Gates v. Seibert

• Citation: 57 S.W. 1065,157 Mo. 254
• Parties: GATES et al., v. SEIBERT et al., Appellants
• Decision Date: 19 June 1900
• Court: Missouri Supreme Court

57 S.W. 1065

157 Mo. 254

GATES et al., v. SEIBERT et al., Appellants

Supreme Court of Missouri

June 19, 1900

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.

Affirmed.

Wm. B Thompson, Noble & Shields and D. C. Taylor for appellants.

(1) The fifth clause of the will of John Gates, deceased (being the clause under which plaintiffs claim), violates the rule against perpetuities, and the limitation over is void, and the estate vested in Jacob S. Gates in fee, or, if the whole clause is void, the land descended to all of the heirs of John Gates; none of the title vested in the plaintiffs in either event, for that to which Jacob S. Gates was entitled either whole or part, and that portion thereof that he acquired by deed from the other heirs, he conveyed by the deed of trust under which defendants claim. Gray's Rule Against Perpetuities, chap. 6, p. 144 (1886), secs. 201 and 214; 1 Washburn on Real Property (5 Ed.), p. 115. This rule is in full force in Missouri, and is declared to arise from the policy of the law being against clogging the free alienation of estates. Lockridge v. Mace, 109 Mo. 162; Chism's Admr. v. Williams, 29 Mo. 288. (2) If said "fifth" clause of said will is valid, then under the facts, as proven, the finding should be for defendants. The marriage of Jacob S. Gates to Lizzie Cool, the birth of a child, the death of its mother, followed by the death of the child, operated to and did vest the title in fee in Jacob S. Gates. 4 Kent, p. 202 (5 Ed.), and note cited at p. 205; Annaball v. Patch, 3 Pick. Rep. 360; Fearne on Remainders, 394-396; Doe v. Perryn, 3d Term'l Rep. 464; 2 Washburn on Real Property (4 Ed.), p. 228; Kingsley v. Brownard et al., 19 Fla. 722; Waddell v. Waddell, 99 Mo. 338; Jones v. Waters, 17 Mo. 598. Because the testator, by the use of the language, intended the children of the first marriage -- we gather the intent from the will as a whole -- for it can not be said for a moment that the property devised to Levina M. Gillham and her husband, Shadrack Gillham, and at their death to her children, and to William J. Gates and his wife, Eliza, and after their death to his children, was intended to go to any other children than of those parties. Collins v. Hoxie et al., 9 Paige, 81; 2 Woerner's Amer. Law of Adm., p. 898. Ella, being born out of wedlock -- a bastard -- could not inherit from John Gates, deceased, nor from Jacob S. Gates, her putative father. She was not of the class of children referred to by the testator, and certainly it was not the intention of the testator that his son Jacob should adopt, or by any ex parte proceeding not contemplated or intended by the testator, enlarge the class of children who were to be remaindermen. Marshall v. Railroad, 120 Mo. 275; Bent's Adm'r v. St. Varian, 30 Mo. 270; 3 Am. and Eng. Ency. of Law, 230, note 2; Cartwright v. Vawdry, 5 Ves. 530; Hicks v. Smith, 94 Ga. 817; Safford's Guardian v. Haughton's Est., 48 Vt. 236; Reinders v. Koppelman, 94 Mo. 343; Williams' Executors, p. 943; Gelstrom v. Shields, 16 Hun. 143; Lyon v. Lyon, 88 Maine, 395; Johnston v. Taliaferro, 45 L. R. A. 95. The intention of the testator should be the "Polar Star," and should prevail. Lang v. Timms, 107 Mo. 519; Reinders v. Koppelman, supra; Smith v. Bell, 6 Peters, 75 (cited and quoted from in Nichols v. Boswell, 103 Mo. 157); Cross et al. v. Hoch et al., 149 Mo. 325; Garth v. Grant, 139 Mo. 450. The word "child" or "children" in wills and deeds must be taken to mean legitimate children and can not be construed to include illegitimate children. Hicks v. Smith, 94 Ga. 809; Floyd v. Floyd, 97 Ga. 124; Cartwright v. Vaudry, 5 Ves. Jr. 530; Re Wells L. R. 6 Eq. 599; Re Ayles L. R., 1 Chan. Div. 282; Ellis v. Huston, L. R., 10 Chan. Div. 236; Shearman v. Angle, -- Bail Eq. 351; 23 Am. Dec. 166; Kent v. Baker, 2 Gray, 535; Blacklaws v. Milne, 82 Ill. 505; Thompson v. McDonald, 22 N.C. 463; Grubbs' Appeal, 58 Pa. 55; Neil's Appeal, 92 Pa. 193; Woerner's Am. Law of Admin., vol. 2, sec. 422. Under a devise or bequest to children, as a class natural children are not included, unless the testator's intention to include them is manifest, either by express designation or necessary implication. Heater v. Van Arken, 14 N.J.Eq. 159; Collins v. Hoxie, 9 Paige 81; Conner v. Pinckney, 3 Barb. Chan. 466; Flora v. Anderson, 67 F. 182; s. c., 75 F. 217; Johnson v. Taliaferro, 45 L. R. A. 95. "Children" as used in this will, is a word of purchase. Here the children of Jacob do not take as his heirs, but as a class designated by and in the mind of the testator at the time of the making of the will. The clause as to legitimacy is in the act as to descents and distributions, and does not apply for all purposes. Lincecum v. Lincecum, 3 Mo. 441; Dyer v. Brannock, 66 Mo. 419; Green v. Green, 126 Mo. 17; Lyon v. Lyon, 88 Maine, 395. The estate having vested prior to Ella's being legitimatized, she could not acquire an interest without divesting or taking from some one a previously vested estate or a part thereof. Killam v. Killam, 39 Pa. St. 120. The statute can not operate in this case, because there was a lawful marriage intervening between the birth of Ella Gates Coffman and the subsequent marriage of Jacob Snyder Gates and Mary J. Filley, the mother of Ella; and, therefore, the fiction of the law, which is the ground on which the legitimation rests -- namely, that the subsequent marriage relates back to a time prior to the birth of the illegitimate child -- can not be invoked in this case, in consequence of the intervening marriage, which renders such fiction impossible. Institution Laws of Scotland, note 6 to vol. 1, sec. 18; In re Wright's trust, 2 Kay & Johns, 395-604; Erskine Scottish Inst. B. I. Tit. 6, sec. 52; 2 Kent Com. (12 & 14 Ed.), *210 note C. (3) The declaration of the law marked "C," given on behalf of plaintiffs, should not have been given, for, even though the court might have found all of the facts as therein stated, yet before finding for plaintiff it should have further found that said Jacob S. Gates and Mrs. Mary J. Filley were married in some State or country where the common law as to bastards did not prevail. 2 Kent (5 Ed.), star p. 208, and note at foot thereof; 3 Washburn on Real Property (4 Ed.), secs. 31 and 32, p. 16; Ross v. Ross, 129 Mass. 243; Miller v. Miller, 91 N.Y. 320.

C. N. Travous, J. W. McElhinney and Stewart, Cunningham & Eliot for respondents.

(1) The fifth clause of the will of John Gates gives a vested remainder to the children of Jacob S. Gates, as a class. It must be conceded by defendant that the effect of the present devise is to create a life estate in Jacob S. Gates, and that the gift to his children, if valid, is by way of remainder. Passing for the time the question of the effect of the parenthetical gift to the wife, the first question to be determined is, what persons did the testator mean to describe under the term "children" of Jacob S. Gates. The children of Jacob S. Gates are all the legitimate children of Jacob S. Gates; every person who has answered that description in his existence constituting a member of the class of persons so designated. Waddell v. Waddell, 99 Mo. 342; Jones v. Waters, 17 Mo. 582; 2 Jarman on Wills, p. 168, sec. 1011. "Under a gift to children of a person, his children by different marriages will generally be entitled." "And it is not necessary to show that the testator had in view a future marriage (i. e contemplated a second marriage), but only that the terms of the will are not wholly inconsistent with such a notion as necessarily to limit the generality of the word 'children.'" 2 Jarman on Wills, sec. 1005; Aubuchon v. Bender, 44 Mo. 560. It being then established that the devise gave to Jacob S. Gates a life estate and that the remainder to his children, if valid, is a gift to all his children as a class, the next question to determine is whether that remainder in the children of Jacob S. Gates is contingent or vested. It seems plain that at the death of the testator, which occurred before the marriage of Jacob S. Gates to his first wife, there were no persons who could answer the description of his children. Hence, the remainder was then contingent and was supported by the life estate in Jacob S. Gates until a child was born to him, in whom the remainder at once vested as the representative of a class, subject to be opened from time to time to let in the rights of every additional member of that class who subsequently might come into existence. This is the decision in Waddell v. Waddell above, and it follows the weight of authority as expressed in the text writers. 2 Jarman on Wills, p. 169 (*p. 1012). The trend of authority in this State is altogether in favor of the vesting of interests. One of the leading cases upon this subject is that of Farrar v. Christy, 24 Mo. 453, from which case through Collier's will, 40 Mo. 321, to the contest over the Lindell will, 100 Mo. 368, the Supreme Court of this State has constantly favored the vesting of estates. (2) The devise does not conflict with the rule against perpetuities. Fearne, on Remainders, sec. 712, states that an estate for life may be limited to an unborn person. It follows, of course, that there may be a remainder over permissible by law. In sec. 706 he gives the rule against perpetuities in the following language: "Executory interests . . . . must be so limited that from the first moment of their limitation it may be said that they will necessarily vest in right, if at all, within the period occupied by the life of a person in being, that is already born . . . . and an absolute term of twenty-one years afterwards . . . ." The statement is not "vest in enjoyment" or even "vest in possession." This rule is sometimes stated incorrectly. ...