Gillilan v. Gillilan

• Decision Date: 16 May 1919
• Citation: 212 S.W. 348,278 Mo. 99
• Parties: GRATIA B. GILLILAN, Appellant, v. LORENZO GILLILAN et al.; ANNIE F. CARR et al., Appellants
• Court: Missouri Supreme Court

212 S.W. 348

278 Mo. 99

GRATIA B. GILLILAN, Appellant, v. LORENZO GILLILAN et al.; ANNIE F. CARR et al., Appellants

Supreme Court of Missouri

May 16, 1919

Appeal from Daviess Circuit Court. -- Hon. Arch B. Davis, Judge.

Affirmed.

E. M Harber, A. G. Knight and J. W. Peery for appellant Gratia B Gillilan.

(1) The words "heirs" or "heirs of the body" will be construed to mean children whenever the context shows that such was the intention of the testator or of the grantor. The manner in which the words are used in the fifth clause of the will in question show clearly that they mean children. Waddell v. Waddell, 99 Mo. 345; Heady v Hollman, 251 Mo. 638; Eckle v. Ryland, 256 Mo 424; Maguire v. Moore, 108 Mo. 272; Fanning v. Doan, 128 Mo. 323; Rothwell v. Jameson, 147 Mo. 601; Cross v. Hoch, 149 Mo. 341; Brown v. Tuschoff, 235 Mo. 458; Johnson v. Calvert, 260 Mo. 454; 4 Words and Phrases (1st Series), pp. 3269-3270; 2 Words & Phrases (2 Series), pp. 840-850; 2 Words & Phrases (2 Series), pp. 861-864; 2 Underhill on Wills, par. 616; Adair v. Adair, 30 Ky. Law. Rep. 856. (2) The fifth clause of the will being read as a devise to George W. Gillilan and his children thereafter born to him, there are several views which may be taken under the authorities as to the interest devised to him. (a) There are cases in this State which hold that under a devise he would take the fee as tenant in common with the children thereafter born. Hamilton v. Pitcher, 53 Mo. 334; Allen v. Claybrook, 58 Mo. 124; Hall v. Stephens, 65 Mo. 670; Reed v. Painter, 129 Mo. 680. (b) Under the following cases it could well be argued that he took the fee irrespective of whether children were born. Rines v. Mansfield, 96 Mo. 394; Small v. Field, 102 Mo. 104; Tygard v. Hartwell, 204 Mo. 200; Rothwell v. Jameson, 147 Mo. 601; Carter v. Long, 181 Mo. 701. (c) The true rule, however, is that he took a defeasible fee subject to be divested upon the birth of children; and as none were born it remained in him. Tindall v. Tindall, 167 Mo. 218; Davis v. Ripley, 194 Ill. 390; Boehm v. Baldwin, 221 Ill. 59; Reed v. Welborn, 253 Ill. 338; Rothwell v. Jameson, 147 Mo. 601. (3) The law favors the vesting of estates and in the absence of words expressing a clear intent to the contrary the estate will be construed to vest at the earliest possible time and immediately upon the testator's death. Tindall v. Tindall, 167 Mo. 255; Deacon v. Trust Co., 271 Mo. 687. (4) A testator will not be presumed to have intended to create an estate-tail which is forbidden by statute if any other reasonable construction can be given to the will. Combs v. Eversole, 23 Ky. Law Rep. 932. (5) If the court should hold that the fifth clause of Nathan Gillilan's will did create an estate-tail (and we contend it did not), then we concede that the interest in reversion therein would pass under the residuary clause of the will, and the decree of the trial court should in that case be affirmed. 40 Cyc. 1950; Youngs v. Youngs, 45 N.Y. 254; High's Estate, 136 Pa. St. 222; Moran v. Moran, 65 Am. St. 443, 39 L.R.A. 204; Givens v. Ott, 222 Mo. 395; Sandusky v. Sandusky, 261 Mo. 351.

Clinton A. Welsh for appellant Ann F. Gay.

(1) The will of Nathan Gillilan, did not devise the five hundred acres of land in clause 9 of said will to either John D. Gillilan or George W. Gillilan, as residuary devisees. Hunter v. Patterson, 142 Mo. 321; Utter v. Sidman, 170 Mo. 299; Hatton v. Jones, 133 N.C. 399; Tiedeman, Real Property, sec. 885; 2 Woerner A. L. Admr., 967; 2 Cooley's Blackstone, 112-114; Sec. 2876, R. S. 1909; Buxton v. Kroeger, 219 Mo. 225; Christ v. Kuehne, 172 Mo. 119; O'Day v. Meadows, 194 Mo. 588; Aldridge v. Aldridge, 202 Mo. 565; Burris v. Page, 12 Mo. 359; Kinney v. Mathews, 69 Mo. 520; Phillips v. LaForge, 89 Mo. 72; Bone v. Tyrell, 113 Mo. 182; Gray v. Ward, 234 Mo. 291; Hall v. French, 165 Mo. 430; Chew v. Keller, 171 Mo. 225; Sec. 578, R. S. 1909; Secs. 2872, 2874, R. S. 1909; Tasson v. Newman, 62 Mo. 198; Muldow v. White, 67 Mo. 470; Emmerson v. Hughes, 110 Mo. 627; Sec. 7, p. 220, R. S. 1845; Brown v. Tuschoff, 235 Mo. 458; Maguire v. Moore, 108 Mo. 273; Chew v. Keller, 100 Mo. 369; Waddell v. Waddell, 99 Mo. 345; Roberts v. Crume, 173 Mo. 579; Heady v. Hollman, 251 Mo. 640; Eckle v. Ryland, 256 Mo. 448; Webb v. Archibald, 128 Mo. 304-305; 18 Am. & Eng. Ency. Law (2 Ed.), 763; 40 Cyc. 1949; 1 Underhill on Wills, p. 449, sec. 335. (2) The plaintiff Gratia B. Gillilan is not entitled to recover in this case, either as the widow of George W. Gillilan, or under his will; for the reason that said George W. Gillilan had a life estate only in said five hundred acres of land and all his right, title and interest therein ended at his death. Warren v. Williams, 25 Mo.App. 22; Sec. 345 R. S. 1909; Phillips v. LaForge, 89 Mo. 75; Waddell v. Frazier, 245 Mo. 401; Hauser v. Murray, 256 Mo. 97; DeLassus v. Gatewood, 71 Mo. 381; Dickerson v. Dickerson, 211 Mo. 493; Garrison v. Young, 135 Mo. 207. (3) The defendants, Independent N. Gillilan and Anna F. Carr, were not entitled to recover any interest in said five hundred acres of land in this case as the heirs of George W. Gillilan. First, for the reason that said George W. Gillilan did not acquire any right, title or interest in said land under said clause 9 of said will, as a residuary devisee. Second, for the further reason that said parties defendants did not ask the court in their answers for any decree under said clause 9 of said will. Third, for the further reason that both of said defendants were expressly disinherited by the will of Nathan Gillilan from having any right or interest in his said estate as his heirs. (4) Ann F. Gay and those answering with her by way of cross-bill, and who are claiming as owners in fee simple their respective shares of said land amounting to two hundred and fifty acres, as heirs of Nathan Gillilan, deceased, under the laws of the State of Missouri, relating to descents and distributions, were and are under the law and the facts in this case entitled to recover their respective shares claimed by them in their answer and crossbill. 13 Cyc. 647-649; Rodney v. Landaw, 104 Mo. 258; Hauser v. Murray, 256 Mo. 73; Utter v. Sidman, 170 Mo. 294; Garrett v. Wilson, 252 Mo. 708; Schmucker's Estate v. Reel, 61 Mo. 597; State v. Baird, 271 Mo. 9; Sullivan v. Garesche, 229 Mo. 507; Thomas v. Anderson, 245 F. 642; Thompson on Wills, sec. 305; 2 Cooley's Blackstone, 162; Frame v. Humphry, 164 Mo. 346; Perry v. Strawbridge, 209 Mo. 621; Sec. 332, R. S. 1909; Elsea v. Smith, 273 Mo. 405; Sec. 2877, R. S. 1909; Gates v. Seibert, 157 Mo. 272; Martin v. Martin, 250 Mo. 545; Ross v. Presbyterian Church, 272 Mo. 106.

Nat G. Cruzen for respondent Lorenzo J. Gillilan.

(1) When the testator has interpreted a particular clause of his will, the courts when called upon will follow such interpretation. State ex rel. v. McVeigh, 181 Mo.App. 581; Small v. Field, 102 Mo. 129. (2) The court may take into consideration in construing this will that it was drawn by a lawyer, who knew the meaning and effect of the technical words used. Cross v. Hoch, 149 Mo. 338; 40 Cyc. 1399 and 1432, n. 20. (3) Having in mind the rules of construction and the intentions of the testator, the will of Nathan Gillilan by the fifth clause thereof, devising to "my son George W. Gillilan and to his heirs hereafter born to him," the land in controversy "this devise and bequest, however, in behalf of my said son George shall be to the exclusive use and benefit of my said son George and the heirs of his body hereafter born" created, what at common law would be an estate tail. 2 Blackstone Comm. 144; 4 Kent. (13 Ed.) p. 9; 16 Cyc. 608; Washburn on Real Prop. (6 Ed.) p. 83, sec. 173; Tiedman on Real Prop. (Enlgd. Ed.) sec. 44, p. 33; Burris v. Page, 12 Mo. 358; Chiles v. Bartleson, 21 Mo. 344; Phillips v. LaForge, 89 Mo. 72; Wood v. Kice, 103 Mo. 329; Emmerson v. Hughes, 110 Mo. 627; Farrar v. Christy's Admrs., 24 Mo. 468; Bone v. Tyrell, 113 Mo. 175; Godman v. Simmons, 113 Mo. 127; Clarkson v. Clarkson, 125 Mo. 385; Hunter v. Patterson, 142 Mo. 310; Rozier v. Graham, 146 Mo. 352; Reed v. Lane, 122 Mo. 311; Utter v. Sidman, 170 Mo. 297; Miller v. Ensminger, 182 Mo. 195; Frame v. Humphrey, 164 Mo. 336; Cox v. Jones, 229 Mo. 64; Gray v. Ward, 234 Mo. 297. (4) This devise being to particular heirs (to the heirs of body hereafter born) and not to the heirs generally created and estate tail special. 16 Cyc. 609b; Tiedeman on Real Prop. (Enlgd. Ed.), sec. 48, p. 36; Washburn on Real Prop. (6 Ed.) p. 92, sec. 200; Phillips v. LaForge, 89 Mo. 72; Reed v. Lane, 122 Mo. 315; Rozier v. Graham, 146 Mo. 359; Summett v. Realty & Brokerage Co., 208 Mo. 513; Gray v. Ward, 234 Mo. 297. (5) The fact that an estate tail may be barred should have no weight in construing a will to determine if an estate tail is created. Middleswarth v. Collins, 1 Phila. (Pa.) 139. (6) Under the laws of the State of Missouri in force at the time of the execution of the will of Nathan Gillilan, and at the time of his death, the said Nathan Gillilan could and did devise by his last will his real estate and all interest therein. Sec. 535, R. S. 1919; Sec. 2787, R. S. 1909; Brown v. Fulkerson, 125 Mo. 400; Godman v. Simmons, 113 Mo. 130; Clark v. Sires, 193 Mo. 502; Smith v. Sweringen, 26 Mo. 567; 40 Cyc. 1048. (7) All estates that are transmissible, either by operation of law or by act of the owner, are held devisable. Redfield on Wills (4 Ed.), p. 388. (8) Having carved out an estate in the fifth clause of his will to George W. Gillilan and the heirs of his body to be born to him thereafter, there remained in testator a reversion. 4 Kent (13 Ed.), p. 10, 381; 2 Washburn on Real Prop. secs. 1508, 1511; Tiedeman, p. 381; Williams on Real...