Sullivan v. Garesche

• Decision Date: 14 June 1910
• Citation: 229 Mo. 496,129 S.W. 949
• Parties: SULLIVAN v. GARESCHE.
• Court: Missouri Supreme Court

129 S.W. 949

229 Mo. 496

SULLIVAN v. GARESCHE.

Supreme Court of Missouri, Division No. 1.

June 14, 1910.

Rehearing Denied June 28, 1910.

1. WILLS (§ 647) — CONSTRUCTION — CONDITIONS —RESTRAINT OF MARRIAGE—VALIDITY.

A provision of a will giving a preference to two of testatrix's daughters over her other children which was to be forfeited if they married was void, as in restraint of marriage.

2. WILLS (§ 647) — CONDITIONS—RESTRAINT OF MARRIAGE — VALIDITY — EXCEPTION TO RULE.

The only exception to the rule that a provision in a will in restraint of marriage is void is where a husband by will makes provision for his widow during her widowhood.

3. WILLS (§ 647) — CONDITIONS — RESTRAINT OF MARRIAGE.

It is not in restraint of marriage for a testator to devise certain property to one of his children, and provide that, if the child should die without having married, the property should go to another or others.

4. REMAINDERS (§ 4)— "CONTINGENT REMAINDERS."

A remainder is contingent if the event on which it is to take effect is contingent, or if at the time of creating the estate the person who is to take is not ascertained.

5. WILLS (§ 439)—CONSTRUCTION—INTENT OF TESTATOR.

Whether the term "surviving children," as used in a will, means children surviving at the death of the testator or at some other time, is to be determined by the intent of the testator, gathered from the whole will and the circumstances to which it applies.

6. WILLS (§ 548)—"SURVIVORS"—MEANING.

Where an estate is given by will to the survivors of a class to take effect on the death of the testator, the word "survivors" means those living at the death of the testator, but if a particular estate is created, with remainder to the survivors of a class, the word "survivors" means those surviving at the termination of the particular estate.

7. WILLS (§ 634) — CONSTRUCTION — CONTINGENT REMAINDER—"SURVIVING CHILDREN."

Where a will provided that if both of testatrix's daughters, to whom she left the bulk of her estate, should die before marriage, the property should be divided equally among "my surviving children," the quoted words meant those of her children living on the death of both daughters before marriage, and as it was uncertain at the death of testatrix which, if either, of her children would be living at that time, the remainder, if it was a remainder, was contingent.

8. WILLS (§ 602)—WORDS OF INHERITANCE —NECESSITY OF USING.

Under Rev. St. 1899, § 4646 (Ann. St. 1906, p. 2517), providing that words of inheritance are not necessary in a will to create a fee, an estate granted is limited or qualified only by words in the will limiting or qualifying it; hence a will devising property to testatrix's two daughters to have and to hold "as hereinafter stated" created an absolute estate, except as it might be cut down as thereinafter specified, and where the only words limiting the estate were to the effect that if both daughters died before marriage the property was to be divided equally among the surviving children, if either daughter married, the event by which their estate might be cut down could never occur, and their estate would remain absolute.

9. WILLS (§ 622) — CONSTRUCTION — EXECUTORY DEVISE.

A remainder cannot be limited on a fee, even though it be a determinable fee; therefore a devise, to take effect on the determination of a fee created by a will, under which the surviving children of testatrix were to take in case of the death of the devisees without marrying, but which made no provision for the event of the surviving children dying before the devisees, would not be a remainder, but an executory devise.

10. WILLS (§ 625)—EXECUTORY DEVISE.

An executory devise may be contingent not only on the event that is to determine the fee, but also on the being of the person to take when the event occurs.

11. WILLS (§ 622)—REMAINDERS AND EXECUTORY DEVISES DIFFERENTIATED.

One of the distinctions between a remainder and an executory devise is that a remainder follows a particular estate, while an executory devise follows a fee; after a particular estate something remains, after a fee nothing; if there be no remainder to go into effect on the determination of the particular estate, or no one to take the remainder, the fee reverts to the grantor or his heirs; if there be no executory

devise to take effect on the happening of the condition on which the fee was to determine, or no one to take it, the fee is not cut down but remains, unless there is something else in the will to show that the intention of the testator was that the fee should determine absolutely on the happening of the condition, without reference to the devise over.

12. WILLS (§§ 602, 625)—CONSTRUCTION—ESTATE —INTENT—"SURVIVING CHILDREN."

Where the intent of testatrix was to dispose of her whole estate, leaving none of it to be disposed of by the statute of descents, giving it to two of her daughters, but in case they died without marrying then to her "surviving children," she did not intend to cut down the fee on the death of the two daughters. The devise over to the surviving children was the only purpose of the cutting down of the fee, and if that purpose could not be accomplished the fee would not be cut down, but would remain as first given and there would be no reversion; but if there were no children surviving to take the estate the fee remained in the two daughters, and the words "surviving children," when considering the estate over as an executory devise instead of a remainder, mean those children of testatrix surviving the two daughters to whom the estate was first given.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Suit to quiet title under Rev. St. 1899, § 650 (Ann. St. 1906, p. 667), by Nellie P. Sullivan against William McRee Garesche. Decree for plaintiff and defendant appeals. While the cause was pending before the Supreme Court defendant died and Mary T. Garesche, his widow, was appointed guardian ad litem of his minor children, and the cause was revived in their names as appellants. Affirmed.

Jones, Jones, Hocker & Davis, for appellant. Schnurmacher & Rassieur, for respondent.

VALLIANT, J.

Since this cause has been pending in this court the appellant has died, leaving Mary T. Garesche, his widow, and Ferdinand T. Garesche, Marie Elise Garesche, and Eugenie Terese Garesche, his three children, who are minors and his sole heirs at law, and, after due service of scire facias on them, Mary T. Garesche has been appointed and qualified as guardian ad litem of the minor children, and the cause has revived in their names as appellants.

It is a suit to quiet title under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667). The property in question is a lot in block 276 of the city of St. Louis particularly described in the petition. Plaintiff claims to be the absolute owner in fee of the lot. Defendant in his answer claimed an undivided vested interest in the lot under the will of his grandmother, Maria Taylor, or an undivided vested interest in reversion as an heir at law to his grandmother. The decree of the court was that plaintiff was the absolute owner of the whole lot in fee, and that defendant had no interest in it; from that decree defendant appealed.

The title to an undivided one-third of the lot was vested absolutely in Maria Taylor at the time of her death. The other two-thirds interests have been acquired and are now held by the plaintiff. The plaintiff has also acquired and now holds all the interests of all the devisees under the will of Maria Taylor and of her heirs at law, except the interest of the original defendant and appellant, Wm. McRee Garesche, if any he had. The decision of the cause will depend on the construction of the will of Maria Taylor, which, or so much of it as bears on the matter in controversy, is as follows:

"1st. I give and bequeath to my children, Rose, Anna, Lise, Von, and Groff, the sum of one dollar each.

"2nd. All the rest and residue of my property of which I may be possessed at the time of my death, I give and bequeath to my daughers Kate and Julia, in equal parts between them. To have and to hold the same, as hereinafter stated. In case of the marriage or the death of either of my said daughters Kate and Julia, the share of the one marrying or dying shall go to the other.

"In the event of the marriage of both of my said daughters Kate and Julia, said property shall be divided equally among all of my children.

"In the event of the death of both of my said daughters Kate and Julia before marriage, said property shall be divided equally among my surviving children."

All the children of testatrix named in the will, seven in number, were living at her death, and all are now living except the daughter, Lise, who has since died, leaving her only heir the original defendant, Wm. McRee Garesche. Neither of the daughters, Julia and Kate, has yet married.

1. Assuming for the present that it was only a life estate given to the daughters, Kate and Julia, with remainder over, was it a vested or a contingent remainder? There are two events forecast in the...