Cook v. Couch

• Decision Date: 24 February 1890
• Parties: COOK v. COUCH et al.
• Court: Missouri Supreme Court

13 S.W. 80

100 Mo. 29

COOK v. COUCH et al.

Supreme Court of Missouri.

February 24, 1890.

WILLS — ESTATES — FEE-SIMPLE.

A testator devised all his property to his wife and five children, to be equally divided among them, and directed that the wife should be guardian of the minor children, and that no partition of the estate should be made until the youngest child should become of age, and that the wife should still retain her lawful dower, and be privileged to will to whom she pleased her portion of the real estate. Held, that the wife took, in addition to her dower, an undivided one-sixth in fee-simple, under Rev. St. Mo. § 4004, which provides that in all devises of land in which the words "heirs" and "assigns" are omitted, and no expressions are contained in the will whereby it shall appear that such devise was intended to convey a life-estate only, and no further devise is made to take effect after the death of the devisee, it shall be understood to be the intention of the testator to devise an estate in fee-simple.

Error to circuit court, Johnson county; C. W. SLOAN, Judge.

J. W. Suddath and S. P. Sparks, for plaintiff in error. O. L. Houts and Sweeney & Walker, for defendants in error.

BLACK, J.

This is a suit for the partition of about 280 acres of land. Solomon T. Taylor died in 1870, and by his last will devised the land to his wife and five children. That part of the will which gives rise to this contest is in these words: "I will and bequeath unto my beloved wife, Elizabeth I. Taylor, and my children, namely, Samuel S. Taylor, George Taylor, William J. Taylor, Richard P. Taylor, and Nancy I. Taylor, all my personal and real estate, to be equally divided unto them, without favoring one more than the other, under the following limitations and restrictions, namely: That my beloved wife, Elizabeth I. Taylor, is to be the sole guardian of all my children during their legal minority, and not be required to give any security in law for the performance of the guardianship, and she is to keep possession of the farm, and all the stock and farming utensils that she wishes, together with all the household and kitchen furniture, and provide for the maintenance and education of all my children during their minority; and, further, I ordain that no partition or division of my landed or personal estate shall take place, or be allowed by my executor, until my youngest child, Nancy I. Taylor, shall have arrived to years of legal majority, and then my wife shall still retain her lawful dower in all my real estate during her natural life, and be privileged to will to whom she may see proper her portion of my real estate." The widow died intestate in October, 1883, but prior to that date she and two of the children sold, and by deed conveyed, their interest in the property to George Couch, through whom defendants claim. Nancy I. Taylor, the youngest child of the testator, attained her majority in June, 1884; and in that year she and the two remaining children conveyed their interest in the land to the plaintiff, William Cook.

This cause turns upon the construction of the will of Solomon T. Taylor, and the question is, what estate did the widow take? The circuit court held that she took, besides dower, an undivided one-sixth in fee-simple, thus giving to the plaintiff but three-sixths of the property. The claim of the plaintiff may be expressed as follows: By the will the widow took a quantity equal to an undivided one-sixth, limited in duration to the time when the youngest child attained the age of majority. Then the widow became seised of an estate equal to that of her dower right, coupled with a power to dispose of the one-sixth by will only. By reference to the will it will be seen the testator devises to his wife and five children all of his property, real and personal, to be equally divided between them, without favoring one more than the other. Thus far the widow and each of the children would take a one-sixth in fee. This result is expressed in terms too plain to be questioned. But the will goes on to say,...