Naylor v. Godman

• Decision Date: 22 February 1892
• Citation: 19 S.W. 56,109 Mo. 543
• Parties: NAYLOR et al. v. GODMAN et al.
• Court: Missouri Supreme Court

19 S.W. 56

109 Mo. 543

NAYLOR et al. v. GODMAN et al.

Supreme Court of Missouri, Division No. 1.

February 22, 1892.

WILLS — CONSTRUCTION — PERPETUITIES — FAILURE OF ISSUE.

1. A testator, after providing for the conversion of his estate into money, and for the payment of his debts, directed, in the third clause of his will, that the balance should be invested by his executors in lands for the use and benefit of the six children of his daughter, each to have the use and benefit of one-sixth of the sum for life, with remainder to his or her issue; and in the fourth clause he provided: "It is my will that, if any one or more of my said grandchildren shall die without issue, the share of the one or more so dying shall vest in and become the property of the surviving brothers and sisters of deceased, equally subject to the same limitations as the devise was made to the deceased." Held, that it was the intent of the testator that, on the death of any one of the grandchildren without issue, his portion of the land should become the property of his brothers and sisters who survived him.

2. The fourth clause of the will is a valid, executory devise, as the limitation over is not too remote because it is determined at the death of a grandchild.

3. The words in the fourth clause, "if any of my grandchildren shall die without issue," should not be construed to apply only to the death of a grandchild before the death of the testator.

Appeal from circuit court, Saline county; RICHARD FIELD, Judge.

Action by Mattie B. Naylor and W. M. Naylor, her husband, against W. C. Godman, Josephine C. Way, Eddie H. Emerson, Melvin Godman, and others for the partition of certain real estate. Judgment for plaintiffs and defendants W. C. Godman and Josephine C. Way. Defendants Eddie H. Emerson and Melvin Godman appeal. Affirmed.

Saml. Boyd, for appellants. W. H. Letcher and W. R. Gist, for respondents.

SHERWOOD, C. J.

Action for partition of certain real estate. The cause is bottomed on the proper construction of the following clauses of the will of A. C. Marsh: "Third. That my whole estate, of whatsoever kind, be converted into money, and, after the payment of all necessary expenses and charges of such commission and settlement, the balance of the money be invested by my executors in lands for the use and benefit of the children of my daughter, Mary R. Godman, of Saline county, Mo., in proportion as follows, to-wit: One-sixth of the sum for the use and benefit of my grandson William C. Godman, during his life, with remainder to his children, in fee; and one-sixth for the benefit of my grandson Burton L. Godman, during his life, with remainder to his children, in fee; one-sixth for the use of my granddaughter Josephine Clay Godman, during her life, with remainder to the children of her body, in fee; one-sixth for the use of my granddaughter Mollie Godman, during her life, with remainder to the children of her body, in fee; one-sixth for the use of my grandson Beal Godman, during his life, with remainder to his children, in fee; one-sixth for the use of my granddaughter Martha Godman, during her life, with remainder to the children of her body, in fee. Fourth. It is my will that, if any one or more of my said grandchildren shall die without issue, the share of the one or more so dying shall vest in and become the property of the surviving brothers and sisters of deceased, equally subject to the same limitations as the devise was made to the deceased." The ninth clause of the will is the following: "Ninth. It is my will that my executors purchase lands, and invest the funds arising from sale of Cooper's Run farm, and collections otherwise to be made, as speedily as possible. It is my wish and direction to them to make the purchases of all the lands herein directed to be bought within twelve months after my decease, if practicable to do so. If the whole cannot be purchased in that time, then to buy so far as they have moneys collected." On the trial the cause was submitted on the following agreed statement of facts: A. C. Marsh died in the state of Kentucky, about the year 1876, testate. That the plaintiff Mattie Naylor and defendants W. C. Godman and Josephine Way and Burton L. Godman, Mollie Emerson and Beal Godman, were the children of Mary R. Godman, named in the third clause of said will, and that all of them were living at the death of the testator, A. C. Marsh; that Burton L. Godman died before there was any division of the property mentioned in Marsh's will, and before the executor had invested the entire assets of the estate in real estate, as required in the third clause of the will, without issue; that none of the children of Mary R. Godman had children or descendants at the time of the execution of the will, but that W. C. Godman did have one child at the time of the testator's death; that the land mentioned in the petition in this case was purchased by the executor of A. C. Marsh, and assigned to Beal Godman in the distribution as the one-sixth devised to him and his children by the third clause of said will; that Mollie Emerson died, about 1882, leaving one child, Eddie H. Emerson; that Beal Godman died, without issue, about 1888, and that he left, surviving...