Watson v. Watson

• Citation: 19 S.W. 543,110 Mo. 164
• Parties: WATSON v. WATSON et al.
• Decision Date: 23 May 1892
• Court: United States State Supreme Court of Missouri

19 S.W. 543

110 Mo. 164

WATSON v. WATSON et al.

Supreme Court of Missouri, Division No. 1.

May 23, 1892.

WILLS — CONSTRUCTION — DEVISE — SUFFICIENCY OF LANGUAGE — REMAINDER.

1. A will, after giving a life estate in 240 acres of land to testator's wife, and, inter alia, legacies to the children of his two deceased sons, provided: "I further will, in regard to my other land, that, if the heirs cannot agree upon a satisfactory division of them, that they divide them to their own notion; if not, they can * * * sell the lands, and divide the proceeds equal amongst my children that are now living," naming them. Held, that it was testator's intent to devise the land to his living children, and that the language was adequate for that purpose.

2. The words "my other land" included the remainder in the land already devised to the widow for life.

Error to circuit court, Sullivan county; G. D. BURGESS, Judge.

Suit for partition by Charles W. Watson against John T. Watson and others. Petition dismissed. Plaintiff brings error. Affirmed.

A. W. Mullins, for plaintiff in error. D. M. Wilson and Huston & Parrish, for defendants in error.

BLACK, J.

The plaintiff, a grandson of William Watson, brought this suit against the children and other grandchildren of William Watson for the partition of real estate. On the 25th April, 1887, William Watson executed a will in due form. He died in a few months thereafter, leaving a widow and seven living children and two sets of grandchildren, the children of his two deceased sons. The testator left a large estate in lands and personal property. He owned some nine or ten hundred acres of land, besides the 240 acres which he devised to his wife for and during her life. The will is in these words: "Know all men by these presents, that I, William Watson, of the county of Sullivan and state of Missouri, being of sound mind, and considering the uncertainty of life, do make, declare, and publish this my last will and testament: First. I order that all my just debts shall be paid. Second. I will and bequeath unto my wife, Mahala Watson, during her natural life or widowhood, the following described tract or parcel of land, to wit: The southeast quarter of section thirty-four, (34,) and the west half of the southwest quarter of section thirty-five, (35;) and I also give and bequeath unto her fifteen hundred dollars, which is now deposited in the First National Bank, Milan, Mo., which is deposited in her own name, and this, with the land, is intended for her use and comfort, but should she, at any time, from any cause, become incapable of managing her affairs it is to come under the care and control of my executor or administrator. Third, I further give and bequeath unto the heirs of my son James Robert Watson, to wit, Charles Watson, Rachel Watson, Florence Watson, Minnie Watson, Hampton Watson, eighty dollars each. Fourth. I give unto the heirs of my son Gustavus Watson, to wit, Virginia Watson, Susan Watson, and Delia Watson, one hundred thirty-three and one third dollars each. Fifth. I give unto my daughter Catherine Watson three hundred dollars, and one horse, which she has selected. Sixth. I also give unto my son Wade H. Watson three hundred dollars in cash, and one horse known as his horse, this being the amount necessary to make him and Catherine equal with the other heirs. Seventh. I further will, in regard to my other land, that, if the heirs can agree upon a satisfactory division of them, that they divide them to their own notion; if not, they can agree upon the manner of selling, and sell the lands, and divide the proceeds equal amongst my children that are now living, to wit, W. H. Watson, Sarah E. Murdock, John T. Watson, Andrew B. Watson, Manford Watson, Catherine Watson, and Wade H. Watson. Eighth. I also will and bequeath that all moneys, notes, bonds, and effects be collected and equally divided between my children as above named. I also nominate and appoint my son John T. Watson as my administrator to carry out and comply with this my last will and testament. In testimony whereof I have hereunto to this, my last will and testament, subscribed my name and set my seal this 25th day of April, 1887."

The plaintiff seeks to establish these propositions, both of which were ruled against him by the trial court: First, that the words of the seventh paragraph of the will are insufficient to dispose of any of the testator's real estate, or any interest therein; second, that the words "my other land," in the same paragraph, do not include the remainder in the 240 acres devised to the widow for her life. Either claim, if sustained, would produce an intestacy, — the first, as to the entire real estate, save the life estate to the wife; the second, as to the remainder in the 240 acres.

1. When the testator uses the word "heirs" in the first part of the seventh paragraph, he manifestly means his children living at the date of the will; for he subsequently and in the same paragraph points out these same living children as the persons between whom the "other land" or the proceeds arising from the sale thereof is to be divided. Indeed, it seems to be conceded that the word "heirs" means children living at the date of the will, and does not include grandchildren. It is also impliedly conceded by the plaintiff that there is enough in this will to show an intention on the part of the testator to give the "other land" to the living children; but it is earnestly insisted that the testator has not used words adequate to accomplish that purpose. It does not, says Redfield, seem essential to the validity of the will that it should adopt any precise form of language in making its dispositions. The same rule obtains which does...