Talbott v. Hamill
| Decision Date | 03 July 1899 |
| Citation | 52 S.W. 203,151 Mo. 292 |
| Parties | Talbott v. Hamill, Appellant |
| Court | Missouri Supreme Court |
Appeal from Nodaway Circuit Court. -- Hon. C. A. Anthony, Judge.
Reversed.
William C. Ellison for appellant.
(1) In the will under consideration, the word "children" means such children as remain at the parental home and submit themselves to parental control, and the words "for a home for her and my children," at most, limit the life estate in the widow to a use for a home, only so long as the children are under parental care and continue to reside on the "home farm." (2) Whatever construction may be adopted, it is quite certain the plaintiff, being twenty-six years old, and having abandoned the farm as a home for six years before he commenced his suit, the interest he took under the provisions of the will has long since expired and not until the death of the mother, can he assert any right. 1 Perry on Trusts (4 Ed.), sec. 118.
Growney & Growney and J. B. Newman for respondent.
(1) By the clause of the will in question, no active duties were required of the wife, and the use or trust implied was simple or passive and vested the estate conveyed in the cestuis que trust as a class, as tenants in common during the life of the widow. R. S. 1889, sec. 8833; Perry on Trusts (4 Ed.), secs 298 and 306; 2 Minors' Institutes, secs. 180, 962 and 963; 27 Am. and Eng. Enc. Law, pp. 107, 108, 117, 118, 124 910 and 911; Fleming v. Ray, 12 S.E. 944. (2) A passive trust or use, where the trustee has no active duty imposed on him, is executed by the statute of uses. Bowman v. Long, 26 Ga. 142; Simonds v Simonds, 112 Mass. 157; Tappan's Appeal, 55 N.H. 317; Witham v. Brooner, 63 Ill. 344; Riehl v. Bingenheimer, 28 Wis. 84; O'Riley v. McKiernan, 13 S.W. 360; Pugh v. Hayes, 113 Mo. 424, 432; 3 Jarman on Wills (5 Am. Ed.), pp. 56 and 57. (3) Even if it were conceded that an active trust was created by the will and active duties assigned the wife to maintain a home for herself and testator's children, yet when the widow married and moved to Ohio to live, and sold the "home farm" and put a stranger in the actual and adverse possession, hostile to testator's children, the trust would cease and terminate and the estate become vested in wife and children as tenants in common, during life of widow. Perry on Trusts, secs. 259, 260 and 920; Colton v. Colton, 6 Am. Prob. Rep. 11; Major v. Herndon, 78 Ky. 123; 27 Am. and Eng. Ency. of Law, 119 and 124. (4) In construing the clause of the will in question, the intention of the testator shall control, as the same may be gathered from the whole instrument, the subject-matter and the surrounding circumstances. R. S. 1889, sec. 8916; 2 Minor's Institutes, pp. 962 and 963; Hall v. Stephens, 65 Mo. 677; Small v. Field, 102 Mo. 104, 122; Nichols v. Boswell, 103 Mo. 151; Long v. Timms, 107 Mo. 512, 519; Murphy v. Calin, 113 Mo. 117.
This is an action of ejectment by plaintiff to recover the possession of an undivided tenth part of a large tract of land in Nodaway county, of which plaintiff's father, Dr. Perry H. Talbott, was the owner, and upon which he and his wife and children resided at the time of his death in October, 1880.
The petition is in the usual form and the answer a general denial. The case was tried to the court, a jury being waived. Plaintiff recovered judgment for one undivided twelfth interest in the land, and $ 820 damages. Defendant appeals.
Plaintiff is one of the children and heirs at law of Perry H. Talbott and claims title to the land in question under the provisions of a will duly executed by his father on the 18th day of September, 1880. The provisions of the will bearing upon the issues involved in this litigation are as follows:
Some seven or eight years after the death of Perry H. Talbott, his widow, the mother of plaintiff, married a man by the name of Draper, and moved to Ohio where she has since resided. When she left the farm all of the Talbott children were married except two, viz., Cicero and John, the plaintiff, and all of them had left home except these two who were then minors.
In 1890 the defendant acquired by purchase the interest of the widow and all of the children who were then of age, the plaintiff retaining his interest derived from the will of his father, and for which he prosecutes this suit.
Defendant asked and the court refused to declare the law to be as follows:
1. The court, sitting as a jury, declares the law to be that by the will in evidence, the widow of deceased is now seized of a life estate, and the plaintiff is not entitled to recover.
2. The court declares that under the evidence, plaintiff is not entitled to recover.
3. The court declares the law to be that under the will in evidence, the life estate is vested in the widow, subject to a trust in the will raised, and the plaintiff is not entitled to recover in this action.
The question is, can the plaintiff, under the provisions of the will, recover, during the lifetime of his mother, the interest in the land devised to him by the will against defendant who acquired title from her?
It is clear that by the provisions of the will Mrs. Talbott took a life estate in the land, and unless that estate is made conditional upon its use as a homestead by her and her children, by the words, "for a home for her and my children," plaintiff is not entitled to recover in this action nor will he be during her lifetime. These words do not, we think, qualify the estate, nor was it forfeited because of the fact that she ceased to occupy it as a home for her and her children, or because of the fact that she sold and conveyed her interest therein to the defendant. She was not obliged at the risk of forfeiting her life estate in the land, to occupy it as a home for her and her children, but the words quoted, were only expressive of the wishes of the testator, and in no way imposed as a condition to the life estate granted to Mrs. Talbott, the occupancy of the land by her.
In discussing a similar subject in 1 Jarman on Wills (5 Am. Ed.), p. 694, it is said: [which is the case here after the children married and left], "he can claim the gift without applying it to the purpose, and that, it is conceived, whether the purpose be in terms obligatory or not."
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