*1 Will Annexed of Virginia Administratrix, With the L. Gardner, Vanlandingham, Appellant, M. Estate Rixey, v. James Frank Hammond T. Slaughter, Joe Ba rnes Ida Belle Doherty, Van Lovie Will Testament of Under the Executor Mary Appellant. landingham W. S. Vanlandingham, (2d) 947. One, 14, 1934. Division March *2 Franken Gardner, Administratrix; Virginia L. Elmer E. Hall Vanlandingham. Mary W. <&Timmons for *3 respondents. Lawson Kale for <& *5 a and
HYDE, of action for the construction C. This an thereby. The case disposed of partition estate residuary of agreed court, an statement of jury, upon was tried testator) (hereinafter made Yanlandingham called facts. John A. By testator 1919. will the question
the will on November absolutely his in Platts- $2500 cash and residence to his wife left of burg. disposed of estate he as follows: The remainder his my wife, Yanlandingham, I shall direct Lovie “FOUBTH. rest, and benefit all the residue and remainder
have use during mixed, wherever my real, personal situated I period of natural life and at her death direct that residue her among my my equally heirs. In the event of estate be divided any my heirs, then the have received share living issue.” if shall descend to their seventy years age
The was at the he made this testator time years forty been will. He his wife then married than had more banker, was who was prepared and had no children. The will his lawyer. living liv- The testator then had two brothers and two only married, ing sisters; were but two had His brother all children. living living children and
James four his sister Belle had two had nephew, Bixey, had a Frank children. The testator also married without children was the time but child tes- Lucy. April 19, The deceased sister testator died 1922. None tator’s died, nor children, his above-named-had had relatives the will was made time death. The between the testator’s January will, widow, also the executrix died 1931. who was residuary notes, the testator consisted of stocks and $28,305.93, all bonds, of total value of of which was delivered used income during widow. She therefrom to the testator’s life all possession her of was her when remainder she Doherty appointed Joe T. Defendant executor of died. her looked had after collection of income estate. He from this during as her her posses- lifetime executor he retained widow;Jthe brother, it. Prior to the death sion of died, February 1, Yanlandingham, intestate, T. leaving Frank W. Vanlandingham, Mary widow, His no children. was made a de- answer, by her she contended for the but, fendant same construction plaintiff, the will did and claimed- a one-tenth interest in *6 (one-half administratrix property part). of She was his one-fifth during made final settlement husband, of the estate of her and had year prior the death the testator’s Thereafter, 1928. also died, 1930. left widow, Rixey September 28, nephew Frank He ad- children, disposed by will. Plaintiff is his no but estate such, ministratrix, annexed, and, with the will makes claim fund, under a total nine-fortieths of the whole one-fifth the will Frank Van- testator and one-fortieth from share of T. landingham (one-fourth share). one-half of his one-fifth suit, M. Vanlandingham, to this defendants James Belle Prior probate court, Slaughter and Barnes obtained an order of Ida plaintiff Vanlandingham, Mary requiring notice W. Doherty, as executor of the widow, Joe T. the testator’s by disposed to them entire the fourth paragraph deliver of the testator’s Doherty order, will. Pursuant to this did deliver notes, composing and all of stocks bonds the estate, them possession three defendants have ever since had these thereof and collected and used income therefrom. Plaintiffs’ petition stated danger being was in that lost or dissipated and asked appointed possession to take that a receiver be thereof and collect the until proper therefrom distribution income thereof could be de- controversy, therefore, termined. This is whether or not these three $28,305.93; are entitled to this whole fund of defendants how this managed, to be collected and distributed if fund is are not en- thereto; $9,199.41 principal and whether (about titled thereof it) equal portion an one-third the income collected there- by defendants, belongs from, claimed these three plaintiff Mary Vanlandingham. W. defendant found that three Vanlanding- court defendants M. James Slaughter ham, Belle and Ida Barnes were the owners the whole $28,305.93, plaintiff, and that neither fund of Mary defendant W. Vanlandingham, nor Doherty defendant Joe T. had interest Judgment dismissing said fund. entered plaintiffs’ whatever denying the relief asked petition and for in the Mary answer of Vanlandingham. plaintiff Both Mary W. Vanlandingham, here- appellants, appealed referred to as inafter therefrom, by stipula- appeals have been consolidated. tion their contend that the first
Appellants sentence of the fourth para- remainder, subject graph of the will to the life estate of the widow, vested the testator’s death in persons the five (brothers, nephew) sisters and survived him and composed the designated by ultimately his will to class take his property; that not down estate; sentence did cut this vested second but persons the death of these referred to either before testator upon contingency, a- the occurrence which stated the absolute in- might devested, namely: each given death with terest issue before Respondents remainder death of the life tenant. contend that vested; contingent it did the will and not created “was widow; that time that at become vested until the death of testator’s alive;” and then it vested those of testator’s heirs who were *7 indicated an intention that all of testator’s that this
go only to those blood. own is of wills determine primary
While
rule of construction
1929),
S.
meaning
(Sec. 567, R.
the “true intent and
of the testator”
by
actually says
will
intention
be
must
determined
what
say
by
or
might imagine
what
and not
we
the testator intended
explain
said if he had
his intention.
have
decided
further
411,
(2d) 644;
329
44
v.
Rankin,
v.
Mo.
S.
Pommer
W.
[Evans
Hays,
292
285
Church,
417;
Mo. W. Cox v. Mo. S. every presents A. L. R. Almost will difference 1, some note.] language circumstances, extent, be that, so to some each must its apart any from ease in order to ascertain mean considered they ing light in the of the facts as were known and considered that, However, is there the testator. unless the intention so clear auxiliary construction, certain rules of is room for construction no they by experience to more to because have been found are looked upon policies results and are based often correct because reach welfare. public been formulated the interest which have usually are such rule is that words understood One meaning. Therefore, with ordinary primary words, their sense and according to meaning, a technical should be construed well-known meaning contrary meaning clearly appears unless a their technical 29 Crane, 85, 127 Mo. W. will. v. S. from the of the context [Drake (where 325, 149 50 786 990; Mo. S. W. context v. Hoch, Cross by layman require was held a different drawn a and fact that was 298 249 Co., ; 148, St. Union Trust Mo. interpretation) Loud v. Louis 223, 629; 28 R. L. secs. Another rule is that C. 184-85.] S. W. that, by very has estates, unless testator clear so
law favors vested contrary, persons take his intention to the who manifested words designated class, of a must be de will, the members as under given the testator and the estates them the death termined at 644; (2d) 44 Rankin, 411, 329 Mo. S. W. v. then [Evans (2d) 591; Dalby, 32 W. v. 710, 326 Mo. S. Ewart French, Palmer v. Movement, (2d) 428; v. Men & Owens Millions 108, 5 S. W. 319 Mo. 172; Kennedy W. Baker v. 238 (Mo.), 246 S. W. S. 110, 296 Mo. 356, 838; 283 222 St. Simms, S. W. Deacon v. Mo.
790; v. Dunbar 261; Long, 669, 197 S. W. v. Carter Co., 271 Mo. Trust Union Louis 162; Tindall, 218, 167 66 Tindall v. Mo. S. W. 701, 81 S. 181 Mo. 362, good 13 Keller, 100 Mo. S. W. One 395.] Chew rule, usually is that “testators have mind latter for. the reason ownership the technical than rather their enjoyment the actual 652, Scott, 113 340, Sup. U. S. Ct. property.” [McArthur generally that, held rules, Ed. it is L. As a result of these 1015.] indication, compose a contrary who in the clear those absence a heirs, whom a in will remainder class described a as the death of executory given, is interest are to be ascertained 178, note, 49 A. R. (23 C. L. the testator R. L. sec. thereby is vested in cited); given to them cases and that remainder 1917A, note, cited; 25 (Ann. and cases thém at that Cas. time note) Ruling Cases, ; stated, British otherwise “where devising testator, particular estates, after makes an ultimate devise law, contingent ultimate to his heir at such devise does create a person iii of the who shall description remainder favor answer the expiration particular estates, of-the of-heir at law on- but creates person interest in favor the heir at a vested law the Remainders, of his death.” at the time Fearne on testator [2 210.] unqualified ‘heir,’ adjective, “The word is a technical *8 denoting person whom the on the law casts the word inheritance on Remainders, Fearne on A ancestor’s deceased.” the man [2 211.] Laymen heirs he dies. often does not have until use the word “heirs” thinking meaning apparent,” as “heirs usually of descendants. There by fore, is sometimes such a construction made the courts but this is provide for more often done to direct descendants than for collaterals. Rankin, supra, Appellants Evans and cases Claim cited.] [See of proper the construction the word “heirs” that here ap is “heirs argue is parent”-and by that this shown the fact that the ‘‘ was his equally direction to divide among my testator’s' . They say that heirs.” he must have meant to equally it among divide his five would have been heirs had he the who died immediately after he will made and that would not have the desired that the four (if, example, he testator) of James died before children the should equal four, thereby the shares with reducing receive the shares eighths. Appellants argue fifths to from further from this premise, authority cases,, of upon the the above-cited that meaning of any my of “in the event the death.of heirs” the second sentence “heirs -is the death of one these five apparent” before the death of .the testator.. Had the testator specifically'named his brothers nephew as those and.his sisters death, entitled' to the estate after his widow’s might a
-such construction reasonably more be claimed proper. provisions there -then, Even where áre alternative upon the death of remainderman, upon a rather than the death of taker, a first gift is stated: ‘‘Where there is :a particular rule a interest gift property; antecedent to the same .to person whose death death, of, in the is absence of .spoken contrary a intent is con a deáth. to be the lifetime strued the first taker whether sub to the.death of the sequent prior testator.” on Ftearne [2 Re 1500; Cyc. C. mainders, 342, sec. 28 R. L. sec. (2d) 116.] see, 646, 29 S. also, Stearns, 325 Mo. Stevenson .of distribution If had limit the ultimate the testator meant have, could will,’he five, his living his he estate to these when made by providing them, by accomplished purpose naming either .-did, he before any as five died and, he did for his heirs of the case so if he by created changing thus his the new situation meet happened, had changed it; if that desired. Whether he have persons know, that we that stated do not but know he we do .“heirs.” be his among should whom his should be divided “issue” He his.“heirs” also made distinction between any of death died, that, heirs them, and he in the event who said They could their their share “descend to issue.” Nor testator. have after the had descendable estate death included wife would be do think that in testator’s we this case the L. 28 E. C. heirs,” suggest (see “my respondents the term clearly provided 228), especially this will it was sec. since have absolutely she should what property she should take and what should, reason'why during therefore, we her life. no We. see give meaning not and we hold the Avord its correct “heirs” testator’s; persons, given who are at the death are those widow, by paragraph, the first the fourth sentence of at of his death. became the heirs of testator the date my heirs,” any of necessarily It that “the death follows paragraph, means referred to in the second sentence of the fourth and before death the testator them after the the remainder the death of his But does that mean widow. became persons who
does vest in them If the not until her death? death, also true heirs were determined *9 n ? Ee- that the the remainder in at of testator vested them the death First, there- spondents that that contend it did for two reasons: not the. gift except is no of the estate divide to them in the direction death; second, and, estate at her that the provision the second may die, sentence, it un for the issue of the heirs as makes of such Preliminary ultimately certain be entitled to the estate. say vesting of considering contentions, we “that the may these estate, subject personalty as is to the same rules real interests here, where, v. especially as will. both are included in the [Deacon 669, 261; 688, 197 as 271 S. W. Co., St. Louis Union Trust Mo. c. l. Eemainders, the executory 1 While devises see Fearne on 403.] residuary the personal property was in fact all or question
paragraph disposed it should be real of it whether personal, and it could either or both when he have been died. stated.by-respondents inapplicable in this
The first reason generally case. is that the division The followed rule directions therein, particular of a are property, after the termination 1064: intention, to relate
construed,
contrary
in the absence
a clear
enjoyment
thereof and
the
commencement
remainderman’s
the
82;
L.
536,
49 A.
vesting
not to
R.
L.
sec.
of his
C.
title.
[23
660,
185,
Roberts,
627,
287 S.
note;
R.
l. c.
Plummer v.
315 Mo.
688,
316;
Co.,
669, l. c.
271
Deacon v. St.
Mo.
Louis Union Trust
Will,
cited
261;
197 S. W.
In
Mo.
Cases
re Collier’s
40
287.]
respondents
not
should
are those in which an intention that
the title
thing
immediately
clearly
is true of
vest was
The same
shown.
by respondents upon
cases
as
proposition,
cited
such
their second
Ryland,
424,
v.
1035,
v.
Eckle
256
165 W.
Dickerson
Mo.
S.
Dickerson,
Mo.
those
211
This does not that the shall be divided among “surviving” heirs, living” any “then nor it use does or phrases words which have been held to mean that those, who at might the death of the life tenant be the heirs of the testator, were merely intended to have It the ultimate estate. uses “my any the term qualification explanation. heirs” without provision they for issue is “the (my heirs) share would have living received if shall imply descend to their issue. Does this not interest, enjoyment yet received; of which was to be title to which could Furthermore, descend to their issue? the second say sentence of this paragraph if any does of the testator’s (before tenant) die heirs the life any issue there shall be disposition different of their already share than that made first sentence thereof. To respondents’ reach construction, we must that, add the second sentence so actually what says, instead it would read follows: “In my (with event issue), heirs then
the share living have received if shall descend to their *10 and in event any my issue the death heirs without issue then the share living go have received my to shall heirs if living survive them and who are my at death of 'wife (Our italics.)
1065 While On neither done. authority reason nor this be can Missouri exact in a apparently situation in this not arisen case has be is to ease, which it upon this court has principles declared the by courts passed upon decided and the same state facts have been jurisdictions. of' the Court a was Such case ruled The Chancery England 9 234. Willock, in Ves. 1804, Smither v. upon
case was stated question thus: cause arose “The bequest personal money arising sale of real estate and of from the estate, life; to the her testator’s wife for from and after her death, capital to be divided testator’s brothers between the sisters, will, shares; named in the equal in case of the death but wife, of them the him or her lifetime of the shares of his, dying, every her, so to be divided all or their between one of children. One of the testator’s óf the brothers died in the lifetime widow, having held ever had a child.” The court vested, subject “the share the deceased brother to to be de- be only vested in the event death in the life of the testator’s widow, leaving children; consequently, having that event not happened, his representative also, Hervey was [See, entitled.” M’Laughlin (1815), controversy 1 Price, 264, principal where the was between per- the children of a deceased remainderman and his representative; sonal Swanston, (1818), and Galland v. Leonard 161, where none of the remaindermen died.] principle same was (1800), involved in Harrison v. Foreman 5 Ves. where bequest the testator made a to one for life after the death of the life tenant equally. to his cousin’s two He children provided that, further in case of of either of them in the tenant, lifetime of the go life the whole should to the survivor of them.
Both children died before the life tenant. The court held that these two children each took a vested upon interest to be devested con- tingency which place, is, never took only the death of one them before the death of the life tenant. The court said:
“If interest, there is a clear only vested see, court is to what away; there is to take contingency and the is, that in case of tenant) (life the decease of either of them in the life of Mrs. Barnes go whole living the survivor. Neither them her . . . interest; death. There is a contingency, and the upon devested, which it is happened; never the vested interest remains; contingency therefore if had never been annexed ” . it. case,
A in principle Missouri similar cases, the above is Sullivan Garesche, Mo. S. W. where two sisters were de- their provision vised mother with the “that, in the case daughters, of the death of either these two her estate go other, and in case of the death of both marriage before the prop- erty among” my should be surviving divided children. This court *11 1066 daugh- devise; held executory that the that the two condition was an
ters devested had a be simple in could fee which the the death leaving’ more both of them one or unmarried them surviving; brothers or “if they or either of sisters but that marry other expectation it would of the be the end of all children will; likewise, to if that, take under the all of the and in children daughters died fee be absolute before two them, (marriage of not, whether married or in either event since sisters) one of prior them that or death of all brothers and of their contingency upon could which their was to devested vested fee be never 271 Also, Co., occur. in Mo. Deacon Trust v. St. Louis Union 669, 197 W. S. W. 283 222 Whitman, 383, Collins v. Mo. S. (which Lemp, 46 135 (2d) Trautz v. 329 Mo. S. will had provision, lacking here, if a died remainderman surviving children his interest went to the other remainder- men) ; provisions re- go for an to interest issue or children maindermen executory limitations, were held to which be did prevent vested estates in of the tes- the remaindermen at the death subject tator but upon which were to be the occurrence devested contingency; namely, prior stated surviving with children designated the time in coming enjoyment into estate. a discussion see of the earlier Missouri authorities [For Executory Property Missouri, Limitations of in 11 U. Law Bul- of Mo. Devises) letin, 3; see, also, 1 (Executory Fearne on Remainders 381.] Remainders, The 2 rule all of these cases in is Fearne on stated
280, as follows: “Where a conditional limitation is limited unborn favor of persons, persons given description, who shall no answer a such persons come in description, preceding esse or answer such absolute; because, may becomes although express condition have fulfilled, go over, been on yet, which such estate is no as there go over, one to whom can according terms of the conditional limitation, necessity it must of remain undevested the fulfillment express (Italics ours.) condition.”
Is not that the ? situation here If the remainder vested in the heirs subject death, executory the testator at his an limitation favor such of the issue of of them as died with the life issue before tenant, any then in case of dying of them without issue the con- devesting dition for the of their vested interest was never fulfilled. Supreme rule, citing Court the United States followed this supra, Willock, Smither v. Scott, 5 McArthur v. U. S. Sup. Ct. L. Ed. 1015. In property that case testator left trust, equally among the income be divided his children five any dying, among grandchildren the issue child also age, successively came until after death of all of be live to may “‘who youngest grandchild children until time age,” which twenty-one years at age shall arrive my grand- between divided equally “shall inherited have shall grandchild aforesaid children ... per capita if leaving children child or made, died before said final division is *12 per receive and shall take lawfully begotten, child or children such which the my personal and stirpes said both real the share of entitled been parent would have such deceased or children of child ’’ living such final distribution. to have if time of and receive at the grandchildren The the whether these question before court was the after (entitled them equally have the estate divided between to grand- youngest of and when the death all of the testator’s children would which age) contingent remainder years child 21 of had a became only living- issue of those grandchildren and the vest in the then grand- immediately in the deceased; whether the remainder vested or testator, opening to living death the thereafter children, at the of successively at grandchildren them and vested let after-born grandchildren, shares of those birth, be devested to the which would of the the only, leaving before termination should die children who construction the latter court that trust estate. The held saying: one, correct directing conveyed
“Words land to among to or re- divided always after the particular maindermen termination of a are clearly presumed, by will, unless provisions controlled of the beginning enjoyment by remaindermen, to relate to the vesting not to instance, the title in them. For de under a legal estate, equitable, vise an to the children for life, upon among grand be divided after their death his to fee, grandchildren living children in at the death of the testator subject open at once, take vested remainder to in after- and let although grandchildren; grandchildren born the number of consequently take, proportional each, share cannot until particular course be ascertained the determination of the es parents. Considine, of their- 6 Wall. tate v. [Doe 458; Cooper, 167; Dingley 19 5 Mass. Cropley Dingley, v. Wall. v. 61; 4
535; Provoost, Linton v. 33 Laycock, v. Johns. Ohio Doe 3 Perryn, 484; Dow, 5 128; Doe, v. Term. R. Randoll St. Doe v. So, personal direction that shall he divided at
202.] expiration an estate creates a interest. vested life [Shat 2 In Stedman, Pick. 468; 168; Hallifax v. 16 Wilson, tuck v. Ves. Kay 3 Trust, 280; Dutton,
re & J. Strother v. 1 G. J. Bennett’s De & 675.] meaning remainder, being according legal “The contingent gift, of the is not be held of subse- words virtue will, provisions necessarily those re- quent provisions unless - quire subsequent provisions of this will other objects. it. had 1068 final any grandchild
The direction have died before the that if shall per division, stirpes leaving take and children, shall receive estate, parents which their personal, share real and both living, been if then was evi- have entitled to have and receive dently grand- merely of a provide intended for children deceased child, contingent, nature, and not as vested or to define the previous general gift grandchildren; upon its effect any grandchild leaving gift that is to divest the share deceased issue, Willock, issue. vest share such v. [Smither Johnson, 441; Darling Ves. Goodier L. R. Ch. Div. ” Ed.) Blanchard, (Italics (4 Mass. 1 Jarman on Wills 870.] ours.)
Is it not
to construe
being
reasonable
the testator’s intent as
death)
(at
per
“heirs”
should take a
capita,
vested interest
those,
but that the
coming
“issue”
who died before
into
enjoyment
interest,
per
of their
stirpes?
should take such share
any difference,
It
would not seem make
the result of
con-
troversy,
such
purchasers
whether
“issue” would take as
under
*13
by
parent
the will or
inheritance from their
provided
deceased
for
by
Hervey
will. It
M’Laugh-
the
would have made a difference in
v.
controversy
lin, supra, where the
was between the children
the
and
representative
personal
will;
of the remainderman named in the
(so,
rights
if
also,
creditors of a deceased remainderman were
involved).
many
following
Cases from
of our State courts
the
rule of
cases are
in an
the above
collated
annotation in 37 L. R. A.
(N. S.) 730.
which
Some
those
point presented
involve the
here
(the right
given
persons
by
of the other
the ultimate estate
the will
against
personal representative
as
them, dying
one of
coming
prior to
enjoyment thereof,
issue
into
where the estate was to
go
or
in
tenant)
to their children
issue
of death
case
before the life
(2d)
Carroll v. Carroll’s Exr.
(Ky.),
670;
are
S. W.
Wells v.
(N.
146;
135 Atl.
J.),
(Ill.),
Bennett
Corson
Thornburn
154 N.
144;
Martin, 100
171;
E.
Kan.
Hammond
164 Pac.
Cox v.
Handy (Md.),
Atl. 227,
In re Carstensen’s
(Pa.), 46
Estate
Jennings’
(Pa.),
In
Atl.
re
Estate
children, of a deceased member of the class shall take deceased remainderman’s share is not of itself sufficient prevent being the remainder from held to be vested. ... In provisions regarded having some such are as cases been inserted to a protect supposed the issue of remainderman from .the consequence in parent’s their death the lifetime the testator. issue the effect of the deceased Words to children shall take wills, by representation right are not uncommon in when strictly familiar unnecessary; of so entirely use speaking are strong inference carry with it a expression an does not and common thereby intention designed peculiar express some testator that the vesting contingency interest devised. or of the with to the reference denoting merely the regarded as provisions In are cases such “de- (Note: the word quality estate. the use of inheritable might for such construction in this will reason a scend” here.) operate provision provision Such a does for “issue” though remaindermen, even given the way abridge the estate gift. In regarded creating as a substitutional alternative it is of a dispositions of shares of deceased members cases such some regarded of limitations the nature ours.) seem have been class (Parenthesis remainders.” substituted para first the fourth is that the sentence of
Our conclusion wife life estate in his and vested graph of the testator’s created a brothers, equal persons (his five sisters shares remainders description nephew) answered the of the testator’s heirs of this not a death; paragraph second sentence at his that the contingent but, most, provision remainder was no more than contingent executory devise which would the title devest of such die, issue, prior five remaindermen who with these issue; that, life vest such interest in their tenant Vanlandingham Rixey Frank neither Frank T. with since issue, died hap which contingency could devest title their never executory pened; that, provision for issue whether the was an devise (which apparent sought would seem better reach the result heirs) merely testator, providing for descendants of deceased remaindermen, an inheritable estate was in the indicated appellants; would not take shares claimed respondents therefore, that, the title to the vested remainder of Frank T. Van landingham legal passed representatives, at his death intestate to his *14 Frank Rixey passed the title to the vested remainder of while his will. judgment cause with is reversed and the remanded directions proceedings be had in accordance that further with the views herein Ferguson expressed. GC., Sturgis, concur. foregoing opinion Hyde, C., adopted
PER CURIAM: The judges except J., opinion concur, Hays, court. All absent.