Buckner v. Buckner
255 Mo. 371
Mo.
1914
Check Treatment

*375OPINION.

BOND, J.

Will Construction-Devise to class, (After stating- the facts above). — The paramount purpose of the testator was to disinherit his own son and to give to the lawful offspring of that son the portion which was withheld from their father. This intention is displayed in the clause directing the executrix to give his spn five dollars and to take his receipt. And in the third clause of the will where there is a limitation over ‘ ‘ to the heirs ’ ’ of his son'“born unto him in lawful wedlock” of the estate in the hands of the life tenant at her death.

The important question is to determine who were intended by these terms to become the owners of the remainder devised. At the death of the life tenant eight children of the son of the testator were then alive, and three others were subsequently born to him in lawful wedlock. The happening of these conditions necessarily exclude from review the provisions of the will creating under certain other contingencies, different devises of the estate after the life tenancy. The motive of this will was the substitution of the.“heirs” or lawful children of the excluded son, for their father. There is no indication .in the will that the testator designed to discriminate against any persons composing this class, or to except therefrom the children who might be born after the death of the life tenant. The natural sentiment of the testator would be one of equal affection and care for all of his grandchildren. That he did entertain this just feeling is shown by the fact that though there was only one grandchild when the will was made, and that one lived with him, yet he took the proper and reasonable view that others might be born who would have the same claims of relationship and upon his affections, and who should be treated with the same beneficence. He accordingly made the devise over to the “heirs” as one class. That he re*376fused to prefer the grandchild who then lived with him to others then unborn, is a circumstance strongly showing that it was not his intention to make preferences among Ms future grandchildren by giving those born at one time advantages over those born at another.

TMs conclusion also results from the language selected by him to carry the devise over. In that connection he chose the descriptive words of the devisees, to wit: “Heirs of my said son Robert A. Buckner”, so that the persons to take under this limitation in addition to being bom in lawful wedlock must be also heirs of his son. No one can be the heir of a living person. [Emmerson v. Hughes, 110 Mo. l. c. 630.] Therefore the correct use of the term “heirs” necessarily implies in this will a class of persons made up of Ms children or their descendants at the death of R. A. Buckner, which fixes the time when the class shall be completed, which began with the birth' of the first child and will ultimately consist of the children of R. A. Buckner born in lawful wedlock or their descendants who are alive when he shall die.

That the testator had tMs intention when making his will is further shown by the words of the last paragraph of clause three, where he devises over to the single grandchild (alive when the will was made) if he shall outlive the life tenant, and in the event R. A. Buckner “should die without other issue born unto Mm in lawful wedlock” than the said child. TMs language of the will clearly recognizes the intent of the maker that the class to take as remaindermen under the first limitation would comprehend all of the issue, children or descendants, of R. A. Buckner bom in lawful wedlock and living at his death. For the alternative devise to the one grandchild is expressly conditioned to arise only upon the nonexistence of any grandchild or their descendants, at the death of R. A. Buckner.

*377"We conclude that by the terms of his will the testator intended upon the happening of the facts agreed upon on the trial, that the final remaindermen of his estate should consist of all the children, born in lawful wedlock to his son R. A. Buckner or their descendants, at his death. And we hold that it was not the intention of the testator to exclude from participancy in the devise of said remainder interest, any of the children of his son born of a lawful marriage, whether before or after the death of the life tenant or their descendants. Unless this intention of the testator is opposed to some principle of public policy or rule of law governing devises of estates, it must be carried out. [R. S. 1909, sec. 583; Burnet v. Burnet, 244 Mo. 491, and cases cited.]

II.

In this ease the devise to the widow of an express life estate was coupled with a right to sell or convey, which she did not exercise. Hence the remainder over was not defeated. [Grace v. Perry, 197 Mo. 550.]

The general rule is that a devise or bequest to a class, if no time for vesting is fixed, will take effect at the death of the testator. But where the will either by express words or necessary implication, fixes a. different time and the whole class is not then completed the devise or remainder will vest in those then existing who will hold it subject to be opened so as to let in afterborn persons who shall belong to the class at the time fixed by the will for its final completion. [Thomas v. Thomas, 149 Mo. l. c. 434; Buxton v. Kroeger, 219 Mo. l. c. 240; Carter v. Long, 181 Mo. l. c. 709; Gates v. Seibert, 157 Mo. l. c. 271.] Such limitations over are contigent remainders or executory devises as the case may be.

In the case at bar the limitation over became a vested remainder in the lawful children of R. A. Buckner at the death of the life tenant who took the *378title, subject however, to an executory devise to such other children as should be born to him in lawful wedlock (Sullivan v. Garesche, 229 Mo. l. c. 509), who when born will eo instanti become cotenants with those bom before.

Under these authorities there is no difficulty in effectuating the plain intent of the testator as stated in the former paragTaph of this opinion. The learned trial court should have adjudged that at the death of the widow and life tenant, the devise over vested title in the heirs of R. A. Buckner alive or their descendants, who took the same, subject to a possible diminution of the estate by the birth of other children, when the remainder would open and let in them or their descendants, as codevisees.

For his refusal so to hold, the case is reversed and remanded with directions to enter a decree in conformity with these views.

All concur.