Ewart v. Dalby

• Decision Date: 03 March 1928
• Docket Number: No. 27594.,27594.
• Citation: 5 S.W.2d 428
• Parties: THENA EWART ET AL., Appellants, v. JOHN N. DALBY ET AL.
• Court: Missouri Supreme Court

5 S.W.2d 428

THENA EWART ET AL., Appellants, v. JOHN N. DALBY ET AL.

No. 27594.

Supreme Court of Missouri, Division One.

March 3, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. George E. Mix, Judge.

AFFIRMED.

R.M. Nichols for appellants.

(1) The will gave to Frances Sublette, his wife, either a defeasible fee or a life estate, which ceased upon her death, in September, 1857, and upon her death to Esther Frances (Fannie), who died in infancy, May 16, 1861. And upon her death "single and unmarried and without issue," then over. The rule that the "death" meant was before the death of the testator does not obtain where the primary gift was preceded by a life estate. Faust's Administrator v. Birner, 30 Mo. 418; Naylor v. Godman, 109 Mo. 543; Trust Co. v. Carby, 255 Mo. 410; King v. King, 215 Ill. 100; In re Denton, 137 N.Y. 428; Hollister v. Butterworth, 71 Conn. 57; Chesterfield v. Hopkins, 133 Wis. 368; Mayer v. Walker, 214 Pa. 214; White v. White's Guar., 168 Ky. 752; Cook v. Collier, 62 S.W. 558. (2) The context of the will would clearly indicate that by the use of the provision "if she dies single and unmarried and without issue" was not meant the death in the testator's lifetime, because the will was written April 15, 1856, when Fannie was a very small child, and she died in May, 1861, in infancy. The fact that the testator provided that "if she dies single and unmarried and without issue" shows that he placed the possibility of her death at a time when she would be old enough to marry and have issue, which, in all probability, might be beyond his life. The event of death, before the infant child was old enough or grown to maturity, and could have issue from marriage, shows that the testator placed her death not before his, but a period in her life where she had reached maturity, and this fact alone would refute the legal presumption that the date of the death meant was death in the lifetime of the testator. The conditional limitation over to Pinkney, if living, would indicate a clear intention of carrying the estate over to Pinkney when the daughter having died, either before or after the testator; and again, if Pinkney was dead, at her death, and did not take the estate, or if he was living and took the estate and died "single and unmarried and without issue," then over "to my next of kin on my father's side," all of which is repugnant to the idea that the testator meant by the death of either Frances or Pinkney to be in his lifetime; and further, the contingency "if she dies single and unmarried and without issue," and he, Pinkney, if living at her death, and at his death, if he dies "single and unmarried and without issue," conclusively show that the testator did not mean either of these deaths in his lifetime, and also conclusively show that the testator intended to limit the estate over after his death, conditionally "to my next of kin on my father's side." Dameron v. Lanyon, 234 Mo. 642; Owens v. Men & M. Mov., 296 Mo. 119; Naylor v. Godman, 109 Mo. 551; Jones v. Patterson, 307 Mo. 277; Willits v. Conklin, 88 Neb. 805. (3) The contingency is not in the death of Esther Frances (Fannie), because death is not a contingency. But the contingency was that "if she die single, unmarried and without issue." This was the contingency which made her seizure a defeasible fee, and which rendered Pinkney W. Sublette's interest a defeasible fee. The word "if" in both bequests imports in the devise a contingency. Northrupp v. McAllister, 297 Mo. 475. (4) Dying "single and unmarried and without issue" must be held to mean, without issue, and unmarried at the death of the primary devisee, and not before the death of the testator. Gannon v. Albright, 183 Mo. 238; Collier v. Archer, 258 Mo. 383; Hull v. Calvert, 286 Mo. 163; Jones v. Patterson, 307 Mo. 277; 11 R.C.L. sec. 19, p. 481. (5) If the clause in the will, providing for the death of Fannie, cannot be held under the context of the will to mean her death before that of the testator, then she, living beyond his death, would become seized, not of an absolute but a defeasible fee, which fee would become absolute only upon her death, with issue. Tiedeman on Real Property (3 Ed.) sec. 36, p. 201; Yocum v. Siler, 160 Mo. 291; Brown v. Tuschoff, 235 Mo. 149; Ives v. Kimlin, 140 Mo. App. 293; Gannon v. Albright, 183 Mo. 238; Lockney v. Campbell, 189 S.W. 1174; Collier v. Archer, 258 Mo. 383. (6) This court, in this proceeding to establish a rejected will, has no jurisdiction to construe or interpret the second clause of the will, to determine whether or not Esther Frances (Fannie) became seized of an indefeasible estate in fee simple, thereby cutting off the limitation to the "next of kin on my father's side," and thereby determine whether the proponents as the next of kin had or had not any interest, which interest would be necessary to enable them to probate the rejected will. The sole issue that can be tried herein is whether the instrument produced is the will of the testator. R.S. 1919, sec. 525; Cox v. Cox, 101 Mo. 168; Lilly v. Tobbein, 103 Mo. 477; Owens v. Sinklear, 110 Mo. 54; Gordon v. Burris, 141 Mo. 601; 1 Woerner, Am. Law of Adminis. (2 Ed.) 485; In re Pforr's Estate, 144 Cal. 121; In re Murray's Will, 141 N.C. 588; Wells v. Thompson, 140 Ga. 119; Neimand v. Seeman, 136 Iowa, 713; Taylor v. Hilton, 23 Okla. 354; In re Young's Will, 153 Wis. 337; Montrose v. Byrne, 24 Wash. 288; Redmond v. Collins, 15 N.C. 440; Waters v. Cullen, 2 Bradf. 354; Graham v. Burch, 47 Minn. 171; Coalter v. Bryan, 1 Gratt. 18. (7) A very strong reason why a court, in a suit to establish a rejected will cannot go into the question of the construction of the will, particularly as to whether the testator meant the death of the primary devisee in his lifetime, or after his death, is found in the following cases, wherein it is held that this question is dependent upon the circumstances and conditions of the testator and the primary donee at the making of the will, and upon the age of the primary devisee and the age of the testator. Stone v. McEckron, 57 Conn. 194; Hooker v. Hooker, 166 N.Y. 156; In re Cramer, 170 N.Y. 271; Tomlin v. Laws, 301 Ill. 616; Shearer v. Miller, 185 Pa. 149.

Eliot, Blayney & Bedal, Boyle & Priest, Robert E. Moloney, Nagel & Kirby, Buder & Buder, Carter, Jones & Turney and Harold R. Small for respondents.

(1) A will contest or a suit to probate a rejected will under the provisions of Section 525, Revised Statutes 1919, is a statutory proceeding and must be brought by a "person interested in the probate" of the will in question. Unless the suit is brought by such an interested party, the petition does not state a cause of action under the statute. State ex rel. Damon v. McQuillin, 246 Mo. 674; Gruender v. Frank, 267 Mo. 713. (2) It is a settled principle of interpretation of wills that where a devisee is granted an absolute estate, followed by a clause providing for a gift over in case the devisee should "die single and unmarried and without issue," these words will be understood as referring to a death in the lifetime of the testator, and if the devisee survive the testator, his estate immediately becomes a fee simple absolute. As it appears from the amended petition in this case that Esther Frances survived the testator, her estate immediately became absolute, and appellants, who are not claiming through Esther Frances, take nothing under the will and are therefore not "interested" in its probate. Dameron v. Lanyon, 234 Mo. 627; Northcutt v. McAllister, 297 Mo. 475; Owens v. Men & Millions Movement, 296 Mo. 110; Howard v. Howard, 184 S.W. 993; Henderson v. Calhoun, 183 S.W. 584; Huntington Real Estate Co. v. Megaree, 280 Mo. 41. (3) Appellants have cited Naylor v. Godman, 109 Mo. 543, and certain decisions from other States, in support of their contention that under such a will as is mentioned above, if the devisee's estate is preceded by a life estate, then the devisee does not take a fee simple absolute unless the devisee survives the life tenant. This is not the law in Missouri. Huntington Real Estate Co. v. Megaree, 280 Mo. 41; Northcutt v. McAllister, 297 Mo. 475. But even were this contention of appellants sound, it would not aid them in the present suit, as their petition alleges, as is the fact, that Esther Frances also survived her mother, the life tenant. (4) The rule that the words "if she dies single and unmarried and without issue" refer to a death of the devisee prior to the testator is inflexible unless a different intention can be found from the context of the will; and extrinsic evidence is not admissible to show such an intention. Northcutt v. McAllister, 297 Mo. 475; Brown v. Tuschoff, 235 Mo. 449.

SEDDON, C.

This is an action instituted by plaintiffs under the statute (Sec. 525, R.S. 1919) to establish a paper writing alleged to be the last will and testament of Solomon P. Sublette, after the Probate Court of the City of St. Louis had rejected, and refused probate of, said alleged will. The action was commenced on October 7, 1907, against certain individual defendants by the filing of a petition in which plaintiffs and the individual defendants were alleged to be the only heirs at law of the said Solomon P. Sublette, as well as the only beneficiaries under the said alleged will. Upon a trial before a jury in the Circuit Court of the City of St. Louis, plaintiffs had a verdict establishing the paper writing as the last will and testament of said Solomon P. Sublette, and judgment was entered in accordance with said verdict on December 13, 1907. Subsequently, and during the term of court at which such verdict was returned and the judgment thereon was entered, one Terry, a stranger to the action, filed a motion therein, suggesting that he and other parties were interested in the probate of said will, claiming to own and hold title to large and valuable tracts of land located in the city of St. Louis, as heirs and...