Shelton v. Shelton

• Decision Date: 30 October 1941
• Docket Number: 37682
• Citation: 155 S.W.2d 187,348 Mo. 820
• Parties: Paul Clifford Shelton et al. v. Giles C. Shelton et al., Appellants
• Court: Missouri Supreme Court

155 S.W.2d 187

348 Mo. 820

Paul Clifford Shelton et al. v. Giles C. Shelton et al., Appellants

No. 37682

Supreme Court of Missouri

October 30, 1941

Appeal from Cass Circuit Court; Hon. Leslie A. Bruce Judge.

Affirmed.

H. M Atwell for appellants.

(1) Conclusion that testator imposed limitation on prior absolute devise is not permissible, unless alleged limitation is susceptible of no other meaning. Palmer v. French, 32 S.W.2d 591. Courts will not cut down, limit or qualify by construction absolute estate devised, unless limitation is as clear, unmistakable, and certain as devise of fee, and testator's intention is indicated with reasonable certainty. Palmer v. French, 32 S.W.2d 591. Conclusion that testator imposed limitation on prior absolute devise is not permissible, unless alleged limitation is susceptible of no other meaning. Palmer v. French, 32 S.W.2d 591. The law favors vested estates, and one of the recognized rules of construction is that an estate will be held to vest at the earliest possible moment of time, which ordinarily is immediately upon the testator's death unless a clear and certain intention to the contrary is manifested in the will. Tindall v. Tindall, 167 Mo. 218. Therefore, it has been recently ruled a number of times by this court that, where a devise is made to a beneficiary contingent solely upon the death of the first named devisee, uncoupled with any other event or contingency, the will must be construed to refer to death of the first-named devisee occurring during the lifetime of the testator, unless the language of the will clearly indicates a contrary intention. Northcutt v. McAllister, 297 Mo. 475; Howard v. Howard, 184 S.W. 993; Huntington Real Estate Co. v. Megaree, 280 Mo. 41. It is the general rule that, where property is devised to one with a provision for a gift over in case of the death of the legatee or devisee without issue, or without surviving issue, the event referred to, is death without issue during the lifetime of the testator is presumed to be to prevent a lapse. 28 R. C. L. 259; Ewert v. Dalby, 5 S.W.2d 1; Henderson v. Calhoun, 183 S.W. 584. Where there is an immediate gift in a will to A, and a disposition of property to another, "in the case of his (A's) death," or "in the event of his death," or with any similar expression referring to the death of A, not an event which is certain to occur, but as a contingent event, no time being mentioned, the gift over will taken effect only if A shall die during the lifetime of the testator. Underhill on Wills, par. 342; Dameron v. Lanyon, 234 Mo. 627; Howard v. Howard, 184 S.W. 993; Owens v. Men & Millions Movement, 296 Mo. 110; Northcutt v. McAllister, 249 S.W. 398; Real Estate Co. v. Megaree, 217 S.W. 303; Coleman v. Haworth, 8 S.W.2d l. c. 935; Sec. 567, R. S. 1929.

Charles K. Hackler for respondents.

(1) The motion for new trial of appellants is entirely too general to preserve anything for review and consequently the case is before the court on the record proper. Castorina v. Herrmann, 104 S.W.2d 297, 340 Mo. 1026. (2) The assignment of errors in appellants' brief being a mere copy of the motion for new trial is inadequate to preserve anything for review because said assignments of error consist solely of abstract propositions of law and this is true if the as signment of errors is aided by the points and authorities for the reason that these also merely state abstract propositions of law. Aulgur v. Strodtman, 46 S.W.2d 172, 329 Mo. 738; Automatic Sprinkler Co. of America v. Star Clothing Mfg. Co., 267 S.W. 888, 306 Mo. 518. (3) The fifth paragraph of the will of George W. Shelton, the common source of title was correctly construed by the trial court in its findings and judgment as vesting joint life estates in Emma Elizabeth Shelton and Lou T. Griffing with a remainder in fee simple to plaintiffs, being all the nieces and nephews of the testator. Coleman v. Haworth, 8 S.W.2d 931; Owens v. Men and Millions Movement, 246 S.W. 172, 296 Mo. 110.

OPINION

Douglas, J.

This is an action to quiet title to land in Cass County; and for partition. The determination of title requires the construction of the will of George W. Shelton under which all parties claim as the common source of title. The parties may be separated into two classes. One comprises the nieces and nephews of the testator and the other his brothers, appellants herein.

The disputed provision of the will is as follows:

"5th. All the remainder and residue of my estate i give and Bequeath in equal shares to my beloved sisters, Emma Elizabeth Shelton And Lou T. Griffing, share and share alike, and in the event of the death of either of my said sisters i give and bequeath to the survivor the unused portion remaining in possession of the one deceased, in the event of the death of both of my said sisters then i give and bequeath the remaining portion in equal parts to my nieces and nephews, share and share alike, in equal portions."

The sisters of the testator mentioned in this provision survived him. One died in 1926 and the other in 1939 leaving the land in question which had constituted part of the estate received by them from the testator.

The nieces and nephews contend that this provision created life estates in the testator's sisters and claim the land as remaindermen. Opposed to this contention appellants assert that the sisters received an estate in fee and claim respective interests in the land as heirs of the sisters.

The language of one will is rarely, if ever, like another and frequently a slight difference in the words used calls for different constructions of testamentary provisions similar in other respects. Even identical words properly receive diverse interpretations when used in contexts or under circumstances which are not the same. Therefore, decisions construing similar testamentary provisions are of small value as precedents and must be considered with caution.

Bearing this in mind we believe that the effect of the clause under consideration in this case has been settled by our decisions construing similar provisions under similar circumstances. They hold that a gift though not expressly for life but with a limitation over of any part of the estate remaining at the death of the immediate devisee creates a life estate. This is of course a rule of construction to be applied in carrying out the intention of the testator.

This rule conforms with our settled law that express words are not necessary for the creation of a life estate but such may be created by implication. Such an...