Tebow v. Dougherty

• Decision Date: 29 June 1907
• Parties: TEBOW v. DOUGHERTY et al.
• Court: Missouri Supreme Court

103 S.W. 985

205 Mo. 315

TEBOW v. DOUGHERTY et al.

Supreme Court of Missouri, Division No. 1.

June 29, 1907.

1. WILLS — CONSTRUCTION — ESTATE DEVISED — PRESUMPTION.

In the construction of a will, it is presumed that testator intended to dispose of his entire estate and not to carve out a particular estate and dispose of that, leaving the remainder to descend to his heirs according to the statutes of descent and distribution.

2. SAME — BASE FEES.

Testator first devised to his wife and her heirs one half of all his property to hold, use, and manage during her life, remainder to testator's son, if he survived her. Testator then devised to the son and his heirs the other half of the property to have, hold, use, and manage in his discretion "during his natural life," and in case the wife survived the son at his death the property so devised to him should belong to her. Held that, under Rev. St. 1879, § 4008, requiring all courts concerned in the execution of wills to have due regard to the directions of the will and the true intent of the testator, the will should be construed as giving to the widow and son each a free-hold estate for the life of the one who might first die, with cross-determinable fees in remainder; the one to be enlarged into a fee simple in the survivor.

Appeal from Circuit Court, Nodaway County; J. W. Alexander, Special Judge.

Suit by Isaac E. Tebow against Sylvester Dougherty and others. From a judgment for plaintiff, defendants appeal. Affirmed.

This action was instituted by the respondent in the circuit court of Nodaway county against the appellants, seeking to quiet title and to ascertain and determine the rights and interest of the parties to the land in controversy, which necessitates the construction of the last will and testament of William W. Dougherty, deceased. The pleadings were in proper form, and the cause was tried and submitted to the court upon the following agreed statement of facts:

"First. That on the 30th day of May, 1876, William W. Dougherty, a citizen of Nodaway county, duly made and executed as his last will and testament the following:

"`I, William W. Dougherty, of the town of Graham, in the county of Nodaway and state of Missouri, being of sound mind, do make and publish this my last will and testament.

"`I give, devise and bequeath my estate and property, real, personal or mixed, as follows, that is to say: After the payment of all my just debts and funeral expenses, I. give, devise and bequeath to my beloved wife, Lucetta I. Dougherty, and to her heirs, one-half of my property, real, personal or mixed, to have, hold, control, use and manage as she may see fit and proper during her natural life; and should my beloved son, Sylvester S. Dougherty, survive her, at her death the property, real and personal, undisposed of shall belong to him.

"`I give, devise and bequeath unto my said son, Sylvester S. Dougherty, and unto his heirs, one-half of my property, real, personal and mixed, to have, hold, control, use and manage as he may see fit and proper during his natural life; and should my beloved wife, Lucetta I. Dougherty, survive him, at his death the property, real and personal, undisposed of shall belong to her.

"`I appoint my beloved wife, Lucetta I. Dougherty, and my son, Sylvester S. Dougherty, of Graham, Nodaway county, Missouri, executrix and executor of this my last will and testament.'

"Second. That said William W. Dougherty departed this life in said Nodaway county while said will was in full force and effect as his last will and testament on the 7th day of August, 1876.

"Third. That said will was duly proved and admitted to probate and established as the last will and testament of said deceased in and by the judgment of the probate court of said county on the 15th of August, 1876.

"Fourth. That Lucetta I. Dougherty, the widow, and Sylvester S. Dougherty, the only child, of said testator, were duly appointed as executrix and executor of said will by said probate court and qualified as such and fully administered said estate, and the same has now been fully settled and said executrix and executor finally discharged without disposing of any part of the lands belonging to the deceased in the administration of the estate.

"Fifth. That at the time the will was made, and at the time of the death of the testator, he was the owner in fee and in possession of the lands described in the petition in this cause, and in addition thereto a large body of land, consisting of 540 acres lying in a body in said county; that said lands were improved and occupied and used by said testator and his family.

"Sixth. That said testator also owned and possessed personal property and effects of such value as the appraisement and inventory on file in the probate court may show, which are hereby considered a part of the evidence in this cause. (Here insert said appraisement and inventory.)

"Seventh. That the testator owned at the time of his death, as shown by the demands proven and allowed against the estate, the sum of $ ___, and in this connection the records of the probate court on that subject are hereby considered in testimony.

"Eighth. That at the time of the testator's death he left surviving Lucetta I. Dougherty, as his widow, and the defendant, Sylvester S. Dougherty, as his only child and her only child, and the said Lucetta I. Dougherty, the widow, departed this life on the ___ day of ___ 1890, leaving said Sylvester S. Dougherty, the defendant, as her only child and heir surviving her.

"Ninth. That on the 20th day of December, 1883, the said Lucetta I. Dougherty and the said Sylvester S. Dougherty executed to one Humphrey Lyle and Robert Lyle a deed in the form of a general warranty deed, which undertook and purported to convey to the said grantees the real estate described therein, which is the same as that set forth and described in the petition, which belonged to and was a part of the real estate of the said William W. Dougherty, deceased, at the time of his death, and which the said Lucetta I. Dougherty and Sylvester S. Dougherty claimed to own as devisees under said will.

"Tenth. That said Sylvester S. Dougherty was on the ___ day of___ 18 __, married to the defendants Annie M. Dougherty, and the defendants William Dougherty, Arthur Dougherty, Clement Dougherty, and May Dougherty are the only children and heirs of said Sylvester and Annie M., and that said Sylvester is still living.

"Eleventh. That said defendants Arthur, Clement, and May Dougherty are infants, under the age of majority, and H. S. Kelley was appointed by the court guardian ad litem, who filed a joint answer for said infants and for said defendant William Dougherty.

"Twelfth. It is further admitted that by mesne conveyances in due form the plaintiff obtained such title to the lands described in the petition as was conveyed to Humphrey Lyle and Robert Lyle by the aforesaid deed to them from Lucetta I. Dougherty and Sylvester S. Dougherty.

"Thirteenth. It is further admitted that the defendant children of the said Sylvester and Annie M. Dougherty are now claiming to own and have an interest in the real estate described in the petition under and by virtue of the provisions of said will."

The cause was by the court taken under advisement until the November term, 1904, at which time it found for the plaintiff and rendered judgment accordingly. In due time defendants filed their motions for a new trial and in arrest of judgment, each of which was by the court overruled, to which action of the court the defendants duly excepted and timely appealed the cause to this court.

H. S. Kelley, for appellant. George Robb Ellison, for respondent.

WOODSON, J. (after stating the facts).

There is but one question presented by this record, and that is one of law. The contention of the appellants is this, that the will gave to the widow and son each a life estate in the one half of the property of the testator, and a contingent remainder in and to the other half, and when the contingency failed the heirs of the life tenant took the remainder in fee; while, upon the other hand, the respondent contends that the will disposed of the entire estate and gave to the widow and to the son each a base fee in an undivided one-half thereof, with a provision in the will that the estate so devised to each should terminate and be divested from the one who died first, and transferred to and invested in the survivor, and the widow having died first, the devise to her was by her death terminated, and, by the terms of the will, transferred and vested in the son in fee simple, and as the happening of the contingency, which might have terminated his estate, has become impossible by the death of the widow, he then took the land devised to her, at her death discharged of the contingency, and became the owner of an absolute fee-simple title thereto, instead of a base fee, which he owned prior to her death, and that his warranty deed of December 20, 1883, conveyed to the Lyles a perfect title in fee to the half interest so devised in the first instance to her and then to him by a conditional limitation.

In the construction of a will, the paramount question with the court always is, what disposition did the testator intend to make of his property? That intention should be the court's guiding star and should not be lost sight of for a moment while construing his will. In order to throw light upon his intention, we have the right to look at the conditions and circumstances surrounding the testator at the time he executed the will in conjunction with the provisions of the will itself. The testator, William W. Dougherty, died seized in fee...