Nichols v. Boswell

• Decision Date: 10 February 1891
• Citation: 103 Mo. 151,15 S.W. 343
• Parties: NICHOLS v. BOSWELL.
• Court: Missouri Supreme Court

15 S.W. 343

103 Mo. 151

NICHOLS v. BOSWELL.

Supreme Court of Missouri, Division No. 2.

February 10, 1891.

WILL — CONSTRUCTION.

Testator, in the first clause in his will, gave two of his grandchildren one dollar each. In the second he provided that all his real estate should be divided between two daughters and another grandchild. In the third he directed that, in case of the death of one of the daughters named in the second clause, all his estate, real and personal, should go to the other. It appeared that testator had had four children, — the father of the two grandchildren named in the first clause, then deceased, to whom he had given in his life-time 80 acres of land; and three daughters, one of whom, then deceased, was the mother of the third grandchild; that at the testator's death there remained of his real estate about 200 acres; and that the contingency mentioned in the third clause — the death of one of his daughters — had occurred. Held, in an action by the grandchild mentioned in the second clause, against the surviving daughter to recover an undivided interest in the real estate, that it was the intention of testator that his surviving daughter should take only the interest of the deceased devisee in case of her death, and not that she should take that of the other devisees as well.

Appeal from circuit court, Holt county; C. A. ANTHONY, Judge.

Van Buskirk, Huston & Parrish, for appellant. T. J. Dungan and W. W. Ramsay, for appellee.

MACFARLANE, J.

Ejectment to recover the undivided half of a tract of land situate in Holt county. Both parties claim title under the will of Daniel Hudson, which was as follows:

"In the name of God, amen. I, Daniel Hudson, of the county of Holt, in the state of Missouri, do make and publish this, my last will and testament: (1) I give and bequeath to Charles W. Hudson and Elvora Hudson, heirs of my eldest son, Charles W. Hudson, to each of the above-named heirs of Charles W. Hudson I bequeath one dollar. (2) I also further give and devise to my granddaughter, Minerva Nichols, heir of my daughter, Parmelia Caroline Hudson, and to my daughter Mary, wife of John Boswell, and also to my daughter Amanda Jane, wife of David Hudson, all of my real estate, together with all and every messuages, lands, tenements, and hereditaments, with the appurtenances whereof I am seised, in fee, situated, lying, and being in Hickory township, county of Holt, and state of Missouri, to be divided equally between each of the above-named Minerva Nichols, Mary Boswell, and Amanda Jane Hudson, so that each may receive one equal portion, to have and to hold, to them and their heirs, forever. (3) I further will that, in case the above-named Minerva Nichols and Amanda Hudson, or either of them, should be dead, and not now living, then all of my estate, both real and personal, I give and devise and bequeath to my daughter Mary, wife of John Boswell, to have and to hold, to her and her heirs, forever. (4) I do appoint as executor of this, my will, William Shields. In witness whereof I have hereunto set my hand, this 23d day of September, A. D. 1881.

                                       his
                                "DANIEL X HUDSON
                                       mark
                

It was admitted by the parties to the suit on the trial as follows: "That at the date of the execution of the will, to-wit, September 23, 1881, Daniel Hudson, the testator, was in possession of and owned the land in fee described in the will and in plaintiff's petition; that the plaintiff, Minerva Nichols, is the granddaughter of the deceased, and the daughter of Mrs. Parmelia Caroline Hudson, (Nichols,) who was a daughter of the deceased; that Amanda Hudson and Mary Boswell, named in the will, are the daughters of the deceased, and that Mary Boswell is the wife of John Boswell, the defendant; that the two children mentioned in the first clause of the will are the grandchildren of the deceased, and only children of Charles W. Hudson, who was also deceased at the time of the execution of the will; that the defendant was in the possession of the land at and before the time mentioned in plaintiff's petition, and held the possession thereof, denying plaintiff's right thereto, or to any part thereof, ever since said time; that he held and claimed adversely to plaintiff, by right of his wife, under the will read in evidence, and that he is now in possession of the land; that the plaintiff also claims said land under the will read in evidence; and that the said Amanda Hudson, mentioned in the will, was dead at the time of the execution thereof; that she died in April, 1880." The following evidence was offered by plaintiff, and admitted, over defendant's objections: John Boswell testified as follows: "I am the defendant, and son-in-law of the testator, Daniel Hudson. I think Mr. Hudson, the testator, died in October, 1881, a couple of months after the execution of the will. The plaintiff and Amanda Hudson named in the will were not present when the will was made; they were not in the neighborhood. I do not know where they were, had not seen them for some years. Amanda Hudson married in Holt county, and left, I think, in 1872 or 1873, for Texas. The plaintiff left here when she was a little girl, and has been living, as I understood, with her grandfather, in Lafayette county, or some of the lower counties in Missouri. The testator was at my house when he died and when the will was made. I suppose my wife was present or in the house at the time the will was made. Charles Webster Hudson was a son of Daniel Hudson, and the father of the two children named in the will. The testator had given Charles Webster Hudson, before his death, eighty acres of land adjoining the land in controversy." The plaintiff introduced evidence tending to show that the rents and profits of plaintiff's interest in the land in suit were $83.33 1/3 per year, and that the monthly rents and profits of said land are $6.90 per month. Plaintiff recovered judgment for an undivided one-third of the land, and defendant appealed.

The rights of the parties depend upon the construction given to the foregoing will of Daniel Hudson, deceased. Defendant contends that, inasmuch as Amanda Hudson, one of the devisees of the land in controversy given in the second clause of the will, was dead at the time of its execution, she took the whole estate therein by virtue of the third clause. There can be no doubt that there is an apparent inconsistency, if not repugnancy, between the third and the first and second clauses of this instrument. The first clause in plain terms gives to each of his...