Tillerson v. Taylor
| Decision Date | 10 April 1920 |
| Citation | 220 S.W. 950,282 Mo. 204 |
| Parties | MADIE P. TILLERSON et al. v. JULIA A. TAYLOR et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Macon Circuit Court. -- Hon. Vernon L. Drain, Judge.
Affirmed.
D. R Hughes, John R. Hughes and C. F. Hale, for appellants.
(1) The devise to Edna Montgomery is a qualified fee which became a fee simple title upon her death without remarriage. Sec. 579 R. S. 1909; Yocum v. Siler, 160 Mo. 281; Scott v. Murray, 218 Pa. St. 186; Vaughn v. Vaughn, 97 Va. 322; Rolley v. Rolley, 109 Va. 449. (2) There was no devise in this will to take effect after the death of the first devisee. The widow could only be divested of title by a remarriage. Sec. 579, R. S. 1909. (3) The intention of the testator must be ascertained by a consideration of the entire will, and, if necessary, the surroundings of the testator. Sec. 2870, R. S. 1909; Cross v. Hoch, 149 Mo. 336; Yocum v. Siler, 160 Mo. 281; Simmons v Cabanne, 177 Mo. 336; Armor v. Frey, 226 Mo. 646; Grace v. Perry, 197 Mo. 559; Underwood v. Cave, 176 Mo. 1; Brooks v. Brooks, 187 Mo. 576; Lockney v. Campbell, 189 S.W. 1174; Shumate v. Bailey, 110 Mo. 411. (4) The devise to the widow when all the terms of the will are considered is sufficient to convey a base, qualified or defeasible fee, subject only to be defeated by a remarriage, and the death of the widow without remarriage establishes a fee simple title. Sec. 579, R. S. 1909; Frey v. Thompson, 66 Ala. 287; Black v. Nolan, 132 Ga. 452; Fidelity Trust Co. v. Bobloski, 228 Pa. 52; Redding v. Rice, 171 Pa. 301; Rohabach v. Sanders, 212 Pa. 636; Scott v. Murray, 218 Pa. 186; Koble v. Bennett, 40 Pa. S.Ct. 79; Squier v. Harvey, 16 R. L. 226; Wright v. Wright, 16 U. C. Q. B. 184; Beatty v. Irwin, 35 Ind.App. 238; In re Deller, 6 Ont. L. Rep. 711; In re Mumby, 8 Ont. L. Rep. 283; Day v. Daveron, 12 Sim. 200.
Ben Franklin for respondents.
(1) "A devise of real estate to a widow to be held during her widowhood is a life estate, subject to being terminated by the marriage of the widow." Price v. Ewell, 151 N.W. 79; Brunk v. Brunk, 157 Iowa 51; Sink v. Sink, 64 S.E. 193; Rubey v. Barnett, 12 Mo. 5. (2) A widow may take a life estate by necessary implication. Rubey v. Barnett, 12 Mo. 5; Gibson v. Gibson, 239 Mo. 500; DuBois v. VanValen, 61 N.J.Eq. 331. (3) Where a devise is to testator's wife "whilst she remains my widow," the estate created cannot be greater than a life estate. Rose v. Hale, 185 Ill. 378, 76 Am. St. Rep. 40; Knight v. Mahoney, 152 Mass. 532, 9 L. R. A. 572; Green v. Hewitt, 97 Ill. 113, 37 Am. Rep. 102.
OPINION
Joseph Montgomery died testate in December, 1888, leaving surviving him his wife, Edna Montgomery, and four brothers and five sisters, but no children or other lineal descendants. The present action was instituted to partition lands of which he died seized, among those of said brothers and sisters now living, and the heirs of those who previously had died.
The court found in its decree the respective interests of the collateral heirs, found also the lands were not susceptible of partition in kind, and ordered a sale of it to convey "all the title of the said Joseph Montgomery, deceased, and of his said heirs at law," etc. This judgment was entered July 10, 1917. On December 14, 1917, the court granted the defendant Julia A. Taylor leave to become a party defendant and file a separate answer. On the same day she filed an answer wherein she alleged she was the owner of all the land involved in the action and was at the time it was brought, and denied every other allegation in the plaintiffs' petition. She based her claim of title on the will of Joseph Montgomery and the will of his widow Edna Montgomery.
The material paragraphs of Joseph Montgomery's will are these:
Nancy Jane Drinkard and Samantha Ann Drinkard, who are mentioned in the foregoing paragraphs, died, as the court found, prior to the death of Edna Montgomery, who died in February, 1917, having survived her husband, Joseph Montgomery, twenty-nine years, and she had not remarried. She left a will wherein, after directing that her debts and funeral expenses be paid, she made specific bequests to two legatees and then this disposition of the remainder of her estate: "To my cousin, Julia A. Taylor, I devise and bequeath all the remaining part of my estate, both real and personal."
The defendant Julia A. Taylor asserts title to the land in controversy solely under that clause of the will of Edna Montgomery; and the question presented for decision is whether or not the will of Joseph Montgomery devised the land to Edna Montgomery, his widow, in fee simple, but subject to be defeated by her remarriage; in which event, as she never remarried, her will vested in Julia A. Taylor the title in fee; or whether, as the court below decided, her husband's will devised to Edna Montgomery only a life estate in the land, subject to be defeated at any time by her remarriage, and, of course, terminable by her death; in which event she held no devisable interest.
In support of the proposition that Joseph Montgomery's will passed to his widow Edna Montgomery the fee of the land, we are cited to the section of the statutes which reads as follows:
"In all devises of lands or other estate in this State, in which the words 'heirs and assigns,' or 'heirs and assigns forever,' are omitted, and no expressions are contained in such will whereby it shall appear that such devise was intended to convey an estate for life only, and no further devise be made of the devised premises, to take effect after the death of the devisee to whom the same shall be given, it shall be understood to be the intention of the testator thereby to devise an absolute estate in the same, and shall convey an estate in fee simple to the devisee, for all such devised premises." [R. S. 1909, sec. 579.]
It is doubtless true, since the enactment of that statute, that the words "heirs and assigns," or other words of limitation, are not required in a devise of land to carry the fee to the devisee. [Roth v. Rauschenbusch, 173 Mo. 582, 73 S.W. 664.] Yet the statute imports that a devise which otherwise would pass the fee, will have the effect of passing only an estate for life if expressions are contained in the will which show the testator intended to give no greater estate than one for life, or if there is a devise over of the property after the death of the first taker. [Armor v. Frey, 226 Mo. 646, 669, 670, 126 S.W. 483.] In the will of Joseph Montgomery expressions were used which show the intention of the testator was to vest the title to the lands in his widow only during her widowhood. The expressions "to have and to hold the same and enjoy during her widowhood," and, "so long as she remains my widow," occur in the clause wherein the gift to her is made, as a definition of the quantity of the estate given. Such a devise always has been held to pass only an estate for life, and apter words for that purpose could not be chosen. [2 Black 17, 121; Williams on Real Property (17 Internat. Ed.), p. 142; 2 Minor's Institutes, chap. 8, par. 2g.] Moreover, the estate given was intended to last only "so long as she remains my widow;" only so long as Edna Montgomery remained the widow of the testator. That expression, and also the one "during her widowhood," were apt words to make the life estate one of limitation, which would terminate instantly upon the remarriage of the widow, without entry or other assertion of title by the remaindermen. [1 Washburn, Real Property (6 Ed.), sec. 165, p. 79.]
In arguing that Joseph Montgomery intended to devise his entire fee in the land to his wife, counsel for defendant (appellant) draw attention to the childlessness of the couple, which is asserted to have made his wife the sole subject of the testator's solicitude, and to dispose him to give his entire estate to her. Perhaps it could be argued with more force that, if there had been children, he would have been disposed to give her the fee, expecting the children to take after her, either by descent or by her will. The conclusion about this matter to be derived from the will is, that his wish was to provide for his widow as far as his total means permitted, throughout her widowhood, and if she remarried, to restrict her share in the estate to a coequal interest with his and her colateral kindred, whom, it is clear, he regarded as proper objects of his bounty.
The point is stressed that if Edna Montgomery was given no...
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