Gaven v. Allen

• Decision Date: 22 March 1890
• Citation: 100 Mo. 293,13 S.W. 501
• Parties: GAVEN v. ALLEN.
• Court: Missouri Supreme Court

13 S.W. 501

100 Mo. 293

GAVEN v. ALLEN.

Supreme Court of Missouri.

March 22, 1890.

WILL — CONSTRUCTION — FOREIGN WILL.

1. A testator devised his property to his wife, providing, however, that in case of her remarrying, it should be divided among his children. She was empowered to act, as to the sale of his property, "as she may think best for the benefit of herself and my children." Held, that the will gave her power to convey a perfect title in fee.

2. Rev. St. Mo. 1879, §§ 3992, 3993, providing for the filing of a copy of a will under which one claims property in the state, apply to a will probated in a foreign country as well as to one probated in another state.

Appeal from St. Louis circuit court.

Gist Blair, for appellant. Leonard Wilcox, for respondent.

BLACK, J.

Anthony Gaven, a citizen of Great Britain, residing in Ireland, died testate in September, 1880, being then the owner in fee of the parcel of real estate now in question, which is situate in the city of St. Louis, in this state. The will was probated in Ireland, and a copy thereof, and of the probate, recorded in the city of St. Louis. The plaintiff is the widow of the testator and claims the property by the will of her husband. She sold it to the defendant; and this is a suit brought by her, as vendor, for the specific performance of that contract. The case is here by appeal from the judgment of the circuit court sustaining a demurrer to the petition; and the questions are whether by the will the plaintiff has a fee-simple, absolute title; and, if not, then whether the will gives her power to convey a perfect title in fee.

The will, omitting formal parts, is as follows: "I devise unto my dear wife, Ellen Gaven, all my estate, right, title, and interest in my two houses and farm of land at present occupied by me under lease from the Marquis of Sligo. I also devise unto my said wife, Ellen Gaven, all my estate, right, title, and interest in Calf island and Derinish island, * * * county of Mayo. I also bequeath unto my said wife, Ellen Gaven, all my cattle, horses, sheep, and farming implements which may be on my said lands at the time of my death. And my will is, and I desire, that if my said wife, Ellen Gaven, should happen to get married at any time after my death, the above-mentioned property, or any money or property hereafter mentioned, shall be divided, share and share alike, between all or any of my children then living; and, as to the rest, residue, or remainder of my property, whatsoever or wheresoever the same may be, and not hereinbefore given and disposed of, after payment of my just debts, funeral expenses, and the expense of providing this, my will, I give and bequeath unto my said wife, Ellen Gaven. And I do hereby constitute and appoint my said wife, Ellen Gaven, and my dear brother, Thomas Gaven, (at present in the United States of America,) executrix and executor to this, my will. And I also constitute and appoint my said wife and brother guardians of my dear children. My will is, and I do desire and hereby direct, that my said wife, Ellen Gaven, shall or will not dispose of any of my aforementioned fee-simple and leasehold property without the written consent to same of my brother, Thomas Gaven, so long as he survives; but in case of his death, then I desire that my said wife shall act, as to the sale of my said property, as she thinks best for the benefit of herself and my childdren."

1. The clause in this will which declares that, if the wife of the testator should happen to get married, then the above-mentioned property, or any money or property hereafter mentioned, shall be divided among his children, applies alike to the property previously mentioned and of that covered by the residuary clause. Unless this is so, the words "or any money or property hereafter mentioned" must be disregarded. The intention of the testator is too plain to admit of any question. The plaintiff acquired the property now in question under and by virtue of the residuary clause, and she...