Cox v. Jones

• Decision Date: 31 May 1910
• Parties: COX v. JONES et al.
• Court: Missouri Supreme Court

129 S.W. 495

229 Mo. 53

COX v. JONES et al.

Supreme Court of Missouri. Division No. 1.

May 31, 1910.

Rehearing Denied June 14, 1910.

1. WILLS (§ 455)—CONSTRUCTION—LANGUAGE OF INSTRUMENTS.

The language of the instrument itself, considered in all its parts is the best interpreter of a will.

2. WILLS (§ 470)—CONSTRUCTION—CONSTRUING AS A WHOLE.

Each clause of a will should be construed and reconciled with the other clauses wherever possible, without giving it a strained construction.

3. WILLS (§ 446)—CONSTRUCTION—CONSTRUCTION TO SUPPORT WILL.

A will should be construed so as to support it if possible; it being a legal maxim that the interest of the state requires wills to be sustained.

4. WILLS (§ 439) — CONSTRUCTION — TESTATOR'S INTENTION.

Both by statute and judicial construction, testator's intention is the chief criterion in construing the will. The direct provisions of Rev. St. 1899, § 4650 (Ann. St. 1906, p. 2518), requiring due regard to the directions of a will and testator's chief intent in construing it.

5. WILLS (§ 441)—CONSTRUCTION—RELATIONSHIP OF PARTIES.

In determining testator's intent, the court will construe the will by placing itself as nearly as possible in his position, and hence will consider his relation to the beneficiaries as well as the surrounding circumstances when the will was executed.

6. WILLS (§ 481) — EXECUTION — TIME OF SPEAKING.

A will speaks from the time of testator's death.

7. WILLS (§§ 460, 462, 463)—CONSTRUCTION—MOLDING OF LANGUAGE.

In order to effectuate the whole of a will, if possible words may be supplied or omitted and sentences transposed.

8. WILLS (§ 456) — CONSTRUCTION — LANGUAGE.

Courts will give the language of a will its ordinary meaning, avoiding subtle theories and refinements rendering it ambiguous and defeating its purpose.

9. WILLS (§ 472)—CONFLICTING PROVISIONS — RELATIVE POSITION.

An estate devised cannot be cut down by the use of ambiguous words immediately following the devise, but the quantity of an estate devised in one clause may be lessened by the express provision or by necessary implication of the language of a subsequent clause.

10. WILLS (§ 607) — ESTATE CONVEYED — FEE TAIL — LIFE ESTATE — "HEIRS."

The second clause of the will provided "I give to my daughter A." certain land, and the next two clauses gave other land to her other two daughters in similar language, and the sixth clause provided that the bequests made to testator's three daughters were made to them and the heirs of their body, forever, but if one or more of them should die, without heirs of their body, then the property here bequeathed should revert to and descend to testator's other heirs. Rev. St. 1899, § 4646 (Ann. St. 1906, p. 2517), provides that in devises in which the words "heirs and assigns" or "heirs and assigns, forever" are omitted, and no expressions are contained whereby it appears that the devise was intended to convey a life estate only, and no devise be made over, it shall be understood to be testator's intention to devise an absolute fee-simple estate. Held that, while under the second clause, daughter A. would take a fee simple, the sixth clause created a fee tail estate in the daughter, for which was immediately substituted a life estate by the direct provisions of section 4592 (page 2496), so that the heirs of her body alive at her death took a fee simple absolute; section 4593 (page 2497) providing that, where a remainder is limited to take effect on the death of one without heir or heirs of his body, the word "heirs," etc., shall be construed to mean heirs living at the death of the person named as ancestor.

11. PERPETUITIES (§ 4) — REMAINDERS.

A clause in a will giving property to testator's daughters and the heirs of her body, forever, with remainder to other heirs if she died without heirs of her body, so as to vest a fee tail estate in her which was converted to a life estate by statute with a remainder over in fee, did not offend the statute against perpetuities.

Appeal from Circuit Court, Platte County; Alonzo D. Burnes, Judge.

Action by D. K. Cox against Thaddeus C. Jones and others. From a judgment for plaintiff, defendant named and another appeal. Affirmed.

Ardey Gabbert, James W. Boyd, and C. H. Hillix, for appellants. James H. Hull and Groves & Berry, for respondent.

LAMM, P. J.

Ejectment in Platte circuit court, brought January 10, 1907. Originally there were four defendants. Two of them went out on demurrer at the close of plaintiff's evidence; plaintiff saving no exception to the ruling and taking no appeal. The verdict came in against Jones and Pepper on a trial to a jury. From a judgment entered on that verdict the two remaining defendants appeal here, making no question on the monthly rental value or the damages assessed nisi. The land in controversy is the E. ½ of the S. W. ¼, section 13, township 54, range 36 in Platte county, Mo. The petition is conventional, laying ouster as of April 10, 1906. The answer was a general denial.

The controversy lies in a nutshell, viz.: Ann (intermarried with Jefferson Harris) was a daughter of John C. Scott, and died April 6, 1906, leaving several children surviving her. Scott was the common source of title and died testate, leaving a widow, three daughters, and one son surviving him. His will, dated August 27, 1863—a codicil, immaterial here, being added in 1865—was probated on April 6, 1869, in the Platte probate court, Scott residing in Platte county. Ostensibly, claiming a fee-simple title under a devise in her father's will, Ann Harris and her husband conveyed to defendant Jones in 1877 by warranty deed. Jones made entry under that deed and thereafter held possession. Claiming that their mother took only a life estate under the will of her father, and that the children of Ann Harris took as remaindermen when her life estate fell in, some of her children conveyed by separate deeds to the plaintiff. Subsequently Cox brought partition against the nonconveying children of Ann Harris and the descendants of one dead for a division of the land. Such steps were taken in that case that the proceeding ripened into a judgment, sale, and sheriff's deed in partition conveying the land to Cox. If defendants' interpretation of Scott's will be sound, Cox got no title by his several deeds, and Jones took title in fee simple by his. Contra, if plaintiff's be sound, Jones got nothing by his deed but the life estate of Ann Harris, her children held the reversion as remaindermen, ergo, their several deeds and the sheriff's deed in partition conveyed a fee-simple title to Cox, Ann Harris' life estate having lapsed at the time of the partition and the bringing of this ejectment suit. Such being the bone of contention, a determination of the case seeks the material clauses of the will, viz.:

"First: I give and bequeath to my beloved wife, Jane C. Scott, all of my home tract of land, it being all of that part of the Southeast (S. E.) Quarter of Section Fourteen in Township 54 of Range 36, as lays south of the creek, and all that of the tract of land purchased by me of Aquilla Phy as lays south of the same creek adjoining the above described tract of land—And all of my other property, both real and personal or mixed, not otherwise expressly devised herein, during her natural life. And I desire her from my personal property to pay off any debts I may be owing, and give to my three unmarried children, Sarah J., Amanda J., and Alvin B. Scott gifts by way of advancement equal to what has been given to my daughter Ann Harris, at any time it may in her judgment be necessary and right.

"Second: I give to my daughter Ann Harris, wife of Jefferson Harris, The East Half of the Southwest Quarter of Section 13 in Township 54 of Range 36, being 80 acres, subject to the reservation of the timber on all the land on the North Side of the `Steels' Branch on that 80 acres, and Two Board Trees on said 80, to be designated by Mr. James Steel. The fence now dividing the tract is to be moved on the line, and if not sufficient to make a good fence, the balance of the rails is to be made of timber from the East 80 of the tract.

"Third: I give to my daughter Amanda J. Scott, the West Half of the Southwest Quarter of Section 13 in Township 54 of Range 36, and all the timber on the land on the north side of `Steels' Branch on the East Half of said Quarter Section and Two Board Trees on the East Half of said Quarter Section to be designated by Mr. James Steel.

"Fourth: I give to my daughter Sarah J. Scott, all of that tract of land purchased by me of Aquilla Phy, laying North of the Creek and the timber off of Five acres running East and West opposite hers on the South side of the creek on the home tract.

"Fifth: I give to my son Alvin B. Scott the 98 acres known as the Terry and Cox tract, being the N. E. Qr. of Sec. 14, Town. 54, Range 36, and also all the Real Estate hereby bequeathed to my beloved wife, Jane C. Scott, at her death.

"Sixth: The bequests here made to my three daughters are made to them and the heirs of their body, forever, but if any one or more of them should die without heirs of their body, then the property here bequeathed to them shall revert to and descend to my other heirs as herein expressed."

There was testimony that the devisee Amanda J. Scott intermarried with T. C. Jones, defendant. Children were born to them who, with their mother, were living at the time of the trial. The devisee Sarah Scott also married, and had four sons born to her—she and they living. The trial court took plaintiff's view of the will, viz., that Ann Harris took a life estate with remainder over to the heirs of her body; that when she died plaintiff's deeds from some of these heirs operated to convey him an undivided interest in the land, and created a tenancy in common with those living heirs of her body who had not conveyed; and that by the partition proceedings and deed following plaintiff, having acquired the...