Lewis v. Searles

• Decision Date: 13 April 1970
• Docket Number: No. 54528,No. 2,54528,2
• Citation: 452 S.W.2d 153
• Parties: Hattle L. LEWIS, Appellant, v. Janice SEARLES et al., Respondents
• Court: Missouri Supreme Court

Page 153

452 S.W.2d 153

Hattle L. LEWIS, Appellant, v. Janice SEARLES et al., Respondents.

No. 54528.

Supreme Court of Missouri, Division No. 2.

April 13, 1970.

James D. Sickal, Blanton, Blanton & Rice, Sikeston, for appellant.

James M. Reeves, Ward & Reeves, Caruthersville, for respondents, J. R. (Dick) Lewis and Lilbourn Z. Lewis.

HENRY I. EAGER, Special Commissioner.

In this declaratory judgment suit plaintiff seeks to have the title to certain real estate quieted in her in fee and, in the process, to have a will construed. We have jurisdiction since the title to real estate is directly involved. The trial court adjudged that plaintiff had a life estate in the whole of the property, and a fee simple interest in an undivided one-third thereof, subject to the life estate. After an unavailing motion for a new trial plaintiff appealed.

The real estate is described as follows: 'All of the Northeast Quarter of the Southwest Quarter and the West 60 acres of the Southeast Quarter, all in Section 25, Township 22 North, Range 13 East of the Fifth Principal Meridian in the County of New Madrid, State of Missouri.'

The will involved here was that of Letitia G. Lewis (the owner of the land) who died on Sept. 27, 1926; this will was probated shortly thereafter. At the time of her death the testatrix left surviving her two nieces, the plaintiff and Letitia L. LaForge, and a nephew, James R. Lewis. At the time of the institution of this suit Letitia LaForge had died leaving three children; one of these children had died, also leaving three children. The nephew had also died leaving two sons, both of whom have entered their appearance and have actively contested the suit. The necessary defendants who reside in Missouri have been served with process and the others by publication. We have asked for and received certified copies of certain documents in order thus to verify the jurisdiction over the parties.

The facts, although somewhat scanty, are contained in a stipulation. No oral evidence was taken. The plaintiff was 95 years of age at the time of trial, and is presumably now about 96; she was thus approximately 53 years of age when the will was probated. We are told that the will was executed on May 31, 1911, when plaintiff was 38 years old. She has never been married. Since the death of the testatrix, plaintiff has been in continuous possession of the real estate.

Paragraph 'Second' of the will was as follows: 'Second, I devise to my niece, Hattie L. Lewis, all of my real and personal property of which I may die seized and possessed, so long as she remains single and unmarried. In the event that the said Hattie L. Lewis shall marry, then and in this event I desire that all of my property, both real and personal be divided equally between my nieces and nephews as follows, to the said Hattie L. Lewis, an undivided one third, to Letitia A. LaForge, wife of A. C. LaForge, an undivided one third, and to James R. Lewis an undivided on third.' This is the only part in controversy.

In her petition plaintiff alleged the various relationships (including therein sundry unnecessary parties), described the real estate, attached a copy of the will, and prayed for an order of publication. She further alleged: that she had never been married; that she received an estate in fee under the will; that the restriction in the will against marriage was void; and that the other niece and the nephew of testatrix were deceased. The prayer was that a guardian ad litem be appointed for the minor defendants and others (which was done) and that title in fee to the land be quieted in her. The answer of J. R. (Dick) Lewis and Lilbourn Z. Lewis (children of the nephew) admitted plaintiff's possession and her right to possession, but denied that she was the owner of the fee. In a counterclaim they prayed that title in fee to an undivided one-third of the land be quieted in each of them under the terms of the will, subject to a life estate in plaintiff. In a reply to the counterclaim plaintiff reaffirmed her position that she was the owner in fee of all the land.

The trial court found (aside from formal and admitted facts) that it was the intention of the testatrix to give to plaintiff a life estate, and that 'upon the death of said plaintiff that the fee title to said real estate vest in fee simple one-third to plaintiff, Hattie L. Lewis, one-third to Letitia L. LaForge and one-third to James R. Lewis, or to their descendants, hereinabove named.' Judgment was entered accordingly, providing that plaintiff was the owner of a life estate and also the owner in fee simple of an undivided one-third interest, subject to her life estate, with the remaining undivided two-thirds in fee vested as already indicated. Plaintiff's motion for a new trial was overruled.

Plaintiff's counsel raise two points on this appeal, simply stated, but not so simply decided: (1) that all provisions of the will concerning the marriage of plaintiff are void as against public policy and should be stricken; (2) that in any event it was not testatrix's intention to devise to plaintiff a life estate with a one-third remainder in fee, but to devise to her a determinable fee in the whole of the property, to be reduced only in the event of her marriage. Respondents simply converse these points, and the issues are clearly drawn.

There is no doubt that the older cases in Missouri and elsewhere held that a provision in general restraint of marriage was void as against public policy. Knost v. Knost, 229 Mo. 170, 129 S.W. 665, 49 L.R.A.,N.S., 627; Sullivan v. Garesche, 229 Mo. 496, 129 S.W. 949, 49 L.R.A.,N.S., 605; Williams v. Cowden, 13 Mo. 148(211); 122 A.L.R. 7, Note. But, as stated by the author of the A.L.R. Annotation at loc. cit. 9, the courts have been reluctant to apply the rule and it has well-nigh been 'eaten out with exceptions.' One exception which has long been recognized is the right of a husband to terminate or decrease the extent of a devise to his wife upon her remarriage (subject, of course, to her statutory right to renounce the will). Knost, Sullivan, supra. As said by Judge Lamm in Knost, supra, it seems to be settled law that men 'have a sort of mournful property right, so to speak, in the viduity of their wives, * * *.' 129 S.W. loc.cit. 667. The author of the A.L.R. Annotation says that 'The preponderance of modern opinion seems to be that the right of a donor to attach such conditions as he pleases to his gift will outweigh the maxim that marriage should be free, except where such conditions are evidently attached through caprice rather than from a desire to carry out a reasonable purpose.' (Loc. cit. 11--12.) The history of this most ancient rule is discussed in that Annotation. It is obvious that the cases on the subject are both conflicting and confusing, but that most, if not all, courts still give lip service to the doctrine. The tendency, however, is to consider whether, under the circumstances, the provision serves a legitimate purpose. And one reason which the author mentions as most commonly applied is the desire to furnish support to the devisee while single. Much confusion has developed in attempts to determine whether such a provision, in any given case, is a limitation or a condition. It has been indicated that generally a devise which is to be reduced in the event of marriage is held to be a condition subsequent. (Anno. loc. cit. 73.)

Into this welter of conflict and confusion came the case of Winget v. Gay, 325 Mo. 368, 28 S.W.2d 999 (1930). Plaintiff says that this case is not controlling because it was decided after the will in our case was probated. If that be the true rule, it would seem impossible ever to change the case law, since every such case is decided after the particular will involved has been probated. We follow Winget in part; in other respects it appears to be disinguishable. There the decedent had married a widow with three small children; the two born of his own marriage to her died, as did (later) the widow; two of her children were grown and living in their own homes. The other, the stepdaughter involved in the case, was a semi-invalid but she remained with him until his death. She was forty-four when his will was executed. He devised to her all the residue of his property 'as long as she remains single, and if she marry it is my will that she share equally with the other heirs.' His 'other heirs' were brothers and sisters to whom he bequeathed one dollar each. Two essential questions were raised: (1) the validity of the provision concerning the stepdaughter's marriage, and (2) whether she got a determinable fee or a life estate in the residue. The Court initially recognized the rule that provisions in general restraint of marriage are void (citing the above Missouri cases) and then proceeded to impose its own exception. It held: that the testator's purpose, 'when all the circumstances are considered,' was merely to provide support for the stepdaughter while she was single and until such time as the obligation might be assumed by a husband; that, thus construed, his purpose and the provision did not 'run counter' to public policy; and that he had the right to limit the duration of his bounty to the time of her probable dependency. The Court proceeded to hold thereafter, that the devisee only took a life estate. We shall discuss that phase later.

It seems probable that there was, in the Winget case, some evidence of circumstances. Plaintiff says here that we may not reach a similar result with no such evidence. However, we find that the very wording of the will in our case expresses an intent of the testator to provide support for the plaintiff while she remained unmarried but, upon the happening of such a contingency, to require that she share with the other niece and the nephew. The provision did not constitute a penalty for marrying. This provision was obviously not inserted by whim or 'caprice,' for plaintiff...