61 S.W.2d 739 | Mo. | 1933
Lead Opinion
Plaintiffs and also the defendant claimed title to the land by virtue of the second clause of the last will and testament of R.L. Cravens, deceased, dated July 4, 1921, which reads as follows:
"To my wife, Minnie Cravens, I give, devise and bequeath the home place whereon we now live, in the City of Salisbury, Missouri, complete, together with thirty acres of land, being the east part of the north half of the northeast quarter of section sixteen, township *137 fifty-three, range seventeen, Chariton County, Missouri, for and during her natural life, with full power of disposal in any way she may desire, by sale, will, mortgage or otherwise, but in the event that she fails to make disposition of the same, or any part thereof during her life, that part remaining undisposed of shall pass to my son, Mortimer Cravens, on this condition: That he has lived with his mother until reaching the age of 21 years, and is still living at the time of her death, but in case he has not remained with his mother until reaching the age of 21 years, or is dead at the time of her death, leaving no descendants, then the same shall pass to and become the property of my living brothers and sisters, or the descendants of such as may be dead,per stirpes, in equal portions, share and share alike."
Plaintiffs are the brothers and sisters of R.L. Cravens and their descendants, referred to in the will. The contention of plaintiffs at the trial was that defendant, Mortimer Cravens, had not performed the condition mentioned in the will of living with his mother until he reached the age of twenty-one years. The trial court so found and for that reason entered a decree for plaintiffs.
The undisputed facts in the case are about as follows: Mortimer Cravens was born December 8, 1906. When he was about ten years old he was legally adopted by the testator, R.L. Cravens and his wife, Minnie Cravens, who had no children of their own. Mortimer finished high school in May, 1924. In August of the same year R.L. Cravens, the testator, sent Mortimer to the Chillicothe Business School at Chillicothe, Missouri. The testator purchased a life scholarship for the defendant at that school. Mortimer began taking a typewriting, stenographic and bookkeeping course. The testator died in August of the same year. Defendant continued his studies until the latter part of 1925. During the time he attended the school he visited his mother during vacations and at other times. He remained at home a short time after he finished school and then in obedience to the advice and request of his mother went to Kansas City and obtained employment with the Kansas City Power and Light Company, where he was employed until the time of the trial. After the death of the testator, Minnie Cravens, the mother, paid the necessary expenses for keeping defendant in school and also paid Mortimer's expenses of going to Kansas City to seek employment. Defendant visited his mother or various occasions and the mother visited defendant at Kansas City. While defendant was employed in Kansas City, he was married. The wife of defendant visited the mother of Mortimer both before and after the marriage.
It is apparent from the evidence that it was the wish of the widow that her adopted son be employed and remain at his work rather than spend his time with her at her home. There is no evidence whatever in the record tending to prove that defendant and his mother ever *138 had the slightest misunderstanding. We infer from the record that the defendant willingly complied with the wishes expressed by his mother. She died during the month of April, 1929, without having conveyed or devised any part of the real estate in controversy.
[1] The law would certainly be harsh if, under the circumstances of this case, it would declare that the defendant had by his conduct forfeited his inheritance. The law does not favor forfeitures of this kind. [Harrison v. Harrison, 31 S.E. 455; 40 Cyc. 1717; McMahan v. Hubbard,
[2] The provision in the will that the son remain with his mother was evidently made for the benefit of the mother. The mother did not need the help of the son for the purpose of making a living. She was entirely satisfied with the son's conduct. For the son to have literally complied with the condition of the will he would have been compelled to abandon his work at school, that he had commenced as planned by the testator, and to remain at home, perhaps idle, contrary to his mother's wishes. In 46 Corpus Juris, page 1221, section 4, we read: "In the absence of the father, the mother may direct the child's conduct, residence, education, occupation, and associates." The mother, Minnie Cravens, had the legal authority to and did direct defendant's conduct. By her own acts she waived a strict compliance with the condition of the will. This she had a right to do. [Alexander v. Alexander, 57 S.W. 110,
We hold, therefore, that the defendant is entitled to take the property given him by the second clause of the will. The judgment of the trial court must be reversed with instructions to enter a judgment in favor of defendant. It is so ordered. Cooley andFitzsimmons, CC., concur.
Addendum
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.
