Owens v. Men. and Millions Movement

• Decision Date: 18 December 1922
• Docket Number: No. 23061.,No. 23062.,23061.,23062.
• Citation: 246 S.W. 172,296 Mo. 110
• Parties: OWENS et al. v. MEN. AND MILLIONS MOVEMENT et al.
• Court: Missouri Supreme Court

246 S.W. 172

296 Mo. 110

OWENS et al. v. MEN. AND MILLIONS MOVEMENT et al.

No. 23061.

No. 23062.

Supreme Court of Missouri. Division No. 1.

December 18, 1922.

Appeal from Circuit Court, De Kalb County; Alonzo D. Burnes, Judge.

Action by Williams B. Owens, executor of John B. Harper, deceased, and another, against the Men and Millions Movement, the National Benevolent Association of the Christian Church, and others. Prom a judgment construing the will, the defendants named separately appeal. Affirmed.

Grant & Grant, of St. Louis, for appellants.

Hewitt & Hewitt, of Maysville, for respondents.

RAGLAND, C.

This is an action to construe the will of John B. Harper, deceased. The executor and all the devisees and legatees are parties. No question is raised as to the sufficiency of the pleadings, nor as to the circuit court's jurisdiction in the premises. The judgment of that court construed the will adversely to the contentions of two of the defendants, namely, the Men and Millions Movement and the National Benevolent Association of the Christian Church, and each appealed therefrom. The same questions of law being raised on each appeal, the appeals by stipulation have been consolidated, and will therefore be treated as one cause.

After providing specific legacies for the Missouri Christian College at Camden Point, the State Missionary Board of the Disciples of Christ, the Christian Benevolent Society of St. Louis, and the Christian Orphans' Home of St. Louis, the will proceeds as follows:

"Seventh. I give, devise and bequeath all the residue and remainder of my property that I may die seized, after the payment of the aforesaid bequests, to my daughter Nellie May Owens and to my son-in-law William B. Owens to be owned and held by them jointly, to have and to hold unto them and their heirs and assigns

                forever.                   John B. Harper
                

"Eighth. In case of the death of both my daughter Nellie May Owens and my son-in-law William B. Owens, then in that event, after the payment of the legacies above mentioned, I give, devise and bequeath to my granddaughter, Wavelee Oliver, formerly Wavelee Owens, all the residue and remainder of my property that I may die seized to have and to hold unto her, her heirs and assigns forever.

"Ninth. It is my earnest desire and wish that my said daughter and son-in-law shall from time to time and as they shall deem fit and proper give or make proper provision for my said granddaughter Wavelee Oliver, formerly Wavelee Owens, and leaving the making of such gifts or provisions to the discretion of my said daughter and son-in-law.

"Tenth. It is my will in case my said daughter and son-in-law and granddaughter should all die without leaving any issue, then in such event all of my said property, real and personal, shall be divided into four equal' parts, and one part shall go to each of the following-that is to "say; one part to the Men and Million Movement; one part to the Christian Orphans' Home of St. Louis, Missouri; one part to the State Missionary Board to the use of the counties now comprising the Seventh District of the Disciples of Christ, of Northwest Missouri; and one part to National Benevolent Association of the Christian Church, present address, 2955 North Euclid Avenue, St. Louis, Mo.

"I hereby appoint my son-in-law, William B. Owens, and my daughter, Nellie May Owens, executors of this my last will, and it is my will that they be not required to give bond. In case of the death of both my son-in-law and daughter, then in that event it is my wish and desire that my granddaughter be permitted to choose an executor. And it is my further will and it is hereby provided that in the event of the death of my daughter Nellie May Owens, and my son-in-law, William B. Owens, and my granddaughter, Wavelee Oliver, that Roy V. Neff, of Cameron, Missouri, be appointed to act as my executor of this my last will.

"In witness whereof, I have signed and sealed, published and declared this instrument as my last will and testament at the city of Maysville, Missouri, this the 13th day of September,

                1919.      [Signed]   John B. Harper   [Seal]."
                

The oral evidence offered in connection with the will was brief. The facts disclosed by it may be summarized as follows: At the time the will was written testator's wife was dead, and Nellie May Owens and Wavelee Oliver, née Owens, his daughter and granddaughter, respectively, were his only living descendants. They both survived him, as did his son-in-law, William B. Owens. His estate then and at the time of his decease consisted of 1,800 acres of land and personal property of the value of about $20,000. For a number of years prior to his death, testator, his daughter, granddaughter, and son-in-law, lived together as one family. Re was a member of the Christian Church or Disciples of Christ, and took conspicuous interest in its institutional work. During his life be manifested in a marked degree his sense of obligation to both his family and his church. He was regarded as a man of strong character and unusual business acumen.

The controversy arises over the construction to be given paragraphs "Seventh" and "Tenth" of the will, and particularly with reference to the contingency described in the latter in this language, "In case my said daughter and son-in-law and granddaughter should all die without leaving any Issue, then in that event," etc. There can be no question but that under paragraph "Seventh," if it were standing alone, Nellie May Owens and William B. Owens would take an estate in fee simple in the land devised. If "die without leaving any issue," as used in the "tenth" paragraph, means dying within the lifetime of the testator, then the contingency never happened, and never can happen, and their title is absolute. On the contrary, if "die without leaving any issue" refers to a time subsequent to the death of the testator, then the two paragraphs when read together give Nellie May Owens and William 11. Owens merely a defeasibie fee. Their estate would terminate upon their Crying without issue. Whether, therefore, they take the fee subject to an executory derise; or whether they take absolutely, depends upon the construction adopted with respect to the words, "die without leaving any issue."

Decisions construing the meaning of the words, "dying without issue," or words of like import, when used in wills are without number. Some of the cases take the view that when the context is silent, words referring to the death of the first taker...