Palmer v. French

• Decision Date: 18 November 1930
• Citation: 32 S.W.2d 591,326 Mo. 710
• Parties: William H. Palmer et al., Appellants, v. Kate French et al
• Court: Missouri Supreme Court

32 S.W.2d 591

326 Mo. 710

William H. Palmer et al., Appellants, v. Kate French et al

Supreme Court of Missouri

November 18, 1930

Appeal from Andrew Circuit Court; Hon. Guy B. Park, Judge.

Affirmed.

Randolph & Randolph for appellants.

(1) The cardinal rule for construction of wills is that the intention of testator shall prevail. Sec. 555, R. S. 1919. (2) Item Eight of the will gave testator's son only a defeasible fee in the lands devised to him by said will, because the language of Item Eight, when read with the whole will, shows of itself that testator when he used the words "die without issue," etc., intended a dying of his children without issue whenever it might occur, either before or after his death, and that he was thus naming the contingency that should defeat the fee in his sons and set the executory devise in said item into operation. Faust v. Birner, 30 Mo. 414; Naylor v. Godman, 109 Mo. 543; Yocum v. Siler, 160 Mo. 281; Gannon v. Allbright, 183 Mo. 238; Gannon v. Pauk, 200 Mo. 75; Brown v Tuschoff, 235 Mo. 449; Lockney v. Campbell, 189 S.W. 1174; Trust Co. v. Curby, 255 Mo. 410; Collier v. Archer, 258 Mo. 383; Deacon v. Trust Co., 271 Mo. 669; Hartnett v. Langan, 282 Mo 492; Jones v. Park, 282 Mo. 610; Jones v Patterson, 307 Mo. 476; Hull v. Calvert, 286 Mo. 163; Atkinson v. Kern, 276 S.W. 977; Ward's Guardian v. Ward's Ex., 298 S.W. 938. (3) When a devise is made to A for life, with remainder to A's children or the heirs of A's body, as in this case, with the further provision that if A "die without issue" then to B, the words "die without issue" are always construed to mean death of the life tenant without issue whenever it may occur, and not within life of testator only. The devise to B is a good executory devise. Faust v. Birner, 30 Mo. 414; Naylor v. Godman, 109 Mo. 543; Hartnett v. Langan, 282 Mo. 492.

P. C. Breit and Mayer, Conkling & Sprague for respondents.

Hugh Lewis, Jr., immediately upon the death of the testator, took and became vested with an absolute and indefeasible estate in fee simple in the devised property. (1) An absolute estate in fee created by a will cannot be cut down or limited by a subsequent clause, unless the subsequent clause is as clear and decisive as the language of the clause which devises the estate in fee. Thornbrough v. Craven, 284 Mo. 552; Roth v. Rauschenbusch, 173 Mo. 582; Jackson v. Littell, 213 Mo. 589; Nichols v. Boswell, 103 Mo. 158; Chew v. Keller, 100 Mo. 369; Small v. Field, 102 Mo. 127; Sevier v. Woodson, 205 Mo. 214; Bernero v. Trust Co., 287 Mo. 622. (2) Where real estate is devised in terms denothing an intention that the primary devisee should take a fee on the death of the testator, coupled with a devise over in case of the death of the primary devisee without issue, the words refer to death without issue during the lifetime of the testator, and the primary devisee surviving the testator takes an absolute and indefeasible estate in fee simple, the presumption being that the testator intended to prevent a lapse. Owens v. Men and Millions Movement, 296 Mo. 110; Ewart v. Dalby, 319 Mo. 108; Henderson v. Calhoun, 183 S.W. 584; Spira v. Frenkel, 97 So. 104, 210 Ala. 27; O'Connell v. O'Connell, 72 So. 81, 196 Ala. 224; Boren v. Reeves, 123 N.E. 359, 73 Ind.App. 604; Quillian v. Union Trust Co., 142 N.E. 216, 194 Ind. 521; Morgan v. Robbins, 53 N.E. 283, 152 Ind. 362; Brittain v. Farrington, 149 N.E. 486; Kohtz v. Eldred, 69 N.E. 900, 208 Ill. 60; Matter of Disney, 82 N.E. 1093, 190 N.Y. 128; Ervin v. Waterbury, 174 N.Y.S. 677; Washbon v. Cope, 39 N.E. 391, 144 N.Y. 297; Vanderzee v. Slingerland, 8 N.E. 249, 103 N.Y. 55; Lumpkin v. Lumpkin, 70 A. 243, 108 Md. 470; Scruggs v. Mayberry, 188 S.W. 209, 135 Tenn. 586; King v. Trick, 19 A. 951, 135 Pa. St. 575; Collins v. Collins, 88 N.W. 1097, 116 Iowa 703; Tarbell v. Smith, 101 N.W. 118, 125 Iowa 388; Scanlin v. Peterson, 135 A. 394; Schouler on Wills (1926 Supp. to 6 Ed.), sec. 1050, p. 179; 28 R. C. L. 259, sec. 231. (3) The fact that the words "die without issue" are followed by the phrase "living at the time of his or her death," or by the phrase "capable of inheriting," does not take the case out of the general rule stated in Point II, supra, as such phrases do not indicate an intent on the part of the testator that the devise over is to take effect, if at all, at a time subsequent to the testator's demise, rather than at the time of the testator's death. Seewald's Estate, 127 A. 63, 281 Pa. St. 483; Morrison v. Truby, 22 A. 972, 145 Pa. St. 540; Neubert v. Colwell, 68 A. 673, 219 Pa. St. 248; Mickley's Appeal, 92 Pa. St. 514; Teal v. Richardson, 66 N.E. 435, 160 Ind. 119; Fowler v. Duhme, 42 N.E. 623, 143 Ind. 248; Stokes v. Weston, 37 N. E. (N. Y.) 515; Phelps v. Phelps, 11 A. 596. (4) A common sense interpretation of the whole will, independent of the aid of the foregoing established and recognized rules of construction, clearly and certainly shows that the testator intended that if his son, Hugh Lewis, Jr., survived him, the son should take his devise in fee simple absolutely and forever.

Ferguson, C. Seddon and Ellison, CC., concur.

OPINION

FERGUSON

The petition in this cause is in two counts. The first count seeks to quiet and determine title to certain real estate situate in Andrew County, Missouri; and the second count asks for partition of said real estate. By the first count of their petition plaintiffs state that they are "the owners as tenants in common of an undivided one-fourth interest in the fee simple title" to the real estate described; that they acquired their "interest in the title to said real estate, by, through and under the will of Hugh Lewis, deceased" (We hereinafter refer to the testator as Hugh Lewis, Sr.); that said will was duly admitted to probate on the 16th day of April, 1896, and the will is then set out in full in the petition. Omitting the land descriptions, except as to the land described in the sixth item of the will, title to which is in controversy in this cause, the will is as follows:

"I Hugh Lewis, of the County of Andrew, and the State of Missouri, being in good health and of sound and disposing mind do make and publish this my last will and testament.

"Item First: It is my will and I hereby direct my executor to pay all my just debts and my funeral expense out of my personal estate.

"Item Second: I devise to my daughter Elizabeth J. Palmer, for the term of her life, and at her death to the heirs of her body, absolutely in fee simple, the following described real estate, situate in the County of Buchanan and State of Missouri, to-wit: . . . I further devise to my said daughter, Elizabeth J. Palmer, the sum of five hundred dollars ($ 500.00) cash, and I direct that my executor pay this sum to her within one year after my death.

"Item Third: I devise to my daughter, Kate, wife of Dr. John A. French, for the term of her life, and at her death to the heirs of her body, absolutely in fee simple the following described real estate, situate in the County of Andrew and State of Missouri, to-wit: . . .

"Item Fourth: I devise to my daughter, Addie Lewis, for the term of her life, and at her death, to the heirs of her body, absolutely in fee simple, the following described real estate, situate in the County of Andrew and State of Missouri, to-wit: . . .

"Item Fifth: I give and devise to my son, Malin Lewis, absolutely in fee simple, the following described real estate situate in the County of Andrew and State of Missouri, to-wit: . . .

"Item Sixth: I give and devise to my son, Hugh Lewis, absolutely in fee simple, the following described real estate situate in the County of Andrew and State of Missouri, to-wit: The Southwest Quarter of Section twenty-two (22) in Township fifty-eight (58) of Range Thirty-five (35).

"Item Seventh: I give and devise to my beloved wife, Adaline Lewis, all the remainder of my estate, real and personal and mixed.

"Item Eighth: If any of my children named in this my last will and testament, shall die without issue living at the time of his or her death, capable of inheriting, then, and in that case, it is my will, that my dearly beloved wife if living, and such of my said children as may then be living shall take in equal parts all the property by the terms of this will given and devised to such deceased child. If any of my said children shall die and leave children surviving him or her, it is my will that such surviving children shall take in equal parts the property which their deceased father or mother would have taken, if he or she were then living.

"Item Ninth: In case my daughter, Kate, the wife of Dr. John A. French, should die without issue and her said husband should survive her, I devise and bequeath to him the promissory note made, signed and delivered by him to Mary A. Ryan in the sum of nine hundred and thirty-one and 50/100 ($ 931.50/100) dated at St. Joseph, Missouri, September 28, 1885, which was endorsed by Mary A. Ryan and her husband to the Saxton National Bank, and by said Bank to me on the 20th day of April, 1886, without recourse for a valuable consideration; and in such event I direct my executor to deliver him said note and to enter satisfaction on the margin of the mortgage record for this one note.

"Item Tenth: I hereby appoint my son, Malin Lewis, executor of this my last will and testament.

"Item Eleventh: I hereby revoke all former wills and testaments by me made.

"Witness my hand and seal this 15th day of January, 1887.

"(Seal) Hugh Lewis."

The petition then alleges that the testator Hugh Lewis, at his death left surviving him his five children, Elizabeth J Palmer, Kate French, Addie Lewis, Malin Lewis and Hugh Lewis, Jr., named in the second, third, fourth, fifth and sixth items of...