Laird v. Lust

• Decision Date: 12 November 1936
• Docket Number: 33884
• Parties: LAIRD et al. v. LUST et al
• Court: Missouri Supreme Court

98 S.W.2d 768

LAIRD et al. v. LUST et al

No. 33884

Supreme Court of Missouri, First Division

November 12, 1936

Roy Hamlin, of Hannibal, B. B. Megown, of New London, and Ben Ely, of Hannibal, for appellants.

Robert L. Motley, of Bowling Green, for respondents.

OPINION

HYDE Commissioner.

This is a suit to partition real estate. Defendants' answer states that partition during their lives would be contrary to the will of John C. Lust, who died in 1894 seized of the 240 acres of land involved. Defendants say 'that the land involved was not partitionable because: (a) The various co-owners were not given estates in fee simple absolute by the Will of John C. Lust, their common source of title, but defeasible estates, the exact nature and quantum of which could not be determined until the death of the last but one of the co-owners; (b) therefore, to permit partition before the happening of said contingency, which has not yet occurred, would be to contravene the section 1557, R.S.Mo 1929 [Mo.St.Ann. § 1557, p. 1739].' Plaintiffs claim an absolute vested title in the fee. The court took plaintiffs' view and entered judgement for partition. Defendants have appealed from this judgment.

The sole question involved is the determination of the title of the parties in the land under this will. Paragraph 2 of the will provided a life estate, in the testator's home farm of 200 acres, for his widow. Paragraphs 5, 6, and 7 providing for nine of his children were as follows:

'Paragraph 5. I give and devise all the rest, residue and remainder of my estate, real, personal or mixed, unto the following children, to-wit: Christain G. Lust, Samuel Lust, William H Lust, Silas F. Lust, Charles Lust, Caroline Lust and Lust Elizabeth Lust, Caroline Lust and Mary J. Laird, wife of William H. Laird, my daughters, to be divided equally between them, share and share alike, and in case any of my children, at my death be dead, and leaving children, or descendants, then such children shall take the share their parents would have taken, if living.

'Paragraph 6. At the death of my said wife, it is my will and desire, that all property that I have herein, in paragraph 2, willed and devised to her, be equally divided among my children named in paragraph five above, or their descendants as provided in said paragraph 5.

'Paragraph 7. If any of my children named in paragraph 5 above, die without issue surviving them, then it is my will that that part of my estate herein willed to such child, or children so dying, shall be equally divided among my other children mentioned in said paragraph 5, or their descendants.'

The testator was survived by ten children and his widow, now deceased. One daughter had died before the testator made this will, and her son Harry Liter, who is one of the plaintiffs, was given only a money bequest. One daughter died thereafter, leaving surviving children who are plaintiffs F. J. Cash, Ada Cash Hall, and Fannie Walmsley. Their mother had been given a money bequest by the will, and was not given any interest in the land. Of the nine children of the testator to whom he equally devised the land, one son died thereafter leaving surviving a daughter Sybel F. Claggett, one of the plaintiffs; two other sons died unmarried and without issue; plaintiff Mary Jane Laird is a daughter of the testator; and his other five living sons and daughters are defendants. The defendants Myers and Plowman are trustee and beneficiary of a deed of trust on part of the land. Defendants, who are the sons and daughters of the testator, and the two brothers who died single, had lives. on the old homestead practically all their lives. Only the youngest of them, Charles J. Lust, ever married. He was sixty-three at the time of the trial. The oldest child, defendant Louisa Lust, was then eighty-eight. The result of previous litigation over this will appears in Cash v. Lust, 142 Mo. 630, 44 S.W. 724, 64 Am.St.Rep. 576.

Defendants' contention is that paragraph No. 7 refers to children of the testator dying without issue after the testator's death, and that 'the estate was given to each * * * as a life estate only, and if any one of them, or the other brothers and sisters who have predeceased them, die without leaving issue, then and in that event the share of that one so dying without issue would go to the surviving brothers and sisters on down until the last one of the children of John C. Lust had died before it could be determined as to who had the fee simple title to said property.' Otherwise stated, they claim that the testator's nine children named in paragraph 5 (all of whom survived him) did not take absolute shares, but that the shares of those who have died or will die without issue, instead of going to all of the testator's children or their descendants, go ultimately to the last survivor and to descendants of those of the nine named who leave descendants. They rely upon Armor v. Frey, 226 Mo. 646, 126 S.W. 483, 488, which they say construes the same provision as in this will. We cannot agree that the two cases are the same. In the Armor Case the provision, which was held to make the devise less than an absolute fee, stated that the children of the testator, who died leaving issue, had the right to make disposition by will of the fee subject to certain limitations. This item, with its provision for disposition by will, was held to clearly manifest 'the intention of the testator to limit the estate of his children devised in other items of such will to that of a life estate.' It would seem reasonable that if a provision for a will by the devisees was considered by the testator to be required to give his devisees the right of disposition, then such devisees must have held an estate less than a fee. That is not the situation here.

Our law favors vested estates, so that, unless the testator has by very clear words manifested his intention to the contrary the persons who take under his will, as the...