Preston v. Brant

• Decision Date: 20 December 1888
• Citation: 10 S.W. 78,96 Mo. 552
• Parties: PRESTON et al. v. BRANT et al.
• Court: Missouri Supreme Court

10 S.W. 78

96 Mo. 552

PRESTON et al. v. BRANT et al.

Supreme Court of Missouri.

December 20, 1888.

1. WILLS — CONSTRUCTION — DESCRIPTION OF DEVISEES.

Testator devised land to his wife for life, "and after her death unto the heirs of my daughter, E., and the heirs of my son, H., * * * which said heirs shall take * * * as purchasers from me, and not by inheritance of or descent from my said wife." Held, that the heirs of E. and H. took per stirpes, and not per capita, especially as in other clauses similar devises were made to E. for life, and then to her heirs, and to H. for life, and then to his heirs; thereby showing that the testator used the terms "heirs of E." and "heirs of H.," respectively, as referring to a class.

2. SAME — NATURE OF ESTATE.

The estate created in favor of the heirs of E. and H. was a contingent remainder, which became vested upon the death of E. and H. during the life of the life-tenant.¹

3. PARTITION — OF VESTED ESTATE.

Such estate is, under the Missouri statutes, subject to be partitioned during the life of the life-tenant.

Appeal from St. Louis circuit court; SHEPARD BARCLAY, Judge.

John Wickham and Henry T. Kent, for appellants. Hitchcock, Madill & Finkelnburg, Krum & Jonas, and Davis & Davis, for respondents.

NORTON, C. J.

This is a suit for the partition of certain lands described in the petition. The suit was dismissed by the circuit court, and from the judgment entered upon the dismissal plaintiffs have appealed; and the controlling point in controversy is as to what construction ought to be given to the third clause of the will of Joshua B. Brant. In this clause the testator devises to his wife certain real estate set out in plaintiffs' petition, and which is the subject in controversy in this suit, the habendum clause being as follows: "To have and to hold the said real estate described in this section unto her, my said wife, Sarah B. Brant, during her natural life, (and no longer,) and after her death unto the heirs of my daughter, Elizabeth Lovejoy McDowell, and the heirs of my son, Henry B. Brant, and the heirs and assigns forever of said heirs, which said heirs shall take said last-mentioned real estate as purchasers from me, and not by inheritance of, or descent from, my said wife." In construing the above section of the will it must be looked at in the light shed upon it (if any) by the following provisions thereof: Sec. 4. He devises certain real estate to his son, Henry, the habendum clause being as follows: "To have and to hold the said real estate described in this section unto my said son, Henry B. Brant, during his natural life, (and no longer,) and after his death unto his heirs, and the heirs and assigns forever of said heirs, which said heirs shall take said last-mentioned real estate as purchasers from me, and not by inheritance or descent from my son, Henry B. Brant." Sec. 5. He bequeaths to his son, Henry, certain personal property. Sec. 6. He devises certain real estate to his daughter, Elizabeth L. McDowell, with habendum clause as follows: "To have and to hold the said real estate described in this section unto my daughter, Elizabeth Lovejoy McDowell, during her natural life, (and no longer,) and after her death unto her heirs, and the heirs and assigns forever of said heirs, which said heirs shall take the last-mentioned real estate as purchasers from me, and not by inheritance or descent from said Elizabeth Lovejoy McDowell." Section 7 provides that if any of the children of Elizabeth and Henry die, leaving issue, that said issue is to receive the portion of their father or mother.

Among other things agreed upon at the trial are the following: That Joshua B. Brant, the testator, died in 1861. That he left a widow, his second wife, the defendant Sarah B. Brant; a son, Henry B. Brant, by his first wife; and a daughter, Elizabeth L. McDowell, by his second wife, the defendant Sarah B. Brant, him surviving. That at the date of the will Henry B. Brant, the son of the testator, was a married man, with five children then living. That since that time two other children have been born to him. That Henry Brant died in 1869, leaving seven children, who are defendants in this suit. It was further agreed that at the date of the will Elizabeth L. McDowell, testator's daughter, was the wife of James McDowell, now deceased, and that she had three children then living; that since the death of the testator, Brant McDowell, one of the plaintiffs, was born to the said Elizabeth; that said Elizabeth L. died June 10, 1875, leaving three children as her heirs, — Mary McDowell, Sarah B. McDowell, and Brant McDowell; that said Mary McDowell died in December, 1875, leaving a will devising her interest in the estate in question to Sarah McDowell, who intermarried with plaintiff Wickliffe Preston, in February, 1883. It was also admitted that Joshua B. Brant by his last will divided the whole of his estate into three parts, nearly or quite equal to each other, and disposed of these parts as stated in the will.

The controlling controverted question in this case grows out of the third clause of the will above noted; it being contended on the part of plaintiffs that under said clause the heirs of said Elizabeth and the heirs of said Henry take per stirpes, and not per capita. This proposition is disputed by defendants, who contend that said heirs take per capita, and the respective counsel have cited us to a number of cases to support their...