressed intent to the contrary, at the earliest possible time, and immediately upon the testator's death. Jones v. Waters et al., 17 Mo. loc. cit. 589, 590; Collier's Will, 40 Mo. loc. cit. 321; Chew v. Keller, 100 Mo. loc. cit. 368, 13 S. W. 395; Byrne v. France, 131 Mo. loc. cit. 646, 647, 33 S. W. 178; Tindall v. Tindall, 167 Mo. 218, 66 S. W. 1092; O'Day v. Meadows, 194 Mo. 588, 92 S. W. 637, 112 Am. St. Rep. 542; Heady v. Hollman, 251 Mo. loc. cit. 638, 158 S. W. 19; Deacon v. Trust Co., 271 Mo. loc. cit. 687, 688, 197 S. W. 261; Henderson v. Calhoun, 183 S. W. loc. cit. 586; Huntington Real Estate Co. v. Megaree, 217 S. W. loc. cit. 303, 304; Dunbar et al. v. Sims et al., 222 S. W. 838, not yet [officially] reported; 23 Ruling Case Law, § 67, pp. 525, 526; 2 Underhill on Wills, § 861.

In Collier's Will, 40 Mo. loc. cit. 321, Judge Wagner said:

"As wills are generally dissimilar, and one can hardly be found precisely like another, cases are rarely to be met with which are directly apposite, so as to be controlling authority in any new case which may arise. But...