Romjue v. Randolph

• Decision Date: 29 April 1912
• Citation: 148 S.W. 185,166 Mo.App. 87
• Parties: PRICE ROMJUE et al., Defendants in Error, v. OLLIE RANDOLPH et al., Plaintiffs in Error
• Court: Kansas Court of Appeals

148 S.W. 185

166 Mo.App. 87

PRICE ROMJUE et al., Defendants in Error, v. OLLIE RANDOLPH et al., Plaintiffs in Error

Court of Appeals of Missouri, Kansas City

April 29, 1912

Error to Macon Circuit Court.--Hon. Nat. M. Shelton, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

R. L Matthews and John T. Barker for plaintiffs in error.

Dan R Hughes and John R. Hughes for defendants in error.

OPINION

ELLISON, J.

James A. Lea and Nancy Lea were husband and wife without issue of their own, but they had raised to manhood and womanhood three children, Nancy May, Ollie Greer and Albert Lea. They made the following will:

"2. We each will, bequeath and devise, to the other surviving all the property, real, personal or mixed, or which we or either of us shall die seized, with full power of disposition, for and during the life of such survivor.

"3. We each will, bequeath and devise all the rest, residue and remainder of all the property, real, personal and mixed, remaining undisposed of at the death of the survivor, in this will jointly made by us, to the beloved children, hereinafter named, whom we reared as follows: To Nancy May, . . . to Albert Lea, . . . to Ollie Greer; to be equally divided between them and their descendants, to the exclusion of our next of kin, under the laws of descent and distribution, in the absence of any children being born of our union, and we now state that at the making of this will no children having been so born."

James, the husband, died and subsequently the young man Albert died without issue; then, after-wards, Nancy, the surviving wife, died, and there was thus left only Nancy May and Ollie Greer. Nancy left collateral kin only and Albert left brothers and sisters. The question for decision is, who takes the one-third interest in the property originally devised to Albert. The collateral kin of Nancy claim it as coming to them through her; the brothers and sisters of Albert claim it as coming through him, and Nancy May and Ollie Greer claim it as surviving joint tenants.

The trial court decided that Nancy took an absolute estate and that the devise to Albert lapsed by reason of his death prior to Nancy's decease.

If the second clause of the will was an absolute devise to Nancy, then the last part of that clause, seemingly limiting the estate to one for life, would be void. For, "It is a settled rule or American as well as English law that when the first devisee has the absolute right to dispose of the property in his own unlimited discretion and not a mere power of appointment among certain specified persons or classes, any estate over is void, as being inconsistent with the first gift." And, "If, therefore, there be an absolute power of disposition given by the will to the first taker, as if an estate be devised to A in fee, and if he dies possessed of the property without lawful issue, the remainder over, or remainder over the property which he, dying without heirs, should leave, or without selling or devising the same; in all such cases the remainder over is void as a remainder, because of the preceding fee; and it is void by way of executory devise, because the limitation is inconsistent with the absolute estate or power of disposition expressly given or necessarily implied by the will." [Jackson v. Littell, 213 Mo. 589, 112 S.W. 53.]

It is said that "A power to dispose of a thing as one pleases, must necessarily carry along with it a full property in it." [Ibid.] The same rules are stated in Gannon v. Albright, 183 Mo. 238, 81 S.W. 1162. A devise of an estate generally or indefinitely, with power to dispose of the same, vests the fee simple in the devisee, and no subsequent ambiguous limitation will lessen the estate. [Cook v. Couch, 100 Mo. 29, 13 S.W. 80; Small v. Field, 102 Mo. 104, 14 S.W. 815; Roth v. Rauschenbusch, 173 Mo. 582, 73 S.W. 664.]

So in Jackson v. Robins, 16 Johns. 537, 587, 588, where the testator devised "all my real and person estate whatsoever unto my dear wife Sarah, to hold the same to her, her executors, administrators and assigns, but in case of her death without giving, devising or bequeathing by will or otherwise selling or assigning the said estate, or any part thereof, then I do give, devise and bequeath, all such estate or all parts thereof as shall so remain unsold, undevised or unbequeathed, to my daughter," it was held that the first part of the clause gave a fee to the wife and the remainder over to the daughter was void. It being said that the power and right to sell was itself "an attribute of ownership and carries with it a fee;" and that it was "an incontrovertible rule that where an estate is given to a person generally or indefinitely with a power of disposition, it carries a fee."

But the power of absolute disposal over property will not operate as the devise of a fee in realty, or absolute title in personalty, where a life estate only is devised. [Grace v. Perry, 197 Mo. 550, 95 S.W. 875; Tisdale v. Prather, 210 Mo. 402, 109 S.W. 41.] In such case the life estate is not enlarged by unrestrained power of sale, but such power is merely one of appointment, which, if not exercised, leaves the estate in remainder. It is proper enough to say that a devise of an estate generally, with power of absolute sale, passes the fee. But the devise of an estate for life is not a general devise, or, as otherwise expressed, is not a "gift generally or indefinitely." Its duration is limited to a life by its own terms. Thus, in Rubey v. Barnett, 12 Mo. 3, after recognition of the rule in accord with the authorities above cited, it is said: "But a devise to a wife for life, and after her decease she to give the same to whom she will, passes but an estate for life with a power; yet if an express estate for life had not been devised to the wife, an estate in fee would have passed by the other words."

"This," says the court, "is the distinction which prevails throughout the cases. When an express estate for life is given, and afterwards a power of disposition is conferred, then the devisee takes but a life estate with a power of disposition, and if no disposition is made, the reversion will go to the heirs of the devisor. But if there is no previous devise of a life estate, but a simple power of disposition is bestowed, then the devisee takes an absolute estate."

The rule thus stated by Judge SCOTT more than sixty years ago, is sound today, because it rests upon the plain duty of the courts to administer the intention of the testator when not contrary to general law.

That the absolute power of disposal is a gift of the absolute property is the dictate of common sense, says Judge Tucker, in Burwell v. Anderson, 3 Leigh 348. And further, that: "He who has the absolute property, has, inseparably, the absolute power over it; and he to whom is given the absolute power over an estate, acquires thereby the absolute property; unless there is something in the gift which negatives and overthrows this otherwise irresistible implication. . . . So, though a devise to a wife for life, and after her decease, she to give the same to whom she will, passes but an estate for life with a power; yet, if an express estate for life had not been devised to the wife, an estate in fee would have passed by the other words. Where, indeed, such an inconsistent life estate is given, the fee does not pass; for this whole matter rests upon intention. . . . Where an interest is given, generally, and without limitation, that gift is not converted into a mere power, by annexing thereto a general power of disposition. . . . But where there is an express and inconsistent estate for life given, the construction of the instrument is altogether different. For the express estate for life, negatives the intention to give the absolute property, and converts these words into words of mere power, which, standing alone, would have been construed to convey an interest."

The rule is written in the same way in numerous cases: "If the testator, in express terms, give an estate for life, the intention is manifest and beyond doubt; and in such case an added power of disposition cannot enlarge the estate." [Burleigh v. Clough, 52 N.H. 267.]

In Mansfield v. Shelton, 67 Conn. 390, 35 A. 271, four rules relating to this general subject are stated, the second of which is that: "A life estate expressly created will not be converted into a fee, absolute or qualified, or into any other form of estate greater than a life estate, merely by reason of there being coupled with it a power of disposition, however general or extensive."

In Collins v. Wickwire, 162 Mass. 143, 38 N.E. 365, the will gave the property to the testator's wife, "during her natural life, with the right to dispose of the same by gift, or will at her decease;" and the principle that where a will gives an absolute ownership with full power of disposal, a limitation over is void because inconsistent with an absolute title, was invoked. But the court said that the principle was not "applicable where the will purports to give only a life estate to the first taker, with merely a power of disposition of the remainder as a separate interest."

In Swarthout v. Ranier, 143 N.Y. 499, 38 N.E. 726, the provision in the will was that the wife was to have the estate during her life, but it also gave her power to dispose of it, yet it was held to be a life estate with a power.

In Ramsdell v. Ramsdell, 21 Me. 288, the court, after...