Roberts v. Crume

• Decision Date: 17 March 1903
• Citation: 73 S.W. 662,173 Mo. 572
• Parties: ROBERTS et al. v. CRUME et al.
• Court: Missouri Supreme Court

73 S.W. 662

173 Mo. 572

ROBERTS et al. v. CRUME et al.

Supreme Court of Missouri, Division No. 2.

March 17, 1903.

WILL—CONSTRUCTION OF WILL—LIMITATION OF ESTATE—FORFEITURE—WORDS OF LIMITATION—WORDS OF PURCHASE—CONDITION —COVENANT—INTENT OF TESTATOR.

1. In construing a will, the word "heirs" will be considered as a word of limitation, and not of purchase, unless the will clearly shows that it is used to designate a new class of beneficiaries.

2. An estate in fee created by a will cannot be cut down or limited by a subsequent clause, unless it is as clear and decisive as the language of the clause which devises the real estate.

3. Testator devised land to his daughter and to her heirs, subject to the condition that they should provide for testator's son during his natural life, he to be furnished at all times with proper accommodations, support, and clothing. A subsequent clause provided that, upon a failure of the daughter to comply with the condition, part of the land should be taken charge of by testator's executor, and the rents used for the support of the son, the surplus to go to the daughter. Held that, as the will did not provide that a failure to comply with the condition should operate as a forfeiture of her interest in the land, the daughter took the fee.

Appeal from Circuit Court, Polk County; Argus Cox, Judge.

Action by Maud Roberts and another against A. E. Crume and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

Rechow & Pufahl, for appellants. O. M. Townsend and C. H. Skinker, for respondents.

BURGESS, J.

This is an action of ejectment for the possession of a tract of land in Polk county. The petition is in the usual form. Ouster laid December 2, 1898. The trial resulted in a judgment for defendants, from which plaintiffs appeal.

Both plaintiffs and defendants claim under the will of Alpheus Leonard signed by him at Panora, Iowa, on the 6th day of July, 1893, at which time he resided in that state. He owned a farm in that state, part of which was in Dallas and part in Guthrie county. He was a widower, and had two children, both of whom lived with him— one, a son named John N. Leonard; the other, a daughter Mary, who had intermarried with one J. W. Roberts. The son was feebleminded. J. W. Roberts was a spendthrift.

At the time of the execution of his will, the Iowa land was all the land he owned, but, shortly after the execution of the will, he sold that land and purchased the land in controversy from one Ben. T. Periman, who executed a deed to him for it. When Alpheus Leonard purchased the land in controversy, he moved to Missouri, and with him came his son, John N. Leonard, and his daughter, Mary I. Roberts, and her husband and family, all of whom lived together on the land until Alpheus Leonard's death, which occurred on the 26th day of June, 1895. J. W. Roberts immediately had himself appointed administrator of the estate, and secured the will, which was still in Iowa, and had it probated, Alpheus Leonard having left it with the attorney who drew the same. Some time after the death of Alpheus Leonard. Mary I. Roberts and her husband exchanged the land in controversy with defendants for a tract of land. Defendants knew of the conditions in the will, and also of the mental condition of John N. Leonard. After moving onto the land obtained from defendants, J. W. Roberts induced his wife to join him in executing a mortgage on it, received the money, spent it, abandoned his family, and she died in absolute poverty, leaving a family of small children. Her grown children (some of whom lived in Iowa), upon learning of the condition of affairs, came to Missouri, bought possession from those occupying the farm, and supported the minor children and their feeble-minded uncle, John N. Leonard. The farm was afterwards sold under a mortgage executed by Mary I. Roberts and her husband, and these adult children leased it from the purchaser at the sale. At the time of the sale of this place, these plaintiffs had already instituted suit for the land in controversy. After the death of Mary I. Roberts, her children, in connection with John N. Leonard, brought suit for the premises in controversy, claiming that the will gave Mary I. Roberts only a life estate. The will was duly recorded in the probate office of Polk county. It reads as follows:

"Be it remembered that I, Alpheus Leonard, of Guthrie County, State of Iowa, being of sound mind, do hereby make, publish and declare, this my last will and testament in manner following, to-wit:

"First: I desire that all my debts, including the expenses of my last sickness and my funeral expenses, be paid by my executor out of the proceeds of my personal estate.

"Second: I give and bequeath to my daughter Mary I. Roberts who is intermarried with J. W. Roberts of said county, and to her heirs, all my personal estate of every kind soever remaining after the payment of my said debts and the amount necessary to defray the expenses of the administration hereof.

"Third: I give and devise to my said daughter, Mary I. Roberts and to her heirs, all the real estate I now own, to-wit: The southwest quarter of the northwest fractional quarter and the northwest quarter of the southwest fractional quarter of section nineteen (19) in township seventy-nine (79) north of range twenty-nine (29) west of the fifth principal meridian in Dallas county, Iowa, also the west half of the southeast quarter and lot two (2) of the northeast quarter of the southeast quarter of section twenty-four (24) in township seventy-nine (79) north of range thirty (30) west of the fifth principal meridian in Guthrie county, Iowa, together with all other real estate I may own at the time of my death, subject to the following conditions, to-wit: She, the said Mary I. Roberts, or her heirs, must care and provide for my son John N. Leonard during the period of his natural life, he to live with her and she to furnish him at all times with such proper and reasonable accommodations, support and clothing as is suitable to his condition in life, and whenever necessary such medical attendance and medicines as may be required by him.

"Fourth: Should my daughter Mary at any time fail in the performance of the conditions above mentioned, then and in that case I direct that the rents and profits of all the land above described lying in Dallas county, Iowa, be set apart to the use of my said son John N. Leonard for his support and maintenance during the remainder of his natural life, and I hereby direct my executor, or such person as may be appointed for that purpose by the District Court of Guthrie county, Iowa, to collect the said rents and profits and apply them to the objects and uses aforesaid, anything remaining of said rents and profits after my said son's death and the payment of his funeral expenses, to go to my said daughter Mary, or to her heirs if she be dead.

"Fifth: I hereby constitute and appoint John E. Wagner of said Guthrie county, Iowa, my sole executor of this my last will and testament.

"In witness whereof I have hereunto set my hand at Panora, Iowa, on this 6th day of July A. D. 1893. Alpheus Leonard."

The case was tried before the court sitting as a jury. The plaintiffs asked the court to give the following declarations of law: "(1) The court declares the law to be that, when lands are charged with conditions in a will,...