Thomas v. Thomas

• Decision Date: 09 May 1899
• Citation: 149 Mo. 426,51 S.W. 111
• Parties: THOMAS v. THOMAS et al.
• Court: Missouri Supreme Court

51 S.W. 111

149 Mo. 426

THOMAS v. THOMAS et al.

Supreme Court of Missouri, Division No. 2.

May 9, 1899.

WILLS — CONSTRUCTION.

A testator gave to the six children of his son then living, to be paid to each on reaching majority, an undivided one-third of the residue of his estate, and provided that, should any of them die unmarried and without issue, or any other children be born to his son, all of his son's children should divide the third equally. Held, that distribution should be made only to the son's children living when the eldest became of age.

Appeal from circuit court, Adair county; Andrew Ellison, Judge.

Action by Hezekiah H. Thomas, a minor, by David N. Thomas, his curator, against Eugene D., Ellen M., and Vida V. Thomas, and Elizabeth Thomas, guardian and curator of Edna, Milton, and Ethel Thomas, minors. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

O. D. Jones, for appellant. H. F. Millan and Campbell & Goode, for respondents.

GANTT, J.

This is an appeal from a judgment sustaining a demurrer to plaintiff's petition, which was filed in the circuit court of Adair county January 5, 1897. The petition is as follows: "Plaintiff, for his amended petition, states that he is an infant under the age of twenty-one years, and that David Nelson Thomas has been by the probate court of Adair county, Missouri, duly appointed curator of his estate, and is legally qualified as such, and that the said David Nelson Thomas is his father, and is also the father of defendants; that defendants Edna Thomas, Milton Thomas, and Ethel Thomas are infants; and that Elizabeth Thomas has been by the probate court of Adair county, Missouri, duly appointed curator of their estates, and is legally qualified as such. Plaintiff, for his cause of action, says that on or about August 10, 1885, his paternal grandfather, John Thomas, departed this life, in the state of California, testate, leaving his last will and testament, bearing date of July 4, 1882; the instrument bearing date thereto attached, and marked `Exhibit A,' which said instrument is made a part of this petition. Plaintiff says that said will was admitted to probate in the supreme court of Los Angeles county, state of California, and letters testamentary, with will annexed, were granted to Milton Thomas and H. S. Parcels, of Los Angeles county, California. Plaintiff says that the clause in said will is as follows, to wit: `I have heretofore given large amount to each of my children, and consider it advisable to leave the balance of my estate to my relatives and descendants hereinafter named, to be paid to each upon his or her reaching his or her majority.' An after clause in said will is as follows, to wit: `I give to the six children of my son David Nelson Thomas and his wife, Elizabeth, one undivided one-third of the residue of my estate. Should any of these children die unmarried and without issue, or any other children be born to my said son, I will that all of his children divide equally, share and share alike, the said one-third of my estate.' Plaintiff says that distribution and partition of the estate of the said John Thomas has been made, but without any provision being made for carrying out the trust created by said will, or preserving and protecting the property of said estate. Plaintiff states that five of the defendants, to wit, Eugene D. Thomas, Ella M. Thomas, Vida Thomas, Edna Thomas, and Milton Thomas, were living at the date of the execution of said will, and were a part of the six children of David Nelson Thomas referred to in said will; that Ethel Thomas, one of the defendants, was born after the execution of said will; that Nelson Thomas, one of the children of David Nelson Thomas living at the execution of said will, died on or about July ____, 1885; that plaintiff has been born since the execution of said will, and since the distribution and partition of said estate, to wit, on the ____ day of ____, 1896. Plaintiff says that at the date of the execution of said will, the said David Nelson Thomas was forty-five years of age; that Milton Thomas, son of testator, was sixty years of age; that Sarah Ellen Parcels, daughter of testator, had departed this life, she having died before the execution of said will. Plaintiff further says: That at the time of testator's death the said John Thomas was the owner of a large amount of real estate. That part of said real estate was situated in the state of California, and part of said real estate was situated in Adair county, Missouri. That there has been partition made of all said real estate, and a one-third part thereof set off as the share of the children of the said David Nelson Thomas. The share of the Missouri real estate so set off for the said children is described as follows, to wit: The northwest one-fourth of the northeast one-fourth of section nine (9), township sixty-two (62), range fifteen (15) west; also, lots one and two (1 and 2), block eleven (11), city of Kirksville, Adair county, Missouri. That the value of said Missouri real estate so set off is about $10,000.00. That defendants have sold part, if not all, of the real estate situated in California, and set off as the share of the children of David Nelson Thomas, and the proceeds thereof, amounting to about eighteen thousand dollars, are in the hands of defendants. Plaintiff further states that, under and by virtue of the provisions of said will, he is entitled to share equally with defendants in the one-third part of the residue of the estate of the said John Thomas, deceased, devised and bequeathed to all the children of David Nelson Thomas, and in the property hereinbefore described and set off as the share of said children, and the proceeds thereof now in the possession of the defendants. Plaintiff further says that possibility of issue is not yet extinct in the said David Nelson Thomas, and that, should any children be hereafter born to the said David Nelson Thomas, said children will be entitled to share equally with plaintiff and defendants in the said one-third of the residue of said estate. Plaintiff further says that upon the death of the said John Thomas, and upon the distribution and partition, the defendants took the one-third of the residue of said estate, with a trust attached in favor of any after-born children of the said David Nelson Thomas; that defendants are wasting and mismanaging said property; that they have mortgaged a part of said Adair county lands; that they have attempted to dispose of the same; that defendants deny the trust, or plaintiff's rights to share in said property, or the right of any child or children which may hereafter be born to the said David Nelson Thomas; that plaintiff has no adequate remedy at law. Wherefore the plaintiff prays the court to declare a trust in favor of plaintiff and any children hereafter born to the said David Nelson Thomas; to appoint some suitable and discreet person as trustee to take charge of and manage said land property until, in the course of events, the shares of takers is determined; to order defendants to pay into the court all moneys and funds received from said estate; and for all orders necessary to preserve said estate and property, and to carry out the provisions of said will, and for general relief." Defendants demurred to this petition for the reason that it did not state facts sufficient to constitute a cause of action, and because, upon the facts alleged, plaintiff could take nothing under said will. Upon the hearing of the demurrer the record states: "And for the purposes of said demurrer the following agreed statement was made by the parties, to be considered as if stated in the petition, to wit: That at the date of the execution of the will of John Thomas, and the codicil thereto, Milton Thomas, testator's oldest son, was a man of large means; that Laura and Mary Thomas, daughters of said Milton Thomas, and legatees under said will, had reached their majority; that David N. Thomas was the youngest child of testator, and was shiftless, intemperate, and of uncertain habits, and possessed little or no property; that the persons mentioned and provided for in said will composed all of testator's descendants at the time of making the said will; that three of the six children of David N. Thomas, who were living at the death of the testator, had reached their majority before the birth of plaintiff; that in 1889 Elizabeth Thomas was divorced...