McGurry v. Wall

122 Mo. 614 | Mo. | 1894

Sherwood, J.

I. The validity of the special tax bill will not be discussed, because the appealing defendants in one of their declarations of law, to wit, ‘ ‘that said Jennie is just and legally bound to pay said tact bill sued on, and her interest or estate in said lot should be first subjected to the payment of the same,” admit thereby the legal validity of said bill, and, after having tried the case on that theory, will not be permitted now to change front and contest the validity of that which they had theretofore admitted.

If the tax bill was such that Jennie was justly and legally bound to pay it, then of course its mere validity could not be questioned as to any interest in remainder in said lot; but in speaking in this general way, it is not inténded to make any ruling as to what effect such a bill would have as to a remainder in fee in said lot.

II. The lower court, in consequence of the motions for a new trial filed and continued to the subsequent term, had a perfect right to modify the former finding and decree, as it did do, as all parties were present, and the whole matter was still in the breast of the court. It is not pretended that there was any new evidence in the ease which would have changed the result, and this being true, the proper course in this regard, was pursued.

III. The main feature of this litigation, however,. is the proper construction of the will; indeed it may be said that this was, and is, the only litigated point in the controversy. There are two grounds on which the decree entered by the lower court may well rest:

First." It will readily be seen that Margaret Wall and John Wall were, by the .seventh clause of the will, precluded from ever obtaining any title to the premises, except upon the happening of two events, to wit, that the death of William Wall before makiritg (an event which has already occurred) and the remarriage of Jennie Wall before the death of the son, an event which did not happen, and which, therefore, can never happen. As the taking of the estate in remainder by Margaret and John Wall absolutely depended on the occurrence of both these events, and as they both have never taken place, and never can do so, it is needless to say they took nothing by the will.

Second. But as William Wall died in infancy and as he had no brothers or sisters, his father being dead, his mother inherited his estate (R. S. 1889, sec. 4465; Mourning v. Mo. Coal Co., 99 Mo. 320), which would have been, had he survived his mother, or had she remarried, he living, an estate in remainder, according to the express terms of the will.

Therefore, decree affirmed.

All concur.