Rodney v. Landeau

• Decision Date: 23 March 1891
• Citation: 15 S.W. 962,104 Mo. 251
• Court: Missouri Supreme Court
• Parties: RODNEY v. LANDEAU et al.<SMALL><SUP>1</SUP></SMALL>

15 S.W. 962

104 Mo. 251

RODNEY v. LANDEAU et al.¹

Supreme Court of Missouri, Division No. 1.

March 23, 1891.

WILLS — NATURE OF ESTATE — TENANCY IN COMMON — FAILURE TO RECORD WILL — TRANSFER OF TITLE.

1. A testator bequeathed all his property to his wife, "subject to the following bequests." After special devises to his son and daughter the will provided that "any other property hereafter acquired by me shall belong to my wife during her life-time, and afterward be joint property, transferable by the joint deed of" the son and daughter, or either of them may sell their interest in such property after the decease of their mother and the daughter attains the age of 21 years. Held that, in land subsequently acquired by the testator, the son and daughter took a vested remainder as tenants in common, Gen. St. Mo. 1865, p. 443, § 12, providing that an interest in land devised to two or more persons, not executors, trustees, or husband and wife, is a tenancy in common, unless expressly declared to be in joint tenancy.

2. Rev. St. Mo. 1879, § 3991, provides that, where lands are devised, a copy of the will shall be recorded in the county where the land is situated. Held that, though not so recorded, a will probated at the testator's residence operated to transfer the title as between the devisee and all persons not claiming under the testator's heirs at law.

Appeal from St. Louis circuit court.

Wilson Cramer, for appellant. C. V. Scott and H. A. Haeussler, for respondents.

BLACK, J.

This is an action of ejectment, brought by Charles E. Rodney to recover a parcel of land in St. Louis. Margaret Schade defends for herself and her tenant, Landeau. Both sides claim title under James I. Reily, who acquired the property by deed dated November 25, 1863. James I. Reily died in 1865, leaving a will, which was executed in 1860, at Cape Girardeau, where he then resided. The will was probated at St. Louis in May, 1865, where the testator resided at the time of his death. The property, it will be seen, was acquired by Reily after the date of the will, and comes under the clause hereafter mentioned concerning after acquired property, the construction of which clause presents one of the questions in this case. The will begins by saying: "I hereby will and bequeath to Elizabeth C. Reily, my wife, all my property, money, stocks, claims, rights in action, and effects of every nature whatsoever," and, after appointing her executrix, says, "subject to the following bequests." The testator gives directions concerning the education of his two children, and then gives to his son, James E. Reily, two parcels of real estate in the city of Cape Girardeau and six lots in Cairo, in the state of Illinois, and to his daughter, Mary Jane Reily, the dwelling-house property in the city of Cape Girardeau, and a named and designated lot in St. Louis. It is then declared: "Provided that, after the decease of their mother, and after Mary Jane shall have attained the age of 21 years, each of them shall choose a discreet householder of the city of Cape Girardeau, whose duty it shall be to select another man of judgment and discretion, which three persons shall proceed to value all the property herein willed to James E. Reily and Mary Jane Reily, separately, and under a statement in writing of such valuation, which shall be binding if signed by them or a majority of them. Such valuation of each one's part shall be so applied as to divide the balance of the estate equally between them, considering the property hereinbefore bequeathed as part of the whole estate. The Concannon shop lot or any other property herein not bequeathed, or hereafter acquired by me, shall belong to my wife. Elizabeth C. Reily, during her life-time, and afterward be joint property, transferable by joint deed of James E. and Mary Jane Reily; or either of them may sell their interest in such property after the decease of their mother and Mary Jane attains the age of twenty-one years." Mary Jane Reily died in April, 1870, intestate, and without issue, leaving her mother and brother surviving her. James E. Reily died in December, 1870, intestate as to the property in question, leaving a widow, Julia Reily, and an infant daughter, named Mary Jane. This infant daughter died in April, 1871, leaving her mother, Julia Reily, as her sole heir. Julia Reily thereafter married the plaintiff, Charles E. Rodney. She died in 1876, leaving a will with a residuary clause in favor of the plaintiff, by virtue of which he claims the property in suit.

The defendants claim title under Elizabeth C. Reily, the widow of James I. Reily. She died in 1879, subsequent to all of the before mentioned dates, leaving a will, whereby she devised the property in question to Edward S. Lilley. Partition proceedings were had between persons claiming under Elizabeth C. Reily and Edward S. Lilley, which resulted in the sale of the property to George Schade in November, 1881. The defendant Margaret Schade is the devisee of George Schade. The plaintiff, Charles E. Rodney, was not made a party to the partition proceedings, nor were the heirs of Julia Rodney. That part of the will of James I. Reily which relates directly to the property in question provides that "any other property * * * hereafter acquired by me shall belong to my wife, Elizabeth C. Reily, during her life-time, and afterward be joint property, transferable by joint deed of James E. and Mary Jane Reily; or either of them may sell their interest in such property after the decease of their mother and Mary Jane attains the age of twenty-one years." As has been said, James E. Reily survived his sister, and the mother survived him. If he had no title to any part of the premises when he died, then the plaintiff cannot recover. The defendants insist that he had no interest, and assign two reasons therefor: First, that Elizabeth C. Reily took a fee, subject only to the condition that, if James E. and Mary Jane survived her, then her estate would cease; second, that James E. and Mary Jane at most had only a contingent remainder which never vested. We do not see upon what possible grounds the first of these propositions can be sustained. It is by no means clear that Mrs. Elizabeth C. had anything more than a life-estate in any of the property. It is true that the testator begins by saying he bequeaths to his wife "all" of his property, moneys, etc.; but this is immediately followed by the words "subject to the following bequests." After giving to the children certain specified property, he provides that the property so given to them shall, "after the decease of their mother, and after Mary Jane shall attain the age of twenty-one," be valued, separately, and the value of each one's part shall be so applied as to divide the balance of the estate equally between them, "considering the property hereinbefore bequeathed as part of the whole estate." The words last quoted seem to embrace the property before devised and bequeathed to Elizabeth C., and since it is that property which is to be divided after her death, it may well be concluded that she took but a life-estate. If she had but a life-estate in the property first given to her, then there is no foundation whatever for the claim that she took more than a life-estate...