Winget v. Gay

• Decision Date: 03 June 1930
• Docket Number: 28792
• Citation: 28 S.W.2d 999,325 Mo. 368
• Parties: Frances A. Winget et al., Appellants, v. Robert W. Gay et al
• Court: Missouri Supreme Court

28 S.W.2d 999

325 Mo. 368

Frances A. Winget et al., Appellants, v. Robert W. Gay et al

No. 28792

Supreme Court of Missouri

June 3, 1930

Appeal from Shelby Circuit Court; Hon. Vernon L. Drain Judge.

Affirmed.

Hulen & Walden, Hunter & Chamier and Lane B Henderson for appellants.

(1) The ninth clause of the will gave to Sarah R. Arthur the fee simple title to the real estate. Williams v. Cowden, 13 Mo. 211; Knost v. Knost, 229 Mo. 170; Sullivan v. Garesche, 229 Mo. 496; 40 Cyc. 1699; Nations v. Spence, 235 S.W. 1064; Wise v Crandall, 215 S.W. 245; 1 Tiffany Real Property (2 Ed.) 281. (2) The ninth clause of the will, if not in restraint of marriage, is a defeasible fee upon condition subsequent, and the condition having been observed by the legatee under the will, the fee simple title to the real estate described in the petition vested in plaintiffs, her heirs. Williams v. Cowden, 13 Mo. 211; Knost v. Knost, 229 Mo. 170; Sullivan v. Garesche, 229 Mo. 496; 40 Cyc. 1699; Nations v. Spence, 235 S.W. 1064; Wise v. Crandall, 215 S.W. 245; 1 Tiffany Real Property (2 Ed.) 281; Alexander v. Alexander, 156 Mo. 413; Studdard v. Wells, 120 Mo. 25; Hoselton v. Hoselton, 166 Mo. 182; Jones v. Jones, 223 Mo. 424; Witherspoon v. Brokaw, 85 Mo.App. 169.

Harry J. Libby for respondents.

(1) The ninth clause of the will devised to Sarah R. Arthur a life estate only, determinable on her marriage. Ruggles v. Jewett, 213 Mass. 167; Trenton Trust & Safe Deposit Co. v. Armstrong, 70 N.J.Eq. 572; Maddox v. Yoe, 121 Md. 288; Re Holbrooks Estate, 213 Pa. St. 93; Harlow v. Bailey, 189 Mass. 208; Ijams v. Schapiro, 138 Md. 16; Mann v. Jackson, 84 Me. 400; Re Brucks Estate, 185 Pa. St. 194; Bennet v. Packer, 70 Conn. 357; Brunk v. Brunk, 157 Iowa 51; Re Brooks Will (N. C.), 34 S.E. 265; DuBois v. Van Valen, 61 N.J.Eq. 331; Fuller v. Wilber, 170 Mass. 506; Furnish v. Rogers, 154 Ill. 569; Kratz v. Kratz, 189 Ill. 276; Tillerson v. Taylor, 282 Mo. 204. (2) The ninth clause created a limitation. The language "as long as she remains single, and if she marry, etc.," are words of limitation, prescribing the duration of the devise. Such limitations have always been held valid. It is not a condition subsequent in unreasonable restraint of marriage. Nations v. Spence (Mo.), 235 S.W. 1064; Selden v. Keen, 27 Gratt. 576; Trenton T. & S.D. Co. v. Armstrong, 70 N.J.Eq. 572; Ruggles v. Jewett, 213 Mass. 167; Maddox v. Yoe, 121 Md. 288; Harlow v. Bailey, 189 Mass. 208; Mann v. Jackson, 84 Me. 400; Re Holbrooks Estate, 213 Pa. St. 93; Re Brucks Estate, 185 Pa. St. 194; Summitt v. Yount, 109 Ind. 506; 2 Jarman on Wills (6 Ed.) 886. (3) The language of the ninth clause did not create a condition subsequent, void in restraint of marriage. The devise is not given "upon condition" that she remain single, or "provided" that she remain single, or even "if" she remain single. Such terms are not used, and no apt or appropriate words to create a condition subsequent are anywhere employed. Conditions subsequent are not favored, and must be created in express terms, or by clear implication. Roberts v. Crume, 173 Mo. 572; Morrill v. Railroad, 96 Mo. 174; 2 Wash. on Real Prop. (5 Ed.) 7. (4) The remainder over to testator's "other heirs" takes effect on determination of the preceding estate, upon either the death or marriage of Sarah R. Arthur. This, notwithstanding the devise over was in terms limited to take effect upon marriage. It is to be extended by implication to take effect in the event of either death or marriage. Trenton T. & S.D. Co. v. Armstrong, 70 N.J.Eq. 572; Re Schrievers Estate, 221 N.Y. 268; Maddox v. Yoe, 121 Md. 288; Fletcher v. Rynd, 18 Ohio App. 136. (5) Or, if the language were held not to amount to a gift over by implication, but were held a definite failure to dispose of the remainder, then such failure by the testator, the intention of the testator, the language used, and which he refrained from using, clearly discloses his intention to die intestate as to what was not specifically disposed of, and the same passes to the heirs at law of Charles W. Gay as intestate property. Allen v. Hitchcock, 309 Mo. 488; Tillerson v. Taylor, 282 Mo. 204; Cowan v. Glos, 255 Ill. 377.

OPINION

Ragland, J.

This is a statutory action to ascertain, determine and quiet title to a tract of land lying in Shelby County, Missouri. It was brought by the heirs of Sarah R. Arthur, deceased, against the heirs of Charles W. Gay, deceased. Gay is the common source of title. The devolution of the title from him was effected through his will, the proper construction of the 9th item of which is determinative of this controversy.

Charles W. Gay married a widow, Catherine Arthur, who had three small children, the oldest of which was about four years of age. The youngest was Sarah R. Arthur. Two children were born to him of this marriage, but each died in infancy: he had no children or descendants at the time he made his will. At that time his wife was dead, and her two older children, who had been reared in his home, had grown up and gone to homes of their own. But Sarah who had also grown up in his home was still living with him; she was then forty-four years of age; she was in frail health -- a semi-invalid -- as she had been all of her life. She never married, but continued to make her home with him until his death, which occurred in 1896. She died in 1927, intestate, at the age of seventy-five. Gay left surviving him no children or descendants, but he did leave collateral heirs, brothers and sisters and the children of deceased brothers and sisters, with all of whom he had always been on cordial terms. His will, made in 1888, following specific bequests of one dollar to each of his brothers and sisters, contained the following:

"Item. I give and devise all the residue of my estate to Sarah R. Arthur, as long as she remains single, and if she marry it is my will that she share equally with the other heirs."

Under this provision, according to the trial court's construction, Sarah R. Arthur took a life estate, determinable upon marriage, with remainder over to the heirs of the testator. From a judgment based on such construction plaintiffs prosecute this appeal.

Appellants press alternative contentions:

First, That the latter part of the "Item" just quoted, "as long as she remains single, and if she marry it is my will that she share equally with the other heirs," is void because in restraint of marriage, and for that reason must be wholly eliminated from consideration in construing the provision; and that the remainder thereof, "I give and devise all the residue of my estate to Sarah R. Arthur," must, in accordance with Section 551, Revised Statutes 1919, be construed as devising the fee.

Or, Second, That the will passed to Sarah R. Arthur the fee, subject to be defeated by the happening of a condition subsequent, her marriage; as the contingency never happened, and cannot now happen, her heirs are vested with an indefeasible fee.

If either contention be sound the circuit court was in error.

I. To construe a will means primarily to determine what the testator intended by the language he used. This in order that effect may be given the intent when ascertained, unless it violates some positive rule of law or contravenes some well established principle of public policy. There can be no question but that provisions in deeds or wills in general restraint of marriage are in contravention of public policy and therefore void. [Williams v. Cowden, 13 Mo. 212; Knost v. Knost, 229 Mo. 170, 129 S.W. 665; Sullivan v. Garesche, 229 Mo. 496, 129 S.W. 949.] Does the testator's purpose as disclosed by the will in question run counter to that public policy? Was it his purpose, in limiting her enjoyment of his estate to "as long as she remains single," to restrain his step-daughter from marrying? to promote celibacy? When all the circumstances are considered, it seems obvious that it was his intention merely to provide for her while single, that is, until such time as an obligation to furnish her support and maintenance should be assumed by a husband; that when through marriage she should no longer be dependent upon his bounty, his estate should go to his own kindred. It may be that she preferred the enjoyment of his estate to marriage, and for that reason did not marry, but if so, that fact was merely incidental and did not militate against his undoubted right to limit the duration of his bounty to such time as he saw fit, namely, the period of her probable dependency. The provision in question is not obnoxious to the rule against restraint of marriage. [Wise v. Crandall, 215 S.W. 245; Harlow v. Bailey, 189 Mass. 208; Ruggles v. Jewett, 213 Mass. 167; Trenton Trust etc. Co. v. Armstrong, 70 N.J.Eq. 572; Maddox v. Yoe, 121 Md. 288.]

II. "As long as she remains single" are words of limitation and not of condition: they mark the period which is to determine the estate. An estate so...