*1 Hugh III, Lewis, Lee Malin Jr., Lewis, Addie Lewis Lewis Eva (children of Madin Lewis) ; Lewis Robert Lewis, Jr., Robert Raymond Lewis, a minor (sons minor a of Robert Lewis); Crowley Virginia (granddaughter of Malin Lewis); Kate Hugh daughter (Mrs. Lewis, Sr., J. French) French (children and Valiant French, Marie French Louis French Standley French, of Kate French) Ward French, Reid Virginia French, (children minor, of Valiant French) minor (son Louis of above named French, French) ; Louis Jr. John Raymond Palmer (grandchildren and Paul Minor of Elizabeth Hugh daughter who was a L. Z. Palmer, Lewis, Sr.) ; Mrs. Green, Williams, Ollie Adeline Mitchell, Mrs. Marvin Eva (granddaughters Belle Worick, of Elizabeth Katherin Swor Hugh daughter who Palmer, Sr.) ; Marie Dale (daughters Williams and Katherine Williams, minors, of Ollie named), above Adeline Williams Mrs. Otis Little Worick (daughter named), of Eva Belle Woriok above Hil James ery Little, (son minor of Mrs. Otis Worick ; Little) DuVal Smith, guardian litem minors, ad for above named Appellants. (2d) W. 66. One, January 23, 1940.
Division *2 Roberts, Breit Booker, L. W. c& DuVal Smith and William . Stone appellants. *3 Harding Harding, Murphy respondent. Tucker for
John T. & *4 declaratory judgment DALTON, appeal an from a C. This is upon petition entered of to construe the will of Addie Lee Lewis conveyance Hugh Lewis, Sr., deceased; of a to determine the effect surviving Hugh Lewis, Sr., widow and certain children of Lewis; petitioner Addie and to in fee Lee declare owner simple petition pursuant of the real estate described. The was filed 1935, Declaratory Judgment Act, to the page Laws of Missouri Ann., (Mo. seq., pp. 1383-1388). living Stat. see. 1097a et All of Hugh Lewis, Sr., parties descendants of both and wife are to this his proceeding. Lewis, daughter, and all others Addie Lee plaintiff Judgment declaring entered plaintiff are defendants. vested having title, subject being with the fee divested her arrest and in trial for a' new motions After beirs appealed. defendants and overruled judgment were-filed of County, Andrew year 1896 in in the Lewis, Sr., Hugh died-testate sur- He left property. personal real and Missouri, seized Lewis, children, Hugh and his viving him widow Adaline Lewis Lee Palmer, French and Addie Elizabeth Kate Jr., Lewis, Malin persons All of were named as at law. said Lewis, heirs as his of the- will are provisions as follows: in his will. The beneficiaries (cid:127) and payment for the of his debts By 1, provided item testator expenses. funeral “daughter, Palmer, for Elizabeth By to his item he devised J. body, the heirs of' her ab- life, her death to of her and at the term legacy. together with a cash real estate solutely,” certain described Kate, A. “daughter, wife of Dr. John By devised to his item he of her -to life, and at her death the term of her French for real absolutely simple,” certain described estate. in fee body, ‘‘ Lewis, for the term daughter,- Addie By item he devised to body, absolutely,” her to the heirs of life, and at her death of her property described real which is described certain referred to said deed. (cid:127)petition, and absolutely i-n fee “son, Malin By to his item he devised real certain described estate. simple” “Hugh Lewis, absolutely in fee- son, By to his item he devised ’’ real estate. simple, certain described follows: 7, 8, the will are as Items and my wife, Adaline give beloved I and devise “Item-Seven: mixed. my Estate, personal and real Lewis, all the .of this, my will any my named last Eight: If children “Item living her at the time of his or testament, issue shall die -without my will, case, then, in that it is inheriting, death, capable of my living, said children my dearly wife, if -and such-- beloved (cid:127)that property all may living equal parts take in shall then be If deceased child. given to such will and devised the terms surviving him my and leave children any children shall die said equal surviving take in children shall her, my that such or it is will would father or mother their deceased parts property which living."” were then have taken if he or she Kate, Dr. A. my daughter, John In the wife “Item Nine: case issue, husband should sur- French, should die without note, made, promissory him the bequeath I her, devise vive Mary Ryan in sum of Nine him signed and delivered *5 thirty-one ($931.50/100) dated St. and Dollars Hundred and 50/100 by 28th, 1885, which was endorsed Joseph, Missouri, September Ryan Bank, National and Mary and the Saxton her husband to day April, 1886, without recourse Bank to me on the 20th said my I direct executor consideration.; and such event valuable 821 deliver him said margin note on the enter satisfaction and. ’’' mortgage record for this one note.
After Hugh Lewis, Sr., duly the death of the will was filed and probate admitted to the Probate County, Court of Andrew Mis- souri, duly and recorded. Thereafter on December widow, Lewis, children, Hugh Adaline (Jr.), and the' Malin Lewis Lewis, Kate French and Elizabeth made, Palmer executed and de- quitclaim livered a conveying deed Lee all of their Addie Lewis right, title and interest in lands in item 4 described of the.will. Hugh Lewis, Jr., Thereafter died without children. Malin Lewis and Elizabeth Palmer died, leaving. surviving each' children them. survives, Kate French party and proceeding, is defendant in this together with her grandchildren. children Lewis, and Addie Lee daughter testator, will, mentioned in item 4 of the as Addie Lewis, is living. seventy-five years still age She is more than and single, unmarried, By without issue of her pro- ceeding, and stated, under facts.above she seeks a declaration rights her in the real estate described. interest trial plaintiff Lewis, court found “that Lee rea- Addie son of Hugh Lewis, Sr., the will of her father . . . and rea- ' son 21,1899 of deed dated December . . did . become with vested the fee subject title to the real petition, described in the to be upon the.plaintiff,, Lewis, having divested Addie Lee heirs of body.”
Appelants item 4 contend that of said last will testament Hugh Lewis, Sr., created life estate in Addie Lee in the real described, contingent awith remainder in fee to the heirs body; of her that alone, item “cannot stand but must be read in eighth connection read, with the item of and when so con- veys to the said Lee Lewis life estate in the land described Addie contingent body, item with a remainder in fee to the heirs of her and if said Addie living Lewis shall die without issue at the time L®® death, capable, inheriting,, then, case-, in that title to said lands would widow, living, vest in- the if then and such of the tes- may tator’s children living, as be then children of such of may children words, testator’s then In appel- be dead.” other lants together contend items and when “a life create read estate, in respondent, a.contingent said lands remainder with heirs, body,, to the of her contingent with an alternative in fee remaindermen,, in a designated eighth second class of item of said will.” Appellants’ position grantors quitclaim is that the the said deed .in
had no vested described; interest the real estate their in- terest, any, if contingent (1) upon death of contingent (2) without issue surviving respondent; their that said deed respondent; transferred no interest to that “there are
822 re- alternative qualify second class or who as the parties to this suit or parties not to were said deed” maindermen . . . who said real thereby; respondent’s interest the bound and that is limited to life estate. although that, hold rely certain authorities which
Appellants fee, forbid limited rule not a remainder be after such does cannot contingencies alter- variously or the of called creation limitations whereby remainders, or more remainders or substitutional two native alternatives, or the one simple created as substitutes are is, contingency that one of the remainders other, the that on such 583, 1660; 140; J. sec. 988, can J. sec. 69 C. possibly vest. C. [21 655, 69 sec. C. J. 1749.] dealing where life Appellants cases with situations cite body of given, in fee to heirs of the a remainder the has been with heirs, remainder- tenant, the default to alternative life and in of such v. 471, 403; 222 Tevis Langan, Mo. W. men. v. 282 S. [Hartnett 212, 243 1003; Boone, 295 Tevis, 19, 259 Mo. 167 W. v. Mo. S. Schee v. Jones, 53, 495; 129 882; S. W. 229 Mo. W. Sullivan Cos v. S. 949; Horton, 344 Mo. Garesche, 496, 229 129 S. Norman v. Mo. W. 290, (2d) 126 S. W. 187.] Hugh Lewis, of before court for construc Sr., The will was this French, (2d) case Palmer v. 326 32 S. W. tion in the Mo. At particularly 6 8 under consideration then. 591. Items and were 591, 595) (326 (2d) : Mo. 32 S. W. that time court said 8 to part the of item “We think that testator intended first any the to provide property alternative beneficiaries to take devised to might leaving him issue predecease children who without his taking the and that represent them at the time of the effect of thereby down, limit, qualify any of the he not to cut or did intend devised; specifically expressly estates theretofore created and living time of or words without at the .her the ‘die issue during death the death’ should here be held refer to lifetime having testator, son, Hugh Lewis, Jr., and therefore the survived father, an in fee in the testator, took indefeasible estate land described in sixth item of the will.” ref- present
In the we must consider item 8 of said will with case Ap- 4 erence Addie under of the will. devise to Lee Lewis item French, pellant Palmer holding contends our v. case Jr., Hugh Lewis, supra, here, is not decisive because devise Addie simple, under item in fee while devise under 4 Lee Lewis item is of a life estate.' meaning determining keystone
“The of construction gathered any This must be will is the intent of the testator. intent must read and considered from the whole will. The instrument be has determining purpose as a testator whole intent portions in divers attempted express purpose such intent found, When the intent of the testator is tbe instrument. will is solved.” v. Barnard proper construction [McMillan Hospital, 410, 413; Free Skin & Cancer Mo. S. W. Humphreys Welling, (2d) 123, 111 W. 125.] *7 by by judicial con rule referred to is established both statute (Mo. Ann., 567, Revised 1929 Stat. sec. struction. Section Statutes 567, 344) concerned in the exe p. provides that “courts and others regard, cution of last wills shall to the directions of have -due ’’ will, 1557, meaning and the true the testat or. Section intent and of Ann., 1557, 1736) prohibits (Mo. p. Revised 1929 sec. Statutes Stat. ex partition “contrary of the testator” of lands to the intention pressed in his will. of gathered
The intention of the from a consideration testator as given effect, if is not entire instrument must be such intention contrary of law. Louis public policy or established rules [St. Hill, (2d) 685, 686; Bates Union Trust Co. v. 336 Mo. 76 S. W. Bates, 1013, 124 (2d) 1117, 1119; v. Hannibal Trust Mo. S. W. Co. Elzea, 286 S. W. 375.] discussing opinion court, In the intent of the former of this (2d) 32 W. will, (326 maker of this court Mo. 591, 595) : “In find testator di- the ninth item of the will we that, my Kate, daughter rected ‘in -the wife of Dr. John case French, should die without and her husband should survive issue her,’ promissory French a certain note. executor was to deliver urged of Kate It cannot be reference here is to the death.' any might occur, French at time it either before or after the death testator, clearly occurring the reference is to death before testator’s taking will, death and and we think the testator effect he used the contingency could have had no in mind when different' langauge living ‘die time of or her death’ without issue at the his eighth Upon examination of the whole will item of the will. any clearly language indicating, we do not find from of the. testator which, think, may reasonably inferred, properly we it be eighth item of the will he referred to the death of his children clear, a after his own . . . The will on its face manifests decease. orderly, By items disposition. and natural the first seven scheme property. of the will the of all He devised to disposed testator his daughters land, each of his three a with re- life estate certain body;’ mainder each instance ‘to the of her he devised to each land; of his two a fee-simple sons in certain he devised and estate bequeathed wife all included his the residue of his which personal property $500, bequeathed all his had .except been daughters one of in certain in addition to life estate lands. gave taking, parties capable Thus he in esse and entire family. he di- who constituted his own We assume made such any just equitable. vision thereof as he In the event considered living, him he incor- predecease of his children should issue without ’’ eight in porated part the first of item his will. After a of the and of item careful consideration entire court, opinion, 8 in connection with item we think the the said proper arrived at a with reference to the intention conclusion 8, to-wit, expressed testator as in item that item 8 was intended to any him. apply predecease in case children testator’s should made important It is to notice that item of the will the testator separate (1) two a life to Addie Lee Lewis devises: devise of (2) in fee to heirs of her devise of not item 4 de- remainder in fee the real estate described was daughter, any child of the vised to his Addie Lee or to other clearly testator. The remainder in the real estate described body.” to-wit, intended for of her persons, other “the heirs provision, first, any Item 8 if children named makes of testator’s any living,” and, second, in his if will should die “without issue “leaving surviving his children him die children or her.” Under *8 the first subdivision of item testator named substitute beneficiaries by given “the property terms of this will and devised to such the only deceased an apply, child.” This subdivision therefore could to interest which child. could would survive the death of such Testator not mean to name alternative to take an for the beneficiaries estate already life a purport child deceased. Item 8 does not to name by beneficiaries for made the will to his widow alternative devises body” any or “to the of the The heirs of his children. second subdivision of item 8 for provided substitute beneficiaries such of surviving his children as die “leave children him or should her.” expressly surviving It provides that children” of his deceased “such equal children in parts property should take the which their deceased living.” father or mother “would taken if or were then have he she part 8, including We think the second of item the “would words have taken,” expression is a further intention item 8 of testator’s that provide only alternative for children beneficiaries such of his might predecease him. all Since of his children named his will will, did survive him provisions and took under the of the there was property by no if he to be affected words “would have taken or the living.” she were then by an sole interest devised Addie Lewis item was estate
“for term the of her life.” She survived the testator and took the rights estate, interest devised to Tier and interest in the real her. fully will, under item of the will exhausted at her death. Even be if operative it be considered that the subdivision of item 8 be first subsequent testator, to the death of and at the death of Addie Lee the Lewis, still, by given “all property the the terms this will devised to such deceased child” will have been exhausted at death, by part and no of the to her the terms of the devised equal parts” will be available to be divided “in to others. County 92 W. Co., 629, 645, Carter v. Trust Boone [See (2d) by any provision item 8 for alter- No was made 653.] contingent native remainder in fee in a of remainder- second class men, for fee, lapses who should take remainder in if the this devise body , want of heirs of the of Addie Lee Lewis to'take thereunder. We determining present hold that the interest of described, eighth ap- the real will that the item of the is not plicable. French, holding supra, We affirm that Palmer only item apply any 8 was intended to in case of testator’s children him. predecease should
In view of the we reached conclusions have with reference item rely appellants inapplicable authorities are Ann., Section (Mo. Revised Statutes 1929 Stat. sec. 1937) p. also inapplicable. limited, No “remainder in lands” is by the will under consideration, on life the death of the take.effect bodily tenant without will provision heirs. The makes no for second of remaindermen, alternative, class inor in default of issue of the life tenant.
Appellants beneficiary contend that “where testator'devises to an body life with remainder or heirs heirs, followed if provision clause or the life tenant dies surviving, others, without issue then to ‘without words issue sur- viving’ may to the death of life it tenant whenever occur.” refer In type cases of the cited appellants, in default of issue of the n tenant, contingent life alternative remaindermen take re- grant; mainder They the force take the event they survive life tenant and in the life the event that tenant dies without prospective contingent issue. If alternative remainder- men die before life tenant their at law. not an do inherit *9 them, they convey interest from if attempted and have to the con- tingent remainder, grantees nothing by their take the deed. The applicable cases not under are the facts of this case.
Having appellants reached the conclusion that the interest of and respondent in the'real estate is in no the described wise affected provisions item of will,' of 8 the we consider items 4 7 must and will, of and quitclaim respondent, the the deed to in order declare rights the and of respondent interest in real the estate described. remaining We are the opinion of that the' issues this case are Hyde Hopkins, 382, controlled the case of 296 587, v. 317 Mo. S. W. reviewed, the particularly Gillilan, cases therein Gillilan 278 v. 99, Mo. 212 Whitman, 383, S. W. and Collins v. 283 222 S. Mo. Hyde W. 840. The determination Hopkins, of the case of v. turned primarily upon the construction the will Hyde, of of Richard a will having provisions 2 By to the similar before us. item of will one his daughter Hyde testator devised to “Ann his Elizabeth and to her 826 Bj real estate. of land” other
bodily heirs all of the home tract to be remaining .portion” of his estate devised “the 3 testator clause among five sons. Said sons survived testator equally divided conveyance lands, in clause a described of and thereafter executed Hyde. Thereafter one Ann Elizabeth will, 2 their said sister of plain were the intestate, leaving children who died of the said sons Hyde Ann Elizabeth devised in said cause. Thereafter tiffs conveyance, 2 to defendant lands, and in said clause said described by plaintiffs leaving heirs It was contended no of and died Hyde was Elizabeth her five brothers made Ann “that the deed Henry Hyde, of the father wholly far concerned C. ineffectual so Hyde.” Ann Elizabeth before the death of plaintiffs, died who property. in the The court a one-fifth interest Plaintiffs claimed defendant, the devisee judgment a for the denied this contention and Hyde, affirmed. court will Ann Elizabeth was under the of cases, Gillilan, and other in the Collins that case reviewed facts 385) : “The Gillilan (317 said Mo. 296 S. W. and then theory that in each of them the upon the Collins cases were decided reversion, right, possibility a not original ‘had a mere testator through’ carving as was devised after so much of his estate out creating of the a life with remainder fee to clause will body life It this class heirs of the tenant. was certain reversion, which five sons of right, possibility mere not'a they be Hyde death, him whether Bichard S. took from residuary or regarded as under the third clause of his devisees Hyde, tenant. It than Ann the life as his heirs other Elizabeth conveyed by Hyde right Henry and his brothers was C. warranty deed, right and an interest which their and it was 143; Schee Bishop, alienable. v. S. W. [McFarland Boone, contingent in v. W. a vested Mo. 243 S. It was 882.] terest, divested, grantee, but which was never became absolute most in this ease the life In this the case differs from respect tenant. of the cases Most them were cases upon which counsel relies. body an life tenant made the apparent wherein heir of the in question leaving body, deed the life tenant and died heirs of being still alive.” holding Hyde Hopkins
We think the is correct in said case is decisive here. will
Beviewing us, find item of the facts before we devises the term of her real estate “for the described and, death, absolutely in fee body, life at her the heirs simple.” therefore, real es Bespondent, a life estate took tate with a prove to be fee unto those who should *10 body Ann., of her (Mo. her Stat. at death. R. S. 1919 [Sec. 3110, p. sec. contingent or execu The remainder in fee was 1938).] tory upon since in take effect the estate limited to was body, having event, to-wit, heirs of respondent an uncertain body of her to-wit, should be the heirs persons, who to uncertain those ’’ ‘‘ remainder, see, Norman definition, contingent at her death. [For After (2d) 187, 191 Horton, 344 (9).] v. Mo. 126 S. W. Lewis, Sr., had Hugh by his will real item of devise of this definition, “reversion,” right a vested of reversion therein. [For (2d) W. see, Horton, 126 S. supra, Norman v. reversionary subject of a valid devise This estate was 189(1).] Gillilan, Item 7 v. under item 7 of the will. supra.] [Gillilan wife, Lewis, all my Adaline give “I to beloved provides, devise re- The my estate, personal and mixed.” the remainder of real residuary clause, versionary by was vested estate, transferred respondent in that subject being divested the event interest to but body.” by Upon her the death survived at*her death “heirs of was reversionary fee, in real de interest in testator the scribed, Lewis, subject the life estate vested in the widow Adaline to 4 of the will. contingent -the remainder devised under item Gillilan, Yeager (Mo.), 225, 227; Gillilan v. v. 263 S. W. [Hobbs Hyde Hopkins, supra; Whitman, supra; v. supra.] Collins v. dying question There no as to the testator intestate is here part respondent in dies without property to of his the event body, will a definite intent of since the shows the testator devising by dispose property. property to of all of After contingent provisions including various remainders will, he, by 7, expressly in fee under 3.and“4 of the item items real, personal all of and mixed property devised the residue of his reversionary in real to Lewis. -The interest his wife Adaline estate, which, by became vested of item of will reason by conveyance subject of proper widow Adaline was the in her deed, conveyed by Lewis and it deed the said Adaline respondent, Hopkins, in v. [Hyde whom it is now vested. lifetime conveyed supra; Yeager, respondent- Hobbs v. The interest supra.] vested, interest, subject being was a certain con divested divested, ditions, divested, except it but has not been and will not be body. In the respondent the event that is survived heirs of the Hyde tenant, Hopkins, supra, who was case where the life reversionary subject also the owner of the vested interest fee contingency, body, died without heirs of the it was held passed by the will of such life tenant and owner of the rever devisee, sion in fee to a the defendant in said cause.
We respondent hold that has a life estate the real estate de- reversionary reversionary fee, and a which scribed vested interest subject only being interest in fee of re- divested the event spondent’s death, leaving surviving her, heirs of is, effect, title which has a fee may descent, pass by she transfer deed or will or which will *11 at her event that will be defeated title heirs of respondent is survived death Bradley, GO., concur. Hyde and affirmed. judgment is C., adopted by Dalton, foregoing opinion
PER CURIAM: The judges concur. All the the court. opinion Jones, Jones, v. William formerly Zuella Robertson, Zuella George Fox, Etta Jones, Mattie A. L. Jones, Charles Lyon, Ap and Della Jayne, Stella Clifford Leveck, Anna (2d) 278. S. W. pellants. 136 January 23, One, 1940.
Division Harvey appellants. E. Hartz for