Stevens v. De La Vaulx

• Decision Date: 17 December 1901
• Citation: 166 Mo. 20,65 S.W. 1003
• Parties: STEVENS v. DE LA VAULX et al.
• Court: Missouri Supreme Court

65 S.W. 1003

166 Mo. 20

STEVENS v. DE LA VAULX et al.

Supreme Court of Missouri, Division No. 1.

December 17, 1901.

PARTITION — WILLS — TRUSTS — EQUITY JURISDICTION.

1. Rev. St. 1899, § 4383, provides that no partition of lands devised by will shall be made contrary to the intention of the testator. A testator devised an estate for the use of his wife and children during their lifetime. The trustees were required to lease the real estate for periods not exceeding 20 years, and pay over the rents to the widow and children. Held, that a devisee holding a vested remainder in a portion of the estate was not entitled to partition, notwithstanding the estate would greatly decrease in value by a compliance with the terms of the will.

2. Rev. St. 1899, § 4383, providing that no partition of lands devised by will shall be made contrary to the intention of the testator expressed in such will, is not inapplicable in a suit in equity for partition contrary to the provisions of a will, to avoid a decrease in value of an estate devised in trust, on the ground that the suit is not the statutory proceeding for partition, but a suit in equity to relieve the devisees against an unfortunate condition not foreseen by the testator, which results in the impairment of the devisees' rights.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Partition by Charles D. Stevens against Eliza J. De La Vaulx and others. From an order sustaining a demurrer to the petition and a judgment in favor of defendants, plaintiff appeals. Affirmed.

Frank M. Estes and Jos. M. Folk, for appellant. Jesse A. McDonald, for respondents.

VALLIANT, J.

A suit in equity for partition of an estate held by trustees under the will of Patrick M. Dillon, the plaintiff being a grandson of the testator, and one of the remainder-men under the will, and defendants being the trustees, the life tenants, and the other remainder-men. The court sustained a demurrer to the petition, and, plaintiff declining to plead further, a final judgment was rendered for the defendants, and the plaintiff appeals.

The petition is to the effect that Patrick M. Dillon died in 1851, leaving a large estate, which he disposed of by will, in which, among other acts, was a devise of real estate in the city of St. Louis to trustees named for the use of his wife and children during their lifetime, and upon the death of either child leaving issue such child's portion to go to his or her children in fee discharged of the trust. By the will the trustees were required to lease the real estate for periods not exceeding 20 years upon the best terms they could procure, of which they were to judge, and collect the rents and profits, and divide them into shares, and pay one share each to the widow and children living at the time of the testator's death. Should the widow die, leaving one or more of the children living, her share was to go to them in equal shares, and on the death of one of the children leaving no issue his or her share to go to his or her surviving brothers and sisters in equal shares, the share of each daughter to inure to her sole and separate use free from her husband's control; "and it is my express will that the annual income which may accrue to my children shall not in any mode be anticipated, nor shall the same be in any way assigned, transferred, conveyed, or incumbered; and in case either of my children * * * shall make any assignment, conveyance, or incumbrance of his or her interest in my estate, or any part thereof, or of his or her interest in the annual income thereof, or any part of such income, then the interest of such daughter * * * or son in the trust fund and the income thereof shall immediately cease and determine, and such share and income shall be held by the trustee, and shall accumulate during the life of such child, and upon his or her death shall be paid over, disposed of, and conveyed as is herein directed in case of the death of any of my children. This trust is to continue during the lives of my wife and children, but when any of my children shall die leaving issue the trust as to that child's share shall cease, and such issue shall immediately take in full, absolute, legal title to share of the trust fund and property to which said child shall then be entitled, and the trustees shall convey it accordingly." The testator left surviving him his widow and six children, all of whom are now living, except a son, who died without issue, and a daughter, married, who died leaving two children, whose interest in the estate has been set apart to them by the trustees, and they have no interest in this suit. The other children all married, and all have issue living. The plaintiff, being one of two children of one of the testator's daughters, has a vested estate in remainder of one-sixth of the trust estate. The petition then sets out the interest that each of the defendants as life tenants and remainder-men has in the...