Thompson v. Craig

• Decision Date: 31 October 1876
• Citation: 64 Mo. 312
• Parties: BURRELL THOMPSON, Defendant in Error, v. HUGH CRAIG, Plaintiff in Error.
• Court: Missouri Supreme Court

64 Mo. 312

BURRELL THOMPSON, Defendant in Error,

v.HUGH CRAIG, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1876.

Error to Saline County Circuit Court.

Draffin & Williams, for Plaintiff in Error.

I. Under the will of Philip W. Thompson, dec'd, the plaintiff did not take the land in fee, and could not convey to the defendant a good title to the same. (Harbison vs. Swan, 58 Mo. 147; Farrar vs. Christy, 24 Mo. 467; Overton vs. Davy's Ex'r, 20 Mo. 273.) Wells vs. Wells, 10 Mo. 193, properly understood, does not maintain the contrary.

II. The agreement being executory, the defendant will not be compelled to pay the purchase money until the plaintiff is able to make to him a good title to the land. (Wellman vs. Dismukes, 42 Mo. 101.)

C. Breathitt and T. J. Werby, for Defendant in Error.

I. Where an estate is given by will upon the happening of two events, whichever happens first vests a fee simple estate in the donee. (Part 1st Redf. Wills, 2nd Ed. pp. 473, 474, § 4, and two last lines of note 6; 1 Jarm. Wills, 4 Ed., p. 427, side pages 444, 445; Id. vol. 2, p. 129, side page 175, § 3; Wells vs. Wells, 10 Mo. 193, affirmed in Overton vs. Davy's Ex'r, 20 Mo. 273.)

II. The intent of the testator must be ascertained by rules of law. (Austin vs. Watts, 19 Mo. 298; Chism's Adm'rs vs. Williams, 29 Mo. 288.)

HENRY, Judge, delivered the opinion of the court.

This was an action in the Saline circuit court by plaintiff against defendant, on a written agreement, by which defendant bound himself to pay to plaintiff six hundred and twenty-five dollars for that portion of section number twenty-four, township number fifty, range number nineteen, lying east of Pere Flesh Creek, provided plaintiff, within twelve months of the date of said agreement, 6th day of December, 1872, should be competent to give an unincumbered title to said land. Plaintiff alleges in his petition, that at the end of the twelve months he was competent to give the defendant an unincumbered title to said land, and that he made a good and sufficient deed to said land and tendered it to defendant, who refused to receive it.

Defendant's answer admits the execution of the written agreement, but denies that plaintiff was at any time able to make a good title to said land.

There was a trial of said cause in said court, at its October term, 1874, before the court without a jury, and the finding was for plaintiff for the amount claimed with interest.

In due time defendant filed his motion for a new trial, which was overruled, and he has brought the case here by writ of error. The whole case turns on the construction of the last will and testament of Philip W. Thompson, deceased.

Those portions of the will bearing on the question under consideration are as follows: “I give, grant and devise, and bequeath to my said grandchild, Burrell Thompson, (saving the life interest above granted and devised to my wife Penelope Thompson) all of the lands and improvements which lie,” etc., embracing the land in question.

“I give, grant, devise, and bequeath to my granddaughter, Mary Huston, the lands of my estate situate, etc.” (describing other lands than those devised to plaintiff.) “It is my will that in the event that either of my grandchildren, above named, shall die before lawful age, or before leaving a lawful heir or heirs, the property above specified, and intended to be given in this will, shall descend to and belong to the survivor of said grandchildren only, and to his or her heirs or legal representatives, and in the event of both said grandchildren, viz: Burrell Thompson and Mary Huston dying before marriage, or in the event of leaving no lawful issue by marriage as aforesaid, it is my will that all my estate, intended in this will for them, shall be sold for the use and benefit of the poor persons of Saline county, Missouri, to be expended and paid as my executor may deem advisable and just.”

It was admitted that plaintiff was twenty-one years of age and had a child or children living; and this, the last will of Philip W. Thompson and the written agreement sued on, were the evidence in the case. The defendant asked the court for the following declarations of law:

“That the plaintiff in this cause has only a conditional estate in the land mentioned in the petition, and if plaintiff shall die without leaving lawful issue, then and in that event the estate of the plaintiff in said land would cease, although the court may believe from the evidence that the plaintiff has arrived at the age of majority.” This the court refused, and the question for consideration is, whether that declaration of law should have been given, and that will be answered when it is determined what estate in the land plaintiff took under the last will of Philip W. Thompson. There are two decisions of this court which, in our judgment, are decisive as to the estate plaintiff holds under the will.

The case of Harbison vs. Swan, (58 Mo. 147,) was, in all its material facts, similar to this.

Nathan Van Horn made his last will and testament, and the wo clauses of the will upon which the rights of the parties depended, were as follows: “I give and bequeath to my daughter, Harriet, the north half or division of my tract...