Tevis v. Tevis

• Citation: 259 Mo. 19,167 S.W. 1003
• Decision Date: 02 June 1914
• Docket Number: No. 16710.,16710.
• Parties: TEVIS et al. v. TEVIS et al.
• Court: United States State Supreme Court of Missouri

167 S.W. 1003

259 Mo. 19

TEVIS et al. v. TEVIS et al.

No. 16710.

Supreme Court of Missouri, Division No. 1.

June 2, 1914.

1. TRIAL (§ 386)—INSTRUCTIONS—AVAILABILITY.

Instructions are not only out of place in a lawsuit tried to the court without a jury, on an agreed case, but serve no useful office in equity.

2. APPEAL AND ERROR (§ 894)—EXCEPTIONS—SUFFICIENCY.

Exceptions challenging a decree, in that it did not do equity and was contrary to the evidence, were sufficient to entitle defendants, seeking the same, to a hearing de novo on the merits on appeal.

3. SPECIFIC PERFORMANCE (§ 97)—TENDER—NECESSITY—WAIVER.

Where, in a suit for specific performance of an option to purchase certain land under a will, the petition alleged that plaintiff had notified defendants of his election to accept the option, and offered to pay the money required, but defendants refused to accept the same or to convey the land to plaintiff, and defendants' answer constituted a repudiation of plaintiff's interpretation of the will denying his right to purchase, and at the trial plaintiff paid the amount required into court, a tender before suit brought was waived.

4. WILLS (§ 858)—CONSTRUCTION—PROPERTY SPECIFICALLY DEVISED.

Testator bequeathed one half of a tract of land to plaintiff, his son, with the right to the use of the other half during the life of testator's other son, J., subject to a charge or annuity in J.'s favor of $288, providing that, upon the death of J., plaintiff or his heirs should have the right to purchase such other half for $2,400, which sum, or, in case plaintiff or his heirs elected not to purchase, then such undivided half interest, should vest in the heirs of J.'s body, or, if none, the money or undivided interest in the land should pass to testator's heirs at law. Testator thereafter provided for the equalization of certain advancements, and then directed that all the property except that "herein before specifically devised" should be divided between four of his children specified. Held, that the provision for the disposition of J.'s share of the real estate so devised was not contradictory, repugnant, or uncertain, but constituted real property "specifically devised," and hence the remainder could not pass under the residuary clause.

5. WILLS (§ 506) — CONSTRUCTION — "HEIRS AT LAW."

Where testator devised to plaintiff, his son, the use of an undivided half interest in certain land during the life of J., subject to an annuity charge in favor of J., and on J.'s death conferred on plaintiff the right to purchase such half interest for a specified sum, the money or land on J.'s death to vest in the heirs of his body, or, if none, then in testator's heirs at law, the term "heirs at law" included all others who after their ancestor's death were entitled to inherit all lands, tenements, and hereditaments belonging to him or of which he was seised, and hence plaintiff was entitled to share in the distribution of the purchase price of such interest on his election to purchase on J.'s death, without heirs of his body.

6. WILLS (§ 634)—CONSTRUCTION—CONTINGENT REMAINDER—DISPOSITION.

The persons who were to take on the contingency of J. dying without heirs of his body could not be determined until J.'s death, and hence such interest was a mere contingent interest which was not devisable prior to that event.

Appeal from Circuit Court, Cooper County; John M. Williams, Judge.

Suit by Nestor C. Tevis, revived after his death in the name of Robert S. Tevis, his administrator, and others, against Jeremiah H. Tevis, and others. From a decree in favor of complainant, defendants, other than Bledsoe McCrosky appeal. Reversed and remanded, with directions.

H. C. Wallace, of Lexington, for appellants. John Cosgrove and W. M. Williams, both of Boonville, for respondents.

LAMM, J.

Equity. This is a suit by Nestor C. Tevis to divest title to certain land out of defendants on the payment of purchase money in accordance with a will, and to vest title in plaintiff, and for distribution of that money. From a decree granting the relief prayed in plaintiff's bill, defendants (barring Bledsoe McCrosky, who rested content) appealed. Pending that appeal, plaintiff died, and on apt steps the cause stands revived in the names of his administrator, Robert S. Tevis, and his heirs, Julia A., Lillie M., Simeon P., and said Robert S. Tevis. Those names are read into the caption as respondents, but for convenience we speak of the original plaintiff as respondent. It is conceded the proper parties are before the court; hence their several relationships to each other and several interests in the subject-matter (all set forth in the pleadings on both sides) are unimportant. In small compass, the case is this: In 1893 one Simeon P. Tevis died in Cooper county seised of the land in question situate in that county and leaving a will. As the case turns on that will, attend to it:

"I, Simeon P. Tevis, of the county of Cooper in the state of Missouri, hereby revoking all former wills and codicils by me made, do make, publish and declare my last will and testament in manner following, that is to say:

Item First. I direct that all my just debts and funeral expenses be paid by my executor as soon after my death as the same can be legally done.

Item Second. I give and devise unto my son Nestor C. Tevis, an undivided one-half of the following described real estate situate in Cooper county, Missouri: The west half of the southwest quarter and the west half of the east half of the southwest quarter of section twenty-three, and the west half of the northwest quarter and the northeast quarter of the northwest quarter of section twenty-six (26) all in township forty-seven (47) of range seventeen (17), my said son Nestor C. Tevis to have the same absolutely. It is further my will and I hereby direct that my said son Nestor C. Tevis, his heirs or assigns shall have the use of the remaining half during the lifetime of my son John Tevis, and my said son Nestor C. Tevis, his heirs or the persons holding under him shall pay annually, beginning at the expiration of one year from my death the sum of two hundred and eighty-eight ($288.00) dollars to my said son John Tevis, and I hereby charge the said annual payments as a lien upon said lands. These payments shall be continued during the lifetime of my son John Tevis. Upon the death of my son John Tevis, my son Nestor C. Tevis, or his heirs shall have the right to purchase said undivided half of the aforesaid land for the sum of twenty-four hundred ($2,400.00) dollars, which sum of money or in case said Nestor C. Tevis or his heirs shall elect not to purchase the land, then said undivided half interest shall vest in the heirs of the body of said John Tevis, and if there shall be no heirs of his body then living, the money or the undivided interest in the land shall pass to and vest in my heirs at law.

"Item Third. I charge my other children with the following advancements, that is to say, Daniel Tevis eight hundred and fifty ($850.00) dollars, Anna McCrosky fifteen hundred and fifty ($1,550.00) dollars, and in this sum is included one thousand dollars which I have this day sent her, and my grandchild Emma Hubbard, for advancements to her and her mother five hundred and fifty ($550.00) dollars. I hereby direct that each of the four persons last named be first made equal out of my estate, paying to Daniel, Emma Hubbard, and Jeremiah respectively a sufficient amount to make them equal with the amount advanced to Anna McCrosky, and after this is done I direct that all of my property, real, personal and mixed, except that hereinbefore specifically devised, be divided equally between the said Daniel Tevis, Emma Hubbard, Jeremiah Tevis and Anna McCrosky.

"Item Fourth. I hereby nominate and appoint my friend Charles T. Leonard executor of this my last will and testament, and I hereby authorize my said executor to sell and convey any and all of my real estate and to dispose of the proceeds as hereinbefore directed.

"In witness whereof I have hereto set my hand this 8th day of January, 1891."

Plaintiff is testator's son, the Nestor C. mentioned in item 2 of the will as devisee of a one half interest in the land described in that item. The other half is the subject-matter of this suit. Testator's son John mentioned in that item, died in 1910 unmarried and without heirs of his body surviving him, having received each year from plaintiff the annuity of $288 charged in his favor upon that land by the will. On John's death, Nestor C. (having had the use of the land during John's lifetime as directed by the will) invoked the right created by the will to have the one-half interest so used by (but not devised to) him at and for the will-fixed sum of $2,400. Having so elected to purchase, plaintiff brought the instant suit to divest title out of defendants and vest title to the said undivided one-half interest in him, bringing the money into court for distribution, and, inter alia, alleging that under the terms of the will he was entitled to share with the other heirs, devisees, etc., in that money.

The petition counting, as it does, on item 2 of the will and compliance with its terms, whereby plaintiff alleges an election to purchase, a right to share in the purchase money and to have title vested out of defendants and into him, its averments are sufficient to have granted the relief prayed for, if a sound interpretation of the will permit it; hence a reproduction of the entire petition is unnecessary to an understanding of the case.

The answer of defendant McCrosky is not abstracted. The answer of the appealing defendants, after making certain admissions and denials, sets forth the entire will and by averment puts a construction on it contra to that of the petition, to wit, that the provision of item 2, beginning with the words "upon the death of my son John Tevis" and ending with the words "vest in my heirs at...