Tapley v. Dill
| Decision Date | 14 February 1949 |
| Docket Number | 40421 |
| Parties | Arthur Tapley, William J. Tapley, Enoch A. Tapley, Etta Dowell, Willie T. Tapley, Volney B. Tapley, Elsie Conrad, Edna Barnard, Jessie B. Tapley, Arthur D. Tapley and Elmer Tapley, Plaintiffs, v. Caroline M. Dill, (Defendant) Respondent, Mary H. Tapley, (Defendant) Appellant, Jennie Jackson, Myrtle Harwell, Annie Irvine, Corinne Modrall, Frank Sawell, Amye Johnson Guyther, Harold Johnson, Bessie Johnson Bowles, Wharton Johnson, Fred A. Johnson, Jr., Norman Johnson, Harold K. Johnson, Eleanor Labeaume Gorwood, Annie Wright Marialle, Charlotte Kilchriste, Ruth Askew, Henry Wright, Gus Wright, Lonnie McKee and Virginia Mitchell, Defendants |
| Court | Missouri Supreme Court |
Appeal from Ralls Circuit Court; Hon. Roy B. Meriwether Judge.
Reversed and remanded (with directions).
Robert L. Motley and Roy Hamlin for appellant.
(1) This court has been very liberal in making and establishing rules of law to be invoked in effecting and carrying out the intention of testators, even to the extent of supplying words, transposing or changing words, and sometimes transposing sentences. Nichols v. Boswell, 15 S.W 343, 103 Mo. 151; Simmons v. Cabanne, 76 S.W. 618 177 Mo. 336; Robards v. Brown, 67 S.W. 245, 167 Mo. 447; Meiners v. Meiners, 78 S.W. 795, 179 Mo. 614. Eckle v. Ryland, 165 S.W. 1035, 256 Mo. 424. (2) Where a fee simple in real estate is devised to one, but is to determine on some future event and the entire estate thereupon to go over to another, it is an executory devise. Hull v. Calvert, 226 S.W. 553; Deacon v. St. Louis Union Trust, 197 S.W. 261, 271 Mo. 669; First Presbyterian Church v. Lynott, 78 S.W.2d 396; Dunbar v. Sims, 283 Mo. 356, 222 S.W. 838. (3) The law favors vested estate and when there is a doubt as to whether the remainder under will is vested or contingent, the court will construe it as vested. Legg v. Wagner, 155 S.W.2d 146; Riley v. Kirk, 253 S.W. 50, 213 Mo.App. 381. (4) A will speaks as of testator's death. Legg v. Wagner, 155 S.W.2d 146. (5) If there is any doubt as to whether an estate is vested or contingent, the court will construe it as vested. Riley v. Kirk, 253 S.W. 50, 213 Mo.App. 381; Legg v. Wagner, 155 S.W.2d 146. (6) The intention of the testator in a will is presumed to be to prevent lapse of devise or legacy. Palmer v. French, 32 S.W.2d 591, 326 Mo. 710.
Rendlen, White & Rendlen and D. M. Stout for certain defendants-respondents; Carstarphen & Harvey for plaintiffs-respondents.
(1) Joe Tapley personally only had a contingent remainder in the lands in suit. A Contingent Remainder is one whose vesting or taking effect in interest is by the terms of its creation, made to depend on same contingency which may never happen at all, or may never happen within a requisite or prescribed time, by reason whereof its capacity of vesting or taking effect in interest may be forever defeated. Eckles et al. v. Ryland et al., 256 Mo. 424, 165 S.W. 1035; 2 Washburn on Real Property, 5th Ed. 608; Cases under Point (2) hereof; 2 Bouvier's Law Dictionary, 869 on Remainders. (2) Aside from his title and powers as trustee, the only right that Joe Tapley ever had in or to the lands in suit was a contingent remainder. It never became a vested fixed interest in him. Having predeceased the life tenants, Joe Tapley's contingent remainder fell in, and his wife, appellant, took no right to the lands in suit under Joe Tapley's will. Eckle v. Ryland, 256 Mo. 424, 165 S.W. 1035; Tevis v. Tevis, 259 Mo. 19, 167 S.W. 1003; Norman v. Horton, 344 Mo. 290, 126 S.W.2d 187; Dickerson v. Dickerson, 211 Mo. l.c. 490, 110 S.W. 700; LaVaulx v. McDonald, 190 S.W. 604; Becker v. Anchor Realty & Inv. Co., 71 F.2d 355; Grimes v. Rush, 355 Mo. 573, 197 S.W.2d 310. (3) There is no ambiguity or contradiction in the terms or words employed in this will to warrant or require the court to transpose words or sentences or to add or take from the same. The words and terms being definite and clear, complete, plain and unequivocal, the court must enforce the will as written and give the language its legal and rightful ordinary meaning. LaVaulx v. McDonald, 190 S.W. 604; Eckle v. Ryland, 256 Mo. 424, 165 S.W. 1035; Crowson v. Crowson, 323 Mo. 633, 19 S.W.2d l. c. 636. (4) It is not the province of the court to make a will nor to change the ordinary or legal meaning of the words used therein. LaVaulx v. McDonald, 190 S.W. 604. (5) The language of the will being plain, unambiguous and unequivocal, the court cannot give it a different meaning, for the purpose of carrying into effect a conjecture or hypothesis of the testator's intention by supplying, rejecting or transposing words or phrases. It is not the province of the court to make a will or to change the ordinary meaning of the words used therein. The court must ascertain from the will what the testator meant by the words he actually used and enforce the will as so written. Crowson v. Crowson, 323 Mo. 633, 19 S.W.2d l.c. 637. (6) Regard is always had for natural descent and blood relation. Wiggins v. Perry, 271 S.W. 815; Dolbeare v. Dolbeare, 117 A.L.R. 687; Wright v. Dean, 6 L.Ed. 303, 10 Wheat. 204; Watson v. Watson, 110 Mo. 164; Dwyer v. St. Louis Union Trust Co., 286 Mo. 481, 228 S.W. 1068.
Bohling, C. Westhues and Barrett, CC., concur.
Arthur Tapley and other collateral heirs of Valentine Tapley instituted this action against Mary H. Tapley, Caroline M. Dill and others to quiet and determine title to approximately 580 acres of land in Pike county, Missouri, and for partition. A change of venue was taken to the Ralls county circuit court. At the time the suit was instituted plaintiffs had information Caroline M. Dill was dead. After a trial to the court without a jury, the title was adjudged in Caroline M. Dill as sole owner in fee. Mary H. Tapley prosecutes this appeal. The case pivots upon the provisions of two active testamentary trusts created by Valentine Tapley, the common source of title. The material facts follow:
Valentine Tapley died in April, 1910. His son, Joe Tapley, and three grandchildren, to wit: Caroline M. Dill, Harry R. Mitchell and Mary R. Mitchell, children of his deceased daughter Rebecca Tapley Mitchell, survived him. He bequeathed and devised one-half of his estate, real and personal, to his son. He bequeathed to his granddaughter Caroline M. Dill (designated Caroline R. Dill in his will) $ 100. The next two paragraphs of his will are here involved. Each created a trust estate in one-fourth of his estate, real and personal, less $ 50 (one-half of the bequest to Caroline M. Dill), in Joe Tapley, as trustee, for the benefit of Harry R. Mitchell and Mary R. Mitchell, respectively, for life and then to their respective bodily heirs or, if none, to his son, Joe Tapley, viz.:
Testator also directed Joe Tapley to take specific real estate at a value of $ 11,150.75 as part of the property given to him, and specific real estate as testamentary trustee for each of the testamentary trusts quoted supra and placed a value on each of $ 6,000. The will did not have a residuary clause.
Joe Tapley died June 28, 1915, without descendants and testate. He bequeathed and devised his estate, real and personal, to his widow, Mary H. Tapley, appellant here. Mary H. Tapley was appointed successor trustee and administered the trust estates.
Mary R. Mitchell died July 5, 1921, without bodily heirs and intestate.
Harry R. Mitchell died November 10, 1944, without bodily heirs and intestate.
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