Lewis v. Lewis

• Citation: 136 S.W.2d 66,345 Mo. 816
• Decision Date: 23 January 1940
• Docket Number: 35997
• Parties: Addie Lee Lewis v. Hugh Lewis III, Malin Lewis, Jr., Eva Lewis, Robert Lewis (children of Malin Lewis); Robert Lewis, Jr., a minor and Raymond Lewis, a minor (sons of Robert Lewis); Virginia Crowley (granddaughter of Malin Lewis); Kate French (Mrs. J. A. French) and daughter of Hugh Lewis, Sr., Marie French, Louis French and Valiant French (children of Kate French) Ward Standley French, Reid French, a minor, Virginia French, a minor (children of Valiant French) Louis French, Jr. (son of above named Louis French); John Raymond Palmer and Paul Minor (grandchildren of Elizabeth Palmer, who was a daughter of Hugh Lewis, Sr.); Mrs. L. Z. Green, Ollie Adeline Williams, Mrs. Marvin Mitchell, Eva Belle Worick, Katherin Swor (granddaughters of Elizabeth Palmer, who was a daughter of Hugh Lewis, Sr.); Marie Dale Williams and Katherine Williams, minors, (daughters of Ollie Adeline Williams above named), Mrs. Otis Worick Little (daughter of Eva Belle Worick above named), and James Hilery Little, a minor (son of Mrs. Otis Worick Little); DuVal Smith, guardian ad litem for above named minors, Appellants
• Court: United States State Supreme Court of Missouri

136 S.W.2d 66

345 Mo. 816

Addie Lee Lewis v. Hugh Lewis III, Malin Lewis, Jr., Eva Lewis, Robert Lewis (children of Malin Lewis); Robert Lewis, Jr., a minor and Raymond Lewis, a minor (sons of Robert Lewis); Virginia Crowley (granddaughter of Malin Lewis); Kate French (Mrs. J. A. French) and daughter of Hugh Lewis, Sr., Marie French, Louis French and Valiant French (children of Kate French) Ward Standley French, Reid French, a minor, Virginia French, a minor (children of Valiant French) Louis French, Jr. (son of above named Louis French); John Raymond Palmer and Paul Minor (grandchildren of Elizabeth Palmer, who was a daughter of Hugh Lewis, Sr.); Mrs. L. Z. Green, Ollie Adeline Williams, Mrs. Marvin Mitchell, Eva Belle Worick, Katherin Swor (granddaughters of Elizabeth Palmer, who was a daughter of Hugh Lewis, Sr.); Marie Dale Williams and Katherine Williams, minors, (daughters of Ollie Adeline Williams above named), Mrs. Otis Worick Little (daughter of Eva Belle Worick above named), and James Hilery Little, a minor (son of Mrs. Otis Worick Little); DuVal Smith, guardian ad litem for above named minors, Appellants

No. 35997

Supreme Court of Missouri

January 23, 1940

Appeal from Andrew Circuit Court; Hon. Richard B Bridgeman, Judge.

Affirmed.

Breit & Roberts, L. W. Booher, DuVal Smith and William Stone for appellants.

(1) By Item 4 of the will of Hugh Lewis, Sr., the plaintiff, Addie Lee Lewis, is given a life estate in the lands therein described with the remainder in fee to the heirs of her body. However, that item cannot stand alone, but must be read in connection with the 8th item of said will, and when so read conveys to said Addie Lee Lewis a life estate in the land described in Item 4, with a contingent remainder in fee to the heirs of her body, and if said Addie Lee Lewis shall die without issue living at the time of her death, capable of inheriting, then, and in that case, title to said lands would vest in the widow, if then living, and such of testator's children as may be then living, and the children of such of testator's children as may then be dead. Cox v Jones, 229 Mo. 66; 2 Tiedeman on Real Estate, sec. 415; 21 C. J., sec. 140, p. 988; 69 C. J., secs. 1727, 1749, pp. 637, 655; Hartnett v. Langan, 282 Mo. 494; Tevis v. Tevis, 259 Mo. 19; Norman v. Horton, 126 S.W. 190. (2) In the case of a contingent remainder, a conveyance by the remaindermen during the lifetime of the life tenant conveys no title when the remaindermen die before the death of the life tenant. Hartnett v. Langan, 282 Mo. 471; Tevis v. Tevis, 259 Mo. 40; Schee v. Boone, 295 Mo. 224; Cox v. Jones, 229 Mo. 53; Parrish v. Treadway, 267 Mo. 94; Dickerson v. Dickerson, 211 Mo. 487; Delassus v. Gatewood, 71 Mo. 371; Eckle v. Ryland, 256 Mo. 424. (3) Where a conveyance is made to one and the heirs of her body, the law will not presume the possibility of issue extinct so long as she lives, and it cannot therefore be determined during her lifetime who her heirs are. Rozier v. Graham, 146 Mo. 359; Thomas v. Thomas, 149 Mo. 436. (4) Where a life estate is given, with remainder to heirs of the body of the life tenant with remainder over, in the event that the life tenant dies without issue surviving, then the words "die without issue" refer to the death of the life tenant. Sec. 3109, R. S. 1929; Faust's Admrx. v. Birmer, 30 Mo. 414; Naylor v. Godman, 109 Mo. 543; Sullivan v. Garesche, 229 Mo. 506; Hartnett v. Langan, 282 Mo. 471; 69 C. J., sec. 1727, p. 637; Ringquist v. Young, 112 Mo. 25; Jones v. Park, 271 S.W. 373. (5) The intention of the testator as gathered from the four corners of the will giving effect to all clauses thereof, should be the guiding star for the construction of the will, unless it would violate some positive rule of law. Sec. 567, R. S. 1929; In re Bjorkman's Estate, 38 S.W.2d 269; Humphreys v. Welling, 111 S.W.2d 123.) (6) The presumption is that testator intended to dispose of his entire estate, and not to die intestate, either as to the whole or any part thereof, and the will should be so construed, unless this presumption is clearly rebutted by the provisions of the will, or by evidence to the contrary. RoBards v. Brown, 167 Mo. 457, 67 S.W. 245; Watson v. Watson, 110 Mo. 171, 19 S.W. 543; Willard v. Darrah, 168 Mo. 671, 68 S.W. 1023; Philbert v. Campbell, 296 S.W. 1007.

John T. Harding and Harding, Murphy & Tucker for respondent.

(1) Item 8 of the will was inoperative after the death of the testator, because, (a) this court in Palmer v. French, 32 S.W.2d 591, held that the testator intended by the use of Item 8 of his will to prevent a lapse, and by the use of the words "die without issue living at the time of his or her death," he referred to death during the lifetime of testator. Faust's Admrx. v. Birner, 30 Mo. 414; Palmer v. French, 32 S.W.2d 591, 326 Mo. 710. (b) Application of familiar rules of construction compels the same result. All subordinate rules of construction must give way to the intent of the testator to be gathered from the four corners of the instrument. Palmer v. French, 326 Mo. 710, 32 S.W.2d 591. It is uniformly settled by the Missouri cases that it will be presumed that the testator intended that the title should vest at the earliest possible moment. Carter v. Boone County Trust Co., 92 S.W.2d 647, 338 Mo. 629; Palmer v. French, 32 S.W.2d 591, 326 Mo. 710; Ewart v. Dalby, 5 S.W.2d 428, 319 Mo. 108. Another important rule of construction which the courts uniformly follow, provides that persons who take as heirs under a will must be determined as of the time of the testator's death. Evans v. Rankin, 44 S.W.2d 644, 329 Mo. 411; Union Natl. Bank v. Bunker, 114 S.W.2d 198; Henderson v. Calhoun, 183 S.W. 584. It has been held without exception in this State that where real estate is devised to one in fee, with provision for a gift over in the case of death of the legatee or devisee without issue, the event referred to is death without issue during the lifetime of the testator. The testator is presumed to intend to prevent a lapse. Owens v. Men & Millions Movement, 296 Mo. 110, 246 S.W. 172; Ewart v. Dalby, 5 S.W.2d 428, 319 Mo. 108; Stevenson v. Stearns, 29 S.W.2d 116, 325 Mo. 646; Laird v. Lust, 98 S.W.2d 768; Palmer v. French, 32 S.W.2d 591, 326 Mo. 710. Where real estate, as in this situation, is devised to some in fee and to others for life, with a single provision for a gift over in the case of the death of the legatee without issue, the event referred to is the death without issue during the lifetime of the testator. Palmer v. French, 32 S.W.2d 591, 326 Mo. 710; Laird v. Lust, 98 S.W.2d 768. (2) The quitclaim deed from the widow and other heirs of the testator living at his death, conveyed a fee simple estate to Addie Lewis, subject to being divested upon the birth of issue to Addie Lewis. Palmer v. French, 32 S.W.2d 591, 326 Mo. 710; Hyde v. Hopkins, 296 S.W. 382, 317 Mo. 587; Gillilan v. Gillilan, 278 Mo. 99, 212 S.W. 348; Collins v. Whitman, 283 Mo. 383, 222 S.W. 840; Harnett v. Langan, 282 Mo. 471, 222 S.W. 403; Tevis v. Tevis, 259 Mo. 19, 167 S.W. 1003; Schee v. Boone, 295 Mo. 223, 243 S.W. 882; Cox v. Jones, 229 Mo. 53, 129 S.W. 495; Parrish v. Treadway, 267 Mo. 94, 183 S.W. 580; Dickerson v. Dickerson, 211 Mo. 483, 110 S.W. 700; De Lassus v. Gatewood, 71 Mo. 371; Eckle v. Ryland, 256 Mo. 424, 165 S.W. 1035. (3) This being an action for a declaratory judgment Point (3) of appellant's brief is inapplicable. Sec. 1097b, Mo. Stat. Ann., pp. 1385-1388; Borchard on Declaratory Judgments, p. 121; Cavin v. Little, 281 S.W. 480, 213 Ky. 460; Anderson v. Anderson, 46 P.2d 476. (4) The rule as announced by cases involving life estates, with remainder over following those life estates, is not controlling in the situation presented by the facts in the instant case. Palmer v. French, 32 S.W.2d 591, 326 Mo. 710; Sec. 3109, R. S. 1929; Faust's Admx. v. Birner, 30 Mo. 414; Naylor v. Godman, 109 Mo. 543, 19 S.W. 56; Sullivan v. Garesche, 229 Mo. 507, 129 S.W. 949; Hartnett v. Langan, 282 Mo. 471, 222 S.W. 403.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

This is an appeal from a declaratory judgment entered upon the petition of Addie Lee Lewis to construe the will of Hugh Lewis, Sr., deceased; to determine the effect of a conveyance by the widow and certain surviving children of Hugh Lewis, Sr., to Addie Lee Lewis; and to declare petitioner the owner in fee simple of the real estate described. The petition was filed pursuant to the Declaratory Judgment Act, Laws of Missouri 1935, page 218 (Mo. Stat. Ann., sec. 1097a et seq., pp. 1383-1388). All of the living descendants of both Hugh Lewis, Sr., and his wife are parties to this proceeding. Addie Lee Lewis, a daughter, is plaintiff and all others are defendants. Judgment was entered declaring plaintiff vested with the fee simple title, subject to being divested upon her having heirs of the body. After motions for a new trial and in arrest of judgment were filed and overruled defendants appealed.

Hugh Lewis, Sr., died testate in the year 1896 in Andrew County, Missouri, seized of real estate and personal property. He left surviving him his widow Adaline Lewis and his children, Hugh Lewis, Jr., Malin Lewis, Elizabeth Palmer, Kate French and Addie Lee Lewis, as his only heirs at law. All of said persons were named as beneficiaries in his will. The provisions of the will are as follows:

By item 1, testator provided for the payment of his debts and funeral expenses.

By item 2, he devised to his "daughter, Elizabeth J. Palmer, for the term of her life, and at her death to the heirs of her body, absolutely," certain described real estate together with a cash legacy.

By item 3, he devised to his "daughter, Kate, wife of Dr. John A. French for the term of her life, and at...