Evans v. Rankin

• Decision Date: 21 December 1931
• Docket Number: No. 29987.,29987.
• Citation: 44 S.W.2d 644
• Parties: EVAH EVANS v. FRANK RANKIN ET AL., Appellants.
• Court: Missouri Supreme Court

44 S.W.2d 644

EVAH EVANS v. FRANK RANKIN ET AL., Appellants.

No. 29987.

Supreme Court of Missouri.

Division One, December 21, 1931.

Appeal from Ray Circuit Court. — Hon. Ralph Hughes, Judge.

REVERSED AND REMANDED (with directions).

A. Moody Mansur for appellants.

(1) The decree of the court is erroneous because it shows upon its face that it is in conflict with the express provisions of the will of the testatrix and her intentions as manifested in the will. Sec. 567, R.S. 1929; Lane v. Garrison, 293 Mo. 530; Riley v. Bond, 317 Mo. 594, 296 S.W. 401; Ewart v. Dalby, 319 Mo. 108, 5 S.W. (2d) 428; Maguire v. Moore, 108 Mo. 267. (2) The court erred in decreeing that the defendants had no interest, vested or contingent, in the property affected by the third clause of said will. Huntington Real Estate Co. v. Megaree, 280 Mo. 41; Webb v. Hyden, 166 Mo. 39; Simpson v. Erisner, 155 Mo. 157; Pugh v. Hays, 113 Mo. 424, Dwyer v. St. Louis Union Trust Co., 286 Mo. 481, 228 S.W. 1068; Smith v. Smith, 194 Mo. App. 309. (3) The court erred in decreeing that the fee simple title to the property as provided for in the third paragraph of said will vested in plaintiff at the death of the testatrix. Huntington Real Estate Co. v. Megaree, 280 Mo. 41; Webb v. Hyden, 166 Mo. 39. (4) The court erred in decreeing that the trust provided for in the third clause of said will cast a cloud upon the title of the owners of the property. (5) The court erred in decreeing that the trust provided for in the third clause of said will was not a spendthrift trust. Kessner v. Phillips, 189 Mo. 515; Graham v. More, 189 S.W. 1186; Huntington Real Estate Co. v. Megaree, supra.

Lavelock, Kirkpatrick, Clark & Garner for respondents.

(1) The will vested in Evah Evans, at the death of testatrix, the fee simple title to the property devised. Because: (a) The law favors vested estates and, unless the will clearly indicates a contrary intention, the estate will vest on the death of the testator. Peugnet v. Berthold, 183 Mo. 61; Baker v. Kennedy, 238 S.W. 790; Dunbar v. Sims, 283 Mo. 356; Ewart v. Dalby, 319 Mo. 108. (b) Mere expressions of time, such as "when," "after," "from," "after her death," "at her death," do not indicate an intention to postpone the vesting of the estate. Jones v. Waters, 17 Mo. 587; Chew v. Keller, 100 Mo. 362. (c) The will is to be construed according to the intention of the testator as gathered from the will itself, but the intention must be determined by what the testator said in the will and not by what the testator might have meant or should have meant. Pommer v. Bushnell, 292 S.W. 418; Wooley v. Hays, 226 S.W. 844; Peugnet v. Berthold, 183 Mo. 61. (2) The court did not err in cancelling the trust attempted to be set up in the will. Because: (a) The plaintiff, as the sole heir of testatrix and her deceased husband, being the owner of the entire beneficial interest in the property, and being of legal age and sui juris, it is against the policy of the law for plaintiff to be hampered in the control of her property. Peugnet v. Berthold, 183 Mo. 61. (b) The will did not create a spendthrift trust. Kessner v. Phillips, 189 Mo. 515.

HYDE, C.

This is an action to determine title to real estate disposed of by the will of Letha Evans, deceased, and remove a cloud from the title.

After providing for the payment of debts and a $50 bequest to a cemetery, the following portion of the will disposed of all her property:

"3. I will, devise and bequeath to George F. Mansur all the residue of my estate and effects, both real and personal, in trust for my daughter, Evah Evans, during her natural lifetime and after her death then one-half (½) of said estate to go absolutely to the heirs of Lorenzo D. Evans, and one-half (½) of said estate to go absolutely to my heirs; said trustee is hereby given absolute right, power and authority to invest, manage and control said trust estate and with absolute discretion from time to time during the life of my daughter, Evah Evans, to pay all or any part of the income of said trust estate, and the investments thereof, or if he shall from time to time think fit, any part of the capital thereof, unto my said daughter; or at his absolute discretion to apply the same for the maintenance or personal support of my said daughter in such proportions and in such manner as my trustee in his absolute discretion shall from time to time think proper."

In addition to personal property more than sufficient for the payment of debts, expenses of administration, and the cemetery bequest, Letha Evans owned forty acres of land in Ray County. Evah Evans, the plaintiff, was the only daughter of Letha Evans and Lorenzo D. Evans. Her father, Lorenzo D. Evans, died about six years prior to the death of her mother, Letha Evans. The pleadings are our information as to the facts and they only give us the relationship of the parties and the will. There are no disputed questions of fact. Letha Evans had four brothers who were all living at the time of her death. They were made defendants, as was the trustee named. Lorenzo D. Evans had no brothers or sisters who survived him, but he had a deceased brother and four deceased sisters, each of whom left surviving descendants. Their descendants are the other defendants.

Plaintiff's petition alleged that the proper construction of the will was that plaintiff was the owner in fee simple of the forty acres, which was the only part of the estate of Letha Evans involved in this suit. Plaintiff's claim was, that she was the only child and sole heir of both Lorenzo D. Evans and Letha Evans, and that as such she took, by it, both the beneficial interest in the trust estate and the remainder in fee. She alleged that the entire beneficial interest in the land vested in her; that, therefore, she became the owner of the land absolutely in fee simple; and that the part of the will creating the trust created a cloud upon her title to the land, which diminished its market value. She alleged that the defendants, the trustee, the surviving brothers of Letha Evans and the surviving descendants of the deceased brother and sisters of Lorenzo D. Evans, claim an interest in the land. She asked the court to cancel and discharge the trust contained in the will and construe the will that plaintiff was the owner in fee simple of the land; that defendants had no interest in it; and to remove the cloud, which this part of the will made on plaintiff's title. The trustee, the brothers of Letha Evans and one of the descendants of a deceased sister of Lorenzo D. Evans, filed an answer which alleged their relationship and the relationship of the other defendants to Lorenzo D. Evans or Letha Evans; alleged that the word "heirs," as used in the will, meant "those persons who would constitute the heirs and inherit under the law from said Letha Evans and said Lorenzo D. Evans at the death of said Evah Evans, and should not be construed to mean or include Evah Evans;" and asked that the will be construed that the defendants were contingent remaindermen subject to the trust. The remaining defendants were in default.

The court found that the relationship of the parties was as alleged in the answer; that plaintiff was the owner of the land in fee simple; that the trust provision of the will created a cloud on her title; and that defendants had no interest in the land. The court also found that the will did not create a spendthrift trust. The decree ordered that the will be construed to vest the fee simple title in plaintiff; and that the trust attempted to be created in the third clause of the will be canceled and for naught held. From this decree defendants appealed. The questions to be determined under the assignments of error are whether or not the defendants, who were relatives of the testatrix and her husband, have any interest in the land, and what, if any, interest the trustee has.

The question of whether the heirs of testatrix and her deceased husband shall be determined at the death of the testatrix or at the death of the life tenant is one upon which the courts are not in accord. In construing similar provisions in wills there have been decisions taking each side of the question. Of course, each case presents some difference in language and circumstances which the courts have considered in attempting to determine the testator's intent.

"The application of the rule that the remainder goes to the persons who answer the description at the time of the testator's death is not prevented by the mere circumstance that the person to whom the previous life interest is given is also one of such heirs or next of kin. But where the person to whom the previous life interest is bequeathed by the will is the sole member of the class described as heirs, etc., to whom a remainder is given, the authorities are not in entire accord as to the construction to be put on the remainder over. It has been held that the fact that the first taker is also the sole heir does not alter the rule, the remainder over being vested notwithstanding that fact. On the other hand, it has been held that where the life tenant is the sole heir or next of kin at the death of the testator, the remainder will be considered as given to the persons answering the description at the termination of the estate for life, and, since the persons who may at that time be entitled to take the estate are uncertain, the remainder is contingent." [23 R.C.L. 550, sec. 93.]

The American and English authorities on both sides of this question are collected in Ann. Cas. 1917a, 862, and 25 Eng. Rul. Cas. 696. This exact situation does not seem to have been previously presented in a Missouri case. However, our decisions have uniformly favored vested estates and the rule is well settled that, unless the testator has by very clear words manifested his intention to the contrary, the persons who take under his will, as the heirs designated, must be determined at the death of...