Lemmons v. Reynolds

• Decision Date: 26 November 1902
• Citation: 170 Mo. 227,71 S.W. 135
• Parties: LEMMONS v. REYNOLDS et al.
• Court: Missouri Supreme Court

71 S.W. 135

170 Mo. 227

LEMMONS v. REYNOLDS et al.

Supreme Court of Missouri, Division No. 1.

November 26, 1902.

WILLS—DEVISE TO CLASS—ESTATE CREATED —TENANCY IN COMMON—DEATH OF DEVISEE—RIGHTS OF HEIRS.

1. Under Rev. St. § 4600, providing that every devise of real estate to two or more persons shall create a tenancy in common, and not a joint tenancy, unless otherwise expressly declared in such devise, a will devising certain lands to the testatrix's two sons named, without specifying the nature of the estate they were to take, created a tenancy in common, and, on the death of one of the devisees, the property devised passed to his heirs, and not to the surviving devisee.

Appeal from circuit court, Pike county; D. H. Eby, Judge.

Petition by David Lemmons against James C. Reynolds and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

This is a suit to partition about an acre of land, being a part of the S. W. ¼ of section 24, township 53, in Bowling Green, Pike county. The property belonged to Hannah A. Reynolds, a colored woman. The plaintiff and the defendants James C. Reynolds and Willie Ann Turner are her children. She also had another child, John W. Reynolds, who predeceased his mother. All of said children were born prior to 1861, while she was a slave, and the plaintiff had a different father from the others. She died in the year 1899, testate. By her will she devised a certain 40-acre tract to her daughter, Willie Ann Turner, one of the defendants, and then the will provided as follows: "Second. I will to my two sons James Conda Reynolds and John W. Reynolds the following described real estate [describing it, and it being the property in suit here], and my said three children named above are to pay all of my just debts. Third. I will to my son David Lemmons one dollar; it being all I give to him, except what I have already advanced to him." The plaintiff claims an undivided one-third portion of the part of the lot devised to John W. Reynolds, admitting that his sister and brother are entitled to the other two-thirds thereof, by virtue of the statute of descents, because John W. Reynolds predeceased their mother, and died intestate and without issue. The sister and brother claim that the devise to James and John was a devise of property to a class composed of James and John, and that, upon the decease of John before the death of the testator, James, as the surviving member of the class, became immediately entitled to the whole property. The trial court so construed the will, and held that the plaintiff was not entitled to any part of the property, and the plaintiff appealed.

I. C. Dempsey and Tapley & Fitzgerrell, for appellant. Pearson & Pearson and J. E. Thompson, for respondents.

MARSHALL, J. (after stating the facts).

The conclusion of the trial court was largely induced by the case of Crecelius v. Horst, 9 Mo. App. 51; Id., 78 Mo. 566. In that case it appeared that the testator had been twice married. By the first marriage he had, at the time of making the will, two children. By the second marriage he had one child. He made a will whereby he devised $1 to the child of the second marriage, to his second wife he devised only so much as the law of the state entitled her to, and the residue of his property he devised to the two children of the first marriage. One of those two children died, intestate and without issue, before the death of the testator, and the child of the second marriage claimed one-half of the share of such deceased child. The St. Louis court of appeals held that the intention of the testator was to disinherit the child of the second marriage, and that to permit her to recover any part of the portion bequeathed to the child of the first marriage, who died before the testator, would be to defeat the intention of the will, and therefore construed that the devise to the children of the first marriage was a devise to a class, and that, upon the death of one member of the class during the life of the testator, the whole estate passed to the survivor of the class. This case was affirmed by a majority of this court (Id., 78 Mo. 566), and the reasoning of the court of appeals was adopted. That case is therefore in all essential particulars like the case at bar, and, of course, was controlling authority upon the trial court in this case. The case of Hall v. Stephens, 65 Mo. 670, 27 Am. Rep. 302, was referred to by the court of appeals in the Crecelius Case. And the case of Arthur v. Weston, 22 Mo. 378, was referred to in Hall v. Stephens. In Hall v. Stephens the devise was to "H. S. & family," and it was pointed out that the wife of H. S. was included in the designation of "family," and furthermore that, both at common law and under our statute (Gen. St. 1865, ...