Gibson v. Gibson

• Citation: 239 Mo. 490,144 S.W. 770
• Parties: GIBSON v. GIBSON et al.
• Decision Date: 06 February 1912
• Court: Missouri Supreme Court

144 S.W. 770

239 Mo. 490

GIBSON v. GIBSON et al.

Supreme Court of Missouri, Division No. 2.

February 6, 1912.

1. WILLS (§ 442)—CONSTRUCTION—INTENTION OF TESTATOR.

Under Missouri statutes, extending from the time of territorial legislation, there has been evidenced a legislative intention to make the intention of the testator controlling in the construction of a will; and such intention will be executed, where it is either expressly shown, or may be clearly inferred, so long as the testator keeps within the limits of the laws against entails and perpetuities, and does not attempt to dispose of his property for a purpose forbidden by law.

2. WILLS (§ 616)— CONSTRUCTION — LIMITATIONS OVER.

A will disposed of the property of the testator to his widow, with power "to sell, control, manage, and dispose of it in the same way" that he might do if he were alive, and that it was his wish and desire, and he so willed, that at the death of the widow, "by will, or before if she so elect, that she shall divide among or settle upon" the children and grand-children of the testator the property devised and bequeathed to her in designated shares. Held, that the words of the testator state his intention, without ambiguity, to give his wife a life estate, no discretion being left in her, except to divide it as expressed therein; and, though the absolute power of disposition was given, the limitation over is valid and enforceable.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

Action by W. K. Gibson against Allen B. Gibson and others. From a judgment construing a will, defendants appeal. Reversed and remanded, with directions.

This case is here on appeal from the decree of the circuit court of Christian county, construing a will.

The petition is as follows:

"Plaintiff states that he is the son of John A. Gibson, deceased, and that all the defendants, except Bessie Ann Gibson and Sarah J. Gibson, are children of the said John A. Gibson; that Bessie Ann Gibson is a grandchild, and Sarah J. Gibson is the widow of the said John A. Gibson, deceased; that on February 5, 1900, the said John A. Gibson made and published his last will and testament, and thereafter, on the 16th day of April, 1903, that said John A. Gibson departed this life; that said will was admitted to probate in the probate court of Christian county, Mo., and is now of record in said probate court; that said will contains the following clause: `I will and bequeath to my wife Sarah Jane Gibson all of my property, real, personal and mixed, wheresoever the same may be situated, with the power to sell, control, manage and dispose of in the same way that I might do if living; but it is my wish and desire, and I so will that at her death, by will, or before if she so elect, that she shall divide among or settle upon my children and my grandchild the said property devised and bequeathed to her, and increase or proceeds of the same, in the following manner: I have heretofore given and advanced to my sons L. P. Gibson and C. P. Gibson their share of my estate and it is my will and desire that she shall give or will to them only the additional sum of five dollars each, that is to say to the said C. P. Gibson and L. P. Gibson the sum of five dollars each; to the said Bessie Ann Gibson, the grandchild above mentioned, the sum of four hundred dollars. To my daughter Mattie Gibson the sum of five hundred dollars, and that she shall so divide the balance of my estate real and personal, after paying said special bequests, between my children Mary Carter, W. K. Gibson, Allen B. Gibson, Mattie Gibson and Ella Shannahan, in equal portions share and share alike.'

"The plaintiff, W. K. Gibson, and defendant Allen Gibson were named in said will as executors, and they qualified as such, and have proceeded to discharge their duties as such; that plaintiff, both as a devisee under said will and executor, prays the court to construe said will and determine for the instruction of plaintiff, in his said office, the following questions: First. Whether by the terms of said will the executors have power to sell or dispose of any real estate belonging to the estate of the late John A. Gibson; there being no debts. Second. Whether Sarah Jane Gibson has power under said will to sell or dispose of any real estate belonging to said estate for the purpose of paying the special legacies mentioned in said will. Third. Whether Sarah Jane Gibson has power under said will to sell or dispose of any of the real estate belonging to said estate for any purpose. Fourth. Whether said will imposes the obligation on said Sarah Jane Gibson, during her life, to pay the said special legacies and to divide in kind, by will or deed, the real estate belonging to said estate among and between Mary Carter, W. K. Gibson, Allen B. Gibson, Mattie Gibson, and Ella Shannahan, in equal portions, share and share alike. Plaintiff states that Bessie Ann Gibson is a minor under the age of 18 years and unmarried, and that C. P. Gibson is a nonresident of the state of Missouri."

And on the 7th day of September, 1907, the same being one of the regular judicial days of the August, 1907, term of court, the said court rendered the following judgment, to wit (omitting unnecessary portions of said judgment): "The testator intended to devise and did devise to Sarah Jane Gibson, his widow, only a life estate in all his property, real, personal, and mixed; that by said item he gave her the power to dispose of the real estate in the manner and form specified by said item—that is, by will or deed, before death, the widow shall provide for and pay the legatees therein mentioned their legacies, and by will or deed, before her death, she may, for the purposes of partition, dispose of the remainder of the estate of John A. Gibson, deceased, and devised to the following named devisees, in the following manner: To Mary Carter, W. K. Gibson, Allen Gibson, Mattie Gibson, and Ella Shannahan, in equal portions, share and share alike; and, in the event of failing in such disposition of the property devised, the said property descends at her death to the devisees named in the will, to wit, Mary Carter, W. K. Gibson, Allen Gibson, Mattie Gibson, and Ella Shannahan, in equal portions, share and share alike, subject to the payment of the special legacies, if they be not paid; and the court further finds and adjudges that if there be not sufficient personal estate left at the death of said widow to pay the special bequests and legacies, and no disposition of such property be made by will as is provided, then the executors may, under the provisions of such will, sell and convey the real estate for the purpose of paying such special bequests and legacies, and for the purpose of partition among the heirs above named, to wit, Mary Carter, W. K. Gibson, Allen Gibson, Mattie Gibson, and Ella Shannahan, in equal portions, share and share alike." The defendants have appealed.

S. E. Bronson and Hamlin & Seawell, for appellants. G. A. Watson, J. J. Gideon, and J. C. West, for respondent.

ROY, C. (after stating the facts as above).

The appellants insist that the will gives to Sarah J. Gibson a fee-simple estate, and that the limitation over to the children and grandchild of the testator is void.

In law, as in many other respects, England has cast to the westward "her seed and her shadow," and nowhere has that shadow had a more blinding effect than in the consideration of the question here involved. Nearly nine years before the common law crossed the Mississippi, our territorial Legislature, by the act of July 4, 1807 (1 Ter. Laws, p. 125), made general provisions as to "wills, descent and distribution." Section 18 of that act provided that "every person aged twenty-one years * * * shall have power at his will and pleasure, by last will and testament in writing, to devise all his estate," etc. Section 48 said: "The judges of the respective orphans' courts, and all others concerned in the execution of any last will and testament, shall have due regard to the direction of the will, and the true intent and meaning of the testator, in all matters and things that shall be brought before them concerning the same." When the common law, with many exceptions and qualifications, was adopted on January 19, 1816 (1 Ter. Laws, p. 436), it was provided, in effect, that only such parts of that law as were "not contrary to the laws of this territory should be in force." We thus see that, not only the law as to the intention of the testator was the "first on the ground," but also that it was given a dominant influence in the field of interpretation. By that act of 1816, it was provided that "the doctrine of entails shall never be allowed."

In the revision of 1825, the following section was enacted (R. S. 1825, p. 795, § 19): "Be it further enacted, that all devises made of lands, or other estate within this state, in which the words `heirs and assigns' or `heirs and assigns forever' are omitted, and no expressions are contained in such will and testament whereby it shall appear that such devise was intended to convey only an estate for life, and no further devise being made of the devised premises, to take effect after the decease of the devisee to whom the same shall be given, all such devises shall be taken and understood to be the intention of the testator thereby to grant and devise an absolute estate in the same, and shall be construed, deemed and adjudged, in all courts of law and equity, in this state, to convey an estate in fee simple to the devisee for all such devised premises in as full a manner as if the same had been given or devised to such devisee, and to his heirs and assigns forever, any law, usage or custom, to the contrary notwithstanding."

The Revised Statutes of 1835 (page 119, § 2) provided: "The term `heirs,' or words of inheritance, shall not be necessary to create or convey an estate in fee simple; and every conveyance of...