Uphaus v. Uphaus

• Decision Date: 08 September 1958
• Docket Number: No. 46388,No. 1,46388,1
• Citation: 315 S.W.2d 801
• Parties: Jesse L. UPHAUS, Plaintiff-Respondent, v. Pinke H. UPHAUS et al., Defendants-Respondents, Charles Ellmaker et al., Defendants-Appellants
• Court: Missouri Supreme Court

Page 801

315 S.W.2d 801

Jesse L. UPHAUS, Plaintiff-Respondent, v. Pinke H. UPHAUS et al., Defendants-Respondents Charles Ellmaker et al., Defendants-Appellants.

No. 46388.

Supreme Court of Missouri, Division No. 1.

Sept. 8, 1958.

Johnson & Butterfield, Marshall, for plaintiff-respondent.

Bellamy & Bellamy, Marshall, for defendants-respondents.

George M. Hare, Independence, for appellants, Lee H. Ellmaker, and others.

Aull & Aull, Lexington, for appellants, Charles Ellmaker, and others.

COIL, Commissioner.

Plaintiff-respondent obtained an interlocutory judgment for the partition of real estate in Saline County. Some of the defendants below are respondents and others are appellants. Inasmuch as the trial court adjudged that certain appellants who claimed contingent remainders in the real estate had no interest therein, title is directly involved and this court has jurisdiction.

J. H. Uphaus, who owned the farm in question, died testate on November 9, 1919, and left surviving his widow Lena (who died in March 1932), two sons, Jesse L. (plaintiff-respondent) and William (who died in 1954 and whose widow Pinke, as an individual and as administratrix of the estate of William is a defendant-respondent), and two daughters, Lydia Ellmaker (who died in 1953 leaving a widower and six children; those children are defendants-appellants) and Anna Drunert (defendant below, who did not appeal from the judgment and who had no children). Also defendants-appellants are the grandchildren of Lydia Ellmaker, the sons and daughters of Lydia's six children who, as noted above, are defendants-appellants, and some of whom were minors and were, below and here, represented by a duly-appointed guardian ad litem. Clara H. Uphaus, the wife of plaintiff-respondent Jesse, was a nonappealing defendant.

Item I of the will of J. H. Uphaus, dated October 21, 1919, (containing the language giving rise to the present controversy) is as follows:

'Item I. I hereby give and devise to my son, Jesse L. Uphaus, subject to the dower interest of my wife, Lena Uphaus, for and during his natural life, the following described real estate situated in Saline County, Missouri, to-wit: The East half of the Southwest quarter of section Twenty (20) and the Northwest quarter of section twenty-nine (29), all in Township Fifty-one (51), Range Twenty-three (23).

'It is my further desire and will that, at the death of my said son, Jesse L. Uphaus, there shall be paid to his wife, Clara H. Uphaus, if she shall survive him, the sum of three thousand dollars ($3000.00) out of said real estate so devised to my said son, Jesse, and the remainder in said real estate, after the expiration of the life estate of my said son, Jesse, and after the payment of the said sum of three thousand dollars (3000.00), to said Clara H. Uphaus, shall go to and descend equally to the rest of my children or their descendants, share and share alike, per stirpes.'

Item II directed the payment of debts, funeral expenses, and costs of administration out of testator's personal estate, but provided that if it was not sufficient 'then it is my desire that my said son, Jesse, shall pay the remainder of said indebtedness, funeral expenses and costs of administration out of the real estate so devised to him.' It was also provided that if the personal estate was in excess of debts, funeral expenses, and costs, the remainder of the personalty was to be 'equally divided among all of my children, or their descendants, in case any of them should be dead.'

Item III directed the sale of other described real estate by the executor with a bequest of $4,000 of the proceeds to him, the remainder of the proceeds to be paid 'one half to my daughter, Elidia A. Ellmaker and the other half to my daughter, Anna E. Drunert.'

Item IV directed the executor to sell other described real estate and, after payment to Lena, his widow, of her dower interest, the proceeds be divided 'equally between my said daughters, Elidia A. Ellmaker and Anna E. Drunert, and in the event that my said daughter, Anna E. Drunert should not be living at the time of the sale of said real estate, her share to be divided equally among my other children or their descendants, if any of them be dead.'

William M. Uphaus died intestate November 17, 1954, survived by his widow, Pinke, his brother, plaintiff-respondent Jesse, his stster, defendant Anna Drunert, and his nephews and nieces, defendants-appellants, the sons and daughters of his deceased sister, Lydia Ellmaker. Pinke, the widow, was appointed administratrix of William's estate and filed an election to take one half of his real and personal estate in lieu of dower, and a final settlement, reflecting payment of all debts, was made.

Plaintiff-respondent claimed below and claims here, and the trial court adjudged, that Item I of his father's will gave him a life estate in the real estate there described and that undivided one-third interests in the remainder of said real estate vested at testator's death in testator's other three children, William, Lydia, and Anna, subject to Jesse's life estate and subject to a charge of $3,000 against said real estate in favor of defendant Clara H. Uphaus, the wife of plaintiff Jesse.

Plaintiff also claimed below and claims here, and the trial court also found, that by reason of the death of his brother William and the election of the widow to take one half of the estate in lieu of dower, he, the plaintiff, inherited an undivided interest in the other half of the vested remainder owned by his brother William, and that as such remainderman he was entitled to bring and maintain this action for partition, even though he was also the life tenant.

Those appellants who are the children of Lydia Ellmaker, deceased, and who the court adjudged each owned a 7/108ths interest in the real estate subject to plaintiff's life estate and the $3,000 contingent charge owned by Clara, contend that the court erred in failing to dismiss plaintiff's petition on the ground that it showed on its face that plaintiff was not entitled to partition and erred in decreeing partition as indicated for the reason that testator's will expressly and impliedly postponed partition until plaintiff's (the life tenant's) death and that to adjudge partition was contrary to testator's intention as shown by the language of the will and, for the further reason, that the remainders to testator's children are contingent and will not vest until the life tenant's death and thus the land is not subject to partition during the existence of the life estate.

Those appellants who are the grandchildren of Lydia Ellmaker and the children of the appellants last above mentioned, contend that the court erred in failing and refusing to adjudge that each of them owns an undivided contingent interest in the remainder of said real estate and in failing and refusing to adjudge that the land is not subject to partition until the expiration of the life estate.

We shall first consider whether the remainders were vested or contingent. In determining that question, we should give effect to the testator's intention as gathered from an examination of the will as a whole. When, as in the present will, testator's language is such that from it we are not able, unaided by auxiliary rules of construction, to arrive at testator's intention, we reach for those established applicable rules. Primary among them is the basic governing principle 'that the law favors the vesting of testamentary gifts or legacies at the earliest possible date, unless a contrary intention is manifested clearly. Where there is doubt as to the nature of the legacy or interest, it will be construed as vested rather than contingent, "'because that usually better conforms to the testator's meaning"' [St. Louis Union Trust Co. v. Herf, (361 Mo. 548), 235 S.W.2d 241, 247(5)] and 'testators usually have in mind the actual enjoyment rather than the technical ownership of their property' [Gardner v. Vanlandingham, 334 Mo. 1051, 69 S.W.2d 947, 950; Union Nat. Bank in Kansas City v. Bunker, 232 Mo.App. 1062, 114 S.W.2d 193, 198]. In fact, it has been said pointedly that 'the universal rule is * * * that, wherever it is possible, an instrument will be so construed as not creating an estate subject to a condition, particularly a condition precedent' [Deacon v. St. Louis Union Trust Co., 271 Mo. 669, 197 S.W. 261, 265(4)], and that, "in the absence of anything in the will showing, either expressly or by implication, that testator intends that the title to his bounty is to be postponed, it is conclusively presumed that his gift is to vest at his death" [Grannemann v. Grannemann, Mo., 210 S.W.2d 105, 107].' McDougal v. McDougal, Mo.App., 279 S.W.2d 731, 737. See also Legg v. Wagner, Mo., 155 S.W.2d 146, 147[1-7], and Schake v. Siem, Mo., 265 S.W.2d 338, 340[3, 4].

There can be no doubt, and there is no contention to the contrary, that the will gave plaintiff, Jesse L. Uphaus, a life estate in the described real estate. We again set forth the second paragraph of Item I: 'It is my further desire and will that, at the death of my said son, Jesse L. Uphaus, there shall be paid to his wife, Clara H. Uphaus, if she shall survive him, the sum of three thousand dollars ($3000.00) out of said real estate so devised to my said son, Jesse, and the remainder in said real estate after the expiration of the life estate of my said son, Jesse, and after the payment of the said sum of three thousand dollars (3000.00), to said Clara H. Uphaus, shall go to and descend equally to the rest of my children or their descendants, share and share alike, per stirpes.' By that language testator said, in effect, at Jesse's death, if Clara is then living, pay her $3,000 'out of...