Legg v. Wagner

• Decision Date: 30 October 1941
• Docket Number: No. 37589.,37589.
• Citation: 155 S.W.2d 146
• Parties: LEGG et al. v. WAGNER et al.
• Court: Missouri Supreme Court

155 S.W.2d 146

LEGG et al. v. WAGNER et al.

No. 37589.

Supreme Court of Missouri, Division No. 1.

October 30, 1941.

Appeal from Circuit Court, Lewis County; Charles E. Murrell, Special Judge.

Action for partition of realty by John T. Legg and others against John T. Wagner and others. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Walter M. Hilbert and Otto P. Shanks, both of Monticello, and A. F. Haney, of Canton, for appellants.

H. S. Rouse, of Canton, for respondents.

DALTON, Commissioner.

Action to partition certain described real estate in Clark and Lewis counties. Defendants denied that plaintiffs had any right, title or interest in the described lands. The cause was tried upon an agreed statement of facts and the court found for defendants. After motion for a new trial was filed and overruled, plaintiffs appealed. We have jurisdiction because title to real estate is directly involved. Price v. Gordon, Mo. Sup., 147 S.W.2d 609, 610.

The case turns upon the construction of a will. John T. Legg is the common source of title under whom plaintiffs and defendants claim. He died, testate, on the 20th of May, 1906, owning the described lands and leaving as his sole and only heirs at law certain nieces and nephews (none of whom were mentioned in the will) and his widow, Bettie Legg.

Plaintiffs are nieces and nephews of the testator, the assignee of a niece and the heirs at law of a deceased nephew. Defendants are a legatee named in the will of John T. Legg, deceased, the heirs at law of three devisees who survived the testator, but predeceased the widow, and the devisees, legatees and legal representative of a devisee who survived both the testator and his widow, but died prior to the institution of this suit.

The pertinent provisions of the will are paragraphs 2 and 3 as follows: "2nd. I give and bequeath to my beloved wife Bettie Legg all my estate real and personal to have and to hold during her natural life and at her death I will and direct that my estate shall go to, vest in and be distributed as follows: To Margaret H. Brown, wife of John M. Brown, the sum of five hundred dollars and after the payment to her of said sum of five hundred dollars.

"3rd. All the rest, residue and remainder of my estate real and personal, I will and bequeath as follows: To John W. Thurmond one-third, to Samuel E. Thurmond one-third, to Mary E. Wagner, wife of J. F. Wagner one-sixth, to Harvey J. Thurmond one-sixth, I hereby appoint John W. Thurmond and Samuel E. Thurmond, the executors of this my last will and testament and request that they be not required to give bond as such executors."

Bettie Legg, testator's widow, died January 17, 1937. Mary E. Wagner, Harvey J. Thurmond and John W. Thurmond survived testator, but predeceased the testator's widow. Samuel E. Thurmond survived the testator and the widow, but died January 11, 1939. Appellants do not claim the one-third interest in remainder devised to Samuel E. Thurmond.

Appellants contend that: "By the terms of the will of John T. Legg, deceased, the estate in remainder devised to John W. Thurmond, Mary E. Wagner and Harvey J. Thurmond would not become vested in them until the death of the life tenant Bettie Legg, and, as they died before the death of the life tenant, the devises to them consequently lapsed, and, there being no substitutes provided by the will, the devises to them lapsed, and the real estate devised to them reverted to the natural heirs at law of the testator."

Appellants argue that the clearly expressed intention of the testator must govern; that words must be given their plain and ordinary meaning; that in this case the plain and unequivocal language of the will is that "at her (the widow's) death * * * my estate shall go to, vest in and be distributed" to the named legatee and devisees; that "the will by its language does not vest the title in said four persons in the shares willed to them until the death of the life tenant"; that, since the shares did not vest in them until the death of the life tenant, "the three devisees who died during the existence of the life estate never became vested in their shares, as they died before the termination of the life estate"; that the devises to these three lapsed and passed to testator's heirs at law; and that this interest in the real estate is now held by appellants (plaintiffs).

Respondents, on the other hand, contend that by the terms of the will the remaindermen, devisees, took a vested interest in the real estate at the date of the death of the testator, "but with right of possession and the enjoyment thereof postponed until the death of the life-tenant widow"; that it is immaterial when Bettie Legg, the life tenant, died with reference to the date of death of the remaindermen for the reason the remaindermen, devisees, under the will had a vested interest in remainder in the real estate immediately on the death of the testator, and "irrespective of the death of the widow"; and that "at the respective deaths * * * of said remaindermen their title to said land passed according to the laws of the descents and distributions of the State of Missouri," * * * and is now vested in respondents (defendants).

In construing the will certain rules for construction must be considered. The true intent of the testator must be determined. "The controlling rule in construing wills in this state, to which all technical rules of construction must give way, is to give effect to the true intent and meaning of the testator as the same may be gathered from the whole instrument, if not violative of some established rule of law." Grace v. Perry, en banc, 197 Mo. 550, 559, 95 S.W. 875, 877; Lewis v. Lewis, 345 Mo. 816, 136 S.W.2d 66, 69. It must be remembered that a will speaks as of the testator's death. Humphreys v. Welling, 341 Mo. 1198, 111 S. W.2d 123, 128; Stolle v. Stolle, Mo.Sup., 66 S.W.2d 912, 914. In determining whether or not the devisees took a vested interest, we must recognize that "The law favors vested estates, and, where there is a doubt as to whether the remainder is vested or contingent, the courts will construe it as a vested estate." Chew v. Keller, 100 Mo. 362, 368, 13 S.W. 395, 396; Dunbar v. Sims, 283 Mo. 356, 222 S.W. 838; Hamner v. Edmonds, 327 Mo. 281, 294, 36 S.W.2d 929. "* * * The rule is that estates shall be held to vest at the earliest possible period, unless a contrary intention is clearly manifested * * *." Tindall v. Tindall, 167 Mo. 218, 225, 66 S.W. 1092, 1094; Palmer v. French, 326 Mo. 710, 32 S.W.2d 591, 595; Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135, 142; Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947; Laird v. Lust, Mo.Sup., 98 S.W.2d 768, 769. It will be presumed that the testator intended to dispose of his entire estate. Chapman v. Chapman, 336 Mo. 98, 77 S.W.2d 87, 92; Bond v. Riley, 317 Mo. 594, 296 S.W. 401, 405. "Missouri decisions uniformly hold that the general intendment and presumption is against partial intestacy where any other reasonable construction is possible." St. Louis Union Trust Co. v. Little, 320 Mo. 1058, 10 S.W.2d 47, 52. Of course, "the presumption against partial intestacy is of no avail, where the plain and unequivocal language of the testator shows a contrary intention." Crowson v. Crowson, 323 Mo. 633, 19 S.W.2d 634, 637.

Considering the will, we find nothing to show any clear expression of an intention that the remainder in fee in the shares mentioned should not vest immediately upon the death of testator. The will contains four subdivisions. The first provides for payment of debts. The second devises and bequeaths all real and personal property to the widow, for and during her natural life, and provides for a $500 legacy to Margaret H. Brown out of the remainder. The third subdivision provides that, "All the rest, residue and remainder of my estate, real and personal, I will and bequeath as follows"; (Italics ours) (and then names the parties and fixes their respective shares). The fourth subdivision revokes all prior wills or codicils.

We think the testator, by the will, made a full and complete disposition of all his property. He very clearly intended by the third subdivision of his will to dispose of all of the residue of his estate and as of the date of his death. "The residuary estate is that which remains after all obligations constituting charges against the estate and all specific legacies and bequests have been met and discharged." In re Holmes' Estate, 328 Mo. 143, 40 S.W.2d 616, 618.

After the life estate, devised by ...