Gillilan v. Gillilan, No. 19605.

CourtMissouri Supreme Court
Writing for the CourtBond
Citation212 S.W. 348,278 Mo. 99
PartiesGILLILAN v. GILLILAN et al.
Decision Date16 May 1919
Docket NumberNo. 19605.
212 S.W. 348
278 Mo. 99
GILLILAN
v.
GILLILAN et al.
No. 19605.
Supreme Court of Missouri, in Banc.
May 16, 1919.

[212 S.W. 349]

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

Suit by Gratia B. Gillilan against Lorenzo J. Gillilan, Annie F. Carr, Ann F. Gay, James Clendenen, Charles W. Clendenen, Sallie Clendenen Gillilan, Anna Clendenen Gillilan, Elizabeth Ella Weldon Hale, Cora Gillilan, Tobias Gillilan, K. B. Coffee, Florence B. Danberry, Aquilla M. Senff, Bessie Dixon, and others. From decree rendered, plaintiff and named defendants, except Lorenzo J. Gillilan, appeal. Affirmed.

E. M. Harber, of Kansas City, A. G. Knight, of Trenton, and J. W. Peery, of Albany, for appellant Gratia B. Gillilan.

P. C. Alexander and John C. Leopard, both of Gallatin, for appellants Lucas R. Gillilan and others.

Clinton A. Welsh, of Kansas City, for appellant Ann F. Gay and others.

Nat G. Cruzen, of Gallatin, for respondent Lorenzo J. Gillilan.

Culver & Phillip, of St. Joseph, for respondent Mary Lee Hayes.

BOND, J.


I. Suit to determine title to 500 acres of land in Daviess county, Mo.

The case was tried and submitted on an agreed statement of facts setting out in detail the relationship of the parties and the history of the title. The material facts are as follows:

On December 17, 1882, Nathan Gillilan, the common source of title, died testate, owning a large amount of property, including the 500 acres in suit. His will was contested, but was finally established and recognized as valid, and we quote the two clauses thereof covering the devise of said land:

"Fifth. It is my will and I do hereby give, devise and bequeath to my son George W. Gillilan and to his heirs hereafter born to him, the following described real estate, situated in Daviess county, Missouri, to wit [description omitted] this devise and bequest however, in behalf of my son George W. Gillilan shall be to the exclusive use and benefit of my said son George and the heirs of his body hereafter born, excluding his present wife Martha I. Gillilan and her three children, Oma V., Anna F. and Independent N., from all benefit or interest or part whatever in my estate; I do hereby, to make my will clear of all doubt declare that it is my intention, and I do hereby disinherit and exclude the said Martha I. Gillilan and her three children, from all interest or part whatever in my estate."

"Ninth. It is my will and I do hereby provide that after the payment of the several legacies and bequests aforesaid out of and from my estate, the remainder of my said estate, if any, both real and personal, shall be the property of and belong to, and I do hereby give, devise and bequeath the same to my two sons, George W. and John D. Gillilan in equal parts,. share and share alike."

Besides the two sons mentioned in the above clauses of the will, said Nathan Gillilan left a son Robert L., a daughter Ann F. Gay, the four children of his deceased daughter Mary Jane Clendenen, and the four children of his deceased daughter Elizabeth Gillilan, all of whom, or their heirs, are parties to this suit.

In 1882 George W. Gillilan was granted a divorce from his wife Martha (who is mentioned in the fifth clause of the will above), and thereafter married Gratia Kirkland. No children were born of this marriage, and at his death in 1914 George Gillilan left, by wilt, all his property to his widow, Gratia, the present plaintiff, with the exception of a bequest of $100 each to the two surviving children of his wife Martha. Suit was brought by these two children (Annie Carr and Independence Gillilan) to contest this will, which contest was still pending at the institution of this suit.

In 1895 John D. Gillilan, the son mentioned in the ninth clause of the will of Nathan Gillilan, died, leaving as his sole heirs two sons, Lorenzo and Nathan, and a daughter, Mary

212 S.W. 350

Lee Hayes. Thereafter Nathan Gillilan sold his interest in the land in question (if any) by warranty deed to his brother, Lorenzo.

The trial resulted in a decree by which the court gave one-half of the 500 acres in dispute to the two children of John D. Gillilan, deceased (one-sixth to Mary Lee Hayes and two-sixths to Lorenzo Gillilan, he having purchased the one-sixth interest of his brother, Nathan), and the other 250 acres to Anna Carr and Independent Gillilan, the two children of George Gillilan, deceased, by his former wife, Martha, subject to the dower rights of the plaintiff Gratia Gillilan and the settlement of the contest of the will of George Gillilan.

Gratia Gillilan appealed because she did not get, as devisee of her husband, a fee-simple title to one-half the land which was decreed to Anna Carr and Independent Gillilan (the children of Martha, the former wife of George Gillilan.) Ann F. Gay and those answering with her appealed, claiming they alone should have title to all the land as the I only heirs at law of the late Nathan Gillilan, on the theory that the land in suit reverted to his estate upon the lapse of the devise in clause 5 of his will. Lucas R. Gillilan appealed, claiming all the land as the oldest son of Robert L. Gillilan, the oldest son of Nathan Gillilan, under the common law doctrine of primogeniture. The remaining children of Robert L. Gillilan appealed, claiming equal participancy with said Lucas R. Gillilan.

II. It is contended on behalf of Lucas R. Gillilan that he, being the oldest child of Robert Gillilan, who was the oldest child of Nathan Gillilan, was entitled to the entire estate for the reason that by the statutory abolition of the fee tail the land so devised reverted to the common source (Nathan Gillilan) and then descended to him under the rule of primogeniture. The phraseology of so much of the present act (R. S. 1909, § 2872) relating to the vestiture of the estate after the death of the person who would have been the first tenant in tail under the English law is claimed to be susceptible of the construction that it was intended to vest the fee in the oldest son of the life tenant to the exclusion of his other children, since the statute uses this language:

"And the remainder shall pass in fee simple absolute to the person to whom the estate tail would, on the death of the first grantee, devisee or donee in tail, first pass according to the course of the common law, by virtue of such devise, gift, grant or conveyance." (Italics ours.) R. S. 1909, § 2872.

We do not think the act bears that meaning. The doctrine of primogeniture is contrary to the theory upon which this and other commonwealths were built. This fact is conceded in the opinion of the commissioner cited by appellant Lucas R. Gillilan. Stockwell v. Stockwell, 262 Mo. loc....

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29 practice notes
  • Davis v. Austin, No. 37716.
    • United States
    • United States State Supreme Court of Missouri
    • December 16, 1941
    ...121; Vail v. Ry. Co., 106 N.Y. 287, 60 Am. Rep. 440, 13 N.E. 607; Powers v. Bullwinkle, 33 S.C. 293, 11 S.E. 971; Gillilan v. Gillilan, 278 Mo. 99, 212 S.W. 348; Collins v. Whitney, 222 S.W. 840, 283 Mo. 383. Hyde v. Hopkins, 296 S.W. 382, 317 Mo. 587; Hobbs v. Yeager, 263 S.W. 225; Univers......
  • Graves v. Graves, No. 37835.
    • United States
    • United States State Supreme Court of Missouri
    • February 26, 1942
    ...be thus nullified and it compels a reversion to the heirs of the testatrix. Stockwell v. Stockwell, 262 Mo. l.c. 675; Gillilan v. Gillilan, 278 Mo. 99; 23 R.C.L. 518, secs. 56-57; Hyde v. Hopkins, 317 Mo. 587; Collins v. Whitman, 222 S.W. 840; Lewis v. Lewis, 345 Mo. 816; Begley v. Watson, ......
  • Norman v. Horton, No. 35543.
    • United States
    • United States State Supreme Court of Missouri
    • March 15, 1939
    ...by intestate succession upon the death of the reversioner without a will. Hyde v. Hopkins, 317 Mo. 587, 296 S.W. 382; Gillian v. Gillian, 278 Mo. 99, 212 S.W. 348; Tiffany, Op. Cit., sec. 115; 9 R.C.L. 65; 16 Am. Jur. 795; Simms, Fifty Years of Future Interests, 50 Har. Law Rev. 749. (3) Ev......
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1938
    ...340, l.c. 342 (not officially published); Kinnerk v. Smith, 328 Mo. 513, l.c. 524, 41 S.W. (2d) 381, l.c. 385-386; Gillilan v. Gillilan, 278 Mo. 99, l.c. 116, 212 S.W. 348, l.c. 351; Harke v. Haase, 335 Mo. 1104, l.c. 1111, 75 S.W. (2d) 1001, l.c. 1004; Kansas City Law Review, Vol. IV, No. ......
  • Request a trial to view additional results
29 cases
  • Davis v. Austin, No. 37716.
    • United States
    • United States State Supreme Court of Missouri
    • December 16, 1941
    ...121; Vail v. Ry. Co., 106 N.Y. 287, 60 Am. Rep. 440, 13 N.E. 607; Powers v. Bullwinkle, 33 S.C. 293, 11 S.E. 971; Gillilan v. Gillilan, 278 Mo. 99, 212 S.W. 348; Collins v. Whitney, 222 S.W. 840, 283 Mo. 383. Hyde v. Hopkins, 296 S.W. 382, 317 Mo. 587; Hobbs v. Yeager, 263 S.W. 225; Univers......
  • Graves v. Graves, No. 37835.
    • United States
    • United States State Supreme Court of Missouri
    • February 26, 1942
    ...be thus nullified and it compels a reversion to the heirs of the testatrix. Stockwell v. Stockwell, 262 Mo. l.c. 675; Gillilan v. Gillilan, 278 Mo. 99; 23 R.C.L. 518, secs. 56-57; Hyde v. Hopkins, 317 Mo. 587; Collins v. Whitman, 222 S.W. 840; Lewis v. Lewis, 345 Mo. 816; Begley v. Watson, ......
  • Norman v. Horton, No. 35543.
    • United States
    • United States State Supreme Court of Missouri
    • March 15, 1939
    ...by intestate succession upon the death of the reversioner without a will. Hyde v. Hopkins, 317 Mo. 587, 296 S.W. 382; Gillian v. Gillian, 278 Mo. 99, 212 S.W. 348; Tiffany, Op. Cit., sec. 115; 9 R.C.L. 65; 16 Am. Jur. 795; Simms, Fifty Years of Future Interests, 50 Har. Law Rev. 749. (3) Ev......
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1938
    ...340, l.c. 342 (not officially published); Kinnerk v. Smith, 328 Mo. 513, l.c. 524, 41 S.W. (2d) 381, l.c. 385-386; Gillilan v. Gillilan, 278 Mo. 99, l.c. 116, 212 S.W. 348, l.c. 351; Harke v. Haase, 335 Mo. 1104, l.c. 1111, 75 S.W. (2d) 1001, l.c. 1004; Kansas City Law Review, Vol. IV, No. ......
  • Request a trial to view additional results

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