State ex rel. Farley v. Welch

• Citation: 162 S.W. 637,175 Mo.App. 303
• Parties: STATE ex rel. KATHERINE FARLEY, Appellant, v. THOMAS E. WELCH et al., Respondents
• Decision Date: 05 January 1914
• Court: Court of Appeals of Kansas

162 S.W. 637

175 Mo.App. 303

STATE ex rel. KATHERINE FARLEY, Appellant, v. THOMAS E. WELCH et al., Respondents

Court of Appeals of Missouri, Kansas City

January 5, 1914

Appeal from Adair Circuit Court.--Hon. Nat. M. Shelton, Judge.

REVERSED AND REMANDED (with directions).

Reversed and remanded.

Higbee & Mills for appellant.

J. A Cooley for respondents.

OPINION

ELLISON, P. J.--

William Welch died in Adair county in 1889 leaving a large body of land and considerable personal property. He disposed of it to his children by will, probated in July of that year. One of his children was Agnes Farley, a married daughter, to whom he gave one-fifth of his estate in these words, "To my beloved daughter, Agnes Farley, and the heirs of her body one-fifth part thereof." Agnes died in 1905, leaving these plaintiffs as her children, all born after the date of the will. The testator appointed his two sons, Walter and Thomas, executors of the will. They gave bond and afterwards Walter died, leaving his brother Thomas as sole executor. Prior to her death, Agnes conveyed her interest in the real estate to her two brothers, the executors. [Farley v. Welch, 237 Mo. 128, 140 S.W 875.] The executors made settlements of the personalty with the probate court, the last one, made the 11th of September, 1893, showed a balance due the estate of $ 2959.32. This action was brought by Agnes' children on the 5th of July, 1911, against Thomas and the sureties on his bond for one-fifth of that balance. The judgment in the trial court was for defendants.

The third clause in the will gave the widow a child's part (one-fifth).

The fourth clause is the part principally involved. It reads as follows:

"I will that after the above bequests are complied with that the balance and residue of all my estate, real estate, personal property, choses in action, and evidences of debt of every kind, shall pass and descend equally to the following named persons: To my beloved son Walter F. Welch, one-fifth part thereof absolutely forever without condition. To my beloved daughter, Margaret C. Welch, one-fifth part absolutely. To my beloved daughter, Agnes Farley, and the heirs of her body one-fifth part thereof. And to grand-daughter, Margaret Ellen Moran, one-fifth part thereof, subject to the condition that her father shall never take any part thereof, . . . And shall the said Margaret Ellen Moran die before the said age of twenty-one years, her said portion of this bequest shall pass and go equally to my said children Walter F. Welch, Thomas E. Welch, Margaret C. Welch, and Agnes Farley, and it is my will that my said married daughter (Agnes) take and keep all of the legacy under this will as her own separate estate to the exclusion of her husband."

It will be observed that the will disposes to Agnes and the heirs of her body one-fifth of the whole estate without distinction as to realty or personalty. Defendant's position is that its effect is to vest a life estate in Agnes to the realty with remainder to her children, but to the personalty, it vested an absolute title in her, and that any interest her children had would be by descent, and that a right of action for such descended interest was barred by limitation when this suit was instituted; it being said that these plaintiffs taking by descent were barred after one year from the death of Agnes, under the provisions of section 1896, Revised Statutes 1909. The position of the plaintiff is that Agnes took a life estate only in the personalty as well as the realty with remainder to these plaintiffs as her heirs, and hence that these plaintiffs take by purchase directly from the testator; and since the Statute of Limitations did not run during the existence of their mother's life estate and their minority, their right of action is not barred.

Defendants in admitting that the will devised to Agnes a life estate only in the land, with remainder to these plaintiffs as "heirs of her body," insist that that results from the statute abolishing the rule in Shelley's case and estates in fee tail as to real estate (Secs. 578, 2872, R. S. 1909), but that a like rule as to personal property has not been questioned; and since the rule was one of construction, the fact that it no longer exists as to real estate, ought not to influence the construction of a bequest of personal property; and that since the law favors an absolute title to that class of property on account of the inconvenience and impracticability of limitations of ownership, a will ought not to be construed as placing such limitations upon absolute ownership, unless such plain intent appears from additional provisions of the will compelling such construction. In other words, defendants contend that the provision to Agnes and the heirs of her body, standing alone, gave her a title for life to the realty, but an absolute title to the personalty. In thus conceding that title to the personal estate may be limited to a life estate if the testator clearly expresses such intention, defendants point out that in the array of cases cited by plaintiffs to that effect (Riggins v. McClellan, 28 Mo. 23; Munro v. Collins, 95 Mo. 33, 7 S.W. 461; Schorr v. Carter, 120 Mo. 409, 25 S.W. 538; Armor v. Frey, 226 Mo. 646, 126 S.W. 483; Threlkeld v. Threlkeld, 238 Mo. 459, 141 S.W. 1121; Zook v. Welty, 156 Mo.App. 703, 137 S.W. 989; 16 Cyc. 615, and authorities there cited) all of them, in independent, additional terms, or expressions, or provisions of the will, disclose a clear intention to so limit the title, a state of case which they say is not found in this will.

Chief Justice MARSHALL in Smith v. Bell, 6 Peters 68 said, "The rule that a remainder may be limited, after a life estate in personal property, is as well settled as any other principle of our law." And this is repeated in State ex rel. v. Probate Court, 102 Minn. 268, 291, 294, 113 N.W. 888. And in Stallcup v. Cronley's Trustee, 117 Ky. 547, 551, 78 S.W. 441, it is stated that, "While the common law originally admitted of no estate in personal property, regarding its title and its possession, as inseparable, yet that distinction has long been obsolete, and now life estates and remainders may be created in personal property. Language which would create a life estate and a reversion or remainder in lands may, with equal assurance, sever the title to personal property, giving it for a term or life to one, with the remainder to others, upon the same contingencies as land is devised, guarding always against perpetuities." It is decided that a remainder can be created in money. [Crawford v. Clark, 110 Ga. 729, 732, 36 S.E. 404.]

We have not overlooked citations by defendants on this subject, but we regard them as not authority, at this day, in this State.

So therefore if it appears from the will that the testator meant to bequeath only a life estate to his daughter Agnes, that intention must govern. The controlling influence of intention over mere technical construction whereby plain language is given a meaning contrary to common understanding, or else rendered abortive, has been frequently stated by the Supreme Court, notably in the recent case of Gibson v. Gibson, 239 Mo. 490, 144 S.W. 770. In that case Commissioner ROY approves the views of the Supreme Court of the United States in Smith v. Bell, supra, and quotes the following from it which may well apply to this controversy: "In the case before the court, it is, we think, impossible to mistake the intent. The testator unquestionably intended to make a present provision for his wife, and a future provision for his son. This intention can be defeated only by expunging, or rendering totally inoperative, the last clause of the will."

We are aware it has been more than once said that Smith v. Bell was not favored in this State (Foote v. Sanders, 72 Mo. 616; Wead v. Gray, 78 Mo. 59, 65). But in Harbison v. James, 90 Mo. 411, 2 S.W. 292, it was fully approved, and in the Gibson case, decided as late as 1912, there is no mistaking the favor with which it was received by the Supreme Court. There is a remark in State ex rel. v. Tolson, 73 Mo. 320, 325, that there cannot be an estate tail in chattels which do not savor of the realty and that there is no such thing as an estate tail in money. That may be granted in its technical sense. There were various ways in which such estates could be defeated and so the remainderman cut off (2 Blackstone, 116-119), which are not applicable to the character of personal property and the latter may be (in that sense) not capable of being entailed. But that there may be a remainder after life estate in personalty, is stated by Blackstone (2 Book 398) and attested by the cases we have herein cited, from England and this country.

While unfortunately a testator so often expresses himself in such confusion that Coke was led to say "that wills and the construction of them, do more per-plex a man than any other matter, and to make a certain construction of them exceedeth jurisprudentium artem," yet we do not think the present case puts us to that embarrassment. What are we fairly to consider was intended and accomplished by...