Holland v. Bogardus-Hill Drug Co.

• Decision Date: 21 May 1926
• Docket Number: No. 26397.,26397.
• Citation: 284 S.W. 121
• Parties: HOLLAND et al. v. BOGARDUS-HILL DRUG CO. et al.
• Court: Missouri Supreme Court

284 S.W. 121

HOLLAND et al. v. BOGARDUS-HILL DRUG CO. et al.

No. 26397.

Supreme Court of Missouri, en Banc.

May 21, 1926.

Appeal from Circuit Court, Greene County; Orin Patterson, Judge.

Action by Alice R. Holland and others against the Bogardus-Hill Drug Company and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Mann & Mann and V. O. Coltrane, all of Springfield, for appellants.

Alfred Page, of Springfield, W. P. Lyons, of Baltimore, Md., and O. E. Gorman, of Springfield, for respondents.

Statement.

RAILEY, C.

This "is an action in ejectment for a lot in the city of Springfield, Mo., on which there is a two-story building. The case was tried by the court, judgment rendered for defendants, and plaintiffs appealed.

Appellants claim the right to possession of the property in controversy as remaindermen under the will of Edwin T. Robberson, de ceased, who was the common source of title. Defendants claim possession of said property by virtue of a lease executed in her lifetime by Elizabeth J. Robberson, who was the widow of said Edwin T. Robberson. The latter died the 10th clay of November, 1893, in Greene county, Mo., leaving a will, dated January 18, 1890, which was duly probated in said county on November 23, 1893. Elizabeth J. Robberson, the widow, died at the age of 86 years on August 31, 1923. Four of the plaintiffs are children of Dr. Edwin T. Robberson. The other plaintiffs are the heirs and devisees of the three deceased children.

On May 8, 1919, Elizabeth J. Robberson, the widow, executed a lease of said property to the Royal Company, a Delaware corporation, for a period of 12 years and 7 months, to commence the 1st day of June, 1919, and ending on December 31, 1931. On May 21, 1919, Mrs. Robberson consented to an amendment to said lease providing that the lessee therein might sublet said premises or any part thereof. On October 16, 1922, for a recited consideration of $1, Mrs. Robberson consented that the Royal Company might assign said lease to Thomas H. Hooper, Jr. The Royal Company through its president and secretary assigned said lease to Thomas H. Hooper, Jr. On October 30, 1922, said Thomas H. Hooper, Jr., in consideration of said assignment, assumed and agreed in writing to make all the payments and perform all the covenants and conditions called for in said lease. The latter provided for the payment of $250 per month as rent to be paid in advance during the period aforesaid. It further provided that the lessee should keep the building in good repair and expend $3,000 in improving the building on or before January 1, 1921, at the cost of lessee. It appears from the evidence that the lessee expended about $5,000 in improvements on the property.

The will is dated January 18, 1890, and the second paragraph of same reads as follows:

"II. All the rest and residue of my property and estate of whatsoever kind, real, personal and mixed, I give, devise and bequeath to my dearly beloved wife, Elizabeth J. Robberson, to be used and enjoyed by her for and during her natural life. I have faith and confidence in my said wife that she will care for, maintain, support, and educate our minor children if any there be at my death, as I myself would do if life were preserved to me. And I do therefore give to my said wife power and control of all of my said property so long as she may live, to collect all debts which may be due to me, collect all my personal assets of whatsoever kind, use them as she may see fit in support and maintenance of herself and our children, and reinvest any money which may come to her and which may not be needed for the support and maintenance of herself and family, in any manner she may think proper, and I empower her if she may deem it best to sell any real estate of which I may die seized and to convey to the purchaser thereof the fee title absolute and the proceeds arising from such sale, to reinvest as she may think best in other real estate or personal property. It being my intention by this will to empower my said wife to use, dispose of and enjoy the property I may leave for herself and her family while she lives just as I should have power to use, dispose of and enjoy it during my life for the use of myself and family did I survive her."

The third paragraph of said will provides that:

"After the death of my said wife I desire all the property remaining derived from me shall be divided equally among my children," etc.

The seventh paragraph of the will is as follows:

"I do hereby appoint my wife Elizabeth J. Robberson sole executrix of this my last will and testament and it is my express will and request that she be permitted to execute this trust without giving the statutory bond thereto required."

The evidence tends to show, that the fair rental value of the property at the date of trial in September, 1924, was $515 per month. It does not appear from the evidence that $250 per month, with the added obligation to keep the building in good repair, and expend $3,000 in improving the building before January 1, 1921, was not a fair rental value in October, 1922, when the lease was assigned to Hooper, nor does it appear from the evidence, that on the date of the lease in May, 1919, the rental value of said premises was in excess of the $250 per month.

Over the objection of plaintiffs, Mr. T. E. Whitlock, who had been in the real estate business at Springfield, Mo., for about 30 years, and who represented the Royal Company in obtaining said lease, testified that in his opinion a lease of said property could not have been made to advantage for a short term, such as two or three years, but could have been leased more advantageously for a longer term.

The will in controversy was executed January 18, 1890. The testator died November 10, 1893. The widow, Elizabeth J. Robberson, died at the age of 86 years, on August 31, 1923. The will was probated in Greene county, Mo., November 23, 1893. The lease to the Royal Company was dated May 8, 1919. The property in controversy was sublet by the Royal Company to Thomas H. Hooper, Jr., October 30, 1922.

Plaintiffs contend that the will in controversy gave the widow a life estate, with power to sell and convey any real estate she might think best, but did not give her the power to lease the property for a period extending beyond the time of her life. Defendants contend that the will gave the widow, not only the power to sell, but the power to lease said property, as was done by the widow extending the same beyond the period of her lifetime.

Opinion.

I. It is contended by appellants that the provisions of the will in controversy are insufficient under the law to sustain the lease read in evidence, which extended beyond the lifetime of the widow. In considering this subject, it would serve no useful purpose to call into requisition the numerous decisions of our various courts in dealing with common-law principles relating to powers and the execution of same, for the obvious reason that the lawmaking power of our state has marked out a line of construction which should be followed in passing upon the issue which now confronts us in this case.

Section 555, Revised Statutes 1919, reads as follows:

"All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them." (Italics ours.)

In addition to above statute, Judge Lamm, in Eckle v. Ryland, 256 Mo. loc. cit. 453, 165 S. W. 1043, has well said:

"The tendency of modern decisions on questions of contingent and vested remainders has been more and more to break away from the technical refinements of the old common-law learning."

We think it manifest from the provisions of the will heretofore quoted that Mrs. Robberson, the widow, became vested with a life estate, in the real estate in controversy, with full power of disposition during her life, and that, upon the death of testator, his children became vested with an equitable estate in remainder, subject to the life estate and power of disposition given to the widow by the will. Mitchell v. Morrisville College, 305 Mo. 466, 266 S. W. 481; Crews v. Crews (Mo. Sup.) 240 S. W. loc. cit. 152; Cook et al. v. Higgins, 290 Mo. Joe cit. 416, 235 S. W. 807; Dunbar v. Sims, 283 Mo. loc. cit. 361, 222 S. W. loc. cit. 839; Schneider v. Kloepple, 270 Mo. 389; 193 S. W. 834; Trigg v. Trigg et al. (Mo. Sup.), 192 S. W. loc. cit. 1014; Priest v. McFarland, 262 Mo. 229, 171 S. W. 62; Tallent v. Fitzpatrick and Kaiser, 253 Mo. loc. cit. 15, 161 S. W. 689; Burnet v. Burnet, 244 Mo. 491, 148 S. W. 872; Gibson v. Gibson, 239 Mo. 490, 144 S. W. 770; Edgar v. Emerson, 235 Mo. loc. cit. 561, 139 S. W. 122; Grace v. Perry, 197 Mo. 550, 95 S. W. 875, 7 Ann. Cas. 948.

It is clear from reading the foregoing authorities that, if the lease in controversy should be declared void on account of its extending beyond the lifetime of the widow, the plaintiffs, as remaindermen, would be entitled to recover possession of the real estate in controversy. On the other hand, if the lease should be upheld, the plaintiffs, as remaindermen, would not be entitled to the possession of said premises until the termination of said lease.

II. Before coming to the consideration of the real issue in this case, it is important that we should, by the process of elimination, dispose of some questions discussed in the authorities, but which are not really present ha this case.

Under a life estate like the one in controversy, the donee of the power, unless authorized by the will in terms to do so, cannot give away the property of the estate, or dispose of the same by will. To hold otherwise would, in legal effect, destroy the estate in remainder, which the testator intended for his children. Cook et al. v. Higgins, 290 Mo. loc. cit. 416-418, 235 S. W. 807; Trigg v. Trigg, (Mo. Sup.) 192 S. W. loc. cit. 1014; Tallent v. Fitzpatrick, ...