*1 SupRemb Yol. 317. with certain equities in of plaintiffs, favor and that same title conveyed the widow’s equities deed to Brandes. Those been extinguished through lapse time, plaintiffs are without right or of any description. title judgment of the circuit court is All affirmed. concur.
Lucy Campbell Appellant, v. Hattie et al. 296 S. W. Philbert,
1001. One, Division June 1927. Light Existing 1. WILL: Construction: In A con- Law. will must be strued, expressed and ascertained and testator’s intention as therein must be determined, made and at light existing at the time the will the statutes his the time of death. Cotenancy. 2„ -: Life Estate: Estate A clause of Joint my Robinson, reading: beloved and give bequeath my “I and and to beloved niece, property, real all the balance of both life, during personal, and to have and hold their natural to at.sisters, among my remaining property and to be divided brothers death joint alike,” in the wife and a life estate share and share niece, did not create given them expressly the estate it did not declare that because (Sec. 2273, 1919) requires; tenancy, joint R. S. in as the statute was to be common, tenancy and co-tenants made the wife niece but a it created did having predeceased the niece the testator the wife in the life not whole, only lifetime use an undivided a lifetime use of the but half, to the immediate use and sisters were entitled and the brothers other half. given must with Effect be -: Statute. Intention: Conflict 3. gathered some the will unless it violates from intention of the testator way give with law, it conflicts must but the intention inflexible rule of expressly declares that devise of express the will statute. Unless (Sec. tenancy, joint the statute shall a wife and niece be life estate to every 1919) declaring in real devised interest estate R. common, tenancy persons unless declared more be a two or in such devise holding compels be in interest, equal common, has an undivided a that after the death of which each go does not niece the wife the whole moiety only survivorship, a life estate in the she continues to have her. -; Equivalent Tenancy: Enforced -: Joint Words: Create To Admitting that the intention create Environment. “joint equivalent meaning expressed to the words words other be surroundings light tenancy,” reading will in the himself, family environment, and a member him remembering his wife consisted of that his invalid, niece had been wife was an niece and that the his upon- years family fifty for waited and had cared of his forty years, for the niece were and his wife affections his Philbebt firmly grounded, deeply and that brothers sisters did rooted during lifetime, still it cannot not visit with him nor he them my prop- giving “all and niece the balance his will to his wife held that personal, erty, their natural and to hold both real and to have remaining among property to at their sisters, divided *2 alike,” expressly declared that the interest of the share and share that, in after the death wife niece death, niece, by wife, prior survivorship, which occurred to testator’s life, during property the sole use of the whole for tenancy” words to have the “joint equivalent meaning will are the words and an not tenancy “expressly by them, to create a is not declared” intention says tenancy in case the statute the interest devised shall a such common. Tenancy -: 5. Devise of in Common: Division at Their Death. The “during
words “at their death” in a devise niece to wife and their natural life, death, sisters, remaining property” and at their to brothers deaths,” respective being mean “at and the interest moiety among in a in common life estate the each is divisible the brothers and sisters as the death of each life tenant occurs. Survivorship. “during 6. -: To Class: A devise to a wife and niece class, upon their natural:life” is not devise ato the death of the wife only property the niece does not entire take the as the survivor of the class. individuals, It separable is a life tenants as named which each takes equal moiety, and not to a class of beneficiaries. Lapse -: 7. of Devise: Death of Devisee Prior to Death of Testator: lapse prevented by Inheritance. A of a implication devise will be where the property will shows a go clear intention upon others
n death of the devisee. testator’s', gave the will Where all of the balance of property during to his wife at remaining; and niece their natural and the property living, sisters, their death to his brothers and “should be not children,” then to their prior and the wife died death of the lapse her, moiety there was no of the devise to intended! upon went, by directly substitution, for her testator’s death brothers But, lapse, and sisters. case, even if there awas the result in this in which descendant, left mother, same,, no father or' would be the by statute, if he moiety, died intestate upon to the wife’s it went sisters, descendants, equal his death to brothers parts,, and their as his heirs. 8. PARTITION: Devise of Life Estate: Death of One Life Tenant. The being property devise of real tenants to a wife and niece their natural as. common, and at their sisters, death living, to the children of such as were prior the wife died sisters, to testator’s the brothers . and the descendants of such deceased, partition as are are entitled to and distribution waiting devised to the estate, without for the termination of the niece’s life subject enjoyment to her lifetime use and of the other half. p4 [0000] o OJP<03 Or-l £ a * oo A ' © ? y q [*] CO h-L PH- s 03?to 9 £o8 .. CD s.. c* * £V*.03 >> r io .£ o© S3© CfiOO (cid:127)>—Í G P<tH co ~ tp oil o ©» Já . y en CO S3 in'*©3 "* 00Co 00 [*] Osage
Appeal from Circuit Court.—Eon. B. A. Brener. Judge. Supreme 558 Yol. 317. (w.itJldÓV&cUons) REVERSED AND REMANDED Zevely E. appellant. M. and John P. Peters for (1) any express In view of the statute and in the absence of dec- joint tenancy laration of a the circuit court erred in not declaring 1919; common. R. Rodney Sec. v. Landau, 104 259; Reynolds, 233; Mo. Lemmons v. 170 Johnston Mo. 113; v. 173 Johnston, Herbert, 549; King Cohen Mo. v. 205 Mo. v. Theis, 422; (2) v. 258 Lounden S. W. Bollam, 440. judgment holding contrary ap- lower court is also to the pellate States, statutory subject courts other whose law on this substantially as the v. same Missouri statute. Cockrill Arm- strong, 5S6; liittell, 432; 31 Ark. Estate of 141 Gruger, Cal. Slater v. 329; Gardner, 285; 165 Kimberly Til 111. Case, Mustain Seely N. Y. 90; 44 Pa. Seely, Sawyer, Sup. St. Stume'v. Pa. -(3) Ct. expresses It is intention which the controls, will that and not that which had in his he mind. *3 Cyc. unambiguous 40 plain 1386-1390. words of The qualified conjectural prevail by any must and cannot or be controlled growing situation, or doubtful circumstances constructions out of objects or testátor, his natural o£ condition of Ed.) bounty. (5 1 466. in- 586, on Wills sec. Schouler sought tention for in construction of will which is to be a is not mind that which which existed in the is expressed by language Gee, v. 107 Ill. wall. Gee 313. The express not testator meant to but what the inquiry true is wfliat the express. YanWyek, v. 83 Ya. words him Stokes 72-1. If used do clearly estate, though one which create he de- use words testator yield to the rules of law. Hertz signed. another, his intention must general may it said that a 110 In be testator Abrahams, v. Ga. 707. legal consequences will. Couch presumed to have known the is (4) in- essentially true that 70. It is Easthaln, 69 W. Ya. v. in'construing sought and effectuated shall be tention construction, rule so this rock-ribbed enforcing wills, but very State, subject is this to this faithfully followed strictly and not conflict with inflexi- That must qualification, vital to-wit: here. The statute law. Such is case requirement ble rule of conveyance or devise of real estate in the effect of declared has expressly declare not grant devise does that the event declared intention No such intended. tenancy province or the power within the therefore, is, will. interpretation carry or to out unex- rule courts, under grant construe such grantor pressed intention' 559 Philbert v. or devise to says be a for the statute that it is a ten- ancy in common. Reynolds, Lemmons v. 170 (5) Mo. 234. Where single bequeathed income of a fund is persons to-two or more life with remainder over “after their death” the courts construe these words respective to mean “after their deaths,” and present decree a division of part the fund and a distribution thereof not re- produce quired to income for the life tenants. Wardell, Collins v. 65 Eq. N. 370; J. Beck, (N. v. 7 Eq.) 74; Case, Woolston Stew. J. Moore (N. 10 (6) Eq.) Where, legacy Stew. 63. in a to more than one person, proportions they there is no definition of the in which are take, equally. Thompson Wills, p. on see. 175. <& respondents.
Vosholl Monroe and Gove & Davidson for (1) kept The intention of the testator was that his estate in- tact until tenants, partition post- the death of both life poned 529; Gibson, until such time. G-ibsonv. 280 Mo. (2) Hill Hill, 58; Crossan, v. 261 v. 262 If Mo. Crossan S. W. 701. expressed may plainly the intention is not in said will then words necessary be used and read into the will to make the intention of clear, interpolated the testator and words so as to arrive at express correctly Sec. the testator’s intention and to his intention. 1919; 222; 295 Boone, R. v. Mo. Bemero v. Union Trust Schee 550; Pauk, 200 Co., 602; Perry, Gannon v. Mo. Grace partitioned against (3) 85. cannot be the intention Mo. Lands 1919; Curtis, v. Heirs of 2005, R. S. Cannon the testator. Sec. (4) Keathley, Where App.
Mo.
Bernard v.
Mo.
property, partition
had
division of
cannot be
will fixes the time for a
Hill, 261
Partition will not
Mo. 58.
prior
fixed.
time
Hill
prop-
testator’s intention
will indicates
be made where the
Shelton
life of the life tenant.
erty
divided
not be
should
(cid:127)
*4
con-
(5) The intention of the testator
Brag,
SEDDON, statutory C. This is a action The sub ject lands, Osage action is described situate Coun certain ty, were owned at his death one Thomas J. Rob which inson,'who testate, will was and on died and whose made executed duly probated in August 26, 1916, and 'the Probate Court of Co-unty Osage March 1919. Plaintiff is half-sister' of on Campbell, testator, Defendant, testator. niece of Hattie remaining will. provided named his The devisee testator, the descend are a sister defendants brother ants of his deceased brothers and sisters. Robinson, evidence, will in made his .testator, Thomas legatees, named and then personalty to certain bequests
certain will, paragraph of said follows: fifth clause or provided, bequeath my Robinson, Iva give beloved “I Campbell, Robinson, all of the balance of TIattie nee beloved-niece, personal, to have hold their real and my property, both remaining property to be di- death, the life, and at their natural vided-among sisters, share and alike. Should share ’’ living, to their children. then they be not foregoing paragraph or clause Upon construction upon tried the folio-w- hinges. The cause was will; this action the ing agreed facts: statement of ‘‘ Robinson, will, Iva in this Robinson, testator Thomas' J. wife, composed in said devisees Hattie marriage. born of the Hattie children no family Testator had with him wife and lived and his niece Campbell child, when a and was liv life, going her all of (cid:127)practically prior His wife died of his the time death. ing deceased at With ’ n. did and sisters Testator’s brothers Robinso of T: J. death in his lifetime. The them, wife deceased; he with nor visit with death, in years up many prior and Was, for of-said very much and his wife were Testator an-invalid. ill-health and said testator left about And Hattie to said attached personal property, now-of value real'and $20,000,-consisting-of upon kept tes Campbell house waited $15,000-. Said Hattie forty years. Said more than death, for until and his wife' tator any means of never had Robinson Campbell and said and, time death of said own at support of their fifty years about Campbell was will, Hattie of said making Robinson, the tes* Thomas J. half-sister of is a plaintiff 'old: Said is an question, old lands death, owned who;'at his tator, *5 PílILBERT v. years woman 67 old and without means support. testator, Said his wife and nieee were all kind and affectionate toward each ’ other. Testimony question that the real estate is not adduced
susceptible division kind among parties the in interest.
The petition-alleges, in substance, plaintiff and the defend- ants are the owners fee and tenants in common in and to the lands, subject described to an life of said Camp- Hattie bell and to an undivided one-half thereof; that said Thomas J. Robinson,'-deceased, is-the common source that, of title and last will testament, bequest he made residuary the and devise as out fifth aforesaid; set of his will clause Iva Rob- said inson, testator, wife predeceased testator, said Robin- son January 5, died on testator, and the said Thomas Robinson, February J. having died 25, 1919; plaintiff on a sister testator, and that respectively brother, defendants are sister, and the children of sisters, deceased brothers and testator; and that one-half of the described lands cannot be divided great in-kind without damage injury parties to the in interest; wherefore, judgment prayed decreeing sale said one-half of proceeds described lands for the distribution arising among parties therefrom entitled thereto according to their interests, respective rights and and for such other orders as the might just proper. court deem Campbell,
Defendant, answered, denying generally all of allegations petition, alleging further in the answer partitioned cannot be parti- that “said land for the reason against tion of land would be said intention of Thomas Robin- ’’ expressed son, testator, as his last testament. appointed guardian
Á ad litem Brock, Yernon an infant defendant, guardian on said filed answer behalf of his ward, generally allegations petition, denying partitioned land cannot be further that until after alleging “said tenant, parti- for the reason that the death Hattie contrary to the intent of land would tion -expressed in J.-Robinson, as his last Avilland testament.” Thomas The remaining made default. defendants trial, finding court
At of 'the announced and con- the close testimony, “I from all the or from all clusion, follows: think as general concerning this case from the direc- the circumstances you have to take consid- will, from the fact into tions of the personal construing this that there was eration, in consideration, all estate, you that into when real as well as as real that these well fact personal property as been, family, and had for a number living one all people were Sup. —36. *6 Supeeme Coubt oe Missouri, Vol. 317. years, of I think joint are tenants.” The trial court there- upon judgment in against entered favor defendants of and partition plaintiff, denying part question. of of the lands in Motion for a new timely by plaintiff trial was and overruled filed court, plaintiff appeal the trial and an to this allowed court. prior entry court, will be observed that trial expressed par- judgment, the fifth clause conclusion agraph joint tenancy will of Thomas Robinson created a in Campbell, named, therein Iva and Robinson devisees that, having predeceased testator,
and Iva Robinson -the surviving Campbell, thereupon devisee, Hattie became Joint Estate. with, took, and for life all the prop- estate in yggted erty, bequeathed and said personal, both real devised and under paragraph fifth The clause or of Thomas J. Robinson. that, by plaintiff appellant, Lucy Philbert, position takes and in com- the fifth clause the testator devised life estate named, mon to the two devisees therein Iva Robinson and Hattie thereby making (had they them in tenants common both in testator) in realty survived the life estate will; that, fifth in com- said clause of predeceased created, mon tator, and Iva the tes- was so Robinson lapsed, moiety Robinson or the either the devise made passed residuary or share devised to her devisees named sisters, if clause, to-wit, living, of the testa- said the brothers and respectively, tor, sisters, children of such brothers living, interest, right, are without or life the testator who moiety by in such virtue of her survivor- Campbell of Plattie ship. construed, must be his intention as ex-
The will of testator
determined,
light
arrived
pressed
the will must be
at
making
the time of the
State
existing
the statutes of this
pre-
testator, for the
testator must
the will and the death
existing statutory law,
knowledge of
had
to have
sumed
light of,
subject.to,
existing
in the
his will
to have made
statutory
Cyc.
233,
R. C. L.
sec.
law.
[28
1919)
(Sec. 2273,
provides: “Every
R. S.
this State
statute of
The
persons,
or devised to two or more
granted
in real estate
mterest
and husband and
and trustees
executors
other than
expressly declared,
grant
in such
common,unless
ours.)
tenancy(Italics
The statute afore-
devise, to be
applied by
occasions, on
this
several
construed
been
has
wills.
construction
court
Reily,
James I.
Mo.
Landau, 104
Rodney
In
;
“any
property .
other
hereafter
provided- that
by his will
Reily, during
wife, Elizabeth C.
her
belong to
acquired shall
PhilbERt
OaMPbell.
lifetime, and
afterward be
property,
by joint
transferable
deed of James E. and Mary Jane Reily, or either
of them
sell
their interest in sneh property after the decease
mother,
of their
and Mary Jane
age
attains the
twenty-one years.”
E.
James
Reily survived
sister, Mary
Reily,
Jane
who
died intestate
issue,
without
and the mother, Elizabeth
Reily,
C.
survived
son,
Reily.
James E.
ejectment.
The action was in
claimed
Plaintiff
title to the whole property
and estate so devised
descent from
Reily
James E.
and defendants claimed title under Elizabeth C.
Reily,
Mary
mother of James E. and
Reily,
Jane
the widow of testator. Said Black, J., speaking -for this division of
‘‘
court
that case:
(James
question
next
is whether these re-
*7
maindermen
Mary
E. and
Reily)
Jane
were tenants in
joint
common or
According
tenants.
to the statute an interest in
real estate
or' devised to two
persons,
or more
granted
execu-
tors,
or
trustees,
tenancy
husband and
is a
in
‘un-
common,
expressly
less
tenancy.’
declared,
grant
in
devise,
such
or
joint
to be in
12,
p.
sec.
Now,
[R,
while the testator
speaks
property
‘joint
of this
property’
as their
by
transferable
‘joint’ deed,
express
still there is no
declaration that it is
by
joint tenancy.
held
them in
quite
It is
speak
common to
property
joint property
nothing
when
more meant
is
than owner-
property
ship
by
persons.
of the same
policy
different
of the
opposed
law
survivorship,
American
is
clearly
that policy is
joint
in our
indicated
While
tenancies are not abolished
statixt.es.
State,
in this
still to create such tenancy
must
express
in
declaration to that effect
the deed or
creating
will
by
Reily.
is
Purdy
Purdy,
not done
of James I.
Mjd.
point
and to
Ch.
is
the same effect.”
Reynolds,
227, 233,
In Lemmons v.
a suit in partition, the
provided:
‘‘Second,
I
of testatrix
will to
two.sons, James
Reynolds and
Reynolds,
following
C.
John W.
described real
partition
involved
[being
suit]
Third,
I will
David
being
son
Lemmons one
it
dollar,
all I
except,
already
I
give to him
what
advanced to him.” John
Reynolds predeceased
by
W.
the testatrix. Testatrix was survived
Reynolds
husbands),
C.
(by
her-sons
Lemmons,
different
James
and David
daughter,
Willie Ann Turner. Plaintiff,
David
Lemmons,
moiety.or
claimed an undivided one-third interest
lands,
Reynolds
W.
share
John
the second
of the Statute of
clause of testatrix’s
virtue
Descents Reynolds predeceased
Distributions,
John W.
because
the testatrix
Reynolds
issue. James C.
and died-intestate
without
claimed
joint
of a
as the
member
the whole-
devise
he
created
the second
which
claimed to have been
clause of the
Supeismw
Vol. 317.
COURT OK Missouri,
will. Said this division of
court, speaking
through Mabkttat.t,,
J.: “In the case
bar,
there is a devise of real estate
per
to two
sons,
express
and there is no
declaration in the will
they
are
joint
to hold as
tenants. Therefore,
express
mandate of the
statute, that it
tenancy
shall be a
in common, applies and controls.
It
is essentially true that
the intention of the testator shall be
sought
construing
and effectuated in
and enforcing wills, but this
rock
construction,
ribbed rule of
strictly
so
faithfully
followed
this State,
subject
very
is
to this
qualification,
vital
to-wit, that it
must not conflict with
requirement
inflexible rule or
of law.
Such is the case here. The statute has declared the effect of a con
veyance or devise of real estate in the event
grant
de
or
vise
expressly
does not
declare that a
tenancy is intended.
No such
expressly
intention is
declared in
is,
this will.
...
therefore,
power
not within the
province
or
courts,
under
interpretation
rule of
unexpressed
or to carry out an
intention
grantor
grant
construe such a
joint tenancy,
says
be a
tenancy
for the
statute
in common.
Grantors or
do
testators who
not wish the statute to apply, and to
only
create
common,
given
right
are
arrange
to so
it,
must
grant
declare
devise that a
intended,
or else the courts must construe it to be a
tenancy in common. There is no distinction under the statute be
regard.”
tween
deed
a will in this
Again, in the later case of Cohen v. Herbert,
the intention of the the statute existing at the time expressed testator as therein, light execution of the the death of testator, and in prior our holdings view of and con struction of such statute, we are constrained hold that clause fifth of said will a tenancy created in common in the devisees and named, tenants therein express because of the absence of an declaration in the devise that devisees named shall take tenancy. Respondent, Hattie Campbell, contends, however, pri that mary and controlling question to be ruled and herein determined is not whether in common was created by the fifth clause will, of testator’s but what testator’s intent as to the time when the estate Intention. partitioned distributed; and, fur thermore, that -such intent can best be ascertained the court putting itself, may be, place so far as testator and read ing light will in directions environ testator’s ment that, arriving time at the made the is said he will. e give the time testator, intention of the w must due consideration testator, to the surroundings environment as disclosed agreed herein; namely, statement of facts the testator children, respondent, lived had no and that Hattie had Robinson, practically all her his child; testator, many years and since was a she wife health; Hattie prior to her invalid and ill Campbell for, and wife kept upon, testator and his house waited forty years deaths; that neither Hattie more than until their support, and Hattie Campbell nor Iva had means of Robinson making years Campbell fifty age at the time was about Robinson, niece, and his will; testator, wife, Iva family, all kind and were Campbell, constituted testator’s other; and that affectionate toward each them, he 'with nor did not visit with
sisters lifetime. R. (Sec. 555, State mindful the statute of this
We are regard due courts 1919) requires that “all meaning intent and the true the directions rule them.” But while the brought before testator, in matters all *9 statute by aforesaid prescribed and laid down the of construction will, give to the directions effect enjoins that we shall on us yet rule of testator, such meaning of the intent and and the true con- that it must not qualification subject is the construction requirement of rule or inflexible any flict established Perry, 234; Grace v. Reynolds, 227, 170 Mo. law. [Lemmons Supreme Yol. 317. 550, And, we said, no have heretofore being express declaration contained in the that first takers or the in tenancy, give devisees shall take named the devise we must requirement by or prescribed effect the inflexible rule of law (Sec. 2273, 1919), namely, the statute R. S. estate the devised shall be a in follows common. It therefrom that we cannot say respondent, that was the intent of testator that Hattie the Campbell, devise, surviving devisee, should take whole as the the during co-devisee, life, for and reason of death of the the Iva Robinson. Campbell, term, respondent,
But it said declared,” statute, “expressly as used in Section afore- “joint said, term, words, or precise does not the use of the require tenancy,” declaring creating such but that or convey meaning same any which and intent other words joint tenancy. It is be used the devise to declare that, by (in use clause respondent therefore contended said will) language expression, “all of the balance fifth of personal, hold property, to have both real remaining their and at natural thereby among my sisters,” the be divided intended, expressly declared, that or takers first the devisees devise, and Hattie each named Iva Robinson clause of a life whole of the devised have lands n devisee, either that, in event the death of enjoy a estate in the wiholeof lands shall take and life survivor clearly manifested Hence, it claimed that devised. part thereof, devised, any shall not that the lands the intention surviving (in tenant partitioned of the last until the death (See. our R. S. Campbell), and statute case, Hattie this 1919) specifically partition lands, ten- enjoins sale “no be made will, shall hereditaments, last ements or devised expressed in contrary to the intention of ingenious, but is not respondent is such vdll.” contention we find. On other judicial authority, so far as supported by respond- opposed to directly hand, judicial appears to be authority ent’s contention. Eq.) 75, a testator (34 N. Beck,
In Woolston v. Stew. Lippincott and Keziah daughters, Sarah his farm to his two term of their during the enjoy same Woolston, to use profit aris- benefit have the lives, Lippincott natural Sarah théreof, and Keziah Woolston two-thirds ing'from At one-third arising other profit from the benefit and Their Death. daughters,” two thereof, decease and “after Lippincott died Sarah specified portions. ’fee, their children Woolston, by Keziah survived leaving children, and was *10 567' PíIILBEET CAMPBELL. V. who claimed she possession was entitled to the of use whole farm for life. chancellor, Said the learned in denying the claim of Keziah given "Woolston: “The estate to Sarah Keziah by a tenancy common, is is therefore no sur- vivorship. The would, given statute if the had been to them for equal life in shares, forbid construction which would hold that implication joint the estate tenancy. provides estate, after passing (February 4, 1812), act of shall no. be considered joint except to be an tenancy, estate it be forth, grant creating set- it, or devise that it the intention is. joint of parties tenancy, to create an estate in and not an estate of in common. Keziah is not entitled ato 167.] [Rev. farm, only estate in the persons whole in the one-third. The to whom given Sarah; the remainder is became, on the death of possession entitled to the of that, by other two-thirds. fact The will, the language of the to the remainder effect on the daughters’ not, although only death of the 'two of them is one dead, prevent that construction. The words ‘after the death of my daughters’ two will be mean after construed to the death of the respectively. two B giftA to A and common, tenants in lives, deaths,’ their and ‘at or ‘at death A B,’ their of children, life, their the death of goes, on each tenant for authorities.) children.” (Citing case, Stoutenburgh Moore, (37
In a later 10 Stew. N. Eq.) v. 63, 65, provided: the will of testator “All the rest and residue of real, personal mixed, give, bequeath I devise and sons, Edward, Robert and equally the income to two to be lives, at their during divided between them their to be (cid:127)equally- my-grandchildren, them, divided between their heirs and assigns.” brother, Edward, Robert survived his left who complainant child, a widow one suit. Robert claimed entitled the whole the income of to be the residue of and that such residue testators’ estate estate chancellor not divisible until his death. Said the therein: testator, by will, gave “The the income the residue to his sons, divided between them equally to be lives. two income, common had no This made them tenants Eq. survivorship. Beck, 7 Stew. Wills right of [Woolston (20 provides Wills, Eq.) L. R. Our statute that no estate 342.] adjudged . be an . . considered except expressly' grant set forth in the tenancy, parties creating it is the -intention such estate that create common, an estate -estate contrary usage any law, or decision theretofore made to notwith- standing. p. right, had a Neither the sons under [Rev. SupRemb Vol. 317. any event, to more than income in one-half principal divided, when one them for I am died the was to be ‘ ’ opinion at the the term at their death the testator meant respectively,
death them not at death of the survivor. design pro- testator and the scheme of the will were *11 vide, then, place, life, first the his sons for . die, respective should . . He for their families of children. certainly that, respective sons, intended deaths of respectively in- residue, gave shares of the come, of which he them ’ ‘ go over; for he their directs that at which should be- respective deaths, meant be divided he their residue shall tween grandchildren.” Wardell, 65 N. J.
The same Collins conclusion reached her 366, 370, a executors to set Eq. wherein testatrix directed to apart, produce “a fund sufficient out of the residue of my $6,000 year, pay an brother, out to to income of a of said income brother, $4,000 year, Phyfe, William and to Duncan lives, Phyfe, respective- $2,000 year, for the terms of their natural capital death, I of said fund to be ly, and their direct after among William certain named beneficiaries. equally” divided pre-deceased annuity $4,000 bequeathed, Phyfe, to whom testatrix, ivas question before chancellor whether and the the the except
capital fund, required much thereof as would be so $2,000 brother, produce surviving to the pay the annunitv of to bene- Phyfe, presently distributed to named Duncan should ruling chancellor, question: ficiaries in will. Said the capital . . that “The testatrix means the annuitants, direction of the respective upon deaths fund is to be divided respective lives. The paid them for their income been to death,’ only used, in the connection can mean ‘their words ‘their expressive single of a respective deaths.’ These words were not is, event, one; respective deaths. the death of each their but of the income of support cases contention where seem persons single or more with bequeathed fund is two death,’ the construe these words their courts remainder over ‘after deaths,’ present division respective mean decree a ‘after their and part required thereof distribution of fund produce for the tenants.” income decision our attention not directed While counsel have yet precise question, touching the our State of the courts of own Jersey New reached in the we are satisfied the conclusions upon which such logic reasoning cases herein cited and with the opinion that the testator predicated. conclusions were We are of death,” in the connection intended at their words “and in say which those were in the fifth clause words used mean) provide only “and after (and such words can PiiilbeRt respective Hence, deaths.” -we think that the intent of the is clearly manifest, as disclosed the fifth clause of his - will, that moiety division of the or share devised to each of the
life tenants is among to be made the brothers and sisters of testa- tor, if any of testator’s brothers and sisters be not living, then to the children of such deceased brothers and sisters, at and upon respective tlie death of each the life tenants. We give cannot sanction suggestion to the respondent
the devise was made to the life tenants, Iva Robinson and Hattie Campbell, as a beneficiaries, class of Campbell that Hattie takes the whole for life as member of the class. In opinion our the devise was made to the life tenants as Devise individuals, named and not as a class of beneficiaries. The to Class. distinction between a devise to a class and one to named clearly expressed individuals is and stated in Hittell, Estate of Cal. wherein devise was made testator to “Anna P. and Mary Greer, Greer M. live, with whom I . and whom regard adopted I daughters.” treat as Said court: *12 as respondent, them, “Counsel we understand seriously do not legal contend that the will creates the strict of tenancy. relation gets But that contend their client whole a not as sur viving joint tenant, remaining person but as the aof ‘class.’ Their is, Mary that the devise was to class, contention Anna as a the case comes within the rule where is a a there devise to class, those of the who are existence at the death of class the testator wholly position the whole estate. We think that this is untenable. individuals, is simply case at bar devise to two named meaning a designation ‘class,’ given -is no within the there by persons word The statement that the devisees the authorities. were adopted daughters is lived treated as his of no whom he given bounty. for his A significance, perhaps as a reason except gives a class is instance a devise to a where common generally person, ‘children’ of a to the certain without nam property, John;’ such a ing brother and in them—as, ‘the children of John will be is to such children as case it held that the devise is Therefore, time the testator’s death. at the existence gift named, been would bar, if a class had the case at even nothing parts is in the other individuals, there been to the because showing intent, evidence, a different will, or in extrinsic of the ownership. creating right of operative words are no there named; is an class and this fact stated, was But, no as before Th respondent’s contention.” way in the insurmountable obstacle e Banc, by this Court en drawn have been same distinction seems Bollam, 302 minority in Lounden v. opinions, majority both the Mo. Supreme [April Term, Yol. 317.
. It
say
remains for us to
whether
the devise
lapsed by
Bobinson,
reason
death
of testator,
of her
before that
sisters,
whether the testator intended to substitute his brothers and
children,
of such
respectively,
brothers and sisters
Lapse
-j^g
-ag
may
beneficiaries
devise
the event
general
the death of Iva Bobinson
before
death
testator. The
legatee
a legacy
lapse
rule is that
or devisee
devise
where the
Cyc.
appears
dies before
testator.
But it
also
[40
generally recognized
may,
express
pro
rule that “a testator
lapse
legatee
will, prevent
visions of
a
case
death of a
lapse
a
prevented
or devisee before the
also be
implication,
the will
a clear intention of the
shows
where
go
legatee
A
heirs
or devisee.
has
legacy
lapse
provided
or devise will not
where the testator
legatee’s
death.
a substitution or succession in case
or devisee’s
‘or,’
clearly
by the use of the term
implied
is
Such
substitution
legacy
particular person or his heirs
to a
therefore
lapse upon
legatee before the testator.”
will not
the death of the
Lachasse,
591, 593,
Cyc.
So, in Martin v.
1933-1935.]
[40
speaking
“It
J.,
for this court:
conceded
WagNer,
testamentary disposition
clearly established,
principle, most
lapse by
legatee
the life
testator.
the death of the
bequests of
equally applies
devises
real as to
And
rule
recognized
long
This
been
settled
personal
rule has
estate.
Leg.
produc
Rigdon,
340; Rop.
320),
often
(Brett v.
Plowd.
of the tes
cases defeats the intention
hardship,
tive of
and in some
falling
beyond
will not be extended
cases
tator. But the doctrine
given to one
legacy
if
strictly
Therefore,
it.
or devise
within
alternative
another, the
name, and in the event of
death
tes
legatee
or devisee die even
gift
the first
will take effect
adjudged
very
in a
recent
point
This
tator’s lifetime.
512).
favors
The law
(Martha May’s
Penn. St.
Appeal,
ease
*13
vest,
can
to
where it
vesting
estates,
always
them
of
and will
hold
of
manifest intent
and the
consistently
legal principles
be done
Will,
declaring
lapsed.
preference
them
testator, in
to
the
[Collier’s
”
.take, as substituted beneficiaries, moiety or share of of either devisees for upon their respective deaths, whether such deaths should' prior, occur or subsequently, to that testator; least, will, by its terms, place’sno upon limitation taking moiety such in the event of the death of either devisee for life before that of tes tator. But while we clearly opinion are Robinson did lapse, passed to the beneficiaries, substituted the brothers and sisters of testator, and their descendants,' neverthe less it would seem to make no difference in case, the instant as re specting rights parties herein, lapsed whether the devise passed or whether it to the substituted beneficiaries. Testator died and, without issue under oxu' Statute of Descents Distributions (Sec. 303, R. S. 1919), the estate, any, if of which he intestate, died passes descends or to his brothers and sisters, and their descendants, equal parts, it be that unless testator was survived by his father mother. positive While no showing and. there is here record .in that testator -was by not survived mother, father and or either of yet them, ages respective parties believe, leads us to .and therefore to inference, draw the testator was not survived either or mother, father and hence his heirs at are law identical with provided substituted beneficiaries for in his will.
We reach therefore the conclusion herein that the' brothers and sisters of children, respectively, and the of such brothers may dead, sisters clearly present partition as be are entitled to a moiety and distribution of property share the lands real fifth clause of devised Partition. jva awmiting Camp- without death H'attie conclusion, Any of her life other we the termination estate. bell statutory think, existing contravention of law'of this -wouldbe contrary intention and directions of tes- to the manifest State judgment of will. in his It follows that the expressed tator as wrong, and must therefore be reversed. circuit court is reversed, accordingly judgment nisi herein that the be ordered court with directions to the circuit be remanded the cause fifth all and real the lands value (in- testator, Thomas J. Robinson will of paragraph of the clause or may any, have property, and real cluding devised lands such Camp- disposed by respondent, Hattie conveyed or otherwise been dis- convey or otherwise attempted she bell, or which next, determined; pose of), first ascertained dur- enjoyment Campbell, for her use off to defendant set legal other definite bounds or life, metes and ing the term her according property, and real of said description, part lands a one-half thereof; and whole value such and determined ascertained of said lands other, part one-half remaining, then that the *14 Supreme 317. 572 Yol. oe Court property, according and to such ascertained determined value of real thereof, partitioned kind, if same can be done the whole interest, among prejudice parties brothers great without alike, and, and if and sisters of the share share such dead, the testator be then the de- sisters of share go children, any, if ceased brother or sister sister, per stirpes; any such brother or the said one- deceased value) real not part (in of said lands and sus- half great prejudice parties ceptible partition in kind without 'according interest, same be then to law and that sold proceeds divided and among such sale be distributed the said respective parties, according* rights interests, estab- proof G., ascertained the trial court. Lindsay, lished sitting. C., concurs; Ellison, not opinion by SeddON, foregoing adopted C.,
PER CURIAM: The judges except Gantt, J., All opinion concur, as the court. ‘ sitting. S. E. Rhoads, 389. Appellant. Frank W. Horn v. One, Division June Agent Use: Re- Driver: Servant: Automobile NEGLIGENCE: Permissive witness, having Superior. repaired its learned that for spondeat owner a car ior A having compensation work the course definite owner, $750, he had him went to the told would sell car owner buyer requested permit witness to prospective the owner purchaser; prospective garage it to the and demonstrate the ear out of the and permission, from the owner borrowed a dollar obtained such highway, buy gasoline, public took car on which to with negligence understanding, injured plaintiff. as- or if the the collided with understanding, and the owner was between the witness sumed could retain sell the car for more than the witness $750 witness could Held, witness, having on his own initiative excess. permission purposes take the car out for the owner’s own obtained business, engaged prospective purchaser, in his own demonstration to owner, the conse- not in that of and the owner is not liable for superior. respondeat quences negligence of the witness’s under the rule Error, J., Corpus Juris-Cyc. Appeal Section References: C. Servant, 1530, p. 1324, p. 673, J., n. 11. C. Section n. 23. Master and Appeals. City from Transferred Kansas Reversed.