Register v. Elder

• Decision Date: 30 November 1910
• Parties: REGISTER v. ELDER et al.
• Court: Missouri Supreme Court

132 S.W. 699

231 Mo. 321

REGISTER v. ELDER et al.

Supreme Court of Missouri, Division No. 1.

November 30, 1910.

1. WILLS (§ 470)—CONSTRUCTION—INTENTION OF TESTATOR.

The court in construing a will must seek to ascertain the intention of testator by giving effect to all the words and the whole scheme of the will as viewed from the standpoint of testator, and enforce the will as so construed provided it does not contravene the law.

2. CURTESY (§ 1)—NATURE AND EXISTENCE OF ESTATE.

Curtesy is a common-law right, and is recognized in Missouri, in the absence of a statute abrogating it, and the law favors it.

3. CURTESY (§ 7)—NATURE OF ESTATE.

The essentials of an estate by the curtesy are marriage, seisin of an estate of inheritance in the wife, issue born alive, and death of the wife.

4. WILLS (§ 614) — CONSTRUCTION — ESTATES DEVISED.

Testator devised 240 acres described to his executor in trust for his daughter to pay the income for the support of the daughter and her children, and on the daughter surviving her husband the property should vest in her absolutely, and on her death before her husband, leaving children, the trustee should use the income for the benefit of the children, and deliver the estate to them on their attaining a specified age, and on her death, leaving no child, the estate should pass to others. By a codicil he referred to the 240 acres as given to the executor for the use of the daughter, and annulled other provisions of the will. The daughter died leaving her husband and a child. Held, that the wife acquired only a life estate subject to the enlargement into a fee on the condition precedent of the death of the husband in her lifetime, and the husband was not entitled to curtesy, but the estate passed to the child.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Henry C. Register against Prather Elder and another. From a judgment for defendants, plaintiff appeals. Affirmed.

James W. Boyd, for appellant. Charles F. Strop and Eugene Silverman, for respondents.

LAMM, P. J.

Ejectment on formal pleadings. Cast below on a trial to the court, without a jury, plaintiff appeals. Defendants asked no instructions; plaintiff, one (refused), to the effect that, under the law, the pleadings, and the agreed statement of facts, he was entitled to judgment.

In small compass, preserving the substance of an agreed statement of facts, the case made is this: Plaintiff is the father of defendant, William L., the latter being the only surviving child of plaintiff and his wife, Martha Jane. William L. is in possession of the land in dispute, viz., the S. E. ¼ of section 10 and the W. ½ of the S. W. ¼ of section 11, all in township 56, range 35, in Buchanan county, through his codefendant, Elder, as tenant. One John Montgomery died testate, seised of the land as owner in June, 1903, leaving an only child, to wit, said Martha Jane; his will disposing of the land. This will and its codicil were probated in common as well as solemn form. Martha Jane dying, thereafter the son, then aged 36 years, took possession, putting his right thereto upon the terms of his said grandfather's will. Thereat plaintiff brought ejectment on the theory he was tenant by the curtesy as surviving husband of Martha Jane, and as such had the jus possessionis. The controversy hinges on the judicial interpretation of the will, the material clause being item 3, viz.:

"Item 3. I give, devise and bequeath to my said executor, John L. Leonard, the following described real estate, situate in the county of Buchanan and state of Missouri, to wit: [Here follows the land above described.] containing two hundred and forty acres, more or less, and two thousand dollars ($2,000.00) in cash, to have and to hold unto him and his successors in trust for my daughter, Martha Jane Register, wife of H. C. Register. The two thousand dollars ($2,000.00) shall be paid by my said executor to my said daughter in monthly installments not exceeding eighty dollars ($80.00) per month, for her support during the period covered by the administration of my said estate. The income from the real estate above described shall be paid by said executor and trustee in monthly installments for the support of my said daughter, and her child or children, said money when paid to her to be her sole and separate property, free from control or interference of her said husband, H. C. Register, but in case my said daughter survives her said husband, then said real estate and said money, if any in the hands of said trustee, shall immediately vest in her absolutely, to have and to hold unto her, her heirs, and assigns forever, and in case my said daughter shall die leaving surviving her any child or children of her body, then the trustee shall use the income from the real estate aforesaid and money on hand, if any, derived from said real estate and said two thousand dollars ($2,000.00), aforesaid, to support, educate and maintain the child or children of my said daughter surviving her, until the youngest child, if a boy, arrives at the age of twenty-one years, and, if a girl, arrives at the age of eighteen years, at which time said real estate and property shall be turned over by said trustee to such child or children share and share alike, to have and to hold unto them, their heirs and assigns forever, but in the case my said daughter should die leaving no child or children, or their descendants surviving her, then said property shall go to my brothers and sisters and nephews and nieces herein named, to wit: Samuel Montgomery, one part; Thomas Montgomery, one part; and the children of David C. Montgomery, one part; and Sarah Knox, one part; and in case of the death of either my said brothers or sisters, the heirs of said deceased brother or sister shall take the part that the sister or brother would be entitled to, if living, to have and to hold unto them, their heirs and assigns forever."

After bequeathing $500 each to his brothers, Samuel and Thomas, and $500 each to his nieces, Georgia and Ellen, and to a friend, Isaiah McVey, and $10,000 to William Jewell College, to educate young men for the ministry and for the use of foreign missions in spreading the gospel, by items from 4 to 9 inclusive, item 10, which was annulled by the codicil, serves an office in outlining testator's plan. It reads:

"Item 10. All the rest and residue of my property, real, mixed and personal, wherever situate, I give and bequeath and devise to my said executor, to him and his successors in this trust, to have and to hold in trust for my said daughter, Martha Jane Register, the income to be paid to her as her sole and separate property, free from the control of her said husband, H. C. Register, in installments, for the support of herself and child or children, but in case my said daughter's said husband, H. C. Register, shall die leaving her surviving him, then said property, real, personal and mixed, shall immediately vest in her to...