Thompson v. Thompson

• Decision Date: 06 December 1943
• Docket Number: 38595
• Citation: 175 S.W.2d 885
• Parties: THOMPSON v. THOMPSON et al
• Court: Missouri Supreme Court

175 S.W.2d 885

THOMPSON v. THOMPSON et al

No. 38595

Supreme Court of Missouri, Second Division

December 6, 1943

Don C Carter, of Sturgeon, for appellant.

W. W Barnes, Ralph Nolen, and Olliver W. Nolen, all of Paris, for respondents.

OPINION

BARRETT, Commissioner.

This is a suit in equity to construe James A. Thompson's will and to determine the rights and interests of the plaintiffs and defendants to the real estate devised by the will.

James A. Thompson's will was probated and final settlement of the administration of his estate was made on August 14, 1939. By the terms of his will he gave his wife, Margaret A. Thompson, all his cash, evidences of debt and household effects. He gave his sons, James E. Thompson and Samuel C. Thompson, in equal shares, all his livestock, farm implements and grain. The two sons were appointed executors of his will. The will did not contain a residuary clause. The clause of the will disposing of his real estate and giving rise to this controversy is item four as follows:

'Fourth: I will, devise and bequeath to my said wife, Margaret A. Thompson, the 240 acre farm that I now own and on which I now live, 80 acres being detached, to my said wife for her lifetime and at her death, to my two sons, James E. Thompson and Samuel C. Thompson, in fee simple, on condition that my two sons take said farm at a valuation of Twenty-four Hundred Dollars $ 2400, and this sum of Twenty-four Hundred Dollars $ 2400, to be equally divided among my four children, James E. Thompson, Samuel C. Thompson, Bertha L. Wright and Effie I. Grow.

'The reason that I place a valuation of $ 2400 Dollars on my said 240 acre farm is that my two sons, James E. Thompson and Samuel C. Thompson, have by their labor for a term of years past, improved and made said farm valuable, and have so far received nothing for their labor.'

James A. Thompson died on May 7, 1938. His wife, Margaret survived him and is now eighty-three years old and lives in Paris, Missouri. One daughter mentioned in item four, Bertha L. Wright, predeceased the testator and left two adult children, Marvin D. Wright and Hazel A Wright. E Effie I. Grow, the second daughter mentioned in item four, survived the testator. James E. and Samuel C. Thompson administered on their father's estate and on May 25, 1941 Samuel C. died intestate and about two weeks later, on June 9, 1941, James E. died intestate. Both brothers were survived by their widows who are the administratrices of their estates and both have elected to take a child's part in the real estate of their deceased husbands and both claim their husbands were the owners in fee simple of the land described in item four of James A. Thompson's will. Neither James E. nor Samuel C., during their lives, paid their proportionate parts of the $ 2400 into their father's estate or to the sisters mentioned in item four. But after their deaths and almost three years after the death of the father Beulah B. Thompson, the widow of Samuel C., instituted this action and offers to pay into court or to those entitled to it $ 600, which was Samuel's proportionate share of the $ 2400. Beulah and her two minor children are the plaintiffs to the suit. All the other surviving parties and James E.'s two children are the defendants. The plaintiffs claim that their husband and father, Samuel C., was a tenant in common with his brother, James E., of the fee-simple title to the land, under item four of the will, subject to the life estate in the mother, Margaret, and subject to the payment of the sums mentioned in the will. They say the sister, Effie I. Grow, and the children of the deceased sister, Bertha Wright, claim an interest in the land other than the charge of the sum mentioned in item four. The plaintiffs say that they desire to accept the provisions of the will and ask that it be construed and that the interests of the parties to the real estate be decreed.

The defendants filed an answer in which they stated that the will was plain and ambiguous and did not require construction. They plead that under the terms of the will the real estate was to remain in status quo until the death of the mother, Margaret, and that until that time no action affecting the rights of the beneficiaries under the will or the parties to this suit could be taken.

The court found the status of the parties and the facts to be as we have indicated. The court also construed the will of James A. Thompson and decreed that under item four Margaret, the widow, had a life estate in the described 240 acres of land and that the sons, James E. and Samuel C., had vested remainders 'subject to being defeated by failure of James E. Thompson and Samuel C. Thompson to jointly accept (not as joint tenants) said devise of real estate at a valuation of $ 2,400 and pay for same upon that basis, as set forth in the will. The failure to accept the devise would cause the farm to pass to the heirs at law of testator, as there is no residuary clause in will.' The court further found that the devise of the land could 'only be accepted by the joint act of the two sons (not as joint tenants) or by the joint act of their heirs, and that it must be accepted as a unit or a whole and it cannot be accepted partly by some and not accepted by others, and that none can be compelled to accept said devise and assume the burden attached to the devise.' The court was also of the view that the two sons could not be compelled to accept or decline the devise until the death of the life tenant. The judgment entered was that the land 'shall pass upon the terms and conditions, and subject to the limitations and restrictions as hereinabove set forth.'

The defendant respondents seek to sustain the trial court's decree and in addition contend on this appeal that under item four the testator gave the sons, James E. and Samuel C., the right or option to purchase the farm upon the death of the life tenant, if they desired, but that they could not exercise the option until the death of the life tenant. They also contend that the sons' estates in the land were contingent remainders or 'a joint obligors legacy of a future estate' and that the option could only be exercised by them acting jointly and in concert within a reasonable time after the death of the life tenant. They say compliance with the condition set forth in item four is a prerequisite to the vesting of any title whatever in the sons and if they do not comply with the condition imposed the land will 'automatically revert to the estate' as it must since they died before the life tenant and cannot exercise the option.

Employing certain well-recognized principles which permit the giving of force and immediate effect to every provision in item four of James A. Thompson's will we are of the view that the trial court has failed to correctly ascertain and carry out the obvious intention of the testator, which as the respondents say, is the primary guide and purpose in construing wills. Plainly, and it is not questioned by anyone, the widow, Margaret A., has a life estate. The testator created a life estate in the land he owned in his wife and then he says 'at her death' the land is devised 'to my two sons, James E. Thompson and Samuel C Thompson, in fee simple.' The devise to them, however, is on 'condition that my two sons take said farm at a valuation of' $ 2400 which is to be equally divided among the testator's two sons and two daughters. Plainly again, he intended that the four children should have bequests of $ 600 each. Plainly also, if the bequests were paid and after the termination of the life estate, the two sons were devised the land 'in fee simple.' Is there any reason all these purposes may not be given effect as of the date of the testator's death and the...