Todd v. Connor Investment Co.
| Decision Date | 15 December 1920 |
| Citation | 226 S.W. 955,285 Mo. 416 |
| Parties | WILLIAM T. TODD, Appellant, v. CONNOR INVESTMENT COMPANY et al |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. J. D. Perkins, Judge.
Affirmed.
John Cosgrove, J. H. and W. E. Bailey, and O. S. Burton for appellant..
(1) The law favors vested estates and when there is a doubt whether the estate is vested or contingent the doubt will be resolved in favor of the vested estate. Chew. v. Keller, 100 Mo. 362. (2) The word "children" should be construed to mean the children of Sarah living at the date of the execution of the deed. Roberta was about five years of age at the time the deed from her grandfather was delivered to the trustee. The children of Sarah were named as grantees although their given names were not mentioned. The presumption is that their grandfather entertained the same love and affection for them that he did for their mother, and while the naked legal title was in the trustee his was a mere naked trust, and the children of Sarah were entitled to the fee, subject to their mother's life estate, and possession at her death, but the interest vested in them at the delivery of the deed, although the children were only referred to as a class. Barkhoefer v. Barkhoefer, 204 S.W. 909; Waddell v. Waddell, 99 Mo. 345; Heady v. Hollman, 251 Mo. 640; Eckle v Ryland, 256 Mo. 439; Gillilan v. Gillilan, 212 S.W. 348; Elsea v. Smith, 202 S.W. 1075. (3) The estate created by the deed, the title to which was placed in a trustee for the benefit of Sarah and her children, vested in the children of Sarah a fee in remainder. This being true the remainder cannot be limited thereon; because Elsea v. Smith, 202 S.W. 1075.
Howard Gray, Norman A. Cox and Hugh Dabbs for respondents.
(1) The word, "children" in this instrument, is used in its primary sense, meaning direct descendants of the first degree of Sarah. Where, as in this case, there is nothing in the language employed to show an intent on the part of the grantor to include "grandchildren" in the word "children," the grant will be limited to the direct descendants of the first degree of the ancestor named (Sarah) and will not include her grandchildren. Ringquist v. Young, 112 Mo. 31, 34; Warne v. Sorge, 258 Mo. 168; DeLassus v. Gatewood, 71 Mo. 371; 7 Cyc. 124-126; 11 Corpus Juris, p. 753, note 5; 1 Perry on Trusts (6 Ed.) sec. 254; 1 Bouvier's Law Dic., (3 Rev.) 479; 2 Words & Phrases, (1 Ed.) 1128, col. 1. (2) The intent of the grantor to exclude the grandchildren of Sarah, and to exclude the children of Sarah who did not survive her, by the use of the words "children of Sarah L. Hanson then living," is shown from the further language employed: "Said children of Sarah L. Hanson then living shall take in equal parts, share and share alike." That is, that they shall be living at her death, and that such as are living, shall take per capita, as direct descendants of the first degree take, and not per stripes, as grandchildren take. (3) The instrument, itself, in unequivocal language, provides when the remainder shall vest in the children of Sarah and on what event. It points out a class to take the remainder, but makes the particular members of the class uncertain until the happening of a certain event (the death of Sarah) and dependent on the contingency. It is clear that the interest conveyed by the grant to the children of Sarah then living at the time of her death is a contingent remainder, and does not presently vest, but vests only at some future time and then only on the happening or non happening of a contingency of survivorship. DeLassus v. Gatewood, 71 Mo. 381; Eckle v. Ryland, 256 Mo. 450; 8 Words & Phrases (1 Ser.), pp. 694-5; 3 Bouvier's Dict. p. 3268; Note to 25 L. R. A. (N. S.) 888; Sullivan v. Garesche, 229 Mo. 505; Tevis v. Tevis, 259 Mo. 40; Buxton v. Kroeger, 219 Mo. 240. (4) A contingent remainder is not a descendible interest, and the heirs of the contingent remainderman take nothing from such interest unless, through the happening of the contingency as provided, the interest becomes a vested one in the time provided. Here, the mother of plaintiff, who was a contingent remainderman, died before the contingency happened, and her contingent interest passed, under the terms of the grant, to the children (direct descendants of the first degree) of Sarah who survived Sarah. Sullivan v. Garesche, 229 Mo. 508; DeLassus v. Gatewood, 71 Mo. 381; Ringquist v. .Young, 112 Mo. 25; Tevis v. Tevis, 259 Mo. 40. (5) Although the law in this State favors vested remainders, nevertheless contingent remainders are recognized, and where, under the language creating the interest, the remainder depends on a contingency such as survivorship after the death of the life tenant, as here, the decisions of this and other appellate courts are that the remainder will be held a contingent one, and will not vest until the happening of the contingency on which it depends. Moreover, this State recognizes the right of the owner of property, in making a grant or devise, to create a contingent remainder, and where, as here, the intent to do so is apparent, the remainder will be held to be a contingent one, to vest only in the future and on the happenings of the event stipulated in the grant. Buxton v. Kroeger, 219 Mo. 242; Tevis v. Tevis, 259 Mo. 36; DeLassus v. Gatewood, 71 Mo. 381; Eckle v. Ryland, 256 Mo. 450; LaVaulx v. McDonald, 190 S.W. Mo. 607. The word "then," used in the connection, "upon the death of Sarah L. Hanson, said land shall then vest in . . . the children of Sarah L. Hanson then living . . . and the then living children shall take," is an adverb of time, pointing out when the remainder shall vest, and on what event. Rinsquist v. Young, 112 Mo. 31, 34; DeLassus v. Gatewood, 71 Mo. 381; Eckle v. Ryland, 256 Mo. 450; McNutt v. Ins. Co., 181 Mo. 94.
This suit was brought in the Circuit Court of Jasper County, Missouri. On February 26, 1918, it was tried before the court, without a jury, under plaintiff's first amended petition. The latter contains two counts. The first alleges that the Connor Investment Company is a Missouri corporation, doing business in Jasper County, Missouri; that Florence Phelps Rothert, whose maiden name was Florence Phelps, is the wife of Wm. H. Rothert; that George Emmett Phelps is a minor, and that Bridget O'Leary Phelps is his legally appointed guardian; that plaintiff is the owner and claims the fee simple title to the undivided one-fourth interest in Lot 2, of the northwest fractional quarter of Section 7, Township 27, Range 33, containing 49.90 acres of land, located in Jasper County, Missouri, except a lot reserved out of the above described land, measuring 13 rods east and west and 18 rods north and south; that defendants are claiming some title, estate or interest in said property, adversely to the estate and title of the plaintiff. Said count concludes by asking the court to ascertain and determine the title of the parties herein to said undivided one-fourth interest, etc. The second count is similar to the first down to and including the description of said undivided one-fourth interest claimed by plaintiff. The petition then alleges that lying underneath the surface of said land there was a rich and valuable deposit of both zinc and ore; that for some years past said defendants, without the knowledge of plaintiff, have been wrongfully mining said land, taking said ore therefrom, and disposing of the same; that said ore so taken was of great value; that plaintiff was legally entitled to one fourth interest in said ore, and that he has not sufficient knowledge of the amount and value of the ore so removed by defendants as to state the actual value thereof. This count concludes by asking the court to order and adjudge an accounting between the plaintiff and defendants; that the latter be required to account for, and pay over to plaintiff, all the amount due him for his interest in said ore, and for such other orders and judgments, touching the premises, as the court may deem just and equitable.
Defendant John H. Carroll, through his attorneys, Norman A. Cox and Hugh Dabbs, entered his voluntary appearance in this cause, and for his separate answer to both counts, alleged that he is the owner of an undivided one-fourth interest in fee simple of the land described in the petition. The answer likewise contained a general denial. The court was asked to ascertain and determine the respective interests of said defendants, and to decree that plaintiff has no interest in said real estate.
The Connor Investment Company answered through the above attorneys, claiming to be the owner of the undivided one-half interest in fee simple of the land described in the petition. The answer in other respects was similar to that filed by John H. Carroll, and concludes with a prayer for general relief.
Defendants B. O. Phelps, in her own right, and as curator of the estate of George Emmett Phelps, acting through attorneys McReynolds & McReynolds, filed a separate answer, alleging that she and her said ward each own an undivided one-sixteenth interest, in fee simple, in the land aforesaid. The answer in other respects is similar to that filed by John H. Carroll, supra.
Defendants Wm. Howe Phelps and Florence Phelps Rothert answered...
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