Owens v. Men and Millions Movement
| Citation | 246 S.W. 172,296 Mo. 110 |
| Parties | WILLIAM B. OWENS, Executor of Will of JOHN B. HARPER, and NELLIE MAY OWENS v. MEN AND MILLIONS MOVEMENT and NATIONAL BENEVOLENT ASSOCIATION OF CHRISTIAN CHURCH, Appellants |
| Decision Date | 18 December 1922 |
| Court | United States State Supreme Court of Missouri |
Appeal from De Kalb Circuit Court. -- Hon. Alonzo D. Burnes, Judge.
Affirmed.
Grant & Grant for appellants.
(1) Where there is a devise to two or more persons, with the proviso that in case of the death of one or more of them dying without issue, the survivor is to take, the happening of the contingency of the first taker dying without issue is not restricted to the lifetime of the testator. Sec. 2268 R.S. 1919; Trust Co. v. Curby, 255 Mo. 393, 411. (a) The Supreme Court of the United States, except where a contrary holding in the state where the cause arises has been so uniform as to amount to a rule of property, holds that the addition of the words "dying without issue," or "under age," or similar words, indicates a contingency without reference to the time of the death of the testator. In such case, upon the death of the first taker at any time, without issue, the executory devise will take effect even though a fee has been vested in the first taker. Britton v. Thornton, 112 U.S. 526. (b) The rule is well settled in other states that when the death of the first taker is coupled with circumstances which may or may not take place, as, for instance, dying without children, the devise over, unless controlled by other provisions of the will takes effect, according to the ordinary and literal meaning of the words upon the death at any time, whether before or after the death of the testator. Ahlfield v. Curtis, 229 Ill. 139; Carpenter v. Loan Co., 229 Ill. 486; Fifer v. Allen, 228 Ill. 507; Cartnell v. Ransom, 119 S.W. 800; Harvey v. Bell, 118 Ky. 512; Varble v. Phillips, 14 Ky. L. Rep. 363; Thaxton v. Watson, 84 Ky. 206; Smith v. Ballard, 117 Ky. 179; Buchanan v. Buchanan, 99 N.C. 309; Smith v. Stewart, 4 De G. & S. 253. (c) This is also the rule in England, from whom we get our common law. Randfield v. Randfield, 8 H. L. Cas. 225; Ingram v. Soutten, L. R. 7 H. L. 408; O'Mahoney v. Burdett, L. R. 7 H. L. 388; Edwards v. Edwards, 15 Beav. 357; Child v. Giblette, 3 Myl. & K. 71. So, also, in Canada. Trail v. R., 7 Can. Exch. 98; Cowan v. Allen, 26 Can. S. C. 292; Fraser v. Fraser, 26 Can. S. C. 316; Gould v. Stokes, 26 Grant Chan. (U. C.) 122. (2) Under the common law, a dying without issue, or words of similar import, meant an indefinite failure of issue. A limitation over to B in fee upon the death of A and an indefinite failure of issue in A, would be a contingent remainder, and would be void for remoteness. In such case, the first taker would take an estate tail. Since our statute was enacted, however, the first taker is vested not with an estate tail, but in fee simple, subject to be determined upon his dying without issue at the time of his death. Gannon v. Albright, 183 Mo. 238. An analysis of the cases holding that "dying without issue" means issue during the life of the testator, will show that they are bottomed upon a course of reasoning having its source in the technical rules of the common law relating to indefinite failure of issue, as stated above, or upon a rigid and technical adherence to precedent long after the reasons for such precedent no longer existed. Sometimes they are adhered to because the precedents have become rules of property, which, however, do not exist in this State. (3) The use of the words "heirs and assigns" in the devise to the plaintiffs was mere surplusage, and did not give them any added power of disposition of a kind to defeat the limitation over of the executory devise. Hull v. Calvert, 226 S.W. 553.
Hewitt & Hewitt for respondents.
(1) Under the seventh clause of the will the beneficiaries named therein having survived the testator took the residuary estate absolutely. When the court reached that conclusion there was nothing further for the court to do but find that subsequent clauses eight and ten were void. The case of Trust Co. v. Curby, 255 Mo. 393, is not in point. (2) As there are no conditions or circumstances coupled with the first takers in the instant case, subdivision "b" of appellants' first point is not applicable. The case of Gannon v. Allbright, 183 Mo. 238, militates against them. (3) While it is true that under our statute the word "heirs" or "heirs and assigns" are not necessary to convey the fee, yet, the language is seldom omitted by careful lawyers. And, the use of these words under accepted rules of construction is no longer allowed as in any wise making doubtful the intent of the testator to pass a fee simple title. Garrett v. Wiltse, 252 Mo. 699, 709; Henderson v. Calhoun, 183 S.W. 584; Howard v Howard, 184 Mo. 993; Settle v. Shaffer, 229 Mo. 568; Cannon v. Allbright, 183 Mo. 238. There is no question, nor can there be any as to the proper construction to be put upon that part of the will down to and including the words "their heirs and assigns forever" at the close of the seventh clause, as to the clear intent of the testator, i. e., after the payment of the debts, expense and specific bequests, to transmit the fee absolute of the residue of said estate to those named in said seventh clause. (4) An absolute bequest to a person, followed by the expression "in case of his death" cannot be construed to mean "at his death" or from his death, the element of contingency being absent in that case, as no proper force could be given to the expression "in case of." Fisher v. Fisher, 75 N.J.Eq. 74. The expression "in case of the death of" unexplained refers to the event of the death happening before the death of the testator. This rule is universal, insofar as we can find. Morgan v. Robbins, 152 Ind. 362; Feal v. Richardson, 160 Ind. 119; Farbell v. Smith, 125 Iowa 388; Ex Parte Strasman, 6 Ky. Law Rep. 738; Jackman v. Jackman, 24 Ky. Law Rep. 224; In re Engles Estate, 180 Pa. St. 215. (5) When a testator devises realty and personalty to two persons, providing that in the event one of them should die without issue living at the time of his death his share should go to the other child, this language has a fixed legal meaning, and refers to the death of the person within the lifetime of the testator. First National Bank v. DePauw, 86 F. 722, 30 C. C. A., 360; Morgan v. Robbins, 152 Ind. 362. (6) The intention of the testator is to be ascertained within the four corners of the instrument, giving due regard to the directions and the true intent and meaning of the testator. Sec. 555, R.S. 1919. No doubt can arise under the seventh clause of the clear intent of the testator to transmit to and vest in the son-in-law and daughter the fee. (7) But, if there be any doubt created by said seventh clause (which is not conceded), under the eighth clause it is plain that the testator intended that his property, after the payment of the specific legacies and debts, should go in accordance with the law of descent and distribution. And, if there be any ambiguity, the law presumes the testator so intended. 40 Cyc. 1412. (8) The donees named in the seventh clause, being alive at the death of the testator, became the absolute owners of all the property of which testator died seized, remaining after the payment of the specific legacies and debts. Henderson v. Calhoun, 183 S.W. 584; Garrett v. Wiltsie, 252 Mo. 699; Howard v. Howard, 184 S.W. 993; Settle v. Shafer, 229 Mo. 568; Roth v. Rauschenbusch, 173 Mo. 582; 40 Cyc. 1712. (9) And the law favors vested estates, and where there is a doubt as to whether the remainder is vested or contingent the courts construe it as vested. Chew v. Keller, 100 Mo. 369; Colliers Will, 40 Mo. 287. (10) The devise by the seventh clause is so clear and concise and positive, that no room for doubt is left of the intent of the testator to vest the fee in the donees named therein. This may not be cut down or taken away, by subsequent words which are not as clear and decisive. Yocum v. Siler, 160 Mo. 281; Newell v. Kerns, 218 S.W. 445.
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.)
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