Van Every v. McKay

• Decision Date: 22 October 1932
• Citation: 53 S.W.2d 873,331 Mo. 355
• Parties: Nellie Van Every et al. v. Susie McKay, Appellants
• Court: Missouri Supreme Court

53 S.W.2d 873

331 Mo. 355

Nellie Van Every et al. v. Susie McKay, Appellants

Supreme Court of Missouri

October 22, 1932

Appeal from Jasper Circuit Court; Hon. R. H. Davis, Judge.

Affirmed.

R A. Mooneyham for appellant.

(1) There is now, and has always been a provision in the statutes of Missouri, that: "All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them." Sec 8916, R. S. 1889 (now Sec. 567, R. S. 1929); Bredell v Collier, 40 Mo. 321; Carr v. Dings, 58 Mo. 406; Allison v. Chaney, 63 Mo. 282; Crecelius v. Horst, 78 Mo. 566, this court affirmed the decision of the St. Louis Court of Appeals (Crecelius v. Horst, 9 Mo.App. 51); Chiles v. Bartleson, 21 Mo. 346; Munro v. Collins, 98 Mo. 37; Lewis v. Pitman, 101 Mo. 281; Small v. Field, 102 Mo. 122; Tisdale v. Prather, 210 Mo. 408; Tisdale v. Prather, 210 Mo. 402; Coleman v. Haworth, 8 S.W.2d 931; Young v. Robinson, 122 Mo.App. 194; Gannon v. Pauk, 200 Mo. 94; Ewart v. Dalby, 5 S.W.2d 428. Under a will giving property to the testator's wife for life with power to sell and remainder over to the children as to the property not sold, the wife can sell (or devise) the remainder in the land reserving to herself a life estate. Priest v. McFarland, 262 Mo. 229. Statements by testator at, before and after making a will are competent to show his or her previous purposes, intention and state of mind. Thompson v. Ish, 99 Mo. 160; Thompson v. Thompson, 115 Mo. 56. (2) "The word 'heirs' is ordinarily used in a will as a word of limitation to designate a class of persons who are to take in succession." 40 Cyc. 1464, note 15. See, also, Roberts v. Crume, 173 Mo. 572. Heirs mean children. Cross v. Hoch, 149 Mo. 342; Fanning v. Doan, 128 Mo. 330; 40 Cyc. 1462; Watson v. Watson, 110 Mo. 164. As a general rule an immediate gift to a class of persons vests in those in the class who are in existence at the time of the testator's death. 40 Cyc. 1476; Thomas v. Thomas, 149 Mo. 245; Pratt v. Railroad, 130 Mo.App. 175; Wadell v. Wadell, 99 Mo. 345; Gannon v. Pauk, 183 Mo. 270.

McReynolds, McReynolds & Flanigan for respondent.

(1) The devise to Harriet McKay for life with power of disposal did not vest a fee in her. Gibson v. Gibson, 239 Mo. 495; R. S. 1929, sec. 563; Burnet v. Burnet, 244 Mo. 491; Armour v. Frey, 226 Mo. 667; Evans v. Folks, 135 Mo. 397. (2) The devise to Robert B. A. McKay and his heirs vested a fee simple in him. Elsea v. Smith, 202 S.W. 1074; Garrett v. Wiltse, 252 Mo. 699; Tebow v. Daugherty, 205 Mo. 315; Gannon v. Albright, 183 Mo. 238; Tygard v. Hartwell, 204 Mo. 200; Walter v. Dickmann, 274 Mo. 185; Roberts v. Crume, 173 Mo. 572; Chew v. Keller, 100 Mo. 362; McMahill v. Schowengerdt, 183 S.W. 606. (3) Harriet C. McKay's power of disposal could not be exercised by will. Burnet v. Burnet, 244 Mo. 491; Keniston v. Mayhew, 47 N.E. 612; Ford v. Ticknor, 47 N.E. 877; Wooster v. Fitzgerald, 39 A. 679; Selig v. Trost, 70 S.W. 699; Mooy v. Gallagher, L. R. A. 1916C, 1040; Small v. Thompson, 43 A. 509; Evans v. Folks, 135 Mo. 404.

OPINION

Frank, P. J.

Action by Nellie Van Every and Thelma Hafford, against Susie McKay and Juanita McKay White to determine title to certain real estate in Jasper County.

An agreement made at the beginning of the trial shows who the parties are, and their relation to John C. McKay, the common source of title. That agreement reads as follows:

"It is agreed between the parties that one John C. McKay died in Jasper County, Missouri, about the year 1918, owning all of the farm lands described in the pleadings herein, and that he and his wife, Harriet C. McKay were tenants by the entirety of the two lots in Avilla described in the petition and pleadings, that Harriet McKay survived John C. McKay, that John C. McKay left a will which will be introduced in evidence, and that his estate has been finally settled. That his widow, Harriet C. McKay died in Jasper County, Missouri, about October, 1928, and that she left a will which will be introduced in evidence. That there was born of the marriage of John C. McKay and Harriet McKay two children, Robert B. A. McKay and Barbara J. J. Hafford. I think she is referred to in one will as Jane Hafford. She is the same person as Jennie Hafford referred to in the will of Harriet C. McKay. That the plaintiffs, Nellie Van Every and Thelma Hafford, are the children and only heirs at law of Barbara J. J. Hafford, deceased, who died intestate. That the defendant, Susie McKay, is the widow of Robert B. A. McKay, and the defendant Juanita McKay White is the daughter of Robert B. A. McKay, that Robert B. A. McKay died about December 25, 1928."

John C. McKay, the common source of title died testate in Jasper County, Missouri, in 1918. The second clause of his will reads as follows:

"Second: I give, devise and bequeath all my property, real, personal and mixed, to my beloved wife, Harriet C. McKay, to have and to hold for her own use and benefit during her natural life, with full power to sell and dispose of the same, and to convey an absolute title therein, and to make such disposition of the proceeds thereof as she may desire. The proceeds of such property as my said wife shall dispose of shall remain and constitute a part and parcel of my estate during her lifetime. Subject to her use and the right to sell and dispose of the same, as above provided, and at her death all of my estate after the payment of her debts and burial expenses, shall descend to my daughter and son and their heirs, viz., Barbara J. J. Hafford, Robert B. A. McKay according to the laws of Missouri, concerning descents and distributions."

Harriet C. McKay, widow of John C. McKay died testate in Jasper County, Missouri, in October, 1928. By clause two of her will she undertook to devise the land in controversy to her son, Robert A. McKay "to have and use during his lifetime provided he out lives me, otherwise said farm shall be divided between the legal heirs." After making other bequests of personal property which is not involved here, the will makes the following further provisions:

"It is my desire that the remainder of my property, both personal and real be divided, share and share alike, between my son Robert McKay and Jennie Hafford (deceased) whose direct heirs are Nellie Hafford and Thelma Stratton."

It was shown that Nellie Hafford and Thelma Stratton were the same persons as Nellie Van Every and Thelma Hafford, respondents herein, and that they were the children of Barbara J. J. Hafford sometimes called Jennie Hafford.

Robert A. McKay died testate after the death of his mother, Harriet McKay. The pertinent provisions of his will read as follows:

"Second: I give, devise and bequeath all my property, real, personal and mixed, to my beloved wife, Susie McKay, to have and to hold for her own use and benefit during her natural life with full power to sell and dispose of the same and to convey absolute title therein. The proceeds of such property as my said wife shall dispose of shall remain and constitute a part and parcel of my estate during her lifetime, subject to her use and the right to sell and dispose of same as above provided. And at her death all of my estate, after the payment of her debts and burial expenses shall go to my daughter Juanita (McKay) White, and my granddaughter Rosalie McKay, share and share alike; and in case of the death of either Juanita (McKay) White or Rosalie McKay, the residue and remainder of my estate shall go to the other; and in case of the death of both Juanita (McKay) White and Rosalie McKay the residue and remainder of my estate shall be divided as follows: one-half in equal parts between the then living children of Barbara J. J. Hafford; one-half in equal parts between the then living children of George Harshaw. The share of Rosalie McKay in my estate shall be held in trust until she reaches the age of twenty-one (21) years by Juanita (McKay) White as Trustee, the said Juanita (McKay) White to give good and sufficient bond."

The Susie McKay mentioned in Robert A. McKay's will is the Susie McKay named as appellant in this case.

The sole appellant is Juanita McKay White, defendant below. The other defendant, Susie McKay did not appeal. Appellant concedes that the decree vesting the title to one-half of the land in respondents, Nellie Van Every and Thelma Hafford is correct. The controversy relates to the remaining one-half of the land in which appellant, Juanita McKay White and her mother, Susie McKay claim adverse interests.

Appellant first contends that by the will of John C. McKay, the common source of title, his wife, Harriet McKay, took a fee simple title to the land. Based on this contention the claim is that as Harriet McKay owned the land in fee her will bequeathing a life estate in one-half thereof to her son, Robert A. McKay, with remainder over to his heirs, vested the title in fee in appellant; she being the sole heir of said Robert A. McKay.

We do not agree to appellant's contention. The will of John C. McKay did not give his widow, Harriet McKay a fee in the land. It only gave her a life estate. Appellant concedes that the will gave her a life estate, but contends that the power of disposal conferred upon her by the will enlarges the estate bequeathed to a fee simple. Such is not the law, and the cases cited by appellant in support of this contention do not so hold. The case of Tisdale v. Prather, 210 Mo. 402, 109 S.W. 41, to which appellant calls special attention holds the contrary. In that case this court said:

"If as contended by plaintiffs, the will vested a life estate in the land in controversy in Mrs. Tisdale then we agree...