*1 Mo. 1920. TERM, Collins v. Whitman. legal in the vested the title after condition broken in
mortgagee unlimited mean an or trustee we do not purpose effectuating the vestiture of one for title, but mortgage [Feller l. c. v. Lee, the trust. or 251.] However, 332; Benton Land Zeitler, Co. v. part Pat the announced the latter of the doctrine as meaning supra, case, viz., ton-Eberhart that within recording mortgage of trust a or deed laws when prior subject good is- taken faith it is equities applies with full as of record at the time, prior equities force in the instant case. There no purchaser nor foreclosure record, did either the at subsequent any chain sale, nor land in owner of the through plaintiff any knowl holds, of title have edge equities sought of such as were to be established at the trial. conclusion, however, This is but reiteration reviewing of that before reached when the facts from an point vantage. plaintiff required parties The was not to make the to the deed of trust secure the one-thousand-dollar [Thayer Campbell, note 280.] defendants. equities authorizing Defendants no established a de- cree favor.' their There authorizing were no errors judgment reversal, of court trial is therefore affirmed. All concur.
HATTIE v. WALTER COLLINS WHITMAN et al.; Appellant. SIDDENS,
ALVERDA Intervener, Two, Division 1920. gave Intention. WILL: The fact the testator to his son a estate, and in unmistakable terms declared (said wife) any son’s then child of which she might become the mother should take no interest whatever estate, determining is to be considered in whether after-born child, remainderman, took interest plaintiff, conveyance whether child, is entitled recover therein. COURT OF MISSOURI.
Collins v. Whitman. expressed of an intention 2. -: Vested absence Estate. vesting contrary, law favors the estates time, immediately upon possible earliest testator’s death. *2 there the remainder Where is a-doubt as whether is vested or .to contingent, the courts construe it as vested estate. will a Lapsed lapses, 3. -: -: the remainder Where Remainder. may given property, it and under becomes intestate circumstances vest in the life tenant. -; Property.. gave -:
4. -: Intestate Where the will my his death life estate to an and “it is a absolutely pass such child to and vest shall my son, Harvey Siddens, as or children and heirs of woman, any except any by save shall born him and child or present wife, Siddens,” “my being children his born of Hattie neither the said or child of which she will that Hattie or become the mother shall have receive interest whatever in took, Harvey, my estate,’’ son, and the said James continued subject remainder, hold the as intestate to be divested by Hattie; upon the some other woman than birth a child having having divorced from Hattie and mar- the said .son been Alverda, children, by whom had no the remainder became he ried Descents, inoperative yested in him the Statutee of will, by gave Hattie which he five dollars his child Alverda, Alverda,- entire estate vested the estate in rest did not take the said remainder and the said child Hattie [Following will of the son’s' v. created father. Gillilan Gillilan, 99.] G-entry Appeal Circuit M. Daw- Court.—Hon. John Judge.
son, (with directions.) and remanded Reversed Peery appellant. for and J. W. D. D. Beeves (1) par- testator, a as in this case, Where carves out a contingent life, with a ticular remainder executory over, devise the reversion or interest not so (if residuary him, devised remains there is no passes will) vests at- clause his death in his intestacy. as in'cases law, This heir rule and doc- by all trine is established authorities. There has opinion past ,in been some difference of ap- as to the 385 283 TERM, 1920.
Collins v.
convey-
plication
rule
o£ the
common-law deed
disposition by
will.
ance, but
never as to
Stockwell
99;
262
Stockwell, Mo.
Gillilan v.
Gillilan, 278
678;
p.
Bigley
23 R.
L.
98
'56-57;
C.
secs.
518,
Watson,
Craig
Tenn.
353,
S. W.
38 R.
v. War-
L.
525,
A.
Mackey, (D.
Rep.
0.)
ner,
Am.
460,
Kent’s
(9 Ed.)
(21
283-(*257);
Prop.
Comm.
Real
Tiedeman,
Ed.)
p.
secs.
385,411; Feame,
1 Schóuler
Rem.,
p.
Wills, sec. 545;
2 Underhill on
sec.
Wills,
874,
Pengnet
Real
Berthold,
Washburn,
576, 1-9- R: A. 540. L. The law favors the vesting estate, absence expressing words contrary, a clear intent to the the'estate will be construed possible immediately to vest at the earliest time, upon the death. testator’s Tindall v. Tindall, 167 Mo. Co., Deacon v. Trust 255; 687; Mo. Henderson v. (4) E. 586. 183 S. After Calhoun, E. Siddens, Siddens, had of James M. filed widow her renunciation of 283 Mo.—25 MISSOURI. COURT OF
386. Collins v. part of her election take a child’s will, and , one-half of she became the absolute owner of disposed only will took effect and
land, pther Menke, half. Mo. Lilly re- Eastin for and* Lucian J. Gibbomy Charles spondent. Harvey Siddens took By
(1)
the.will
unborn children of James
estate. The
to the
remainder
As
contingent.
except Hattie was
Harvey by
woman
vested
children
remainder never
bom,
no
were ever
of the
and,
disposition
property,
as there was
no
passed upon
death
life tenant
to the heir
intestate
(a)
testator
R. S.
Siddens took
life estate.
Secs.
Mo.
Emison v. Whittle-
Waters,
578;
Jones
Mo.
71 Mo.
2:54;
Gatewood,
DeLassus v.
sey,
Mo.
Waddell,
Keller,
Waddell v.
Mo.
Chew
Mo.-
Dickerson
Dick-
362-; Rodney
Landau,
erson,
Kroeger,
Buxton
v. Tully,
Armour
226 Mo.
v. Sorge,
Warne
171..
the life estate,
After
the will
(b)
created a con-
tingent'remainder.
Remainders áre vested or contingent.
“Contingent
remainders
(whereby no
executory
pres-
remainder
ent
are where the estate
passes)
either to a dubious and uncertain
effect,
limited to take
*4
and
event,
dubious
uncertain
so that
persdn,
upon
particular
estate
determined and the
chance to
take effect.”
Blackstone, 169;
remainder never
cases cited above. The remainder was therefore
con-
if
or children
tingent, and
a child
had been bom to James
woman
by any
except
re-
Harvey'
Hattie,
Siddens
mainder would
vested
in
in
immediately
have
interest
in
child,
the'
possession
death
the life
of
two estates
all
These
that were
created
tenant.
will,
particular
(c)
When
fell
and it
in,
was thus determined that
the remainder
failed,
the es-
.
passed
tate
heir
the original donor.
of
Cook v.
'
TERM, 1920.
Mo.
y. Bingham
No.
Fed.
Mason, 467,
Case
Hammond,
Carey,
p.
7 Cranch.
Lessee
Barnitz’s
v.
Descents,
present
Sid-
456. In the
of James
case the child
of
next
kin
dens and the
direct descendant
Mo.
G-aresche,
v.
testator
Sullivan
claims the estate.
Perry v.
Ry.
Epling,
E.S.
509;
Strawbridge,
v.
Va.
Co.
language
(2)
of the
The
RAILEY, suit Cir- C. This County, July Gentry cuit Missouri, Court possession ejectment It is an action in recover county in undivided lands located said one-half certain petition. date is described in the The of ouster monthly named as 1916. The December of the value profits premises sixty rents and dollars, etc. and Fred Defendants Walter Whitman Whitman they possession answered, and admitted in allegation deny every They plain- said land. in petition. tiff’s
Appellant Alverda Siddens filed cause application party alleging to become a defendant, there- she was the owner said real estate and that de- except fendants had no interest therein as tenants, etc. application Said sustained, and Alverda Siddens filed herein denying her answer cross-bill, each and petition. every allegation For further answer and alleged cross-bill, she therein that she' is the owner fee petition; real estate described plaintiff herein claims some title, estate and nature and character of which is un- alleges known to this defendant, but latter that said prejudicial claim of is adverse de- *5 OF MISSOURI. COURT
Collins v. try, Thereupon, ascertain asked fendant. is court parties interest of and and estate, determine the title severally, said and herein, and defendant general etc. grant defendant real estate, relief, and to per- upon application, were parties, own their Other They filed an joined defendants herein. mitted' to as Siddens. defendant, Alverda answer similar to that of for was reached cause 1917, said On December to the jury cause submitted and the trial, waived, was appears agreed upon facts. court statement It county M. that James latter, and died source of the common aforesaid, is title, controversy, with land the owner 6, 1911, June Harvey heir, son, land. left, He as probated in M. Siddens The will of James Siddens. Gentry County, reads 1911, and as Missouri, follows: > County, Gentry do Missouri,
“I, James Siddens my publish testament. will and last make and my bequeath beloved give, devise to I and “1st. my Sid- son, James and wife, real, J personal mixed' of dens, all during" possessed, hold may to have and to die seized or they' long them or either so natural life, their or par- the said may either one of and at the death live, pass and vest shall the whole ties said may hold who shall' be, have, survivor, whichever during enjoy her natural his or same, my my said'wife both the death of life, pass, my shall will that said is- son, absolutely children and heirs in such child or and vest my born Siddens, as shall be son, except any by' any child or save woman, to him present Hattie Siddens. It children bom my the said Hattie Siddens or that neither of which she be or become children child or any interests 'whatever, of, have or receive shall mother part parcel my or thereof. or to ' TERM, 1920. *6 Collins v. Whitman. my Mary my and hereby appoint E. Siddens wife
“I bond, my Harvey without executors, Siddens, son James my and testament. last will of this my hand set have hereunto whereof, I “In witness July 1898.” Mary tes- of the above E. wife Siddens, Thereafter, provisions said will filed her tator, renunciation part. and to take child’s favor, her elected Harvey defendant, married was James Siddens no children and 17, 1900, on October Siddens, Alverda Harvey except Opal Sid- Siddens, were born to James Harvey Sid- mentioned. James dens hereafter Morrow, County, Gentry on March Missouri, dens died testate in probate, his will was admitted to and thereafter 17,1916, bequeathed in which he devised and 23, 1916, $5 March (now Opal daughter, Opal Mor- to row), Siddens Siddens gave real, and all remainder of his appellant, personal to his mixed, wife, and Alverda Harvey previously mar- Siddens. James Siddens (now Collins, ried to Hattie Bare herein), Hattie they together lived 21, 1898, on June but never Opal as husband wife. Siddens is the Morrow Harvey (now child of and Hattie James Siddens Siddens marriage. Collins), their and was born after Hattie On September Harvey James Siddens Hattie 17, 1900, were divorced. Siddens Opal November Siddens 14, 1916,
On Morrow con- veyed plaintiff, to the Hattie Collins, land con- troversy, heretofore with other land mentioned. named in
The other defendants this'record, save except constitute all Siddens, Alverda of the collateral they neph- being M. Siddens, brother, heirs James etc. ews, nieces, prior to the 21, 1898, divorce
On James M. father, and his Siddens, Siddens, made a settlement mother, by conveying who was then his Hattie real and she executed written her certain instru- releasing the said Siddens and his ment, MISSOURI. COURT OF v. Whitman. support agreed maintain the estate; therein be born. court asked, The defendant Alverda and the Siddens inclu- four instructions, four numbered one refused sive, which will be considered later.. September
, the issues the court found On 17, 1918, plaintiff, judgment accord- in favor of ingly. and rendered its on the date last Alverda Siddens The defendant a new trial and in aforesaid herein her motions filed judgment. above were, arrest of Both on the motions *7 appealed duly by her to the overruled, and cause date, this court. None appealed. other defendants the controversy, upon passing the I. merits of sight Statutes Revised must not lose of Section we “All reads as follows: courts 1909, which intention of last concerned others execution regard wills shall will, have due to directions of the meaning and the true all intent and in testator, brought matters before them.” perfectly reading It is manifest, the will of James Siddens, heretofore he out, M. set intended dispose said instrument real, to all personal residuary and mixed, as there is no clause equally therein. is It as clear instrument, from said plaintiff, any that he1did not of hers, intend or child part any should take of his estate, he was which at- dispose tempting to his will. It is no less certain, that if the decree the lower court in favor of permitted passes controversy is to stand, the estate very whom individuals James M. to declared should not instrument, above take it. He had already upon plaintiff, made a settlement bene- daughter, Opal fit of herself and Siddens Morrow.and, provided property in said “that hence, pass will, shall absolutely to vest child.or children and my heirs of James son, Siddens, as shall be except by any any him born woman, to save child or present children born Hattie of his Siddens. It is TERM, 283 Mo. v. Whitman. any child
my or will that neither said Hattie Siddens mother become or children of she which be or in or of, any whatever, or interests shall have receive parcel part my thereof.” or or attempted bestow testator hand, On the upon child son, receiving capable it, born if children, sought conveyed. fact that The mere be entire estate given by the Harvey' life estate Siddens was indication, no is aforesaid, under the circumstances will, taking the estate said son averse to testator subject divested, death, at testator’s remainder, capable of born, the son be or children should of. receiving . under will. general
Keeping observations, these in mind determining the inerits of this be considered should questions pass controversy, involved. to other we principle upon and au both settled, well II. It vesting thority, favors estates, lawr contrary, at intent expressed absence possible immediately, time, the earliest [Jones Waters, death. testator’s Estate, *8 l. c. Mo. 589-590; Will, l. c. Collier’s Byrne v. v. Keller, France, Chew 100 Mo. l. c. O’Day Tindall, l. c. Tindall 167 Mo. 646-7; Mo. Heady Hollman, Mo. Meadows, l. c. Co., 687-8; c. 271 Mo. Hen l. Deacon Trust Huntington l. Real Calhoun, derson S. c. Megaree, l. 303-4; c. Estate 217 W. Dunbar v. Co. S. pp. R. L. sec. Sims, 67, 525-6; C. ante, 861.] sec. In Collier’s Wills, Will, Underhill 321, J., l. c. said: Wagner, generally dissimilar, wills are and one “As can hardly precisely rarely found like another, cases are apposite, directly with which so as to be met are be controlling authority in new case which arise. up grown rules of law which have there are But certain interpretation firmly fixed become wills, COURT OF MISSOURI. Collins v. Whitman. disregard, liberty which no unless the lan- court is at guage making plainly re- devise, testator, quires it; and one all estates shall of these rules that is, contingent. The considered vested rather than law vesting is principle effect favor the estates, property the sub- seems to which is be, ject any disposition, testamentary or whether other- belong object gift immediately wise, to the taking the instrument or so soon afterwards effect,- object as such comes terms or the there-’ existence, into permit.” of will
In the later case of l. Keller, Chew v. c. Judge speaking for the court, said: Black, “The law favors vested where estates, and, there is a doubt toas whether remainder is vested or con- tingent, the courts will contrue it aas vested estate. expressions they, . . . The Levin Baker and possession others, are not take de- ‘upon vised ‘until Lind ell the death of Jemima and that J parts her death’ the devisees shall take as tenants all common, relate to the when times the devisees shall possession, have nothing have to*do with the vestíng of the estate.”
The other proposition, cases cited under this full expressed. accord with the views above
(a) It is admitted testator’s Siddens, the death of her husband, renounced the provisions giving -will her a life estate in said part land, elected to, did, take a child’s and, hence, owner of became undivided one-half of the real controversy. estate in It is likewise admitted that tes- died in Gentry County, M. tator, Mis- leaving, on souri, as his only heirs, said Mary'E. Siddens. the widow duly probated of testator. will was Said June 15, 1911. *9 Harvey Siddens James Said Siddens were appointed executors without bond. Harvey
James Siddens was married to defendant, Siddens, Alverda October 17, 1900. No children TEEM, 1920. APEIL v. Whitman. Opal except Harvey Siddens, to said ever born James plaintiff herein. daughter Siddens of Morrow, Missouri,. County, Harvey Gréntry James died Siddens duly pro- was which March will 17, 1916, left a Opal daughter, gave Sid- 1916. He bated, March 23, deps conveyed all by instrument, Morrow, $5, Siddens, Alverda remainder his estate to appellant in cause. conveyed Opal the real
Said Siddens Morrow controversy by quitclaim on Novem- deed, to ber principles foregoing
Keeping facts, in mind the proceed merits a consideration we law, will herein. involved conception According law which
III. to our necessary govern case, it not for us should any enter into common extended consideration of the law, referred relating tail, statutes, estates nor the respective for it is conceded counsel their briefs, Harvey. foregoing in the record that Siddens sim- James aforesaid, ply acquired a life estate real estate will. the terms his father’s respondent contend understand that James We upon Harvey ply his father, the death of was sim- Siddens, life tenant under that he latter; acquired other or interest never different the' upon property here that- involved; death daughter, Opal Siddens the owner of the Morrow, became undivided.one-half grandfather, heir said real of her as intestate under the without statute, reference to the wills of her father that she con- testator, veyed plaintiff. inherited, thus to this On appellant we hand, the other understand contends that given Siddens life estate his father’s will, contains no residua- ry the death clause; of testator, James Mi aforesaid, tenant who was his heir *10 MISSOURI. OF SUPE-EME COUET Whitman.
Collins v. at with law, Descents, under the became Statute vested prop- in the estate in as intestate land, remainder said subject child or chil- erty, if a same, be divested provided dren born in testator’s thereafter, as in di- will, and that said was never remainder, estate by by vested the birth of child or children other provided plaintiff, woman than as in said will; by appellant reason of the became the facts, aforesaid, owner of the in undivided half said real estate by of the will husband, virtue her Sid- dens. simple question
The fee the real title to estate re up Upon mained in testator the time death. of his happening became event, last the son vested property. with life a estate became of the What -by remainder, held testator the time at of his death? It known at law, as matter of that time, inoperative that if the remainder should become still want of taker, remain in existence, would but pass become intestate as and, such, would James.Harvey law; Siddens, as heir of testa by tor. The son did not take remainder virtue of place but took the will, his father, as heir of the latter, under the Statute Descents, and continued to property,'subject hold as intestate remainder, divested on birth of a or children some plaintiff. than This view of the woman situation clearly warranted prop authorities cited under supra, osition two as it vested Sid- dens, heir tenant, as of his father, remainder immediately in death of testa subject tor, be divested aforesaid. We opinion, the conclusions above announced, are cor principle, rect and are sustained weight the decided authority, some of which are as follows: Gillilan Peugnet 99; Berthold, 183 Gillilan, l.Mo. pp. 64-5; c. Fearne Remainders, 350, 354, 361, 363; p. 874, Underhill Wills, 1330; sec. R. p. C. L. pp. Bigley sec. 56-7, 525-6, secs. 67; Watson, TERM, y. Gilpin 25 Ohio Tenn. 39 S. Williams, Weatherby, 54 N. 180 Ill. Harrison St. Baldwin, Messer v. Ill. Moore, Bond v. re Ken Pa. Estate, Ill. Bell’s St. 262 yon, 293; Gil 48 Conn. Butler, R. Rand I. *11 (Ky.) Yewell, Coots Stone, man W. S. Wyck, Ky. 83 Va. Van 25 W. Stokes v. S. (Mass.) Gray Loring Eliot, 3 E. 724, S. Mackey (D. C.) Craig Warner, great a all the interest, of with deal read, We have respective nu- as well as briefs, in cited authorities and feel satis- referred to in those others merous cited, In Gillilan heretofore stated. with the conclusions fied pp. Judge 212 S. Gillilan, 351-2, Bond, speaking for in said: Banc, Court ' ‘‘ by question presented only remaining this The remaining appeal in of Nathan is became estate what specifically (which in clause 5 had devised he Gillilan will) upon of his defeat of devise lack heirs that causing George thereby a Gillilan, thereafter born to lapse contingent remainder-tp In such heirs. possible: question are views solution two passed a in Nathan Gillilan First, that reversion intestacy; in second, descendants as case of that it supra. conveyed residuary clause was will by the learned trial The latter* is view taken court by appellant is taken as dernier resort the view a (as brief) in her in shown case this Gillilan court Gratia it that clause of does, view take, should special estate at common law, created an tail which was changed by into life estate in statute the tenant in a contingent with a remainder' in fee in tail certain sub- sequent body heirs the life tenant. consider- question ing it must Nathan Gilli- realized right, had a mere possibility, a not reversion lan carving after through much of out as was devised so. instrumentality clause 5 of the will. The rever- in, inhering proper subject him so sion of a his will if he grant so desired; clause of otherwise MISSOURI. SUPREME COURT OF n Baking
Stack v. General Co. it descend heirs law under the -would Statute- intestacy.” of Descents and Distribution as in case of Respondent above case is contends, that the not point, because Nathan did not in terms create G-illilan George, placed estate in his son but was there impress the statute. This distinction not us as does being disposed sound. The court the case theory George simply toot life estate, as did Siddens this case. If there been had residuary plain no clause, the Gillilan will, it is supra, construing what the court, will, by have ai would arrived the same conclusion reached present
us in the case. upon principle authority, Whether considered we satisfied that the trial court reached errone- disposition ous conclusion its of this case. We ac- cordingly directions, reverse and remand the with cause, court, to set aside its trial decree, and to enter a *12 judgment appellant, declaring behalf of her be the controversy. absolute of the real estate in owner Mosley, CG., White and concur. opinion foregoing
PER CURIAM:—The of Railey, adopted opinion hereby as the C., of the court. All judges of the concur.
WILLIAM STACK GENERAL BAKING COM- Appellants. H. PANY and GEORGE KELLER, Two, Division Physical Speed: Facts: Demurrer. Where
1. COLLISION: two wit- traveling speed that automobile was nesses testified eight wagon and the horse to the to ten miles hour which it trot, conclusively traveling held, cannot be met was together sideways, physical headed vehicles facts .that the two upside down, wagon that was turned the automobile leg broken, the shaft and horse’s was turned over dangerously negligently speed automobile was jury. question high, one for the but the