DeLassus v. Gatewood

• Decision Date: 30 April 1880
• Parties: DELASSUS v. GATEWOOD, Appellant.
• Court: Missouri Supreme Court

71 Mo. 371

DELASSUS

v.GATEWOOD, Appellant.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Cape Girardeau Circuit Court.--HON. D. L. HAWKINS, Judge.

REVERSED.

Ejectment by Lydia DeLassus, claiming as heir of William A. DeLassus, her deceased son, against Robert F. Gatewood.

Wilson Cramer for appellant.

The fact that the persons named in the will as children of the testator were his only children, conclusively shows that the words “that are alive” do not refer to the time of the making of the will, and that these words, and those immediately following, “or their bodily children” were not intended to distinguish between those of the testator's children that were then living, or their bodily children, and the bodily heirs of such children as had previously died. These words clearly indicate that the testator contemplated, at the time, that future events should determine between what parties his estate should be divided. Hence, we conclude that the estate was to be distributed between those of his children, or their bodily children, if any should die leaving such, that were living at the death of the testator's widow.

If this construction is correct, then the remainder is contingent, since it was uncertain whether any of the children named, or any of their issue would survive the tenant for life. Jones v. Waters, 17 Mo. 587; Aubuchon v. Bender, 44 Mo. 566; Emison v. Whittlesey, 55 Mo. 258; 1 Blackst., book 2, p. 170; 4 Kent's Com., (12 Ed.) 206, et seq; 1 Hilliard on Real Prop., (2 Ed.) 501, § 3; 2 Washburn on Real Prop., (3 Ed.) 519, et seq. The remainder being contingent and Felix M. DeLassus, the husband of plaintiff, and William A. DeLassus, their son, having died before the tenant for life, there was no descendible interest in them which could pass to the plaintiff. Bingham on Descents, 222, 232. The provision of the will authorizing the widow of the testator to make advancements to his children, does not militate against the position here assumed. It simply gives a power, and in no manner affects the devise itself.

J. Perry Johnson for respondent.

The will created in the widow a life estate, and in all the children named a vested remainder, and the fee in all the real estate of which Ceran E. DeLassus died seized vested in his eleven children, as tenants in common, immediately on the death of their said father, subject only to the life estate, or, in other words, a present estate with the right of possession and enjoyment postponed until the death of the tenant for life. Wag. Stat., p. 1351, § 6; Tesson v. Newman, 62 Mo. 201; Wigram on Wills, 58, 310; McKinstry v. Sanders, 2 Thomp. & Cook (N. Y.) 191; 4 Kent Comm. 198, 203, 206; Moore v. Lyons, 25 Wend. 119; Bond's Appeal Case, 31 Conn. 183; Gregory v. Cowgill, 19 Mo. 415; Manice v. Manice, 43 N. Y. 368; Aldrich v. Weed, 5 Thomp. & Cook (N. Y. Sup. Ct. Rep.) 105; Robertson v. Hillman, 5 N. Y. Sup. Ct. Rep. 535; Campbell v. Rawdon, 18 N. Y. 412; Mowatt v. Carow, 7 Paige (N. Y.) 328; Hays v. Gourley, 8 N. Y. Sup. Ct. 38; Austin v. Bristol, 40 Conn. 120; s. c., 16 Am. Rep. 28; Ackerman v. Gorton, 13 N. Y. Sup. Ct. 301; Young v. Langbein, 14 N. Y. Sup. Ct. Rep. 151; Livingston v. Greene, 52 N. Y. 118; Williamson v. Field, 2 Sandf. Ch. 533; Burleigh v. Clough, 52 N. H. 267; Hannan v. Osborn, 4 Paige 336; Everitt v. Everitt, 29 N. Y. 75; Hoxie v. Hoxie, 7 Paige, 187; 2 Washburn Real Property (2 Ed.) 228; Eldridge v. Eldridge, 9 Cush. 516; Bridgewater v. Gordon, 2 Sneed (Tenn.) 5; Manderson v. Lukens,23 Penn. St. 31; Rives v. Frizzle, 8 Ired. Eq. 237; Johnson v. Valentine, 4 Sand. (N. Y.) 36; Smith's Appeal,23 Penn. St. 9; Biddle's Appeal,69 Penn. St. 190; Chinn v. Keith, 4 T. & C. (N. Y.) 126; 1 Hun 589; Moore v. Littel, 41 N. Y. 66 Johnson v. Valentine, 4 Sand. 37; Rose v. Hill, 3 Burr. 1881; Converse v. Kellogg, 7 Barb. 590; Cruise's Dig., 16, chap. 1, § 86, note; Doe v. Provoost, 4 John. 61; Croxall v. Shererd, 5 Wall. 268; Ives v. Legge, 3 T. R. 488; Doe v. Perryn, 3 T. R. 484; Lantz v. Trusler,37 Pa. St. 482; Sweet v. Chase, 2 N. Y. 73; Gilman v. Reddington, 24 N. Y. 10. The courts never construe a remainder to be contingent when it can be taken to be vested. Doe v. Provost, 4 John. 64; 4 Sandf. 43, 44; Boraston's Case, 3 Coke, 19; Goodtitle v. Whitby, 1 Burr. 228; Wrightson v. MaCaulay, 14 M. & W. 230. If there could be any doubt as to the meaning of the will as to the vesting of the estate, it seems to be entirely removed when we examine the will farther, where the testator directs that his wife may “give to any of my children property toward their portion when they arrive at age.” Were this a contingent remainder, they could have no portion until the contingency had happened.

SHERWOOD, C. J.

This action, ejectment, was tried upon the following agreed statement of facts:

First. That Ceran E. DeLassus died testate previous to the 5th day of May, A. D. 1857, seized and owner of a large quantity of land, of which the land described in plaintiff's petition in this cause forms a part.

Second. That, at the time of his death, the said Ceran E. DeLassus left him surviving Eleanor DeLassus, his widow, and Mary E. Picou, Joseph E. DeLassus, Francis C. DeLassus, Leon E. DeLassus, Cammille J. D. DeLassus, Felix M. DeLassus, Elie M. DeLassus, Mina J. DeLassus, Mary J. DeLassus, Adolph DeLassus and Marin Z. DeLassus, his only children.

Third. That the said Ceran E. DeLassus, at the time of his death, left a last will and testament, which was, on the 5th day of May, A. D. 1857, duly admitted to probate in the county court of Perry county, State of Missouri, of which will and testament the following is a true copy, to wit: I, Ceran E. DeLassus, of Perry county, in the State of Missouri, do hereby make and publish this, my last will and testament, as follows, to wit: First. I desire that my funeral expenses and all my other debts be paid, without the expense or trouble of having them classed and allowed in court, if my executrix should know them to be just. Second. I will and bequeath unto my dearly beloved wife, Eleanor DeLassus, all my property, both real and personal, goods and chattels, moneys and effects, debts due and becoming due, books, papers and accounts of every description, to have and to hold at her will and pleasure during her natural life or widowhood. And, at the death or marriage of my said wife, it is my will that all my estate heretofore bequeathed shall be equally divided between my children that are alive, or their bodily children, to wit: Mary C. Picou, Joseph L. DeLassus, Francis C. DeLassus, Leon E. DeLassus, Cammille J. D. DeLassus, Felix M. DeLassus, Elie M. DeLassus, Mary J. DeLassus, Adolph DeLassus, Mina J. DeLassus and Marin Z. DeLassus, in equal share or proportion. And it is my will and pleasure that my said wife has the pleasure and is permitted to give to any of my children property toward their portion when they arrive at age, by having the same valued, and taking their receipt for the same, as so much toward their portion of my estate. It is my bequest that, should my said wife intermarry, that she take, as her portion, what the laws of the State of Missouri will allow her, and no more. And, lastly, I hereby nominate and appoint my said wife, Eleanor DeLasssus, executrix of this, my last will and testament, hereby revoking all former wills by me made. In testimony whereof, I have hereunto set my hand and seal, this 26th day of March, A. D. 1856.

Attested, etc.

C. E. DELASSUS. (Seal.)

Fourth. That on the 7th day of October, 1872, the said Felix M. DeLassus and Lydia DeLassus, the plaintiff in the case, were duly and lawfully married, and lived together as husband and wife until the death of the said Felix M. DeLassus.

Fifth. That on the 7th day of June, 1873, William A. DeLassus, son of the said Felix M. DeLassus and Lydia DeLassus, the plaintiff herein, was born.

Sixth. That on the 12th day of July, 1873, the said Felix M. DeLassus died, intestate, leaving his son, William A. DeLassus, his only child, and his widow, the said Lydia DeLassus, him surviving.

Seventh. That on the 10th day of March, 1874, the said William A. DeLassus died intestate, leaving his mother, the said Lydia DeLassus, him surviving.

Eighth. That the said Eleanor DeLassus never married after the death of Ceran E. DeLassus, and on the 21st day of September, 1874, died intestate.

1. CONTINGENT REMAINDER: particular estate: devise to children to be alive at a future time.

The learned author of a work on descents, says: “A contingent remainder is that part of an estate in fee bestowed conditionally upon one of two or more persons, which one is not certain; the rest of which is bestowed definitely upon some other person or persons named. The part not thus definitely disposed of to some particular person or persons, is provided to go to some other person or persons of two or more named, which of the two or more is left uncertain, and is to be fixed and made certain by succeeding events. The remainder itself is certain, but the person who is to have it is uncertain until it is determined by the events named.” Bingham on Descents, 125. Chancellor Kent says that the definition (of a contingent remainder) in the New York Revised Statutes, volume 1, p. 723, section 13, is brief and precise. A remainder, says the statute, is contingent, whilst the person to whom, or the event upon which it is limited to take effect, remains uncertain. 2 Kent 208, note. Blackstone divides contingent remainders into two kinds: “Where the estate in remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event.” 2 Black. Com., 169. This definition corresponds with that of Fearne, and falls within his fourth class of contingent remainders. 1 Fearne 9. I have been thus particular in the citation of text-books, since it is agreed that the right of the plaintiff to maintain her action depends upon whether the will in question created a...