Dickerson v. Dickerson

• Decision Date: 26 February 1908
• Citation: 110 S.W. 700,211 Mo. 483
• Parties: DICKERSON et al. v. DICKERSON et al.
• Court: Missouri Supreme Court

110 S.W. 700

211 Mo. 483

DICKERSON et al. v. DICKERSON et al.

Supreme Court of Missouri, Division No. 1.

February 26, 1908.

1. WILLS—CONSTRUCTION—INTENTION.

In the construction of a will, the intention of the testator must prevail.

2. SAME—VESTED OR CONTINGENT REMAINDER.

Where there is any reasonable doubt as to whether a will creates a vested or a contingent remainder, the doubt will be resolved in favor of the former.

3. SAME—TIME OF VESTING.

Estates vest at the earliest possible period, unless there is a clear manifestation of a contrary intention on the part of the testator.

4. SAME—TIME OF TAKING EFFECT.

A will becomes effective from and after the death of the testator, and not from the time of its execution.

5. SAME—CONSTRUCTION AS WHOLE.

The intention of the testator is to be gathered from the entire instrument and effect given to each and every part thereof, if it is possible to do so.

6. SAME—VESTED OR CONTINGENT REMAINDER.

A will devising real estate to testator's wife, and providing, "if she marries or ceases to be my widow, the farm then reverts to my children, to be equally divided between them, and at her death such farm to be divided between my surviving children and grandchildren, if any, whose parents are dead," gives a contingent and not a vested remainder to the testator's children and grandchildren, and such interest became extinct by the death of a child prior to the death of the widow.

7. QUIETING TITLE—CLOUD ON TITLE.

A deed by one who had only a contingent remainder, which afterwards became extinct, cast a cloud upon the title to the land in controversy, and should be declared null and void.

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Action by W. R. Dickerson and others against B. K. Dickerson and others. From the judgment rendered, defendants appeal. Affirmed.

This cause originated in the circuit court of Adair county, and was instituted by plaintiffs against the defendants to have a quitclaim deed made by George B. Dickerson to the defendants purporting to convey certain real estate set aside and for naught held. The plaintiffs and defendants are the only heirs at law of said George B. Dickerson, deceased; and plaintiffs and defendants, including said George B. Dickerson, were the children of one P. H. T. Dickerson, with the exception of Walter R. Dickerson, who is his grandson and a son and only heir at law of Joseph Dickerson, deceased. The petition stated that at the time said deed was executed George B. Dickerson was non compos mentis, and that the deed was procured through a conspiracy, fraud, and undue influence of defendants exercised over the mind of George B. Dickerson, and that it had never been delivered by the deceased. The answer in effect was a general denial. The cause was submitted to the court on the pleading and evidence, and its finding was against the plaintiffs and in favor of the defendants upon the issues, and decreed that the deed conveyed to the defendants all the interest that said George Dickerson had in the real estate therein described. To that action of the court the plaintiffs saved no exceptions. But the court did not stop there, but proceeded and decreed that said George B. Dickerson took only a contingent interest instead of a vested interest in the 200 acres described in said deed under the will of P. H. T. Dickerson, which is as follows.

"Know all men by these presents: That I, P. H. T. Dickerson of the county of Adair, and state of Missouri, being in good health and of sound and disposing mind and memory, do make and publish this my last will and testament, hereby revoking all former wills by me made at any time heretofore. And as to my wordly estate and all the property, real, personal or mixed of which I shall die seised and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, to wit:

"First: My will is, that all my just debts and funeral expenses shall by my executors hereinafter named be paid out of my estate as soon after my decease as shall by them be found convenient, also my executors shall purchase out of the estate a monument to be placed at my grave in case there is none there.

"Item: I give, devise and bequeath to my beloved wife, Catherine I. Dickerson, all my household furniture. I also give to her the use and income of my dwelling house and land of two hundred acres, being and situated in Wilson township, county of Adair and state of Missouri, to have and to hold the same to her for and during the term that she may remain my widow. If she marries or ceases to be my widow, the farm then reverts to my children, to be equally divided between them. And at her death said farm to be divided between my surviving children and grandchildren if any whose parents are dead.

"All the rest and residue of my estate, real, personal and mixed, of which I shall die seised and possessed, or to which I shall be entitled at my decease, I give, devise and bequeath to be equally divided between my wife Catherine I. Dickerson and my children, excepting James G. Dickerson, he, the said James G. Dickerson, two hundred dollars less than the other heirs.

"And, lastly, I do nominate and appoint my wife, Catherine I. Dickerson, and my son, W. H. Dickerson, to be the executors of this my last will and testament."

The record discloses the fact that George B. Dickerson departed this life on March 7, 1902, some time previous to the death of his mother, Catherine I. Dickerson. Upon that state of facts the court below found and decreed that the contingent interest of George B. Dickerson in and to the land in question acquired under said will became extinct upon his death, and that the quitclaim deed mentioned conveyed no interest in said lands to the defendants, and adjudged that it be canceled and held for naught. From that judgment defendants have duly appealed to this court.

Guthrie & Franklin and Dysart & Mitchell, for appellants. Campbell & Ellison and Joseph Park & Son, for respondents.

WOODSON, J. (after stating the facts as above).

P. H. T. Dickerson was the common source of title, and through him all the plaintiffs and defendants claim title to the land in controversy. All claim title through his will, and subject to the life estate devised thereby to his widow, Catherine I. Dickerson; but, as she had departed this life prior to the institution of this suit, her life estate is not involved in this litigation. The defendants contend that George B. Dickerson took a vested interest in the 200 acres of land under said will, and that he by said quitclaim deed conveyed that interest to them, and that they are the lawful owners thereof in fee; while, upon the other hand, the plaintiffs claim that the will only gave George B. a contingent interest in said land, and he having died before his mother, the contingent interest conveyed by said quitclaim deed to defendants became extinct, and that said deed is a cloud upon the title. That is the sole contention between the plaintiffs and defendants. If the will gave to George a vested interest, then the judgment is erroneous and should be reversed; but, if it gave him only a contingent interest, then the judgment is for the right party and should be affirmed. In order to determine that proposition correctly, we will have to examine the will and gather therefrom the intention of the testator. That intention, whatever it may be, must prevail. The clause of the will out of which this litigation grows is in the following words: "I also give to her the use and income of my dwelling house and lands of two hundred acres, being and situated in Wilson township, county of Adair and state of Missouri, to have and to hold the same for her for and during the term that she may remain my widow; if she marries or ceases to be my widow, the farm then reverts to my children, to be equally divided between them, and at her death said farm to be equally divided between my surviving children and grandchildren if any whose parents are dead." The law favors vested remainders; and, where there is any reasonable doubt as to whether the estate created is a vested or a contingent remainder, the courts will resolve that doubt in favor of the former and against the latter. It is the policy of the law, and it holds that estates vest at the earliest possible period, unless there is a clear manifestation of a contrary intention on the part of the testator. 2 Washburn on Real Property (6th Ed.) §§ 1537, 1538, 1544; Chew v. Keller, 100 Mo. 362, 13 S. W. 395. But notwithstanding that presumption, the plaintiffs have assumed the laboring oar, and have undertaken the burden of convincing us that it was the intention of the testator, P. H. T. Dickerson, to create a contingent remainder in favor of his children, and not a vested remainder.

This brings us to a consideration of the rules of law by which the courts must be governed in the determination of what are contingent remainders. Mr. Washburn, in his excellent work on Real Property, defines a contingent remainder in the following language: "A contingent remainder is one whose vesting or taking effect in interest is by the terms of its creation made to depend upon some contingency which may never happen at all, or may not happen within a requisite prescribed time, by reason whereof its capacity of vesting or taking effect in interest may be forever defeated. Or, in the language of another, it is one `which is limited to a person who is not ascertained at the time of the limitation, or which is referred for its vesting or taking effect in interest to an event which may not happen till after the determination of the particular estate,' or upon the happening of some uncertain and doubtful event, or where the person to whom it is limited is not ascertained or yet in being. Until the contingency has happened, the remainder is rather a possibility in its character than an estate,...