Young v. Robinson

• Decision Date: 19 November 1906
• Citation: 122 Mo. App. 187,99 S.W. 20
• Parties: YOUNG et al. v. ROBINSON et al.
• Court: Missouri Court of Appeals

99 S.W. 20

122 Mo. App. 187

YOUNG et al. v. ROBINSON et al.

Kansas City Court of Appeals. Missouri.

November 19, 1906.

Rehearing Denied January 14, 1907.

WILLS—PROVISIONS INCONSISTENT WITH ABSOLUTE BEQUEST.

Where a will bequeathed a sum of money to a person to be held in trust by her "free from all interference to the sole, separate, and exclusive use" of testator's brother, at his death any residue to be divided among certain persons, the controlling purpose was to give the beneficiary the absolute and unrestricted power to use and dispose of the legacy, and such right being compatible only with an absolute estate the remainders over were void.

Appeal from Circuit Court, Boone County; A. H. Waller, Judge.

Action by James Young and others, as executors of the will of Ambrose C. Young, deceased, for a construction of the will, and from the judgment, Garrett Robinson and others appeal. Affirmed.

C. B. Sebastian and W. M. Williams, for appellants. E. W. Hinton and Webster Gordon, for respondents.

JOHNSON, J.

This is an action brought by the executors of the last will of Ambrose C. Young, deceased, to obtain a construction of the will. The testator was a farmer living in Boone county, who died in July, 1903, without leaving widow or issue. His will was made on October 6, 1900, and the portions thereof material to our inquiry are as follows:

"Item 2d. I will and bequeath unto Ann Eddie Young, my beloved niece, the sum of $6,000 to her sole separate and absolute use and benefit free from the interference and control of any person or persons whomsoever.

"Item 3d. I will and bequeath unto Ann Eddie Young, my said niece, all my household and kitchen furniture in addition to the above bequest of item 2d.

"Item 4th. I will and bequeath unto Ann Eddie Young the sum of $1,500 to be held in trust by her without bond and free from all interference to the sole separate and exclusive use of my beloved brother, Edward Young and at his death any remainder or residue thereof to be divided 2/3 to Ann Eddie Young and 1/3 to my niece Frances Brooks. * * *"

"Item 8th. I will and bequeath to all my relations above mentioned and all those relations not herein mentioned and bearing the relationship to me of nephews and nieces and to none further removed in relationship than those mentioned above any remainder or residue of my estate to be divided and shared equally among them share and share alike.

"Item 9th. I will and direct that in the event that any one or more of the above-named heirs entitled to a share in my estate shall die before their respective share or shares shall have been paid to them, then such share or shares shall revert back to my estate and shall be treated and distributed according to the tenor and provisions of item 8th, of this my will.

"Item 10th. I also will and direct that in the event that any one or more of my said heirs shall fail or neglect to appear and claim their respective share or shares of my said estate within two years after letters testamentary or of administration shall have been granted such share or shares shall revert back to my estate and shall be distributed and divided among the other heirs.

"Item 11th. I will and direct that my executors hereinafter named shall immediately after my death take out letters testamentary and take possession of all my personal property and real and proceed to sell the same according to law and convert the same into money and make final distribution and settlement within two years from the date of letters testamentary on my said estate."

By a codicil made August 25, 1902, the testator's brother Edward Young and his niece, Ann Eddie Young, were given "the free and uninterrupted use and occupancy for one year of my residence house for their use as a home, the same being situated on my homestead farm together with the garden, orchard, stables, and lots and sufficient pasturage as may be necessary for the sustenance of such stock as they or either of them may elect to keep for their own use for a period of one year from the date of letters testamentary on my said estate" and by a second codicil made on July 2, 1903, the testator increased the amount of the legacy to Ann Eddie Young provided in the second item of the will from $6,000 to $12,000. The contest now before us relates only to the construction of the fourth item of the will, but we have copied other portions of the instrument and of the codicils for the reason that they throw some light on the intention of the testator respecting the interpretation to be placed on the provision in controversy. Before the bringing of this action Ann Eddie Young intermarried and her name is Ann Eddie Ellis. Edward Young, the beneficiary of the trust created in the fourth item, died some time after the making of the first codicil and before the death of the testator. It is contended by the plaintiffs, and the learned trial judge so held, that the legacy in question lapsed by the death of the cestui que trust before that of the testator, and, under the provisions of the ninth item, became a part of the general estate to be divided as directed in the eighth item. Ann Eddie Ellis and Frances Brooks appealed from this judgment and contend that effect should be given the evident intention of the testator that they should have all that might remain of that legacy at the death of Edward Young, and that the fortuitous happening of that event during the lifetime of the testator should not be held either to have altered the expressed purpose of the testator or to have prevented its accomplishment in law.

From statements made by counsel, we infer...