Tallent v. Fitzpatrick

• Citation: 161 S.W. 689,253 Mo. 10
• Parties: TALLENT v. FITZPATRICK et al.
• Decision Date: 06 December 1913
• Court: United States State Supreme Court of Missouri

161 S.W. 689

253 Mo. 10

TALLENT v. FITZPATRICK et al.

Supreme Court of Missouri, Division No. 1.

December 6, 1913.

WILLS (§ 693)—CONSTRUCTION OF POWERS— POWER OF DISPOSITION.

A will gave all the testator's property to his wife for life with remainder to his five children, and gave his wife power to sell and convey any of the real estate that she might think best and to her best interest. He left a city lot worth about $5,000, which a few days after his death and after being advised that she could dispose of the property as she saw fit, the wife conveyed to two of the children by deeds, each reciting a consideration of $1,000. No money was paid at the time. One of them claimed that she rendered care and assistance to her mother and surrendered a note for $300 executed by her father. The other grantee claimed that he gave his mother $200 after his father's death, and that he paid $150 for medical attention and funeral expenses of the father, and that he rendered some other financial assistance. The wife received the rent for both lots during her lifetime amounting to $16 per month, which apparently was her only means of subsistence aside from her own labor. Held, that the wife had no power to make such conveyances under the circumstances.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Theresa Tallent against Louisa Fitzpatrick and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

See, also, 132 S. W. 17.

John Kaiser died on the 24th of June 1899, having first made and published the following will:

"I, John Kaiser, of St. Joseph, Buchanan County, Missouri, being of sound mind and memory, and considering the uncertainty of this frail and transitory life, do hereby make and publish this my last will and testament, hereby revoking any and all former wills by me at any time heretofore made.

"First—I give, bequeath and devise to my beloved wife, Margaret Kaiser, all my estate and property, real, personal and mixed, with which I may be possessed or that I shall in any wise be entitled to at the time of my death, providing and it is my will that all my just debts be first paid, to have and to hold and enjoy the same during the full term of her natural life, according to her own free will and pleasure without let or hindrance from anyone, with full power to sell at any time any or all of my real estate and convey the same by good and lawful deeds of conveyance at any time that she may think best, and to her best interest.

"Second—It is my will and I direct that my estate remaining at the death of my wife shall be equally divided between my children as hereafter named, or to their children, to-wit: First, Anna Bertha, wife of Gustave Kaiser; second, Louisa, wife of John Fitzpatrick; third, Alice Josephine, wife of Fred Sturmer; fourth, Theresa, wife of August Angst, and fifth, John M. Kaiser, each of said children share and share alike.

"Third—It is further my will and I request that my wife, Margaret Kaiser, act as the first executrix of this will and further that she be not required to give any bond as such executrix and that she be required to give no other account of said estate than are necessary to secure the rights of creditors.

"In witness whereof, I have hereunto set my hand and seal this 10th day of June, 1889. "John Kaiser. [Seal.]"

At the time of his death, his children and wife mentioned in the will survived. He left little personal estate, but was the owner of a city lot of ground in St. Joseph, Mo., whereon three houses were erected. Six days after his decease, his widow executed and delivered two warranty deeds, one in favor of Mrs. Louisa Fitzpatrick, and the other to John M. Kaiser, each conveying one-half of said lot and each alleging a consideration of $1,000. Both of the grantees in said deed were the children of the testator and mentioned in said will. Mrs. Fitzpatrick had resided in the house on the portion of the lot granted to her before the death of her father, and continued to reside thereon until the death of her mother on the 5th day of March, 1909, and paid $8 per month rent during her occupancy of said lot. This sum, and an equal amount received by the mother for rent of the lot deeded to John M. Kaiser, seems to have been the only means of subsistence, aside from her own labor, which the widow had until her death. After the death of the widow, Theresa Tallent Angst brought this suit to avoid said deeds, on the ground that they were gifts instead of sales, and therefore beyond the power of the widow under the terms of the above will. Mrs. Fitzpatrick did not otherwise pay any money for the deed to herself, except that she testified that she rendered care and assistance to her mother while she lived, and surrendered a note for $300 executed to her husband by her father. Neither did John M. Kaiser pay anything in money for the deed to himself, but the evidence shows that after his father's death, he gave his mother $200, and paid $150 during his father's lifetime for medical attention and funeral expenses, and that he rendered him some other financial assistance.

Mrs. Fitzpatrick testified that she did not intend to present any claim against her father's estate, nor was any presented by her codefendant John M. Kaiser. The evidence shows that the lots in question were worth from $4,250 to $5,000; that when her husband died the widow received from fraternal orders about $250. At the conclusion of the trial, the court rendered the judgment annulling the two deeds from which defendants have prosecuted this appeal.

Brewster, Ferrell & Mayer, of St. Joseph, for appellants. John S. Boyer, of St. Joseph, for respondent.

BOND, J. (after stating the facts as above).

The decisive question in this case is the effect of the terms of the will in granting estates to the devisees therein, and giving power of disposal to the life tenant. In clear and positive terms the testator made two devises of his property: First, the estate to his widow during the full term of her natural life; second, remainders in fee to his five children by name; third, the testator gave the widow power to sell and make valid conveyances of his real estate "at any time she may think best and to her best interest." In the construction of such wills, the rule is fixed that the donee of the power can only exercise it in the precise form in which it is given. Washburn on Real Property (5th Ed.) vol. 2, p. 707; Garland v. Smith, 164 Mo. loc. cit. 15, 64 S. W. 188; Dougherty v. Dougherty, 204 Mo. loc. cit. 235, 102 S. W. 1099; Burnet v. Burnet, 244 Mo. loc. cit. 505, 148 S. W. 872. The reason of this is that the remainder devised shall not be defeated except by the terms of the will creating it; for when a remainder is expressly devised in fee, and the testator goes farther and...