FRATIE GREEN et al. v. JAMES LEWIS IRVIN et al., Appellants.
SUPREME COURT OF MISSOURI
July 1, 1925
302 Mo. 302
Division One
Defendant in the Shepherd case resided in one district and was assessed in and taxed in another district, as in the Brown case.
Finding no substantial error in the record, the judgment is affirmed: All concur; Ragland, P. J., and Atwood, J., in the result.
FRATIE GREEN et al. v. JAMES LEWIS IRVIN et al., Appellants.
Division One, July 1, 1925.
- WILL: Devise: Tо Daughter and Her Heirs: Contingent Remainder. A will by which testator gave to a daughter certain lands “during her life and after her death to go to her heirs” created a contingent remainder in the children of the daughter living at the death of the testator, dependent on their surviving the daughter; and where one of her sons, by warranty deed, conveyed his interest in the land, and died before her death, leaving сhildren of his own, who survived said daughter, said son never had any vested interest in said land, and his deed conveyed nothing to the grantee. The fee did not vest until the death of the daughter, although four of her children, including said son, were living at the time of testator‘s death, but vested only upon the death of the daughter, and then the fee of a proper aliquot part vested in the surviving descendants of her said sоn, whose interest was contingent upon his surviving her, and as he predeceased her he never had any vested interest.
- _____: _____: _____: Heirs as Interchangeable with children. A devise to testator‘s daughter “during her life and after her death to her heirs” is to be distinguished from a devise to a
daughter and after her death to “testator‘s children and heirs at law.” A devise to a daughter “during her life and after her death to her heirs” is not a devise to testator‘s children or heirs; it is a devise to “her” heirs, and until her death it cannot be known who her heirs will be. It has the same meaning and effect as a devise to a daughter and the heirs of her body. - _____: _____: Vested Estate: Statute. The law favors vested estates, and estates, whether created by will or deed, will be held to vest at the earliest possible period, unless a contrary intention is clearly manifested by the instrument. But the statute (
Sec. 550, R. S. 1919 ) providing that “if any person, by last will, devise any real estate to any person, for the term of such person‘s life, and, after his or her death, to his or her children or heirs or right heirs in fee, such devise shall vest an estate for life only in such devisee, and remainder in fee simple in such children” does not create a vested estate in remainder in thе children of a daughter to whom lands were devised “during her life and after her death to her heirs.” Under this statute such a devise creates an estate in fee in the heirs of the daughter, but it does not become a vested estate until her death, for until then her heirs cannot be ascertained. By “heirs” is meant her descendants, who are living at her death, and not her children who have previously died, whеther they were living at testator‘s death or born thereafter.
Corpus Juris-Cyc. References: Wills, 40 Cyc. p. 1482, n. 23; p. 1679, n. 85.
Appeal from Henry Circuit Court.—Hon. Charles A. Calvird, Judge.
AFFIRMED.
John A. Gilbreath for appellants.
(1) The will created a life estate only in Levina Irvin; and created a “vested remainder” in four of her children, born, alive and in being at the death of Meyers, testator, and among the then living heirs or children of Levina Irvin was Thomas L. Irvin. Jones v. Waters, 17 Mo. 587; Byrne v. France, 131 Mo. 646; Williams v. Lobban, 206 Mo. 399. (2) The law favors vested estates, and
Ross E. Feaster for respondents.
(1) Children and heirs are not synonymous, as children become heirs, only upon the death of the parent. No one is an heir until the death of the ancestor. 21 Cyc. 414; Rozier v. Graham, 146 Mo. 352; Jarboe v. Hay, 122 Mo. 354; Bradley v. Goff, 243 Mo. 103. (2) An heir is one born or begotten of lawful wedlock and upon whom the law casts the estate in lands, tenements and hereditaments immediately upon the death of the ancestor. Brown v. Bank, 66 Mo. App. 427. (3) Future estates are vested or contingent. 16 Cyc. 605. A remainder must await the natural termination of the particular estate. 16 Cyc. 649. A vested remainder is a present interest in property which the rеmainderman may convey. 16 Cyc. 652-F. (4) If Thomas Irvin had survived his mother he would have then been her heir and he would have been estopped from claiming any title to said lands by reason of the deed he made to James L. Irvin, but he having died prior to his mother‘s death his children became her heirs and became entitled to the share he would have had if living. Emmerson v. Hughes, 110 Mo. 631; Rodney v. Landau, 104 Mo. 251;
LINDSAY, C.—Plaintiffs asked for determination of interests and for рartition of 164 acres of land in Henry County; but, there was and is no controversy between the plaintiffs, as such, and any of the defendants as to the in-
“I give to my daughter, Levina Irvin, wife of James Irvin [lands in suit described] during her life and after her death to go to her heirs.”
James Irvin, husband of Levina Irvin, died in the year 1911, at which time there were nine living children of Levina Irvin. She afterward intermarried with one Henderson, but had no children of that marriage. Among the children of Levina Irvin at the time mentioned, were defendant James Lewis Irvin, and Thomas L. Irvin. In Aрril, 1919, Thomas L. Irvin, his wife joining him, executed to James Lewis Irvin a deed of warranty to his interest in the land described in said will. In October, 1919, said Thomas L. Irvin died, leaving as his sole heirs his three minor sons, who were made defendants in the suit.
In May, 1921, said Levina (Irvin) Henderson died. Thus, the sole issue, brought here by the appeal of James Lewis Irvin, is as to the ownership of an undivided one-ninth interest in said lands, as between him and the three defendаnts, heirs of Thomas L. Irvin, deceased, arising upon the terms of the said will, and upon the fact that the deed from Thomas L. Irvin to James Lewis Irvin was made before the death of his mother, and also that he died before the death of his mother. It should be further stated that at the time of the death of Andrew J. Myers, the testator in said will, Levina Irvin had four children then living, and that Thomas L. Irvin was one of her children, then living.
The learned trial court, after stating in writing the findings of facts made, upon which there is no controversy, stated his conclusions of law thereon. Summarized, the conclusions were: That said will devised a life estate to Levina Irvin with remainder to the persons who might be her heirs at the time of her death; that
In coming to the consideration of the sole question there is in this case, we concede the correctness оf the rule stated by counsel for appellant in his brief: “The law favors vested estates, and where there is a doubt as to whether the remainder is vested or contingent, the courts will construe it as a vested estate.” [Chew v. Keller, 100 Mo. l. c. 368; Tindall v. Tindall, 167 Mo. l. c. 225.] And the rule is that estates shall be held to vest at the earliest possible period, unless a contrary intention is clearly manifested in the grant. [Heady v. Hollman, 251 Mo. 632; Warne v. Sorge, 258 Mo. l. c. 171.]
In this case the abstract does nоt set forth the entire will of Andrew J. Myers, and we have nothing from which to ascertain his intent in making the devise in question, except the words employed by him in the clause which heretofore has been set out. We are therefore unable to look to the “four corners” of the will to see whether the testator, in any other part of it, used any expressions throwing light upon the clause in question. We hаve the fact that at the time of the death of the testator, his daughter, Levina Irvin, had four children, then living, one of whom was Thomas L. Irvin.
The argument for appellant upon the facts that have been stated, is founded upon the provisions of
This statute as it now appears (
We have carefully considered the other cases cited, and upon which appellant relies. Their essential features distinguish them from the case at bar.
In Tindall v. Tindall, 167 Mo. 218, the granting clause of the deed tо Lusina Tindall ran “for and during her natural life, and then to the issue of her body forever; and in case she shall depart this life without issue living at her death, then to descend to her heirs at law.” The habendum clause also ran that it was to her and to her sole use and benefit “for and during her natural life and to the issue of her body forever after.” At the time of the execution of the deed, she had no children. It was held that the remainder in fee vested when
Another case relied upon is Warne v. Sorge, 258 Mo. 162. That was a deed wherein the grant was “unto Chas. C. Warne for and during his natural life and at his death to the child or children he may have surviving him and entitled by law to inherit his estate in such shares or portions as such children would by law take.” The habendum clause was in like words. The holding in that case was that within the terms of the deed children could mean grandchildren, and that a grandchild, the child of a predeceased child of the life tenant could take the remainder, such grandchild being alive at the death of the life tenant.
In Byrne v. France, 131 Mo. 639, the estate was created by a will. The will left the property in question to the widow “for and during her natural life, and at her death to go to any child above named or their descendants.” In that case the testator died in 1860. His widow died in 1864. Joseph Byrne, a son of the testator, died in 1869. To that will, there was a fifth clause, which provided that if the testator‘s wife died before his youngest child became of age the two eldest sons were to take charge of the property until the youngest became of age; that the land was to be sold and the proceeds divided equally “between my children or their descendants.” It was held that the plaintiff in that case, who was a posthumous child of Joseph Byrne, took a vested interest in the estate, whether as real or personal property.
In Williams v. Lobban, 206 Mo. 399, the will of the testator devised all the property to his wife for her lifе or her widowhood and at her re-marriage or death, he directed the property to be sold and divided among his eight children, except that four of them were to have $200 more than the others. In that case the widow never re-married and lived until the year 1897. A judgment was obtained against one of the sons in 1879, and his
In Heady v. Hollman, 251 Mo. 632, the instrument was a deed. George W. Hollman bought certain land and had it conveyed to his two daughters “for and during their natural lives, the survivor for and during her natural life, and then unto the children and heirs at law of Gеorge W. Hollman, and heirs and assigns forever.” When the deed was made, George W. Hollman had six children, all of whom were living at the time of the trial. The plaintiff in the suit claimed under a deed from one of the children of George W. Hollman, which deed was made in his lifetime. It was held that the plaintiff took a vested remainder. It was held that the words “children and heirs at law” constituted a class, and that the rеmainder vested in the children living at the time of the execution of the deed.
In Dunbar v. Sims, 283 Mo. 356, the will was to the widow for and during her natural life, “and at her death I will devise, that all my real estate shall go and vest absolutely in fee in my seven children equally” (naming them) “share and share alike.” In that case it was held that the children, on the death of the testator, were vested with the estate in remainder, subject to the life estate, and subject to a power of disposition given by the will to the widow.
Another case, which counsel claims is parallel with this, is Baker v. Kennedy, 238 S. W. 790. In that case Isaac Baker was the common source of title. He made a will leaving the land in suit to his insane son George H. Baker, “for his use and benefit during his natural life;” but as the opinion clearly shows the further provision was that the land at the death of the tеstator, Isaac Baker, was to be equally divided among his legal heirs and it did not go to the heirs of George H. Baker,
In the case at bar the heirs of the life tenant were to take the estate at her death, and to take as her heirs, not as heirs of the testator.
In all the foregoing cases, there was, at the date of the death of the testator, either, some one in being, child or children, of “issue of her body,” оr, who came into being during the life of the life tenant, answering and filling the description of remainderman, as drawn in the deed or the will. This was so in Waddell v. Waddell, 99 Mo. 338, a case discussed in Heady v. Hollman. In the Waddell case the habendum clause in the deed ran to the taker for life, “and on the death of the said John J. Waddell, the title in fee simple, to go and vest in the children and heirs at law of the said John J. Waddell equally, to be divided between them as tenants in common.” It was held that the words “childrеn and heirs at law” as used in the deed, constituted a class, and that being so the estate in remainder vested in those who were living at the time of the execution of the deed, and would open and let in such of the same class as came in esse during the continuance of the particular estate, and it was also held that the words “heirs at law” might well be construed as used interchangeably with children, or as meaning grandchildren or descendants.
Therе is not a word in the will of Andrew J. Myers which we are authorized to use interchangeably with the word “children.” There is no expression in any way qualifying the words “heirs“—heirs of the life tenant, who, “at her death,” are to take the remainder.
The mere fact that the life tenant had four children living at the time of the death of the testator does not warrant us in saying that the testator in using without qualification the word “heirs” usеd it in the sense of children. There is nothing here upon which to found a holding of interchangeability of words. There is only one word.
This is not a case wherein we can say whether the will was drawn by a layman, or by a person learned in the law. There is nothing to show that it was drawn by a layman who might loosely use the word “heirs” as synonymous with the word children. It is not like the case of Johnson v. Calvert, 260 Mo. 442, where it was said that the deed itself bоre conclusive evidence that it was drawn by a layman, and it was further said, l. c. 455: “If we speak of ‘heirs’ of a living landowner the mind of the layman intuitively turns to the children of such landowner.”
In Emmerson v. Hughes, 110 Mo. l. c. 630, BLACK, J., said: “There is nothing in this deed from which we can say that the word ‘heirs’ means children, and this being so, we must give to it its ordinary legal signification.” [Gillilan v. Gillilan, 278 Mo. l. c. 115; Godman v. Simmons, 113 Mo. 122.] Nor does the fact that in Emmerson v. Hughes, and the other cases, the remainder was limited to heirs of the body, make the rule inappliсable to this case. Whether the remainder be limited to heirs, or to heirs of the body, in either event, it could not be told who will be such heirs until the death of the life tenant.
This statute is as explicit in its application to “heirs,” as it is to “heirs of the body.” Giving effect to it, and to the unequivocal and unqualified terms of the will of Andrew J. Myers, as we must, we hold that those who were the heirs of Levina Irvin, at her death, took the title; and the judgment is affirmed. Seddon, C., concurs.
PER CURIAM:—The foregoing opinion of LINDSAY, C., is adopted as the opinion of the court. All of the judges concur.
MINITREE C. MCFADIN et al., Appellants, v. JOHN W. SIMMS et al.
Division One, July 1, 1925.
- QUIETING TITLE: Unknown Heirs: Affidavit: By One Plaintiff. The word “plaintiff” in the statute (
Sec. 580, R. S. 1899 ) declaring that “if any plaintiff shall allege in his petition, under oath, that there are, or that he believes there are, persons interested in the subject-matter of the petition, whose names he cannot insert therein because they are unknown to him,” etc., is used in a collective sense, and includes all persons who by the record prosecute the action; but, nevertheless, said statutе does not mean that, where there are more than one plaintiff, the petition must be verified by the oath of each plaintiff. Where one of the plaintiffs in his affidavit to the petition states, in effect, that the heirs, devisees and assigns of a certain person, who by recorded deeds or wills appears to have had some unconveyed interest in the land, are unknown to him and to each of his co-plaintiffs, such affidavit is a compliance with the statute.