Dameron v. Lanyon

• Citation: 234 Mo. 627,138 S.W. 1
• Parties: DAMERON v. LANYON.
• Decision Date: 01 June 1911
• Court: Missouri Supreme Court

138 S.W. 1

234 Mo. 627

DAMERON v. LANYON.

Supreme Court of Missouri, Division No. 1.

June 1, 1911.

1. WILLS (§ 440) — CONSTRUCTION.

General rules of construction are subject to the governing principle that the intention of testator is the main fact to be ascertained, and that to find that intention the whole will must be read.

2. WILLS (§ 545) — CONSTRUCTION — GIFT OVER — CONDITION — DEATH.

If, and only if, it appears from a reading of the whole will, making a gift to testator's children, with a provision that if either of them dies before she shall have received her share it shall be equally divided among the survivors, that the event, prior to which the child dying shall lose her share, is some other than the death of testator, it will be given that construction.

3. WILLS (§ 545) — CONSTRUCTION — GIFT OVER — CONDITION — DEATH BEFORE RECEIVING SHARE.

A will gave to testator's wife the share she would have taken under the intestate laws; gave the residue to his four children, all minors, the youngest only three years old, with provision that, should either die without issue "before he or she shall have received his or her share of the the estate," such share shall be divided among the survivors; made a special gift of land and stock, on which a certain value was placed, to the oldest son, the same to be turned over to him on his arriving at the age of 21 years, it to be considered as an advance to him as part of his share as a residuary legatee and devisee, with provision that he should receive no further part or share till in the opinion of the executrix it should be given to him; made testator's wife sole executrix without bond, declaring that he reposed the fullest confidence in her integrity and ability; expressed his desire that she maintain a home for and support the children during their minority, stating that she might use the income of the estate for the purpose; stated his desire that she should from time to time make advances to the children of parts of their several shares, but authorized her to hold the estate and only make advances to the children at such times and in such amounts as in her opinion will be for their best interest; stating it to be his desire that she shall have and exercise the same discretion as to the time and manner of distributing the estate that he would have if living. Held, that where a child died after testator, but before he or she had been put in actual possession of his or her share of the residuary gift, the provision for division thereof among the survivors applied.

4. EXECUTORS AND ADMINISTRATORS (§ 66) — ADMINISTRATION — INVENTORY.

Even if under a will one was seised of a determinable fee in land, whereof his widow is entitled to dower, yet, such fee having determined on his death, the property does not belong to his estate, and therefore should not be included in his administratrix's inventory.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Zora Lanyon Dameron in the Probate Court moved to have Martha J. Lanyon, administratrix of Clyde B. Lanyon, required to include certain property in her inventory. The motion was overruled, and on appeal to the circuit court there was judgment adverse to her, from which she appeals. Affirmed.

Thomas & Hackney, for appellant. H. S. Miller and McReynolds & Halliburton, for respondent.

VALLIANT, J.

Appellant is the widow of Clyde B. Lanyon, who died intestate September 19, 1903, and respondent is the administratrix of his estate. Respondent is also the executrix of the will of Reuben S. Lanyon, deceased, who was the father of Clyde B. Lanyon, and who died testate, December 28, 1902. Appellant filed a motion in the probate court of Jasper county to require respondent, as administratrix of the estate of Clyde B., to include in her inventory an undivided one-fourth of the real estate of which Reuben S. Lanyon died seised, subject to the widow's dower, and a one-fifth interest in his personal estate; she averring that such was the share which Clyde B. owned at the time of his death in the estate of Reuben S. Lanyon. The administratrix answered the motion, denying that Clyde B., at the time of his death, owned any part of the estate left by his father. The matter came on for hearing in the probate court and resulted in overruling the motion. The widow appealed to the circuit court, where the issues were tried anew. The trial resulted in a judgment against her, overruling her motion, and from that judgment she appealed.

The adjudication of the rights of the parties in issue depends on the construction to be placed on the will of Reuben S. Lanyon. That will, or so much thereof as is material to the issue, is as follows:

"It is my will that my wife Martha J. Lanyon have the same share, right, title and interest, in and to my property, real, personal and mixed, as she would have taken under the laws of the state of Missouri, had I died intestate.

"All the rest, residue and remainder of my estate, real, personal and mixed, I give, devise and bequeath unto my four children, namely, Clyde B. Lanyon, Edith E. Lanyon, Shirley May Lanyon and Lavon Lanyon, to be equally divided among them; should either of my children die without issue before he or she shall have received his or her share of my estate, the share of such deceased child shall be equally divided among his surviving brothers and sisters, but if such child shall leave him surviving child or children, such child or children shall receive its parent's share.

"I have heretofore purchased the eighty-acre tract of land hereinafter described, and I have also purchased some shares of stock in the Walker-Lanyon Oil Company, of Joplin, Missouri.

"This property I purchased for my son Clyde B. Lanyon, although I have taken the title thereto in my own name. The tract of land is worth two thousand dollars, and the shares of stock are worth twelve hundred and eighty-five dollars.

"I give, devise and bequeath unto my son Clyde B. Lanyon the said eighty-acre tract of land, the description of which is the south half of the southwest quarter of section number six, in township twenty-six, range number thirty-three in Newton county, state of Missouri.

"I also give and devise unto my said son Clyde all of my shares of stock in the Walker-Lanyon Oil Company of Joplin, Missouri, together with all my right, title and interest in and to the property of said Walker-Lanyon Oil Company of Joplin, Missouri, but said property is to be considered as an advance to him of a part of his share as a residuary legatee and devisee under this will, and the same is to be charged to him as of the value of three thousand, two hundred and eighty-five dollars. The above-described real estate and personal property are to be turned over to said Clyde B. Lanyon when he arrives at the full age of twenty-one years.

"If the shares of stock in said Walker-Lanyon Oil Company be sold during my lifetime, then said Clyde is to have in lieu thereof the price which they bring, whatever that may be. If they sell for a greater price than $1,285.00 my said son shall have the benefit thereof and should they be sold for a less sum the loss is to fall upon him.

"I hereby nominate, constitute and appoint my wife Martha J. Lanyon as a sole executrix of this my last will and testament, and reposing the fullest confidence in her integrity and in her ability to wisely manage my estate. It is my will that no bond whatever be required of her.

"I give unto my said executrix full power and authority to compound, compromise and settle any and all claims against or in favor of my said estate. I also give her full power and authority to grant, bargain, and sell any part of the property real or personal, belonging to my estate whenever in her opinion it may seem expedient to do so, and I give to my said executrix full power and authority to execute, acknowledge and deliver deeds of conveyance of the same.

"It is my desire that my wife maintain a home for and support my children during their minority, and that she may do so she may use the income of my estate for that purpose.

"It is my will that my said son Clyde B. Lanyon be let into the possession of the eighty-acre tract of land above described as soon as possible after he arrives at the age of twenty-one years, and that at the same time he also be given said shares of stock in said Walker-Lanyon Oil Company, or the proceeds of the sale thereof if they shall have been sold, but he shall receive no further part or share until in the opinion of my executrix the same should be given to him.

"It is my desire that my executrix shall from time to time make advances to my children of parts of their several distributive shares of my estate and she shall keep an accurate account of all such advances made by her so that each shall receive no more than his distributive share of my estate. In order that my estate may be put to the best possible use by my said children, I hereby authorize my said executrix to hold the same and only make advances to my said children at such times and in such amounts as in her opinion will be for their best interests.

"It being my desire that my said executrix shall have and exercise the same discretion as to the time and manner of the distribution of my estate that I would have if living.

"It is my desire that my executrix should keep the property of said estate invested in such a manner as to derive an annual income therefrom and she is authorized to use the income therefrom for the maintenance of a home and for the support of such children as are minors.

"In witness whereof, I have hereunto set my hand and seal this 23d day of September,

                A. D. 1901.         Reuben S. Lanyon."
                

Testator died in December, 1902, leaving his widow and four children, Clyde...