*1 MISSOURI. COUET OF SUPEEME Dunbar v. Sims.
FANNIE et Appellants, al., DUNBAR v. CHARLES et al.
SIMS Two, 25, 1920. Division June which A will to Sell: Vested Remainder. 1. WILL: Power during her natural for and all his estate to his wife devised real absolutely” children go in his death vest life at her “to and authority eaually, “to sell wife his with proper,” may created see fit аnd or all of said real estate she equitable vested estate in wife, to gave life death, sell and power, widow’s children parts. aliquot convey their gave Right which Possession. will 2. -: -: -: provided “at life and his real estate for then wife testator’s go my death, shall all will and devise equally, my . share . . seven children in fee in alike,” that the a definite intention did show share not of the hut until the death to vest in the children pos- should have when children said words relate to the time title, session, nothing which with the and have to do upon testator’s death. became effective Conveyance By Where Partition. -: -: -: Children: equitable remainder in the estate a vested remaindermen took the death of the and after the testator and before death of therein, they conveyed no further tenant partition. property, in its and are to share not entitled Ragland, Appeal from Balls Circuit Court.—Hon. Judge.
Affirmed. ap- Farres for & Mahan and M. Smith L.
Mahan, pellants. on the there- fаce will, intention the testator that shows definite
of, in the children until not to was' says: “And her death I will for he executrix, shall real estate- and vest ab- devise, equally, share and solutely in fee Kroeger, Buxton St. Louis alike.” share Hardy 93;Mo. Fuller, Clаrkson, Assn. B. L. Taylor Newman, Mo. 1.98; Tesson Hughes, 110 Adams, Emmerson v. intend did not will, *2 prior to the title to the real should vest had who the executrix when it would known that time her death had not until land, sold the sell, whether land, could not be known would have the who person, to other ones, which some or Hardy might v. convey land. whom the executrix Taylor App. Adams, Mo. v. Clarkson, 87 171; 128; 96 Am. Brant, Mo. 15 St. v. Preston 277; Olney Pavey, v. HI., 430, 120.; v. Am. St. Marard 128 15 Luddington, Mass. 104 21 Pick. Hull, 311; Thomas v. (3) Vorge, Cyc.. 162. 13 Warne v. 193; 647; present convey absolute capacity an There no any time in the children title to the remainder of none executrix,, and Sims, the question Portland deed to the Atlas Ce- them Company “the alone had carried title. She ment present convey capacity an absolute Propery, 397, and on Real mainder.” Tiedeman sec. Kroeger,.219 Runn, v. Mo. Buxton v. 224; Buxton note; conveyance frac- (4) of an undivided Mo. 278. 219 right, quite thing part from “all a different tional parties plaintiff under- interest.” None title any portion, particular any or undivided took to arising a sale of the lands. Johnson v. John- funds from App. Llewellyn Llewellyn, 122 Mo. Mo. v. 34; 170 son, Llewellyn 163 Lewis, v. 467; funds the sate to defendants
under which Company, parts Portland Cement Atlas plaintiffs, gave no them thereto. Thеre attempted assignments any into real estate converted personalty, any or of distributive share Llewellyn Llewellyn, the estate of their father. Mo. Johnson v. Mo. Llewel- Johnson, 170 lyn (6) By 163 Lewis, words ol right, conveyance grant, “all interest,” grant, only with the and was coextensive a con- was veyance any particular part, of a or in- one-seventh, SUPREME COURT OF MISSOURI. ;es. warranty, not a as to terest, assnran farther y. Butcher Circle, Mo. 140; v. Chouteau’s Gibson Heirs, Bogy Mo. Pell ; Schaub, 13' v. Jаckson, Wolfe, 11 Wend. Bradford v. Wilson Fisher, respondents.
J- 0. Allison and T. E. Allison for
a life
^reates
widow, with
and vested the
sale,
in fee to his seven
will. Waddell
named
v. Waddell, 99
Waters,
Jones
Byrne
Aubuchon v.
Bender,
France,
Mo. 639; Jefferson v.
Roberts v.
Tendall,
Albright,
Crunе, 173-Mo. 572.; Gannon v.
Mo. 238;
*3
Edgar v. Emerson,
owner surviving him E. Sims, left He Luther Sims, Sims, Enoch Sims, Charles Roy George Sims, 'Arch Sims, Sims, Edward Dunbar, Lee Sims Dunbar. Fannie herein, Edward Sims, are are Arch Sims and Sims Enoch Sims, Luther Sims, defеndants. plaintiff George Sims, 25, 1909,
On March defendant Archie executed and delivered *4 expressed warranty for the consideration of their deed right, conveying in all their and interest and $800, petition. in estate described to the real plaintiff Roy February and On Sims, to defendant T. and wife, executеd delivered Charles expressed quitclaim deed, for consider- their Sims, right, conveying title and interest all $625, ation of in land. said plaintiff Dunbar 18, 1909, execu-
On October warranty to her deed defendant, delivered and ted of consideration $1,500, fоr the Archie Sims, SUPREME COURT OF MISSOURI. right, in conveying her to him of title and all said land. Mary E. July Sims,
Afterwards, 2, 1910, said under in hus- fifty will her her way duty band, sold, executed, deed feet wide across land for Atlas Port- $3,500, said to corporation. appears land Cement from Company, a plaintiffs evidence, that neither of the herein any part $3,500. of said ceived Mary April died widow, Sims, E. — n will was executed on Sims, E. ’ day February, 1907. It was and evidence, offered separate paragraphs. provides five contains Numbеr 1 payment paragraph gave of his debts, etc.; to the absolutely, personal property, subject all payment paragraph of his debts; named Mary Sims, E. wife, executrix, with the direction request, required give she to third bond. The (сid:127) paragraphs, and fifth read as follows -. I
“Item Third: will and my devise all of my Mary during estate to E. for and Sims, her her natural life, death, and at I and devise my my real estate shall fee, namely, Sims, Enoch Sims, Sims, Edward Luther Sims, Lee Arch Sims, equally Fannie Dunbar, Sims, share and share alike. “Item Fifth: will and direct that execu- said power, give Sims, shall have hereby trix, and I authority sell and or all may real estate as she proper, see fit and good perfect simple make the same in fee purchaser proceeds and make distribution of among my of such- said sale herself,” etc. The deeds from mentioned, duly Archie and Charles Sims, were recorded County, Missouri. Ralls 1918, the March trial On court found the issues defendants, favor entered according-, its decreé ly. Plaintiffs, time, filed due motions for a trial, new *5 Mo'. over- motions Both of judgment. in arrest this them duly appealed by cause was ruled, and the court. facts over dispute
I. There is practically ap by It is contеnded set out. as this case, no vested acquired that the children pellants aforesaid, real estate in the remaindermen interest widow, Mary the death that, 24, 1917; April Kematader. in their had no thereof, conveyance, subject estate, which father's to Archie respective the time executed appeal This contention does Sims. decidedly we are contrary, us sound. On as being 1907, testator, upon the opinion, three paragraphs E. Sims, virtue widоw-, with a became vested aforesaid, the will and five of with full power estate in controversy, the death and that disposition during life; heretofore named, 1907, of testator his seven remainder, equitable' with an became vested life estate and Estate Co. [Huntington Real to the widow aforesaid. 192. W. Trigg, S. 217 S. W. Megaree, Trigg Schneider l. 1014 and cited; Kloepple, cases c. McFarland, Priest v. Tallent
389, 390;
15,
l. c. 13,
161 S. W.
Fitzpatrick
Kaiser,
505-6-7,
Burnet,
Burnet v.
Ed
Gibson,
Gibson v.
Perry,
Huff, 235 Mo.
Grace
gar
560-1-2;
l.
c.
II. face, on its shows a definite' will, testator, intention title was not *6 MISSOURI. SUPREME COURT OF
Dunbar v. Sims. executrix, Vested in the children until the the says.: and de- for he “And at her death and vest possession. vise real estate shall in children, in fee, ’’ . equally, . . share and share alike. expressions quota Such are fоund above tion frequently have for con before the courts conn* uniformly sideration, and when construed, have been light considered in to to relate facts, possession, when the have devisees times, shall nothing to with [Jones dо of the estate. Waters, 17 Mo. Will, Collier’s Chew v. Byrne Keller, l.Mo. c. France, Heady 646-7; Tindall Tindall, Hollman, 251 Calhoun, Henderson v. (Mo.) Huntington Megaree, Real Estate v.Co. (Mo.) S. 217 W. l. 304; 2 c. Underhill Law of (6 Ed.), p. Wills, sec. 2 Jarman on An Wills (Tex. App.) derson v. Menefee, l. c. Civ. Hospital Noyes, Rhode Island Trust 26 R. I. 334, Co. 999.] Atl. single quotation is to the trend indicate sufficient judicial opinion, respect to this matter. In Chew v. 100 Keller, c. J., said: “The law Black, l. favors estates, and, where there is a vested doubt as to cоntingent, whether courts will construe as vested estate. ... The ex pressions they, Levin Baker and are not others, possession property to take ‘until devised ‘upon death of Jemima Lindell,’ her death’ parts the devisees shall take the tenants common, have-pos all relate the times the devisees shall when nothing, vesting-of and have session, do with the estate.”
Aside from other cited, the conclus authorities. Hunting reached this court ion recent case of Megaree, Estate Co. l. c. ton Real 217 S. W. 304-5, controversy adversely the above appellants. settles to his Avife life having Testator, said right possession dur- with it the land, which carried right to sell ing given her the having also life, and why do sо, saw fit if she property, said upon testator, the death vest, should widow’s remain- the will? As under the terms rights the widow’s with dermen not interfere could of said face nothing discover thereunder, we for testator instrument, which discloses cir- withholding under the rеmaindermen, title of the *7 rather aforesaid, until cumstances testatrix, own death. effective, than have the same become appel- opinion, foregoing contention of our authority. supported by is reason nor neither lants, Having conclusion, III. heretofore reached of testator in Dunbar, Sims each vested with became equitable to the undivided remaindermen, the. title, „ the real one-seventh of testa- owned at that time, tor estаte and disposition given necessarily fol- appellants lows, that the deeds from brothers conveyed, grantees mentioned, therein respective grantors named all the interests which said aforesaid, owned the real and that estafe valid title to the controversy. property in Spiking, [Oldaker v. 210 (Mo.) 62-3.] judgment respon- court in favor of trial accordingly
dents, affirmed. is Mosley, White and concur. GG., foregoing opinion PER CURIAM:—The Railey, adopted opinion hereby as the of the court. C., All judges concur.