71 Mo. 371 | Mo. | 1880
This action,' ejectment, was tried upon the following agreed statement of facts :
Eirst. That Ceran E. DeLassus died testate previous to the 5th day of May, A. D. 1857, seized and owner of a large quantity of land, of which the land described in plaintiff’s petition in this cause forms a paid.
Second. That, at the time of his death, the said Ceran E. DeLassus left him surviving Eleanor DeLassus, his widow, and Mary E. Picou, Joseph E. DeLassus, Erancis C. DeLassus, Leon E. DeLassus, Cammille J. D. DeLassus, Eelix M. DeLassus, Elie M. DeLassus, Mina J. DeLassus, Mary J. DeLassus, Adolph DeLassus and Marin Z. DeLassus, his only children.
Third. That the said Ceran E. DeLassus, at the time
Attested, etc. • C. E. DeLassus. (Seal.)
Eifth. That on the 7th day of June, 1873, William A. DeLassus, son of the said Eelix M. DeLassus and Lydia DeLassus, the plaintiff herein, was born.
Sixth. That on the 12th day of July, 1873, the said Eelix M. DeLassus died, intestate, leaving his son, William A. DeLassus, his only child, and his widow, the said Lydia DeLassus, him surviving.
Seventh. That on the 10th day of March, 1874, the said William A. DeLassus died intestate, leaving his mother, the said Lydia DeLassus, him surviving.
Eighth. That the said Eleanor DeLassus never married after the death of Ceran E. DeLassus, and on the 21st day of September, 1874, died intestate.
In a case decided a few years since in Massachusetts, the will was as follows : “I give, devise and bequeath to my present wife, Julia Ludington, all my estate, real, personal and mixed, to and for the uses and trusts following, to-wit: In trust to use and enjoy the same as she now does, she taking care of and maintaining my children, so far as the same will maintain them during the period of her widowhood, and at her decease or marriage, then further in trust to divide the same equally to and among such of my children as shall then be living, share and share alike. The names of my said children are: George C., Ann L., Lucy M., Francis A. and Caroline E., to them and to their heirs and assigns forever.” The widow survived unmarried, and signed the deed, as did all the children named in the will except Ann L., who died some years after the testator, leaving one child, Lucy C. Hapgood, who was born a few weeks «before the testator’s death. If Lucy C.' had any .interest in the premises, judgment was to be for the plaintiff, otherwise for the defendants. Gray, Justice, says: “ The devise at the. death or marriage of the widow ‘ to and among such of my children as shall then be living, share and share alike,’ gives a contingent remainder to such of the children as shall be living when the contingency of such death or marriage happens. In the next clause the testator gives the names of said children, that is, all those already described as ‘ my children,’ for he could
So, also, in Olney v. Hull, 21 Pick. 311, referred to iii the case just cited, the use of his real estate during widowhood, was devised to the .wife of the testator, and then this clause was added: “Should my wife many or die, the land then shall be equally divided among my surviving sons,” &c. And it was held that the remainder to the sons was contingent, until the marriage or death of the widow; and that upon her death the estate vested in a son who was then living, to the exclusion of the heirs 'of another son who died before the widow but after the death of the testator, Morton, Justice, observing: “He says,‘should my wife marry or die, the land then shall be equal divided among my surviving sons.’ The time when the estate was to be divided among the sons, is certain and definite. It was when the intermediate estate terminated at the death or marriage of the tenant. Among whom was it to be divided? Not those who survived any prior event, not those who survived the father, but those surviving that particular event, those surviving the death or marriage of the widow.”
In Emison v. Whittlesey, 55 Mo. 254, a similar adjudication was made. Mr. Justice Napton speaking for the court, said : “ This was a conveyance to the mother, and upon her death the remainder was conveyed to her children who survived her, and the children of such of her children as were dead at her decease. At the time of the
Let us apply in the present instance, the principle to be deduced from the foregoing authorities and cases cited. Here the testator says : I give and bequeath unto my beloved wife, Eleanor DeLassus, all my property, &e., &c., to have and to hold at her will and pleasure during her natural life or widowhood. And, at the death or marriage of my said wife, it is my will, that all my estate, heretofore bequeathed, shall be equally divided between my children that are alive, or their bodily children, to-wit: (naming the children,) in equal share or proportion.
The question at once arises, to what period of time do the words “ that are alive” refer? Obviously I think, to the death or marriage of the wife, and I am of this- opinion for these reasons: One, That the will speaks from the death of the testator, and not from the time of its execution. Others, That it would be most unreasonable to suppose that the testator having mentioned his children by name did not know that they were then alive. And yet, we must indulge such unreasonable supposition, if those words are to be referred to the time the will was executed, and not to a future period when the death or marriage should occur. If those words refer to the time the will was being drawn, then they are absolutely meaningless, and utterly destitute of any intelligent expression. If on the contrary, we judge them to refer to the future event of either death or marriage, they become at once significant. And it would seem beyond question, both from the grammatical construction of the sentence, as well as from other considerations already adverted to, that those words can be referred only to the event in the future which was to cause the termination of the particular estate, and the commencement of that in remainder. When is the estate
The conclusion just announced is not affected by reason of the fact that the widow was permitted in her discretion, to give to any of the children property toward their portion when they should arrive at age, since, by the terms employed, it was altogether optional with the widow whether she should exercise the power thus conferred or not, and had nothing to do with the ultimate division of the testator’s estate. In Olney v. Hull, supra, it was provided that each son should, on coming into possession, pay $60 to the daughters of the testator, but this was held not to alter the nature of the interest devised.