*1 SUPREME COURT OF MISSOURI, Owens Men and Millions Movement.
ber with this record further reference to them other- wise than the case of say Reese v. City of St. Louis, is overruled. distinctly there- We fore, upon authority and the Boyd Case cases there cited in its hold that the time support, at which this plaintiff received his injury is well stated in his petition. judgment of the circuit court is accordingly
affirmed. Small and Ragland, (7(7., concur.
PER CURIAM: —The foregoing opinion BrowN, C., adopted hereby opinion court. All concur. judges WILLIAM OWENS, Executor of Will of JOHN B. HARPER, NELLIE MAY OWENS v. MEN AND MILLIONS MOVEMENT and NATIONAL BENEVOLENT ASSOCIATION OF CHRIS TIAN Appellants. CHURCH, One,
Division December 1. WILL: Construction: Die Without Issue. The words of a' will that leaving any if certain devisees “die without issue” mean “if should die issue, the lifetime of the testator” no by very contrary unless clear he has manifested a inten- tion. Executory 2. -:-: -: Devise Over. Where real estate denoting primary devised terms an intention that the devi- testator, coupled see shall take a fee on the death of the with a devise over case of such devisee’s death without primary words refer to the death of such devisee within the life- primary surviving time of the and the devisee the tes- (cid:127) simple. tator takes an absolute estate in fee making -:3. -: -: -: This Will. After certain special bequests societies, to numerous benevolent gave seventh clause his residue of his daughter and her husband “to owned and held them TEEM. Ill Yol. OCTOBEE Movement. Owens v. Men Millions assigns jointly, tp have heirs and hold unto them their By eighth that “in forever.” clause declared the event he go was to death” of the and son-in-law said residue *2 expressed granddaughter, hy his to a ninth clause he the daughter “earnest desire and wish” that and son-in-law would his “give proper provision” grand- the from time to time make for daughter. my “it is will in case tenth clause declared that my daughter granddaughter should' all said son-in-law any leaving issue, my in such event all of die without then equal parts, property, personal, into real shall divided four he Held; first, part go one shall each” defendants. clause, gave alone, unquestionably the the if it stood seventh son-in-law; simple daughter to his residue in fee absolute second, tenth clause “should all die without the words the daughter, leaving his son-in-law and issue” meant that should granddaughter die testator’s own lifetime the residue all otherwise; and, third, go defendants, as the but should took survived the an ab- and son-in-law estate, nothing. took and defendants solute -: -: Statute: Indefinite Failure of Issue. The 4. -: declaring 1919) (Sec. 2268, a R. that “where remainder S. statute ... to take effect the . . shall he limited on in lands . body, heirs, any person or heirs of without or with- death of issue, issue, ‘heirs’ failure of the words or ‘issue’ shall or on out tot, living at or death the mean heirs issue the be construed purpose person was enacted for of abro- as ancestor” named early gating rule under which the “die common-law words leaving to mean an fail- construed indefinite issue” were without question application issue, no whether the it has ure of refer to the death of dev- issue” without “die words or to their death at testator’s death some subse- isees before quent time. Circuit Kalb Court. —Hon. Alomo D. De from Appeal Burnes, Judge.
AFFIRMED. appellants. for & Grant
Grant
a devise
two or more per
there is
(1) Where
of one
in case of
the proviso
with
sons,
is to
issue,
survivor
them,
or more of
without
dying
SUPREME COURT OF MISSOURI,
Men
Owens v.
and Millions Movement.
contingency
happening
take, tbe
the first taker
dying without
issue
not restricted to the lifetime
Curby,
the testator. Sec.
R. S.
v.Co.
Trust
Supreme
(a)
255 Mo.
Court
the Uni
except
holding.in
contrary
ted States,
where a
the. state
where the cause arises
heen so uniform to
has
amount
,
property
rule of
holds that
the addition of the
age,”
“dying
issue,” or
“under
or simi
lar words, indicates a
without reference to
up
of the death of the testator.
In such'case,
on
taker
first
time,
executory
though
devise will take effect even
a fee
.
has been
vested
the' first taker.
Thornton,
Britton v.
(b)
112 U.
S.
The rule is well settled in other
coupled
states that
when
death of the first taker is
may may
place,
with circumstances which
for
not take
as,
*3
dying
instance,
children,-
over,
the devise
provisions
(cid:127)unless controlled
other
the will,
takes
according
ordinary
meaning
effect,
and literal
words, upon
the death at
whether
time,
before
or after the death' of the testator. Ahlfield
Curtis,
v.
Carpenter
Owens v. Men and Millions Movement.
contingent
an
indefinite failure
issue
would
A,
be a
remainder, and would be void
for remoteness.
sucb
the first taker
take
estate tail.
case,
would
an
Since our
statute was
enacted, however, tbe first taker
vested
subject
simple,
not with
estate
but in
tail,
fee
to be
upon
dying
determined
bis
without issue at the
Albright,
his death. Gannon v.
Hewitt & Hewitt for (1) Under the seventh clause of the will the bene- having ficiaries therein survived named absolutely. residuary took the reached that estate When the court nothing there conclusion was further for *4 subsequent eight the court to do but find clauses Curby, ten.were void. case Co. v. 255 The Trust point. (2) 393, there Mo. not As are no condi- coupled or circumstances with the takers in tions first appellants’ case, the instant subdivision “b” of first' point applicable. is not of Gannon v. All- against (3) bright, 183 Mo. them. 238, militates While it is true that under our statute the word “heirs” or assigns” necessary convey “heirs and are the yet, language the is seldom omitted fee, law- careful 296 Mo —8 OP SUPREME COURT MISSOURI,
T—1 t—T Millions Movement. v. Men and Owens accepted under rules yers. use of these the And, longer mak- allowed as wise nois of construction pass a fee testator intent of the ing doubtful 709; Mo. Hen- 252 (Mo.) simple Wiltse, Garrett title. v. Howard v 584; 183 W. Calhoun, v. derson S.. 568; 229 Mo. Shaffer, v. 993; Settle Howard, 184 ques- Allbright, is no 238. There 183 Mo. v. Cannon proper as to the construction nor can there tion, part put upon the will down to and includ- to be assigns ing forever” heirs and at the “their the words clear intent clause, as of the seventh close expense payment of the debts, i. after e., specific bequests, fee absolute to transmit the named seventh to those of said estate residue bequest person, (4) to a followed An absolute clause. expression cannot “in his death” be con- case of or from his his death, mean “at death” strued to being in that case, absent as no element expression given proper “in could be force ease Eq. expression 75 N. 74. The J. Fisher, of.” Fisher v. unexplained of” “in refers to the ease of the happening before the death of of the death event insofar can as we find. This rule universal, testator. Morgan Feal 362; Richardson, 152 Ind. v. Robbins, v. 125 Smith, Iowa, Farbell Ex 119; 388; 160 Ind. v. Parte Rep. Ky. Jackman 738; Law Strasman, 6 Jackman, Rep. Engles Ky. re 224; Estate, Pa. Law Si. realty personal- (5) a testator devises When persons, providing ty in the two event one of living should die issue time of them go to the other child, share should lan- death his this meaning, legal guage and refers to has a fixed person the lifetime of the testator. within First 86 Fed. 30 C. C. DePauw, National Bank A., (6) Morgan Ind: 362. Robbins, 152 intention of is to be within the four ascertained corners giving regard to the instrument, due directions meaning the true intent of the testator. Sec. *5 Vol. 115 OCTOBER TERM. 1922.
Owens v. Men and Millions Movement. 555, R. 1919. No S. doubt arise under tbe seventh can clause of tbe clear intent tbe testator to transmit (7) and vest in tbe son-in-law tbe fee. and clause But, if doubt seventh there created (which eighth conceded), it is under clause the plain property, after that the testator intended that his payment specific legacies the should debts, of the go in accordance with the descent distribu- law of presumes any ambiguity, tion. if there be the law And, (8) Cye. 40 donees so intended. 1412. The being named clause, the seventh alive at the of the the of all the testator, became absolute owners remaining property of after which testator seized, died payment specific legacies the Hen- the debts. derson v. Calhoun, Wiltsie, 183 S. W. Barrett v. 584; 252 Mo. Settle 699; 993; Howard v. 184 S: Howard, W. v. 229 Shafer, 568; Rauschenbusch, Mo. Roth v. 173 Cyc. (9) Mo. 40 vested And the law favors estates, and where there is a doubt as to the whether contingent remainder is vested the courts construe it as vested. Mo. 369; Colliers Keller, Chew 100 (10) 40Will, Mo. The devise seventh positive, clause is so clear and no room concise and for doubt is left intent of the testator to vest may the fee in This donees named therein. not be subsequent away, by cut down or taken which are not clear decisive. Yocum Siler, 281; Newell Kerns, S. 445.W. C. This is an action
RAGLAND, to construe the Harper, will of John deceased. The executor and all legatees parties. question are No devisees sufficiency pleadings, raised as to nor as premises. jurisdiction in the circuit court’s judgment adversely court of that construed namely, contentions two defendants, Men Millions Movement National Benev ap olent Christian Church, Association each SUPREME COURT OF MISSOURI, SO tHtH *6 Men Millions
Owens v. and Movement. s being pealed question law same of therefrom-. The. stipulation appeal, appeals have on raised each one been therefore be treated as will consolidated, and cause. specific legacies providing Missouri for the
After Missionary College Christian the State Point, Camden Disciples Christian of Christ, Board Benev- Orphans’ Society the Christian olent Louis and St. proceeds as Home follows: Louis, of St. the will bequeath give, resi- all the “Seventh. devise and I property may seized, my that die due and remainder of I daugh- payment aforesaid-bequests, my after the to May my B. ter son-in-law Nellie to William Owens and jointly, have Owens held them to and to be and owned assigns heirs and forever. to hold unto them and their (John Harper.) B. daughter. “Eighth. my both case of the death of In my May Nellie and son-in-law B. Owens, Owens William payment legacies then after the event, bequeath my give, I devise and to mentioned, above formerly granddaughter, Oliver, Wavelee Wavelee my remainder of all the residue Owens, and may to' I to have and unto her- her, die seized hold assigns heirs forever. and wish, my my earnest desire
“Ninth. It is daughter shall from time to said and son-in-law proper give they or make deem fit shall proper my granddaughter provision for said Wavelee formerly leaving making Owens, Wavelee Oliver, gifts or.provisions my to discretion of said of such daughter and son-in-law. in,case my my said It is
“Tenth. without, should all granddaugter die and leaving any son-in-law my then event all of such personal, property, real and shall divided into four part go parts, equal one to each shall of the follow-' say: part ing one Men and Million —that Orphans’ part to the .one Home Movement; Christian TERM. OCTOBER Yol.
Owens Men and Millions Movement. part Missionary St. Louis, Missouri; one State comprising Board to' the use of counties now Disciples Seventh of North- District Christ, part National Missouri; Benevolent west and one present address, Association of the Christian Church, 2955 North Euclid St. Avenue, Louis, hereby appoint my
“I son-in-law, Owens, William my daughter, May Nellie Owens, executors 'of this my my required, last and it will, will that be not give" my of' the death of both bond. son-in- daughter, law is.my then that event it wish and my granddaughter permitted desire that be. to choose *7 hereby my And executor. further will it it and provided daughter my in of of the event May my Nellie Owens, son-in-law, and B. William Owens, granddaughter, my Roy. and Oliver, Wavelee V. my- appointed Neff, of be Cameron, Missouri, to act as » my executor of this will. last signed
“In Witness I have Whereof, and sealed, published my declared and this as will instrument last City Maysville, and at of testament this Missouri, day September, of 13th (Seal)”
“JohN B. Harper, The oral evidence offered in connection with by may brief. The facts it sum- was disclosed be as follows: At the time the will was marized written tes- May tator’s wife was Nellie dead, and Owens and Wave- granddaughter, his Owens, lee Oliver, nee respectively only living They were descendants. his B. son-in-law, both survived as did his William him, Owens. His estate then and his decease personal consisted 1800 acres of land years $20,000. value For about a number prior daughter, granddaughter his his testator, death, together family. as one son-in-law, lived He awas Disciples member the Christian Church of Christ conspicuous and took During in its interest institutional work. degree his life he manifested in a marked MISSOURI, SUPREME COUNT OF Millions Movement. Men and Owens v. family church. obligation and Ms Ms
sense to both strong regarded character un- man of He a was usual business acumen. controversy construction to over the arises
given paragraphs the will “Tenth” of “Seventh” and particularly contingency de- with reference to the my language: “in in in this scribed daughter the latter granddaughter all should and son-in-law leaving event,” etc. in that then die without paragraph question under no but There can be standing May Nellie Owens if it were “Seventh,” alone, simple an estate fee B. take Owens would William ’ ‘‘ ’ leaving any issue, If die without the lands d’evised. paragraph, dying within “Tenth” means as used then the of the- never testator, the lifetime happened, happen, can and their title and never is ab- contrary, if “die without solute. theOn subsequent to death of a time issue”- refers to together paragraphs then the when read two give May merely Owens Nellie Owens William upon Their estate would terminate their defeasible fee. dying they take the Whether, therefore, without issue. executory subject or whether devise, to an take fee adopted absolutely, depends upon the construction with respect leaving any “die without issue.” words, *8 construing “dy meaning the the of words,
Decisions import, ing of like issue,” without or words when in used without number. Some of the take wills are cases the referring is silent, when the context words view that first taker to the death of the in connection with some apply contingency happens where collateral the event, as the death of testator. before, [Brit as well the after, 526; Fifer 112 U. v. 228 Thornton, ton v. S. Ill. Allen, supports great weight authority of But the 507.] the denoting real is in that when estate devised terms rule, primary that the devisee shall take a on an intention fee coupled of with a devise over of his the words refer a death, issue, case without to OCTOBER TERM. Yol. 119 Men
Owens v. and Millions Movement. during death without issue the lifetime of the testator, primary surviving and the devisee an takes simple. absolute estate in fee intention of the tes presumed prevent lapse. tator is to be to [Kohtz v. King Ill. Eldred, 69; 208 135 60, Frick, v. Pa. St. 575; Calloway, Ky. Calloway 372; v. 171 Tarbell 366, v. Smith, Lumpkin Lumpkin, v. 388; 125 108 Md. Iowa, 470; Morgan Slinger 152 Ind. Robbins, Vanderzee v. Skey Eng. N. Y. 47; land, Barnes, Rul. Cas. R. 603, Note; American 28 C. L. 259.] just rule stated is accord with the settled
policy country England, of courts both this meaning words of that doubtful so be construed give heir; as to favor the as to an estate of inheritance to the first vest devisee; as to the title to an so estate abeyance. it will not remain in that Scofield Ol long 120 Ill. 374, it was “It cott, said: has been a legal settled rule . . . construction, that estates, equitable, given always regarded by or vesting immediately, will, should be very
unless the
testator has,
clear
manifested
intention
should be
contingent
,event.”
again,
on a future
And
it was said
Mickley’s
Appeal,
Justice Sharswood
death, issue, or death future with against perpetuities, in the rule without clear evidence an intent.” such But of course that where rule, is de- provision gift with a vised one for a over in the death of devisee the event referred to is death without issue the lifetime of tes- tator, like all other subordinate aids to construction, give primary way must rule intent gathered is to be from the testator four corners *9 . MISSOURI, SUPREME COURT OF . y. Men Millions Movement.
Owens and language. possible giving to all its effect if instrument, expressions which Accordingly will in the are if there subsequent referred to death indicate the testator- that they given [Schnit must be effect. demise, to his own find we 337.] However, 85 Neb. McManaman, ter v. the con in the before us. On no such will- indication trary reasonably was but it is clear that making residuary in the alterna of his 'estate devise May Owens were tive. If Nellie Owens and William B. go the estate the will took was effect, dead when was to then it Oliver; if all three-were dead, Wavelee appellants. possibility go -to his' grandmother, son-in-law, or both would mind; para evidently predecease By in his was him “Eighth” provided graph “in that, he case of death my daughter, my May son-in- both Nellie Owens, , .' . Owens, event, then and law, William bequeath give, granddaughter, my I Wave- devise In the con Oliver, residue,” etc. ... all the lee appointment cluding language, with the which dealt my . “. . it he said: further executor, event, my daughter, death . that in the . . my May William B. Owens, son-in-law, Nellie Owens, Roy granddaughter, my V. Oliver, Wavelee my appointed be to act as Cameron, Missouri, Neff, pro my Manifestly will.” these last this, executor occurring taking before the visions related deaths there is no reason And to believe that effect will. in mind different the testator had when language: my daugh . . said he.used granddaughter all should die ter son-in-law my leaving any in such all then event equal parts, into shall be divided four go,” part etc.” and one shall support contention that of their words, “die paragraph issue,” “Tenth,” meaning it construed as whenever should should death of the testator, before after the whether occur, *10 Yol. OCTOBER TERM. y. County
State rel. Saline Price. ex (See. 1919) appellants R. invoke the statute S. provides: which goods a remainder in or
“Where
lands
tenements,
by
or
chatties, shall he
deed or
limited,
otherwise,
person
take
on
or
effect
of
heirs,
body,
heirs
or
of his
or without
on failure of
issue,
issue,
‘heirs’
shall he
or.‘issue’
construed mean
living
person
heirs or issue
at the
death
named as
j
;
(cid:127)ancestor.”
purpose
for
of
This statute was enacted
ab-
early
rogating
common-law
rule under which
words “die without
issue”
construed
were
[Naylor
.-mean an
failure of
indefinite
issue.
Godman,
543, 550;
Yocum Siler,
STERLING T. PRICE EQUITABLE SURE- TY COMPANY. One,
Division December Compensation:- 1. SHERIFF: Reduction Statute: Constitutional. provision (Sec, 13,’Art. 9) Constitution fees “the any county municipality or ministerial no executive officer