Lounden v. Bollam
| Decision Date | 11 February 1924 |
| Docket Number | 23494 |
| Parties | MARY B. LOUNDEN v. WILLIAM F. BOLLAM, Appellant |
| Court | Missouri Supreme Court |
Motion for Rehearing Overruled February 11, 1924.
Appeal from St. Louis City Circuit Court; Hon. Franklin Ferriss, Judge.
Affirmed.
Thos E. Mulvihill for appellant.
(1) Where property is devised to two or more persons to have and to hold the same as joint tenants, and not as tenants in common, an estate in joint tenancy with right of survivorship is created. Joint tenancies are not abolished by statute in this State, but may be created by express words in the grant or devise creating the estate. Johnson v. Johnson, 173 Mo. 113; Rodney v. Landau, 104 Mo. 259; Lemmons v. Reynolds, 170 Mo. 234; Cohen v Herbert, 205 Mo. 537; 2 Am. & Eng. Ency. Law, p. 1059; Martin v. LaChasse, 47 Mo. 591. (2) The controlling guide in the construction of wills is the intention of the testator. And this intention is to be gathered from a consideration of the whole instrument and the general design and scope of it, giving each part its fair and usual meaning. Hope v. Hope, 12 W.Va. 480; Turner v Timberlake, 53 Mo. 375; Allison v. Chany et al., 63 Mo. 282; Chew v. Keller, 100 Mo. 369; Lomax v. Cramer, 216 S.W. 575; Gibson v. Gibson, 280 Mo. 529. (3) The object of the statute (Sec. 516, Revised Statutes 1919) was to prevent a lapse of the legacy which would take place under the common law when the legatee died before the testator, and not to defeat any expressed purpose of said testator. Furthermore, such a statute is not applicable where independent of it no lapse could occur. 40 Cyc. 1515-1516; Lockhart v. Van Dyke, 97 Va. 356; In re Freeman's Estate, 146 Iowa 38; Wittenberger v. Payne, 162 Mo.App. 438; In Matter of Neydorff, 193 A.D. 531.
S. T. G. Smith and Alex R. A. Garesche for respondent.
(1) The appellant has cited a number of cases to uphold the point that "the controlling guide in the construction of wills is the intention of the testator." We do not deny that this is the law, but we do deny that this point enters into the case at bar. There is nothing in the will to denote that the testatrix sought to prevent a partition of this property. Further, none of the cases cited by the appellant are in point, as the facts in each case are not analogous to the case at bar. A joint tenancy may be partitioned. Stockwell v. Stockwell, 262 Mo. 671. (2) Section 516 operates to place the decedent of the dead devisee in the same position, with respect to the devise, that the dead devisee would have been had he lived. Jamison v. Hay, 46 Mo. 546; Guitar v. Gordon, 17 Mo. 409; Wattemberger v. Payne, 162 Mo.App. 434.
The plaintiff brought this suit to partition a certain tract of land in the city of St. Louis between herself and the defendant, alleging that they were joint tenants, each owning an undivided one-half interest in the property. Both parties claim under the will of Mary Hazel Bollam, mother of the defendant, and grandmother of the plaintiff. The will of Mary Hazel Bollam has the following provisions affecting the property:
"Third I give, bequeath and devise to my two sons, George P. Bollam and William F. Bollam, my house and lot, known as premises No. 3234 Lawton Avenue, St. Louis, Missouri; to have and to hold the same as joint tenants and not as tenants in common, in fee simple."
The Fourth and Fifth items give specific bequests. The sixth is as follows:
"Sixth: All the rest, residue and remainder of my estate, of every kind, I give, devise and bequeath to my son William F. Bollam."
Mary Hazel Bollam, the testatrix, died January 24, 1920. George P. Bollam, mentioned in item third of the will, died January 20, 1920, four days before the death of testatrix.
The plaintiff, Mary Lounden, is the only child of George P. Bollam, deceased, and claims half interest in the property by virtue of Section 516, Revised Statutes 1919. That section is as follows:
Under that provision of the statute the plaintiff, as the only child of George Bollam, should take as joint tenant with William Bollam, just as her deceased father, George Bollam, would have taken if he had survived the testatrix.
The appellant on the contrary argues that William Bollam takes by survivorship, and therefore the statute, Section 516, which is designed to prevent the lapse of a legacy, would not operate. A distinction is pointed out between a devise of a joint tenancy and a tenancy in common. So far as the devolution of the estate, as determined by the will, is concerned, there is no distinction between the joint tenancy and the tenancy in common, where in the latter case the devise is to a class.
The case of Jamison v. Hay, 46 Mo. 546, is directly in point, and the only case in which the matter is decided in this State. There the testator devised a certain portion of his estate "to the sons and daughters of A." Under the common law rule, some of the sons and daughters of A being dead, the survivors would take the whole estate. The court held that the statute would prevent that result and the lineal descendants of the deceased children of A, under Section 516, would take the part which otherwise would go to the deceased children. The devise in that case being to the class, the right of survivorship in the absence of the statute, is exactly the same as the right of survivorship in the case of a joint tenancy.
The following passage from 40 Cyc. 1930, is cited as announcing a contrary rule:
"Where under the will the donees are to take as joint-tenants, or as a class, there is no lapse from the death of one or more, but the entire gift goes to the survivor or survivors."
That states the rule that obtains at common law in the absence of a statute such as Section 516. That same volume, p. 1936 et seq., discusses the effect of a statute such as ours, showing that it is given full effect.
That passage, it must be noted, makes no distinction between a devise to tenants in common, as a class, and a devise to joint tenants.
It is argued that to give effect to the statute would convert a joint tenancy into a tenancy in common. That would not follow. There could be no joint tenancy unless the statute is applied to the case; the intention of the testatrix to create a joint tenancy would fail.
The matter is treated by appellant's counsel as if William F. Bollam took the whole title by the right of survivorship, just as the law operates upon a joint tenancy fully vested. It is assumed that William, as the survivor of George, took the interest of George. Before one of two joint tenants, by right of survivorship, can take the estate of the other, there must be a joint tenancy in the two with title fully vested, and the other must die after such vesting of the title. William could not take an interest which George did not have. No title as joint tenant, or otherwise, was ever vested in George. When he died the title was in the testatrix.
It is a matter of testamentary construction. What was the intention of the testator? It is argued that the will showed the testator intended the survivor of the two devisees should take the whole estate. The will does not say so, and that conclusion is arrived at by a legal inference from the use of the words "joint tenants." The testatrix is presumed to have intended the legal effect of the language used. She is not presumed to have intended any other effect than what the words actually implied. This on the theory that the testatrix is presumed to know the law. When she provided that her two sons should be joint tenants she is presumed to have known that they could not be joint tenants unless both survived her, and that one could not take the title of the other as survivor until the other had a vested title. She made no provision for the disposition of the estate in case one of the sons should die before she died, but the statute made such provision and she is presumed to have known the statute.
Suppose the testatrix had made the further provision that, in case of George's death before her own death, the interest of George should go to his daughter, the plaintiff, as joint tenant with William. Is there any doubt that the intention thus expressed would be given effect? In that case the will would simply have provided for a contingent or a substitute joint tenant to take in case George should die.
Suppose the will had been more general and had provided that, in case of the death of either George or William before the death of the testatrix, the descendants of such deceased should take the estate devised to him as joint tenants with the other son; would that expressed intention be given effect? If not, why not? It would not convert a joint tenancy into a tenancy in common. It would provide for contingent joint tenants.
That is precisely what the statute provides. The testatrix is presumed, not only to know the statute, but to have written her will with the statute in view. It is written as if the statute were incorporated in it as a part of it. To quote 40 Cyc. p. 1939: "But it must be presumed that the testator made the will in view of the statute and that he intended to have the statute prevail, unless the contrary appears." There are numerous cases of...
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