Payne v. Reece
| Decision Date | 02 February 1923 |
| Parties | J. HORTON PAYNE et al., Appellants, v. JOHN E. REECE et al |
| Court | Missouri Supreme Court |
Appeal from Sullivan Circuit Court. -- Hon. Fred Lamb, Judge.
Affirmed.
R. F Hickman, J. W. Bingham and D. M. Wilson for appellants.
(1) When a devise shall be considered in fee simple. Sec. 579 R.S. 1909. (2) Item 3 of the will vests whole title in fee simple in the wife, and item 4 does not cut down or limit the said item numbered three. Middleton v. Dudding, 183 S.W. 443; Sevier v. Woodson, 205 Mo. 104; Roth v. Rauschenbusch, 173 Mo. 282; Underwood v Cave, 176 Mo. 1; Howard v. Howard, 184 S.W. 993; Chew v. Keller, 100 Mo. 362; Small v. Field, 102 Mo. 104; Yocum v. Siler, 160 Mo. 281; Roberts v. Crume, 173 Mo. 572; Goodwin v. Cobbington, 154 N.Y. 283; Clark v. Lupp, 88 N.Y. 228; Freeman v. Coist, 96 N.Y. 63; Landon v. Moore, 45 Conn. 422; Banzer v. Banzer, 156 N.Y. 429. (3) The general rule is, that a devise of an estate generally or indefinitely, with a power of disposition over it, carries a fee. Rubey v. Barnett, 12 Mo. 3; Gregory v. Cowgill, 19 Mo. 416; Green v. Sutton, 50 Mo. 186; Reinders v. Koppelman, 68 Mo. 482.
John W. Clapp, E. P. Fields and Alpha L. Burns for respondent.
(1) No set words are necessary to creat a life estate. If the intention is gathered from the whole will that only a life estate is created it will be sufficient. Smith v. Bell, 6 Peters, 68; Harbison v. James, 90 Mo. 411; Walton v. Dumatra, 125 Mo. 489; R.S. 1919, sec. 555; Giles v. Little, 104 U.S. 291; Eckle v. Ryland, 256 Mo. 424; Mase v. Hollenbeck, 175 S.W. 876; Grace v. Perry, 197 Mo. 550; Gannon v. Pauk, 200 Mo. 75. And if there is a devise over after the death of the first taker, the effect is to create a life estate. Tillerson v. Taylor, 282 Mo. 209. (2) Item three of the will created a life estate in the wife. Smith v. Bell, 6 Peters, 68; Harbison v. James, 90 Mo. 411; Munro v. Collins, 95 Mo. 33; Lewis v. Pitman, 101 Mo. 281; Burnet v. Burnet, 244 Mo. 491; McMillan v. Farrow, 141 Mo. 55; Armour v. Frey, 266 Mo. 646. (3) The power of disposition did not convert the estate into one in fee simple, where the intention was clearly expressed, as in item 4 that the estate go to Reece at the death of testator's wife. Siegwald v. Hewitt, 37 Ill. 435; Green v. Hewitt, 97 Ill. 113. (4) The court will not hold that a legacy is lapsed unless, under the facts of the case and the law, it is compelled to do so. Martin v. Lachasse, 47 Mo. 591. (5) If a life estate was created in the wife, "as we insist it was in this case," then her death before the death of the testator did not cause the legacy to her to lapse so as to defeat the legatee, Reece. Crozier v. Brady, 120 N.Y. 374; Bates v. Dewson, 128 Mass. 304; Robison v. Portland Orphan Asylum, 123 U.S. 702; Burnet v. Burnet, 244 Mo. 491; Lewis v. Pitman, 101 Mo. 281; Harbison v. James, 90 Mo. 411.
OPINION
In Banc.
This is a suit to construe the will of Jordan T. Payne. The question arises on the construction of items 3 and 4 thereof, as follows:
Testator died childless. Plaintiffs were his collateral kindred. Defendant, John E. Reece, the beneficiary named in Item 4, had lived with testator and his wife from early childhood, doing the greater part of the work on testator's farm, and had sustained a filial relation, though neither adopted nor bearing their name. On their part testator and wife had manifested a parental solicitude toward him. Testator's wife predeceased him so that it was the contention of plaintiffs that said items of the will became void, and particularly so as, in their view, Item 4 was too ambiguous to reduce or limit the absolute estate devised by Item 3. An issue was made up in the trial court on the above question. Defendants prevailed and plaintiffs appealed.
I. Preliminary to a consideration of the question involved, we should advert to certain time-tested, honored and wise rules of construction. A rule observed uniformly in all of the decisions of this State was declared by the Lord Chancellor in the House of Lords in 1834 in the case of Thornhill v. Hall, 2 Clark & Fin. 22, l. c. 36, wherein he said:
"I hold it to be a rule that admits of no exception, in the construction of written instruments, that, where one interest is given, where one estate is conveyed -- where one benefit is bestowed in one part of an instrument by terms clear, unambiguous, liable to no doubt, clouded by no obscurity, by terms upon which, if they stood alone, no man breathing, be he lawyer or be he layman, could entertain a doubt -- in order to reverse that opinion, to which the terms would of themselves and standing alone have led, it is not sufficient that you should raise a mist; it is not sufficient that you should create a doubt; it is not sufficient that you should show a possibility; it is not even sufficient that you should deal in probabilities, but you must show something in another part of that instrument which is as decisive the one way as the other terms were decisive the other way; and that the interest first given cannot be taken away either by tacitum or by dubium or by possible, or even by probabile, but that it must be taken away, and can only be taken away, by expressum et certum."
The above rule in substance was declared in Burnet v. Burnet, 244 Mo. 491, 148 S.W. 872; Gibson v. Gibson, 239 Mo. 490, 144 S.W. 770; Lemp v. Lemp, 264 Mo. 533, 175 S.W. 618; Cornet v. Cornet, 248 Mo. 184, 154 S.W. 121; Middleton v. Dudding, 183 S.W. 443.
Another principle for the use of courts, always predominant, in cases like this, is to "look upon the intention of the testator as the polar star to direct them in the construction of wills." [Smith v. Bell, 6 Peters, 68, 31 U.S. 68, 8 L.Ed. 322; 40 Cyc. 1386.]
The foregoing principle is reinforced by express statute: "All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them." [Sec. 555, R.S. 1919.]
II. With these general principles before us we may proceed to an examination of the clauses in question. It is contended by appellants that Item 3 of said will passed the absolute title of all of testator's estate to his wife, and that the words contained in Item 4 were insufficient to reduce or limit the estate so devised and bequeathed. The Legislature of this State tendered its aid in construing wills of the kind at bar. Note the following enactment:
"In all devises of lands or other estate in this State, in which the words 'heirs and assigns,' or 'heirs and assigns forever,' are omitted, and no expressions are contained in such will whereby it shall appear that such devise was intended to convey an estate for life only, and no further devise be made of the devised premises, to take effect after the death of the devisee to whom the same shall be given, it shall be understood to be the intention of the testator thereby to devise an absolute estate in the same, and shall convey an estate in fee simple to the devisee, for all such devised premises." [Sec. 551, R.S. 1919.]
Applying the rules of construction above set out it is obvious that Item 3 of said will, standing alone, was sufficient to devise an absolute estate to Mary Susan Payne and that such estate could not be cut down to a life estate by any words, expressions or clauses lacking in clarity or of a doubtful and dubious nature, but that to limit the devise made by such Item 3 to a life estate the will must of necessity contain clauses or provisions clearly and unmistakably evincing a purpose and an intention of the testator so to do.
Keeping before us the guiding star -- the testator's intentions -- and bringing to our aid the oft-declared rule that such intentions must be gathered from all of the words contained in the four corners of the will (Brown v. Tuschoff, 235 Mo. 449, 138 S.W. 497), we examine Item 4: "If any of said property should be left at the time of the death of my wife undisposed of, it is my will that all said property so remaining go absolutely to John E. Reece, if he be then living, and if the said John E. Reece be not living, then to his children."
Could words more clearly announce the purpose and intention of the testator than these? In the first paragraph testator devises and bequeaths all his estate to his wife "to have and use and enjoy the same as she may see fit." No limitation is put upon her use and enjoyment of the estate devised and bequeathed, and yet by the next clause "within the four corners of the will," testator clearly and unmistakably and without ambiguity directs that if such use and enjoyment did not exhaust the estate, the residue should "go absolutely to John E. Reece." It will be noted that there is no express power of disposition contained in Item 3 and conceding that the power to sell might be implied for her use and enjoyment, yet that would make the devise no stronger than a general or indefinite devise with a power of disposition. In such case if the subsequent clause contains words as affirmatively strong as those used in...
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