Sanders v. Jones

• Decision Date: 01 February 1941
• Docket Number: No. 36610.,36610.
• Citation: 147 S.W.2d 424
• Parties: RICHARD LEE SANDERS, by ELY A. SANDERS, his natural guardian, v. A.E. JONES ET AL. (six others), formerly Directors of and Trustees for the COMMERCIAL BANK OF SHELBINA, a Corporation, Appellants.
• Court: Missouri Supreme Court

147 S.W.2d 424

RICHARD LEE SANDERS, by ELY A. SANDERS, his natural guardian, v. A.E. JONES ET AL. (six others), formerly Directors of and Trustees for the COMMERCIAL BANK OF SHELBINA, a Corporation, Appellants.

No. 36610.

Supreme Court of Missouri.

Division Two, February 1, 1941.

Appeal from Monroe Circuit Court. — Hon. Edmund L. Alford, Judge.

REVERSED.

Lane B. Henderson and W.W. Barnes for appellants.

(1) The writ of attachment in the case of these defendants as plaintiffs against Ely A. Sanders, as defendant, was levied upon the real estate on December 14, 1936, and an abstract of attachment was thereupon, and on that day, duly filed in the office of the Recorder of Deeds of Monroe County, Missouri. The lien of the attachment on lands takes effect from the date of the levy and the filing of the abstract of attachment. Sec. 1296, R.S. 1929; Stanton v. Boschert, 104 Mo. 400; Bryant v. Durby, 128 Mo. 18; Winnigan v. True blood, 149 Mo. 582; Hall v. Stephens, 65 Mo. 670; Peperdine v. Bank, 100 Mo. App. 387. (2) A vested remainder is a fixed interest to take effect in possession, after a particular estate is spent. It is the present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines that distinguishes a vested from a contingent remainder. 4 Kents Comm. 403; 2 Wash. on Real Prop. (4 Ed.), 547; 1 Fern on Remainders, 216; Chew v. Keller, 100 Mo. 362; Patrick v. Blair, 119 Mo. 113; Melvin v. Hoffman, 235 S.W. 115; Pollock v. Pollock, 251 S.W. 718. (3) The law favors vested remainders. It is of the greatest importance that certainty be substituted for doubt in real estate titles, and that avoidable litigation be prevented (3 Jarman on Wills, 701), Aldred v. Sylvester, 111 N.E. 916. Where there is any reasonable doubt as to whether the estate created is a vested or contingent remainder, the courts will resolve that doubt in favor of the former and against the latter. It is the policy of the law that estates vest at the earliest possible period, unless there is a clear manifestation of a contrary intention on the part of the testator. Dickerson v. Dickerson, 211 Mo. 488; Collins v. Whitman, 222 S.W. 842; Tindall v. Tindall, 167 Mo. 225, 66 S.W. 1092; Colliers Will, 40 Mo. 368; 2 Wash. on Real Prop. (6 Ed.), secs. 1537, 1544. (4) The devise ... "I give, devise and bequeath to my son, Ely A. Sanders, or his heirs at law, in fee simple absolute," contained in the fourth clause of the will, creates a vested remainder in the said Ely T. Sanders. Garrett v. Damron, 110 S.W. (2d) 1112; Thomas v. Stookes, 328 Ill. 115, 159 N.E. 269; Boys v. Boys, 328 Ill. 47, 159 N.E. 217; Speer v. Josenhans, 274 Ill. 237, 113 N.E. 622; In re Billett, 175 N.Y. Supp. 484; Eyclesheimer v. Hunter, 147 N.Y. Supp. 956; Walker v. Alverson, 87 S.C. 55, 68 S.E. 966. (5) The word "heirs" in a will primarily is used in its legal or technical sense, and, unless the context shows a contrary intention, must be construed as meaning all those, who, in case of intestacy, would be entitled by law to inherit on the death of the named person. Gray v. Whittenmore, 192 Mass. 367, 78 N.E. 422; Cushman v. Horton, 59 N.Y. 149; In re Beck, 225 Pa. St. 578, 74 Atl. 607; VanDrill v. Katris, 135 Mich. 181, 97 N.W. 700; Wallace v. Noland, 246 Ill. 535, 92 N.E. 956; Teal v. Richardson, 160 Ind. 119, 66 N.E. 435; 28 R.C.L., sec. 216, p. 247; 29 C.J. 292. (6) Vested estates are favored in Missouri, and the rule is well settled that unless the testator has by very clear words manifested his intention to the contrary, the persons who will take under his will, as the heirs designated, must be determined at the date of the death of the testator. Palmer v. French, 32 S.W. (2d) 591; Ewart v. Dalby, 319 Mo. 108, 5 S.W. (2d) 428; Ernshaw v. Smith, 2 S.W. 803; Baker v. Kennedy, 238 S.W. 790; Dunbar v. Simms, 283 Mo. 356, 222 S.W. 838; Deacon v. Trust Co., 271 Mo. 669, 197 S.W. 261; Carter v. Lang, 181 Mo. 701, 81 S.W. 162; Evans v. Tankin, 329 Mo. 411, 44 S.W. (2d) 644.

Thos. J. Tydings for respondent.

(1) A general denial to a petition which alleges plaintiff's ownership and defendants' adverse claim, not only denies plaintiff's title, but also denies that defendants have any claim, title or interest in the land hostile to plaintiff and precludes defendants from thereafter attacking the judgment if given for plaintiff. 4 Houts's Pl. & P., sec. 1065, p. 237; Gilchrist v. Bryant, 213 Mo. 442; Rohf v. Hayes, 287 Mo. 340. (2) By said third and fourth clauses of said will, title to the land in suit vested in the widow. Minnie Sanders, during her natural life or widowhood with contingent remainder to Ely A. Sanders, if he survived the widow, in view of the well-settled law that a devise or deed for life remainder to B "or" his heirs gives contingent remainder to B if he survives the life tenant. Eckle v. Ryland, 256 Mo. 424; Hall v. O'Reilly R. & Inv. Co., 306 Mo. 182; Donaldson v. Donaldson, 311 Mo. 208; Hartnett v. Langan, 282 Mo. 471; Riley v. Kirk, 253 S.W. 50; Buxton v. Kroeger, 219 Mo. 224; Emison v. Whittlesey, 55 Mo. 254; Taylor v. Adams, 93 Mo. App. 277; DeLassus v. Gatewood, 71 Mo. 371. (3) Whether Ely A. Sanders had a vested remainder or a contingent remainder, under the will, he had the legal right to renounce and refuse to accept the same and his renunciation is not subject to attack by appellants, his creditors. 28 R.C.L., p. 352, sec. 351; 69 C.J., p. 974, sec. 2168; 18 Am. & Eng. Enc. Law, p. 744. In re Murphy's Estate, 252 N.W. 523, decided February 13, 1934, the court held: "It is the rule, well established in this state, that beneficiaries may renounce the provisions of a will intended for their benefit, even though it may defeat the claims of personal creditors. Lehr v. Switzer, 213 Iowa, 658, 239 N.W. 564; Schoonover v. Osborne, 193 Iowa, 474, 187 N.W. 20; Stutsman v. Crain, 185 Iowa, 514, 170 N.W. 806; Farwell v. Carpenter, 161 Iowa, 257, 142 N.W. 227; Davenport v. Sandeman, 204 Iowa, 927, 216 N.W. 55." (4) "Where beneficiary disclaims or renounces his interest under the will, it becomes inoperative as to him, and his renunciation is considered as relating back to the time of testator's death, or the time when the will became effective, and the property will be dealt with as if the gift had not been made. Thus, by his renunciation, a donee is thereby released from all obligations which an acceptance would have imposed on him." Above statements of the law are supported by numerous cases, and some of such cases being as follows: Robertson v. Schard, 142 Iowa, 500, 119 N.W. 529; Bains v. Bank, 136 Ky. 332, 124 S.W. 343; Harding v. Harding, 140 Ky. 277, 130 S.W. 1098; Bradford v. Calhoun. 120 Tenn. 53, 109 S.W. 502, 19 L.R.A. (N.S.) 595; Bradford v. Leake, 124 Tenn. 312, 137 S.W. 96; Strom v. Wood, 100 Kan. 556, 164 Pac. 1100; Albany Hospital v. Albany Gdn. Soc. & Home, etc., 214 N.Y. 435, 108 N.E. 812; Tarr v. Robinson, 158 Pa. 60, 27 Atl. 859.

COOLEY, C.

This is an action to determine title to 160 acres of land in Monroe County, Missouri. The circuit court decreed plaintiff to be the sole owner in fee and defendants to have no interest or right. Defendants appealed.

On May —, 1933, George L. Sanders died testate, seized in fee of the land, leaving a widow, Minnie Sanders, and a son, his only child, Ely A. Sanders. On May 22nd, 1933, the will of George L. Sanders was duly probated. Plaintiff, Richard Lee Sanders, is the minor son and only child of Ely A. Sanders. Defendants constituted the last board of directors of the Commercial Bank of Shelbina, whose charter expired, and are now acting as trustees for creditors, stockholders and all persons interested in the bank. No point is made as to their authority so to act.

By the first paragraph of his will George L. Sanders revoked all former wills. By the second paragraph he gave his son, Ely, $100. The third and fourth paragraphs read:

"Third. All the residue and remainder of my estate, real and personal, I give, devise and bequeath to my beloved wife, Minnie Sanders, for and during her natural life or widowhood.

"Fourth. Upon the death or remarriage of my said wife, Minnie Sanders, said residue and remainder of my estate, whether real or personal, I give, devise and bequeath to my said son, Ely A. Sanders, or his heirs at law, in fee simple absolute."

The fifth and last paragraph names his wife as executrix.

On September 16th, 1920, Ely A. Sanders, then a resident of Missouri, executed and delivered to the Commercial Bank two demand notes (amount not shown). No payments were ever made on those notes.

These defendants, in their capacity as trustees, instituted an attachment suit on those notes and on December 14th, 1936, a writ of attachment was issued and levied on the land here involved as the property of Ely A. Sanders, and an abstract thereof filed in the recorder's office. No point is made as to the regularity of the attachment proceedings. The only interest defendants claim in the land in question is by virtue of the levy of the attachment writ. In the petition filed by them (as plaintiffs) in the attachment suit they alleged, to avoid the bar of the Statute of Limitations that in October, 1920, after demand of payment of the notes above mentioned had been made, Ely A. Sanders left Missouri and became a nonresident of the State. For the purpose of this case it was admitted that the allegation of non-residence was true.

On August 23rd, 1934, Ely A. Sanders executed and acknowledged a written renunciation of the provision made for him in his father's will, which was recorded August 27th, 1934, in the recorder's office of Monroe County. Omitting caption, signature and acknowledgment it reads:

                    "In the matter of the will of)
                    George L. Sanders, Deceased.)
                

"I, Ely A. Sanders, a son and sole and only heir at law and the only living child of George L....