This suit has for its object the specific performance of a contract for the sale of the two-ninths of the undivided one-half of the described real estate situated in the city of St. Louis. The plaintiffs are the vendors, and the defense is that they have no title to the property; and whether they have any title depends upon the construction to be given to the will of Jesse G. Lindell, who died in February, 1858, the will being dated in January of that year. Jesse G. Lindell left a large landed estate of the assessed value of six hundred thousand dollars, incumbered by mortgages to the amount of fifty-five thousand dollars. He left a widow, Jemima Lindell, but no children. By his will he devised all of his property, real and personal, to his wife for life, giving to her power to mortgage any of it, to renew mortgages and to make leases for a term not exceeding forty years.
It then provides : “And I further declare it to be my will that the said Jemima shall have power to dispose of one equal undivided half of all my real estate, in fee simple absolute, by her will, to whomsoever she may think fit, and if she shall die intestate then said equal, undivided half of my real estate, shall descend to her, the said Jemima Lind ell’s heirs at law.
“And I further devise and bequeath the other equal undivided half of my real estate unto Levin Baker two-ninths thereof, Eliza Lindell one and a half ninth thereof, Mary Lindell one and a half ninth thereof, Sarah Coleman one-ninth thereof, Robert Baker one-ninth thereof, Hetty Collins one-ninth thei’eof, Peter Lindell, Jr., two sons, Jesse and Peter, each one-half of one- ninth thereof to-have and to hold in said parts unto them, as tenants in common to them and their heirs forever; but the said devisees last named are not to take possession of or be entitled to enter into possession of their said parts undivided of the undivided half of my said real estate, until the death of the said Jemima
A subsequent clause gives the wife power to sell real estate, to pay off mortgages which may not be renewed or paid by giving new mortgages, and then states, “and if such sales are made for such purposes, then the real estate, remaining after such sales, shall pass to, and be devised in the manner above specified; one-half thereof going to the said Jemima and her heirs absolutely, and the other half thereof to the said other devisees at the death of the said Jemima and their heirs in the manner and form as above specified.
Levin Baker, to whom was devised two-ninths of one-half in remainder, was married and had one child at the date of the will. He was adjudged a bankrupt in 1876, and his interest in the property in question was sold by his assignee in bankruptcy in 1881, and he died in 1883 leaving a son and two daughters who are the plaintiffs, the daughters being joined in this suit by their husbands. Jemima Lindell survived Levin Baker. The claim of the plaintiffs is, that as their father died during the life of Jemima Lindell, they take as purchasers under the will, and not by descent from their father. If this be the true meaning of the will, then they are the owners of the two-ninths of the undivided one-half of the property in suit.
There can be no doubt but Levin Baker took an estate in remainder by the Lindell will, and the first inquiry is whether it is vested or contingent. The vested or contingent character of a remainder is
There can be no remainder limited after an estate in fee, though there may be a future use or executory devise. One class of executory devises is where the devisor parts with his whole estate, but, upon some contingency, qualifies the disposition of it, and limits an estate on that contingency. 4 Kent, 269, Though Levin Baker did take a vested fee in remainder, still it was competent for the testator to limit an estate upon that fee, to take effect in the event that he died before Jemima Lindell, the life tenant.
The real question is whether the testator used the word “heirs” in this clause of the will for the purpose of introducing new objects of his bounty, so that the persons answering the description of heirs of Levin Baker will take as purchasers, or whether he used the the word as one of limitation, as he evidently does in a preceding clause of the same devise. We may here mention, as guides, some of the established rules of construction. . The first, and to which the others are aids, is that effect should be given to the intention of the testator, and the words used are to be understood in the sense indicated by the whole instrument. The wrnrd “heirs” will be considered as a word of limitation and not of purchase, unless the will shows clearly that it is used to designate a new class of beneficiaries. 2 Washb. Real Prop. [5 Ed.] 654; Landon v. Moore, 45 Conn. 422; Thurber v. Chambers. 66 N. Y. 42; Linton v. Laycoch, 33 Ohio St. 136. So the word “heirs” will be held to mean child or children when necessary to carry out the clear intention of the testator. Haverstick's Appeal, 103 Pa. St. 394. Indeed, these rules apply as well to deeds as to wills. Rines v. Mansfield, 96 Mo. 394; Waddell v. Waddell, 99 Mo. 338. Again, an estate in fee created by a will cannot be cut down or limited by a subsequent clause, unless it is as clear and decisive as the language of the clause which devises the real estate. Freeman v. Coit, 96 N. Y. 63; Byrnes v. Stilwell, 103 N. Y. 453; Landon v. Moore, supra.
In the will before us, the testator gives to his wife and her heirs the one-half of his real estate, and to her he gives a life-estate in the whole of his property with
Stronger language could not have been used to show and disclose a purpose and intent to confer upon Levin Baker and the other named persons an absolute and unconditional fee. The estate is given to “them and their heirs forever.” This expression, though unnecessary to create a fee, is an appropriate one for that purpose; and that the word “ heirs ” is here used in its ordinary legal sense as one of limitation only cannot be doubted. The testator seems to have supposed it necessary to point out the time when those devisees should enter into and enjoy possession of the property, and this time he fixes at the death of Jemima Lindell. To his mind this was of prime importance, for he fixes the time by stating it in a negative and affirmative form of expression. With this matter made so prominent it was but natural that he should make some provision in case any of the devisees died before the date at which they should take possession, and this, too, without intending to substitute a new class of beneficiaries.
When he says, in case. either of them shall die before the life tenant, the heirs of such person so dying
Many arguments may be made on the one side and the other based upon a consideration of the situation in life of the persons who were made beneficiaries in this will, but, after all, such arguments will be found to be pure speculations and unreliable guides. Counsel for appellants has collected and presented in his able brief a vast number of authorities, and one or two of them may be noticed here, though they have all been examined. In Tillman v. Davis, 95 N. Y. 17, the testatrix directed her executors to set off one-half of her estate for the use of her husband during his life, and provided that this half should be divided into seven equal parts, and as to these parts the will says : “I give, devise and bequeath one of said seven equal parts of one of the said
That case gives support to the construction contended for by the appellants in the case at bar. But it is to be remembered the testatrix constituted her executor’s trustees, and vested the title in them with directions to convert the property into money and distribute the proceeds. Where property is by will vested in trustees with directions to convert the same into money, the directions for carrying the active trust into execution determine largely the character of the estate which the devisees take. In Buck v. Paine, 75 Me. 583, the testator gave the one-half of his estate to trustees to have and to hold “ for the equal use and benefit of my two grandchildren, Thomas and Susan Rich, * * * for the term of three years, at the end of which time the trust shall cease, and each one’s share shall then go to said children respectively.” The trustees were given full power to sell and convey. A subsequent clause provides: “If either of said children die before the the trust ceases, his or her legal heirs shall be substituted in place of deceased in every respect.” Susan died testate within the three years, and the question was whether the estate passed by her will to her devisees. It was held the words of the will created an
Enough has been said to verify the remarks made in Preston v. Brant, 96 Mo. 556, where it is said: “It may be said, that in construing wills precedents are of but little value except in so far as-they may be like the case in hand, and except in so far as they may formulate and lay down rules to be applied alike in the construction of all wills.”
The circuit court held that Levin Baker took a remainder in fee free from any condition, and this we believe to be the true construction of the Lindell will, and the judgment is, therefore, affirmed.