Pratt v. Saline Valley Railway Co.

• Decision Date: 17 March 1908
• Parties: PRATT et ux., Respondents, v. SALINE VALLEY RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

108 S.W. 1099

130 Mo.App. 175

PRATT et ux., Respondents, v. SALINE VALLEY RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 17, 1908

Appeal from Butler Circuit Court.--Hon. J. C. Sheppard, Judge.

REVERSED AND REMANDED.

STATEMENT.--The will construed in this case reads as follows:

"Know all men by these presents: That I, John Lorenz, of Perry county and State of Missouri, considering the uncertainty of this life, and being of sound mind and memory, do make, and declare and publish this, my last will and testament.

"First. I give and bequeath to my wife Sophia Lorenz, all my property both personal and real estate with power to collect all debts due me and to pay all my debts. Then she shall pay to each of my children five dollars each as follows:

"1st Henry C. Lorenz, five dollars.

"Mary E. Nash, five dollars.

"Louise Kenner, five dollars.

"John P. Lorenz, five dollars.

"Anna M. Pratt, five dollars.

"My wife is to have and to hold this property for three years after date of this will; after the debts are paid all my land shall be divided as follows:

"1st I will to my son Henry and his direct heirs, 120 acres of land which I bought from August Holster, lying in Boisbrule bottom, also ninety-five acres more or less which I bought from Benjamin Cambron; also ninety-three acres more or less which I bought from Charles N. Rimbroch, all lying in Boisbrule bottom. My son cannot sell or contract any debts on this land, neither can his heirs until fifty years after my death. My son Henry shall divide the land among his children as he sees best and if he fails to do that as I have done there shall be a commissioner appointed to divide it according to this provision.

"2nd. I will to my daughter, Mary E. Nash, and her direct heirs the following tract of land, sixty acres more or less which I bought from August Layton, lying near Brewer in Perry county and State of Missouri, which she occupies now; also one-half of one hundred and twenty-seven acres and a half in the bottom known as the Godloup Voeker farm; my wife and Henry Voekler shall divide the land and if they can't agree there shall be a commissioner appointed to divide it. Also forty acres more or less of the Hagan farm in Boisbrule bottom in Perry county, Missouri, to-wit: running along left side of public road. My daughter Mary cannot sell or contract any debts on this land, neither can her heirs, until fifty years after my death. My daughter shall divide this land equally among her heirs and if she fails to do so that there shall be commissioners appointed to divide it according to this provision.

"3rd I will to my daughter Louise Kenner and her direct heirs, sixty acres more or less in Boisbrule bottom in Perry county, Missouri, which I bought from Jules Rozier, also thirty acres joining said tract on the east side which I bought from Edward McCabe, also forty-five acres more or less which I bought from the Hagan heirs, also seven shares in the homestead of the Hagan tract now owned by Mrs. Mike Gibbar. My daughter Louise cannot sell or contract any debts on this land neither can her heirs, until fifty years after my death. My daughter Louise shall divide this land equally among her heirs, and if she fails to do that there shall be commissioners appointed to divide it according to this provision; also a little brick house and four lots more or less or near the town of St. Mary's in St. Genevieve county, Missouri; she shall have power to sell this property whenever she sees fit to do so.

"4th. I will to my daughter Anna M. Pratt and her heirs, 265 acres more or less lying on the Saline in St. Genevieve county, Missouri, which I lately bought of B. S. Pratt. My daughter Anna cannot sell or contract any debts on this land, neither can her heirs, until fifty years after my death. My daughter Anna shall divide this land equally among her heirs and if she fails to do that there shall be commissioners appointed to divide it according to this provision.

"5th. I will to my son John P. Lorenz, all of my land lying on or near Cedar Fork creek in Perry county, Missouri, except the homestead or all the land lying above the county road known as the Perryville and Farmington road.

"This part I will to my wife Sophia Lorenz during her lifetime; at her death it shall go to my son John P. Lorenz. My son John P. shall not sell nor contract any debts on this land, neither can his heirs, until twenty-five years after my death. After that time he can sell a part of it, say two hundred acres above the house which is now my residence.

"Also to my wife Sophia, my river farm in Boisbrule bottom, Perry county, Missouri, to have and to hold as long as she lives and at her death to go to my son John P. Lorenz. My son John P. cannot sell or contract any debts on this land, neither can his heirs, until fifty years after my death. My son John shall divide this land equally among his heirs, or if he fail to do that, there shall be commissioners appointed to divide it according to this provision.

"6th. I will to my grandson Bernard Lorenz fifty-two acres more or less which I bought from Milt Dean; also twenty-eight acres more or less of the same tract of land, the widow Dean holding a dower on it her life time. My wife shall hold the land until Bernard is of age, then he shall have possession of it. He can neither sell or contract debts on it until fifty years after my death. Bernard Lorenz shall divide this land equally among his heirs and if he fail do this there shall be commissioners appointed to divide it according to this provision.

"7th. I will to my grandson John Nash, thirty-seven acres more or less; also two shares in the widow's dower of the Isaac McClure farm in Boisbrule Bottom, Perry county, Missouri. My wife shall have possession of the same until John Nash is of age when he shall have full possession of the thirty-seven acres. John Nash shall not sell the land or contract any debts on it until fifty years after my death. He shall divide it equally among his heirs, or if he fail to do so there shall be commissioners appointed to divide it according to said provisions.

"8th. I will to my wife Sophia Lorenz, the one-half of Silver Lake custom and sawmill with power to sell or give away. Also all of my property in the town of St. Mary's in St. Genevieve county, Missouri, except the lots and house that I have willed to my daughter Louise Kenner, she can sell this property whenever she sees fit.

"9th. My dear children I have divided the land as best I could amongst you. I want you to be good friends to each other; keep the land and fence in good repair. Keep the taxes paid up and the land is yours; but if any of you should fail to pay the taxes there shall be a guardian appointed to rent the land and pay the taxes.

"10th. I do nominate and appoint my son Henry Lorenz to be the executor of this my last will and testament.

"In witness whereof I have to this last will and testament subscribed my name and set my seal this 21st day of October, 1895.

"JOHN LORENZ. (Seal).

Judgment reversed and cause remanded.

Giboney Houck and Benson C. Hardesty for appellant.

The plain and manifest intent of Lorenz is to devise a life estate to his daughter Anna and the remainder to her heirs (children). (1) Even the words "desire," "request," "recommend," "hope," etc., when they come from a testator who has the power to command, are often construed as commands, clothed merely in the language of civility. Chiles v. Bartleson, 21 Mo. 344; Munro v. Collins, 95 Mo. 33; Erickson v. Williard, 1 N.H. 217. (2) It is the popular meaning of the term among laymen, and the courts always construe the word heirs to mean "children," whenever that is the sense in which a testator uses it. Maguire v. Moore, 108 Mo. 273. (3) Having repeatedly used the word "heirs" in the sense of "children" and as a word of purchase, the presumption is that he is still so using it when he says, "To my daughter, Anna M. Pratt, and her heirs." And to construe the word heirs as a word of limitation in the above clause just quoted, and to hold that Anna acquired a fee under the devise in question, is a plain violation of the canon under consideration. Waddell v. Waddell, 99 Mo. 345; Woerner on Administration, sec. 416, par. 3. (4) Defendant's evidence, tended to prove the necessary elements of an "estoppel in pais," and the court erred in refusing to allow this issue to go to the jury. Newman v. Hook, 37 Mo. 207; Rice v. Bunce, 49 Mo. 321; Spence v. Renfro, 179 Mo. 417; Bank v. Ragsdale, 171 Mo. 168; Bank v. Frame, 112 Mo. 502. (5) The remedy provided plaintiffs in section 1271, Revised Statutes Missouri 1899, is exclusive of all other remedies. The same act which provides for the damaging of private property for public use now prescribes the remedy. The remedy provided is adequate and complete and within the election of either party. It therefore completely supersedes and is exclusive of all other remedies. Where either party may be the actor, neither can complain that the other did not begin. Evans v. Railroad, 64 Mo. 453; Lindell's Adm. v. Railroad, 36 Mo. 543; Soulard v. St. Louis, 36 Mo. 546; Leary v. Railroad, 38 Mo. 486; Hickman v. Kansas City, 120 Mo. 110; Jamison v. Springfield, 53 Mo. 229; State ex. inf. v. Railroad, 176 Mo. 717.

Jerry B. Burks and C. J. Stanton for respondents.

Now, we are not disposed to write a treatise on the law of wills, but do insist that under the authorities below cited, and under a common sense interpretation of the will of John Lorenz deceased, plaintiff, Anna M. Pratt, became, under said will, the owner in fee simple of the lands for which damage is asked. "It conveyed a fee in first instance, and any subsequent attempt to cut this estate down necessarily...