156 Mo. 413 | Mo. | 1900
This is an action for the construction of the will of S. A. Alexander deceased, that plaintiffs be decreed the owners of a certain tract of land in the petition described, for damages for the detention of the same, and its restoration to plaintiffs.
On March 8, 1890, S. A. Alexander died leaving a will which reads as follows:
“I, S. A. Alexander, of the township of Grand River, county of Livingston, and State of Missouri, being of sound mind and memory and understanding, do make my last will and testament in manner and form following:
“1. I give and bequeath to my wife, Mary C. Alexander, the northeast quarter of section 17, township 56, and*417 range 22, with all my cattle, horses, hogs, farming implements, etc., thereto belonging, during her life, then to become the property of my son, Spencer L. Alexander.
“2. I give and bequeath to my son, S. L. Alexander, the south half of the southeast quarter of section 8, township, 56, range 22; provided he shall well and faithfully care for and support his mother as long as she shall live.
“3. I give and bequeath to my daughter, Sally A. Alexander, in lieu of land, three thousand dollars in money.
“4. 1 will and bequeath to my daughter, Sally A. Alexander, and my son, Spencer L. Alexander, and my wife, Mary O. Alexander, each five hundred dollars, and to Susan L. Meyers forty-five dollars, to balance like amount already paid to each of my other heirs.
“5. I give and bequeath to my son, George M. Alexander, one dollar.
“6. I give and bequeath to my chldren, Eliza J. Browning, Mary E. Littrell, Susan L. Meyers, Wm. E. Alexander, John P. Alexander, Spencer L. Alexander and Sally A. Alexander, and to my wife, Mary O. Alexander, one thousand dollars each.
“7. I give and bequeath to Eliza J. Browning, Mary E. Littrell, Susan L. Meyers, Wm. E. Alexander, John P. Alexander, Spencer L. Alexander, Sally A. Alexander, and Mary O. Alexander each an equal share of all my other property, except that William E. Alexander shall receive double as much as any other one.
“In testimony whereof I have hereunto set my hand and seal, and publish and decree this to be my-last will and testament, in presence of witnesses named below, this 3rd day of February, in the year of our Lord, one thousand eight hundred and ninety.”
The testator left surviving him his wife, Mary O. Alexander, and, as his heirs, D. L. Alexander, John P. Alexan
At the time of the death of the testator, S. L. Alexander, his son, was a minor, unmarried and living at home with his parents on the land devised to his mother. Thereafter he married, took his wife to the home of his mother, where they lived until his death on November 4, 1892. There was born of this marriage during the lifetime of the father a daughter, Florence Alexander, one of the plaintiffs in this suit. The other plaintiff, Blanche Alexander, widow of S. L. Alexander, in due time after the death of her husband, elected to take a child’s part under the statute in her deceased husband’s estate.
The tract of land devised to S. L. Alexander by the second clause of the will adjoins the one hundred and sixty acre tract devised to his mother for life by the first clause of the will, and both tracts were used by this son after his father’s death for his own use and benefit. He rented the eighty acre tract to tenants. He never at any time cared for and supported his mother, but she with her own means and labor provided for him and his family after his marriage. Nor did she ever at any time request him to support or provide for her.
After the death of S. L. Alexander, his mother, Mrs. Mary C. Alexander, and all of the heirs of the testator except the plaintiff, Florence C. Alexander, conveyed their interests in said eighty-acre tract to defendants, John P. Alexander and William F. Alexander, who therafter, to-wit, about March 1, 1894, entered upon and took possession of said eighty acre tract, as for condition broken, and have remained in possession of it ever since.
Thereafter plaintiffs instituted this suit.
The court belovfr adjudged and decreed that the will vested the title in fee to said eighty-acre tract of land in S. L. Alexander; that on his death it became vested in his heirs
In the construction of a will the true intent and meaning of the testator is the chief object to be attained, and in arriving at such’ meaning and intention all of its provisions must be considered together, and effect given to every word and clause of it. [Morrison v. Thistle, 67 Mo. 598; Noe v. Kern, 93 Mo. 367; Hall v. Stephens, 65 Mo. 670; Shumate v. Bailey, 110 Mo. 411; Schorr v. Carter, 120 Mo. 409.] With this object in view, when if ever, did the title to the land vest in the devisee, S. L. Alexander.
The devise to him was undoubtedly on conditions subsequent. As to whether or not they are conditions precedent or subsequent is governed by the intention of the testator at the time of the execution of the will, to be gathered from the whole instrument and the existing facts, which clearly show, we think, that he intended that they should be conditions subsequent.
The conditions for the care and support of the devisee’s mother “as long as she shall live,” without charging the property with the performance of the conditions, “would seem to be conditions subsequent, because of the implication that the devisee .... was to have possession and control of the premises for the purpose of fulfilling the conditions.” [Morse v. Hayden, 82 Me. loc. cit. 229.]
In Finlay v. King’s Lessee, 3 Pet. loc. cit. 374, Chief Justice Marshall announces the rule with respect to estates as conditions precedent and subsequent to be as follows: “There are no technical appropriate words which always de
The conditions being subsequent, it must needs follow that the fee vested in the devisee immediately upon the death of the testator, and that the land descended to the plaintiff Florence on his death, subject to the rights of the ■devisee’s widow therein under our statute, unless by reason of non-performance by him of the conditions of the will an estate to which he was previously entitled was divested. It should not, we think, be held that there was such a non-compliance with the conditions of the wall during the lifetime of the devisee as to produce such a result, for the reason that his mother had a competency of her own, did not need support, 'but voluntarily supported the devisee and his family up to the time of his death, and never at any time requested him to care for and support her, and she must therefore be held to have waived the same as she unquestionably had the right to do.
The conditions imposed upon the devisee to well and faithfully care for and support his mother, were of a personal character. That this was the view of the testator is clear from the provisions of the will, for if it had been otherwise, how easy it would have been for him to have provided in case of the death of the devisee before his mother, for her care and support by some other member of his family, or in
But he did not do this, and as by no act or omission of the devisee was his estate in the land divested during his lifetime, unless it was occasioned by his death, it then descended to his child, subject to the statutory rights of his wife, as before stated.
' In the case of Burnham v. Burnham, 79 Wis. 557, the testator by his will gave a certain sum to each of his children, and by a codicil thereto, declared that his son D. should not have nor receive any part, parcel, or interest in his estate, real or personal, unless within five years after the testator’s decease, he should have reformed and become a sober and respectable citizen, of good moral character, and directed that if he did so reform, his executors should pay over to him one-half of the property bequeathed to him, and if he remained reformed for a further period of five years, pay over to him the other half thereof. D. died within eleven months after the death of his father. It was held that D.’s right in the estate vested in him immediately upon the death of his father, subject only to be divested by his failure to perform the conditions subsequent named in the codicil, which by his death were rendered impossible.
In Merrill v. Emery, 10 Pick. 507, the testator gave to his wife one-half of all the money that he might leave in his house at the time of his death, together with all his family stores at that time on hand, upon the condition, that she would relinquish all her right to dower in his estate, and that she educate and bring up his granddaughter, M. L. E. The wife died seven days after the testator, without expressly waiving the provisions made for her in the will, or claiming dower. It was held, among other things, that the condition to educate the granddaughter was a condition subsequent, and that the legacy vested in the wife and the non-perform
In Richards v. Merrill, 13 Pick. 405, the same will was again before the same court for construction, and it was held, Chief Justice Shaw delivering the opinion of the court, that by the terms of the will the obligation imposed upon the testator’s widow was one of parental care towards the granddaughter which died with the widow.
Our conclusion is that the fee to the land vested in the devisee under the will immediately upon the death of the testator, that the conditions imposed upon the devisee by the will to “well and faithfully care for and support his mother” were conditions subsequent, which were not broken by him during his lifetime, and from which he was absolved by death.
The judgment is affirmed.
