Mead v. Jennings

• Decision Date: 31 March 1870
• Citation: 46 Mo. 91
• Parties: LUCIEN MEAD AND WIFE, Appellants, v. JENNINGS et al., Respondents.
• Court: Missouri Supreme Court

46 Mo. 91

LUCIEN MEAD AND WIFE, Appellants,

v.JENNINGS et al., Respondents.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

Krum & Decker, for appellants.

I. The will in question is a devise by the testatrix to her executors that they shall sell her real estate etc., and therefore the will is a mere naked power to sell, and does not pass the fee of the land.

II. If a party devise that his executors shall sell his lands, and die seized, his heirs are in by descent, and consequently his executors have only a power to sell. (Sugd. on Powers, 128; Tiff. & Bull. Trusts and Trustees, 750-94; 4 Kent, 320; 2 Burr. 1027; 2 Ves. 179; 3 Ves. 513; 2 Pierre Williams, 308, 550; 4 Wash. 278; 7 Cow. 187; 9 Johns. 104.)

III. The legal title to the land of which Ann B. Jennings died seized is vested in her heirs by descent, and will remain there until divested by the execution of the power under the will. Consequently, as the legal title to the land in question is in the heirs, they are seized in law as tenants in common, and are entitled to partition. (Lambert v. Blumenthal, 26 Mo. 471.)

H. Berry, for respondents.

WAGNER, Judge, delivered the opinion of the court.

This was a suit brought for a partition of certain premises belonging to the estate of Ann B. Jennings, deceased. The plaintiff's wife claims to be seized in fee of one-sixth part of the premises in question, and alleges that she holds the same in common with the other defendants. Judgment was for defendants in the court below.

Whether the plaintiffs are entitled to partition depends upon the construction of the will of Mrs. Jennings, from whom the parties derive title. The disposing part of the will of the testatrix is thus: “It is my will that after my death, my executors hereinafter mentioned shall, out of my property, pay my funeral expenses and any debts that I may justly owe, and that they shall take possession, charge, and management of all my estate, real and personal; and after paying such debts, it is my will that my said executors, in whom I place full confidence and trust, shall sell and dispose of the whole of my said property, real and personal, at such time, place, and in such quantities, as to them shall seem best, and at either private or public sale; and the proceeds arising from such sales or disposition of my said property, my said executors shall divide into six equal portions, whereof one shall be paid to my daughter, Ann M. McLaren, or her heirs; one shall be paid to my son, William H. Jennings, or his heirs; one to my daughter, Mary J. Switzer, or her heirs; one to my son, Robert M. Jennings; one it is my will my executors shall invest in any manner they may deem best, either in real estate or other property, or may loan the same, and the annual rent, dividends, or other proceeds arising from such investment, my said executors shall pay over to my daughter, Martha A. Mead (plaintiff), during her life, and, at her death, said investment I bequeath to her heirs,” etc.

The true province of courts, in giving a practical construction to wills, is to...