Waddell v. Waddell

• Decision Date: 18 November 1889
• Citation: 99 Mo. 338,12 S.W. 349
• Parties: WADDELL v. WADDELL et al.
• Court: Missouri Supreme Court

12 S.W. 349

99 Mo. 338

WADDELL v. WADDELL et al.

Supreme Court of Missouri.

November 18, 1889.

VESTED REMAINDERS — PARTITION — MULTIFARIOUSNESS.

1. A deed which creates a life-estate in the grantee, and provides that after his death the title in fee-simple shall "go and vest in his children and heirs at law equally, to be divided between them as tenants in common," creates a vested remainder in the children of the grantee in being at the time of its execution; and as the words "children and heirs at law," as used therein, constitute a class, the estate in remainder will open, and let in such of the same class as come into being during the continuance of the particular estate, who likewise take a vested remainder.

2. As such children take the land as tenants in common, a petition which joins all those living, and the heir of one deceased, as parties defendant in a suit for partition is not multifarious, though some of the tenants have purchased the interests of the others, such purchase not conferring an exclusive right to any portion of the land.

3. Where, as in such suit, the general right to the whole land is being litigated, the fact that the parties to the suit rely upon distinct and independent rights does not make the petition therein multifarious.

Appeal from circuit court, La Fayette county; JOHN P. STROTHER, Judge.

Suit by Hannah W. Waddell against James White Waddell, Hannah L. Groves, and her husband, Frank S. Groves, and John F. Waddell, Robert L. Waddell, Alonzo W. Waddell, Arthur K. Waddell, and Mattie E. Waddell, minor children of James William Waddell, for partition of certain land held by defendants' ancestor under a deed granting him a life-estate, with remainder to his children and heirs at law. The court sustained defendants' demurrer to the petition, and plaintiff appeals.

Wm. T. Woodwith and J. D. Shewalter, for appellant. A. F. Alexander and Wallace & Chiles, for respondents.

SHERWOOD, J.

This proceeding is one for the partition of certain lands, and necessarily involved in the cause is the proper construction to be given to the deed therein mentioned. The clause of the deed thus brought in question is as follows: "To have and to hold the said real estate, with the appurtenances, to the said John J. Waddell, and to his heirs, forever, in trust, however, for the following purposes, that is to say: The said John J. Waddell, of the second part, is to have, possess, and enjoy the said several tracts or parcels of land hereinbefore conveyed, and to be seised of the same, to and for his own exclusive use, benefit, and behoof, for and during his natural life, doing nor suffering any unnecessary waste; the said lands and tenements, nor any interest in the same, to be liable for any debt or debts of the said John J. Waddell, which he has contracted or may hereafter contract; and on the death of said John J. Waddell the title, in fee-simple, to go and vest in the children and heirs at law of the said John J. Waddell, equally, to be divided between them as tenants in common."

So that the chief question this record presents is whether the remainder created by the deed was vested or contingent. The subjects of vested and contingent remainders, and the difference and distinction between them, meet with frequent and elaborate discussion and illustration in the text-books, as well as in the reported cases. It is unnecessary, however, to go at length into the authorities in order to arrive at the proper result in this case, since our own reports furnish us with instances which suffice our present purpose, and serve well to illustrate the distinction between remainders vested and those contingent. Thus in Jones v. Waters, 17 Mo. 589, where land was devised by the testator to his wife for and during her natural life, and after her death to descend to her "children" by him, equally, share and share alike, it was held that these words created a vested remainder in the children, and that one of them who predeceased his mother had an interest subject to sale; and it was remarked that the devisees in remainder were ascertained by the will, and they were to have the enjoyment of the estate as soon as the estate for life ended; and that the devise of the remainder was not to such of the children as may be alive at the death of the mother, but to all of the children of the marriage. Aubuchon v. Bender, 44 Mo. 560, presents a case of the same deed, creating both kinds of remainder. There, by the terms of the deed, the grantor was to stand seised of the property to his own use during his life, and, after his death, "the use, benefit, usufruct, and title to the same shall revert and vest" in the five children named in the deed, "and such other children in lawful wedlock by him begotten as shall be living at the time of his death, and their heirs." And upon this it was ruled that, as to the five children named in the deed, a vested remainder was created, and as to those that should be "living at the time of his death" the remainder was contingent. In Emison v. Whittlesey, 55 Mo. 254, the conveyance was to the mother during her natural life, and upon her death the remainder in fee-simple absolute to vest in...