Wead v. Gray

• Decision Date: 06 April 1880
• Citation: 8 Mo.App. 515
• Parties: CHARLES M. WEAD, Respondent, v. MELVIN L. GRAY, ADMINISTRATOR, ET AL., Appellants.
• Court: Missouri Court of Appeals

8 Mo.App. 515

CHARLES M. WEAD, Respondent,

v.MELVIN L. GRAY, ADMINISTRATOR, ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Apr. 6, 1880.

1. Where a will provides that the devisee shall hold the property devised to to her sole and separate use, with power of disposition during her lifetime, that portion remaining undisposed of at her death to go to another person named in the will, this limitation over is good as an executory devise.

2. Where W. owns notes secured by deed of trust executed by S., and both S. and W. devise their property to R., there is no merger of the mortgage in the fee because of the intervening estate of W.'s administrator.

APPEAL from the St. Louis Circuit Court.

Reversed and remanded.

M. L. GRAY, for the appellants: The will of C. Wead creates a life-estate in R. Smith, with a power of disposal.-- Smith v. Bell, 6 Pet. 68; Chiles v. Bartleson, 21 Mo. 344; Farrar v. Christy, 24 Mo. 453; Harbison v. Swan, 58 Mo. 147, 400; Bryant v. Christian, 58 Mo. 98; Thompson v. Craig, 64 Mo. 312; Peake v. Jamison, 6 Mo. App. 590. But this power does not include the power to will.-- Terry v. Wiggins, 47 N. Y. 512. A limitation over by devise is good.-- McRee's Administrator v. Means, 34 Ala. 372; Clarke v. Terry, 34 Conn. 176; Sale v. Crutchfield, 8 Bush, 648; Brightman v. Brightman, 100 Mass. 238; Nicholson v. Bettle, 57 Pa. St. 384; Eaton v. Shaw, 18 N. H. 320; Trustees v. Kellogg, 16 N. Y. 86; Daniel v. Thompson, 14 B. Mon. 632. There was not a merger.--19 Mo. 404; 2 Washb. on Real Prop. 565, sect. 3.

F. J. McMASTER, for the appellants: A limitation over in a devise, with power of disposal, is good as an executory devise.-- Porter v. Bradley, 3 Term Rep. 143; Anderson v. Jackson, 16 Johns. 383; Rubey v. Barnett, 12 Mo. 3; Thompson v. Craig, 64 Mo. 312; Harbison v. Swan, 58 Mo. 147. There was no merger of the interests in Mrs. Smith.-- Sherman v. Abbott, 18 Pick. 448; 10 Vt. 293; Van Nest v. Latson, 19 Barb. 604; Waugh v. Riley, 8 Metc. 290; Knowles v. Lawton, 18 Ga. 476; 2 Washb. on Real Prop. 182; Leakey v. Maupin, 10 Mo. 369.

W. B. HOMER and LEVI DAVIS, for the respondent: The two notes and deeds of trust held by Mrs. Wead were satisfied, released, and merged when they came to Mrs. Smith's hands.-- Atkinson v. Angert, 46 Mo. 518. Mrs. Smith became the absolute owner of all of Mrs. Wead's property, including the notes referred to, under the will of Mrs. Wead.-- Rubey v. Barnett, 12 Mo. 1; Gregory v. Cowgill, 19 Mo. 416; Green v. Sutton, 50 Mo. 186; Reinders v. Kuppleman, 68 Mo. 482; Kimball v. Sullivan, 113 Mass. 345. There being no life-estate created in Mrs. Smith, the provisions in Mrs. Wead's will in reference to the Missionary Society and Ann S. Beach are inoperative.-- Green v. Sutton, 50 Mo. 186; Ramsdell v. Ramsdell, 21 Me. 288; Hale v. March, 100 Mass. 468. Mrs. Smith exercised her right of disposal by will.-- Hagel v. Hagan, 47 Mo. 281; Kimball v. Sullivan, 113 Mass. 345.

BAKEWELL, J., delivered the opinion of the court.

The petition in this case alleges that Spencer Smith died in June, 1870, having by will devised all his property to Rachel, his wife. At the time of his death he owned in fee twelve acres of land near Kirkwood, which were encumbered by two deeds of trust executed by him. One of these deeds was to secure a note for $1,000, dated July, 1861, made to the order of McLane; the other deed was to secure a note for $2,482, dated October, 1866, made to the order of defendant Gray. These notes were acquired by Charlotte Wead, who died owning and holding them in 1874.

The last will of Charlotte Wead is dated February 13, 1855, was proved on August 3, 1874, and is as follows:

“I give and bequeath to my only child, Rachel E. Smith, wife of Spencer Smith, all my property, real, personal, and mixed, and all moneys and rights of action of every kind which may belong to me, or to which I may be in any way entitled at my decease, wishing my said daughter to have, use, and dispose of the same absolutely, in any way that may seem to her best, and for her own sole and separate use and benefit, and entirely free and clear and exclusive of any and all right, interference, or control of her husband, the said Spencer Smith; it being the intention and meaning of this, my last will and testament, that my said daughter, Rachel E. Smith, shall have and dispose of all my said property in her own right as absolute owner, and as though she were a feme sole, and that the same, and its proceeds and increase, if not disposed of and expended by her in her lifetime, shall descend at her death to her children, and exclusive of her said husband; but if the said Rachel E. should die leaving no children nor their descendants, and without having disposed of the said property, it is then my will that, out of what may remain undisposed of by her, the sum of $200 shall be paid to the Domestic Missionary Society of the Protestant Episcopal Church in the United States of America, and that the remainder of what may be left undisposed of by my said daughter at her death shall be put at interest, on good security, and the interest thereof annually shall be paid to my niece, Ann S. Beach, during her natural life, for her own separate and exclusive benefit, and at her death the remainder shall be paid to the above named Domestic Missionary Society, to be applied to the use of said society.”

Defendant Gray administered upon the estate of Charlotte Wead, and holds three notes and deeds of trust as administrator; and defendant the Missionary Society claims the devise to it under the will. Rachel Smith survived Charlotte Wead. She died in January, 1875, and left a will dated October, 1874, proved in February, 1875, in the following words:--

“I, Rachel E. Smith, of Kirkwood, St. Louis County, Missouri, do make, publish, and declare the following to be my last will and testament: I desire all my just debts to be paid, including the encumbrances on my residence property at Kirkwood, placed there by my late husband, Spencer Smith. I make the following bequests: To Mrs. Ann S. Lear I give my watch and five hundred dollars. To Reginald Heber Lear, son of Ann S. Lear, I give for his name five hundred dollars, to be paid him upon his arriving at the age of twenty-one years. All the rest of my property, real, personal, and mixed, I give and bequeath to Charles Minor Wead, the son of D. D. Wead, now of Sheldon, Vermont, whom I hereby adopt as my son and heir, for I love him as such, and believe him to be fully worthy of that love. In the event that my estate shall not be sufficient, after the payment of debts, fully to satisfy the bequests to Ann S. Lear and Reginald Heber Lear, I desire and direct in such case that the above bequests to Ann S. Lear and Reginald Heber Lear be paid pro rata so far as the property will go. I name and appoint my friend Melvin L. Gray, of St. Louis, executor of my last will.”

Rachel Smith died possessed of the real estate described in the deeds of trust. Ann S. Beach, named in Mrs. Wead's will, is the Ann S. Lear named in Mrs. Smith's will, and is one of defendants. Plaintiff is the Charles M. Wead named in Mrs. Smith's will. Reginald H. Lear, the other legatee in that will, is also made a defendent. More than two years have passed since notice of administration on the estates of Mrs. Wead and Mrs. Smith. No claims have been presented against either estate, and the personalty of the Smith estate is more than sufficient to pay the legacies to Ann S. Lear and Reginald Lear. At the time of Rachel Smith's death, and when her will was made, the real estate in question, which is the same named in her will as “my residence property in Kirkwood,” was encumbered by two other deeds of trust made by her husband during his lifetime. In those two deeds of trust Mrs. Wead was never interested.

These are the substantial allegations of the petition. Plaintiff further states that he claims that, by virtue of Charlotte Wead's will, this real estate was released from the encumbrances of the first two deeds of trust, and that the notes described ceased to be claims against the estate of Spencer Smith, or against any property of Rachel Smith, and that plaintiff is entitled to the realty discharged of these liens; that Gray, however, as administrator of Charlotte Wead, claims the notes, and the Missionary Society and Ann S. Lear claim them as legatees of Mrs. Wead. The prayer of the petition is that Gray be required to deliver up the notes, and that the deeds of trust be decreed satisfied.

Gray, in his answer, says that claims to the amount of several hundred dollars are allowed against...