Philbert v. CampbellPhilbert v. Campbell
WILL: Construction: In Light of Existing Law. A will must be construed, and testator’s intention as expressed therein must be ascertained and determined, in the light of the statutes existing at the time the will was made and at the time of his death. - -: Life Estate: Joint Estate or Cotenancy. A clause of the will reading: “I give and bequeath to my beloved wife, Iva Robinson, and my beloved niece, Hattie Campbell, all the balance of my property, both real and personal, to have and to hold during their natural life, and at their death the remaining property to be divided among my brothers and sisters, share and share alike,” did not create a joint life estate in the wife and niece, because it did not expressly declare that the estate given to them was to be in joint tenancy, as the statute (Sec. 2273, R. S. 1919) requires; but it created a tenancy in common, and made the wife and niece co-tenants in the life estate, and the wife having predeceased the testator the niece did not take a lifetime use of the whole, but only a lifetime use of an undivided half, and the brothers and sisters were entitled to the immediate use of the other half.
- -: Intention: Conflict with Statute. Effect must be given to the intention of the testator as gathered from the will unless it violates some inflexible rule of law, but the intention must give way if it conflicts with an express statute. Unless the will expressly declares that a devise of a life estate to a wife and niece shall be in joint tenancy, the statute (Sec. 2273, R. S. 1919) declaring that every interest in real estate devised to two or more persons shall be a tenancy in common, unless expressly declared in such devise to be in joint tenancy, compels a holding that the life estate is a tenancy in common, in which each has an equal undivided interest, and that after the death of the wife the whole does not go to the niece by survivorship, but she continues to have only a life estate in the moiety devised to her.
- -: -: To Create Joint Tenancy: Equivalent Words: Enforced by Environment. Admitting that the intention to create a joint tenancy may be expressed in other words equivalent in meaning to the words “joint tenancy,” and reading the will in the light of the testator’s surroundings and environment, and remembering that his family consisted of himself, his wife and his niece and that the wife was an invalid, and that the niece had been a member of his family for fifty years and had cared for and waited upon him and his wife for forty years, and that his affections for the niece were
deeply rooted and firmly grounded, and that his brothers and sisters did not visit with him nor he with them during his lifetime, still it cannot be held that his will giving to his wife and niece “all the balance of my property, both real and personal, to have and to hold during their natural life, and at their death, the remaining property to be divided among my brothers and sisters, share and share alike,” expressly declared that the interest of the wife and niece was to be in joint tenancy, and that, after the death of the wife, which occurred prior to testator’s death, the niece, by survivorship, was to have the sole use of the whole property during her life, for the words of the will are not equivalent in meaning to the words “joint tenancy” and an intention to create a joint tenancy is not “expressly declared” by them, and in such case the statute says that the interest devised shall be a tenancy in common. - -: Devise of Tenancy in Common: Division at Their Death. The words “at their death” in a devise to a wife and niece “during their natural life, and at their death, the remaining property” to brothers and sisters, mean “at their respective deaths,” and the interest devised being a tenancy in common in a life estate the moiety of each is divisible among the brothers and sisters as the death of each life tenant occurs.
- -: To Class: Survivorship. A devise to a wife and niece “during their natural life” is not a devise to a class, and upon the death of the wife the niece does not take the entire property as the only survivor of the class. It is a devise to life tenants as named individuals, in which each takes a separable equal moiety, and not to a class of beneficiaries.
- -: Lapse of Devise: Death of Devisee Prior to Death of Testator: Inheritance. A lapse of a devise will be prevented by implication where the will shows a clear intention that the property shall go to others upon the death of the devisee. Where the will gave all of the balance of testator’s property to his wife and niece during their natural life, and the remaining property at their death to his brothers and sisters, and “should they be not living, then to their children,” and the wife died prior to the death of the testator, there was no lapse of the devise to her, but the moiety intended for her upon testator’s death went, by substitution, directly to the brothers and sisters. But, even if there was a lapse, the result in this case, in which testator left surviving no descendant, father or mother, would be the same, for by statute, if he died intestate as to the wife’s moiety, it went upon his death to his brothers and sisters, and their descendants, in equal parts, as his heirs.
- PARTITION: Devise of Life Estate: Death of One Life Tenant. The devise of real property being to a wife and niece during their natural life as tenants in common, and at their death to testator’s brothers and sisters, and to the children of such as were not living, and the wife having died prior to testator’s death, the brothers and sisters, and the descendants of such as are deceased, are entitled to partition and distribution of the property devised to the wife, without waiting for the termination of the niece’s life estate, subject to her lifetime use and enjoyment of the other half.
Corpus Juris-Cyc. References: Wills, 40 Cyc., p. 1385, n. 77; p. 1388, n. 88; p. 1409, n. 4; p. 1474, n. 90; p. 1508, n. 90; p. 1518, n. 62; p. 1636, n. 50; p. 1925, n. 18; p. 1933, n. 62; p. 1934, n. 65.
Appeal from Osage Circuit Court.—Hon. R. A. Breuer, Judge.
E. M. Zevely and John P. Peters for appellant.
(1) In view of the statute and in the absence of any express declaration of a joint tenancy in the will, the circuit court erred in not declaring a tenancy in common.
Vosholl & Monroe and Gove & Davidson for respondents.
(1) The intention of the testator was that his estate be kept intact until the death of both life tenants, and partition was postponed by the will until such time. Gibson v. Gibson, 280 Mo. 529; Hill v. Hill, 261 Mo. 58; Crossan v. Crossan, 262 S. W. 701. (2) If the intention is not plainly expressed in said will then words may be used and read into the will necessary to make the intention of the testator clear, and words may be interpolated so as to arrive at the testator’s intention and to correctly express his intention.
OPINION
SEDDON, C.—This is a statutory action in partition. The subject of the action is certain described lands, situate in Osage County, Missouri, which were owned at his death by one Thomas J. Robinson, who died testate, and whose will was made and executed on August 26, 1916, and was duly probated in the Probate Court of Osage County on March 3, 1919. Plaintiff is a half-sister of the testator. Defendant, Hattie Campbell, is a niece of testator, and is a devisee named and provided for in his will. The remaining defendants are a brother and a sister of testator, and the descendants of his deceased brothers and sisters.
The testator, Thomas J. Robinson, by his will in evidence, made certain bequests of personalty to certain named legatees, and then provided, in the fifth clause or paragraph of said will, as follows:
“I give and bequeath to my beloved wife, Iva Robinson, and my beloved niece, Hattie Campbell, nee Robinson, all of the balance of my property, both real and personal, to have and hold during their natural life, and at their death, the remaining property to be divided among my brothers and sisters, share and share alike. Should they be not living, then to their children.”
Upon the construction of the foregoing paragraph or clause of the will, this action hinges. The cause was tried upon the following agreed statement of facts:
“Thomas J. Robinson, testator in this will, and Iva Robinson, his wife, and Hattie Campbell, devisees in said will, composed his family. Testator had no children born of the marriage. Hattie Campbell was testator’s niece and lived with him and his wife practically all of her life, going there when a child, and was living with deceased at the time of his death. His wife died prior to the death of T. J. Robinson. Testator’s brothers and sisters did not visit with deceased; nor he with them, in his lifetime. The wife of said testator was, for many years prior and up to her death, in ill-health and an invalid. Testator and his wife were very much attached to said Hattie Campbell. And said testator left about $20,000, consisting of real and personal property, now of the value of $15,000. Said Hattie Campbell kept house and waited upon testator and his wife until their death, for more than forty years. Said Hattie Campbell and said Iva Robinson never had any means of support of their own at the death of said testator, and, at the time of the making of said will, Hattie Campbell was about fifty years old. Said plaintiff is a half-sister of Thomas J. Robinson, the testator, who, at his death, owned the lands in question, and is an old
woman 67 years old and without means of support. Said testator, his wife and niece were all kind and affectionate toward each other.”
Testimony was adduced that the real estate in question is not susceptible of division in kind among the parties in interest.
The petition alleges, in substance, that plaintiff and the defendants are the owners in fee and tenants in common in and to the described lands, subject to an estate for life of said Hattie Campbell in and to an undivided one-half thereof; that said Thomas J. Robinson, deceased, is the common source of title and that, by his last will and testament, he made the residuary bequest and devise as set out in the fifth clause of his will aforesaid; that said Iva Robinson, wife of the testator, predeceased the testator, said Iva Robinson having died on January 5, 1919, and the said testator, Thomas J. Robinson, having died on February 25, 1919; that plaintiff is a sister of testator, and that defendants are respectively the brother, the sister, and the children of deceased brothers and sisters, of testator; and that one-half of the described lands cannot be divided in kind without great damage and injury to the parties in interest; wherefore, judgment is prayed decreeing a sale of said one-half of the described lands and for the distribution of the proceeds arising therefrom among the parties entitled thereto according to their respective rights and interests, and for such other orders as the court might deem just and proper.
Defendant, Hattie Campbell, answered, denying generally all of the allegations of the petition, and alleging further in the answer that “said land cannot be partitioned for the reason that a partition of said land would be against the intention of Thomas J. Robinson, the testator, as expressed in his last will and testament.”
A guardian ad litem was appointed for Vernon Brock, an infant defendant, and said guardian filed an answer on behalf of his said ward, denying generally the allegations of the petition, and alleging further that “said land cannot be partitioned until after the death of Hattie Campbell, life tenant, for the reason that partition of the land would be contrary to the intent of the testator, Thomas J. Robinson, as expressed in his last will and testament.” The remaining defendants made default.
At the close of the trial, the court announced his finding and conclusion, as follows: “I think from all the testimony, or from all the circumstances concerning this case and from the general directions of the will, and from the fact you have to take into consideration, in construing this will, that there was personal property as well as real estate, when you take all that into consideration, the personal property as well as the real estate, the fact that these people were all living as one family, and had been for a number
It will be observed that the trial court, prior to the entry of judgment, expressed the conclusion that the fifth clause or paragraph of the will of Thomas J. Robinson created a joint tenancy in the devisees therein named, Iva Robinson and Hattie Campbell, and that, Iva Robinson having predeceased the testator, the surviving devisee, Hattie Campbell, thereupon became vested with, and took, an estate for life in all of the property, both real and personal, devised and bequeathed under said fifth clause or paragraph of the will of Thomas J. Robinson. The plaintiff and appellant, Lucy Philbert, takes the position that, by the fifth clause of his will, the testator devised a life estate in common to the two devisees therein named, Iva Robinson and Hattie Campbell, thereby making them tenants in common (had they both survived the testator) in and to the life estate in the realty devised in and by said fifth clause of the will; and that, if a tenancy in common was so created, and Iva Robinson having predeceased the testator, either the devise made to Iva Robinson lapsed, or the moiety or share devised to her passed to the residuary devisees named in said clause, to-wit, the brothers and sisters, if living, of the testator, and the children of such brothers and sisters, respectively, of the testator who are not living, without any right, interest, or life estate of Hattie Campbell in such moiety by virtue of her survivorship.
The will of testator must be construed, and his intention as expressed in the will must be arrived at and determined, in the light of the statutes of this State existing at the time of the making of the will and the death of testator, for the testator must be presumed to have had knowledge of the existing statutory law, and to have made his will in the light of, and subject to, the existing statutory law. [28 R. C. L. 233, sec. 193; 40 Cyc. 1385.]
The statute of this State (
In Rodney v. Landau, 104 Mo. 251, 259, a testator, James I. Reily, by his will provided that “any other property . . . hereafter acquired shall belong to my wife, Elizabeth C. Reily, during her
In Lemmons v. Reynolds, 170 Mo. 227, 233, a suit in partition, the will of testatrix provided: “Second, I will to my two sons, James C. Reynolds and John W. Reynolds, the following described real estate [being the property involved in said partition suit] . . . Third, I will to my son David Lemmons one dollar, it being all I give to him except what I have already advanced to him.” John W. Reynolds predeceased the testatrix. Testatrix was survived by her sons (by different husbands), James C. Reynolds and David Lemmons, and by a daughter, Willie Ann Turner. Plaintiff, David Lemmons, claimed an undivided one-third interest in the moiety or share of John W. Reynolds in the lands devised by the second clause of testatrix’s will, by virtue of the Statute of Descents and Distributions, because John W. Reynolds predeceased the testatrix and died intestate and without issue. James C. Reynolds claimed the whole of the devise as the surviving member of a joint tenancy, which he claimed to have been created by the second clause of the
Again, in the later case of Cohen v. Herbert, 205 Mo. 537, wherein testator devised certain real property to his “said daughters, Julia and Victoria, jointly,” Division Two of this court held that the two daughters named in the devise became tenants in common, and not joint tenants, under and by virtue of the statute aforesaid, and that, upon the death of Victoria without issue and intestate, her share or moiety passed, not to Julia alone as the survivor, but to the brothers and sisters of Victoria in equal shares, there being no surviving parent of Victoria.
Of like tenor and effect are the uniform holdings of the courts of our sister States having statutes identical in language with, or bearing close similarity to, our own statute. [Cockrill v. Armstrong, 31 Ark. 586; Estate of Hittell, 141 Cal. 432; Mustain v. Gardner, 203 Ill. 284; Matter of Kimberly, 150 N. Y. 90; Seely v. Seely, 44 Pa. St. 434.] Freeman, in his standard text on Cotenancy and Partition (2 Ed.), page 174, section 109, lays down the general rule in these words: “A bequest or devise to two or more persons, under which, if both survived the testator, they would become tenants in common, will lapse as to the share of the one dying before the testator. The survivor can take only the moiety devised or bequeathed to him, and can gain nothing by the decease of him who, had he outlived the testator, would have taken the other moiety.”
Respondent, Hattie Campbell, contends, however, that the primary and controlling question to be ruled and determined herein is not whether a joint tenancy or tenancy in common was created by the fifth clause of testator’s will, but what was the testator’s intent as to the time when the estate or property devised is to be divided, partitioned and distributed; and, furthermore, that such intent can best be ascertained by the court putting itself, so far as may be, in the place of the testator and reading the directions of the will in the light of the testator’s environment at the time he made the will. It is said that, in arriving at the true intention of the testator, we must give due consideration to the environment and surroundings of the testator, as disclosed by the agreed statement of facts herein; namely, that the testator had no children, and that respondent, Hattie Campbell, had lived with testator and his wife, Iva Robinson, practically all her life, and since she was a child; that the wife of testator, for many years prior to her death, was an invalid and in ill health; that Hattie Campbell kept house for, and waited upon, testator and his wife for more than forty years and until their deaths; that neither Hattie Campbell nor Iva Robinson had any means of support, and Hattie Campbell was about fifty years of age at the time of the making of the will; that testator, his wife, Iva Robinson, and his niece, Hattie Campbell, constituted testator’s family, and they all were kind and affectionate toward each other; and that testator’s brothers and sisters did not visit with testator, nor he with them, during his lifetime.
We are mindful that the statute of this State (
But it is said by respondent, Hattie Campbell, that the term, “expressly declared,” as used in
In Woolston v. Beck, 7 Stew. (34 N. J. Eq.) 74, 75, a testator devised his farm to his two daughters, Sarah Lippincott and Keziah Woolston, to use and enjoy the same during the term of their natural lives, Sarah Lippincott to have the benefit and profit arising from two-thirds thereof, and Keziah Woolston to have the benefit and profit arising from the other one-third thereof, and “after the decease of my two daughters,” to their children in fee, in specified portions. Sarah Lippincott died leaving surviving children, and was survived by Keziah Woolston,
In a later case, Stoutenburgh v. Moore, 10 Stew. (37 N. J. Eq.) 63, 65, the will of testator provided: “All the rest and residue of my estate, real, personal and mixed, I give, devise and bequeath the income to my two sons, Robert and Edward, to be equally divided between them during their lives, and at their death, to be equally divided between my grandchildren, to them, their heirs and assigns.” Robert survived his brother, Edward, who left surviving a widow and one child, the complainant in said suit. Robert claimed to be entitled to the whole of the income of the residue of testators’ estate for his life, and that such residue of the estate was not divisible until his death. Said the chancellor therein: “The testator, by the will, gave the income of the residue to his two sons, to be equally divided between them during their lives. This made them tenants in common of the income, and they had no right of survivorship. [Woolston v. Beck, 7 Stew. Eq. 74; Wills v. Wills, L. R. (20 Eq.) 342.] Our statute provides that no estate . . . shall be considered and adjudged to be an estate in joint tenancy, except it be expressly set forth in the grant or devise creating such estate that it is the intention of the parties to create an estate in joint tenancy, and not an estate of tenancy in common, any law, usage or decision theretofore made to the contrary notwithstanding. [Rev. p. 167.] Neither of the sons had a right, under
The same conclusion was reached in Collins v. Wardell, 65 N. J. Eq. 366, 370, wherein a testatrix directed her executors to set apart, out of the residue of her estate, “a fund sufficient to produce an income of $6,000 a year, and out of said income to pay to my brother, William Phyfe, $4,000 a year, and to my brother, Duncan Phyfe, $2,000 a year, for the terms of their natural lives, respectively, and after their death, I direct the capital of said fund to be divided equally” among certain named beneficiaries. William Phyfe, to whom the annuity of $4,000 was bequeathed, pre-deceased the testatrix, and the question before the chancellor was whether the capital of the fund, except so much thereof as would be required to produce and pay the annuity of $2,000 to the surviving brother, Duncan Phyfe, should be presently distributed to the named beneficiaries in the will. Said the chancellor, in ruling this question: “The direction of the testatrix . . . means that the capital fund is to be divided upon the respective deaths of the annuitants, the income having been paid to them for their respective lives. The words ‘their death,’ in the connection used, can mean only ‘their respective deaths.’ These words were not expressive of a single event, but of the death of each one; that is, their respective deaths. The cases seem to support the contention that where the income of a single fund is bequeathed to two or more persons for life, with remainder over ‘after their death,’ the courts construe these words to mean ‘after their respective deaths,’ and decree a present division of the fund and a distribution of the part thereof not required to produce income for the life tenants.”
While counsel have not directed our attention to any decision of the courts of our own State touching the precise question, yet we are satisfied with the conclusions reached in the New Jersey cases herein cited and with the logic and reasoning upon which such conclusions were predicated. We are of opinion that the testator intended by the words “and at their death,” in the connection in which those words were used in the fifth clause of the will, to say and to provide (and such words can only mean) “and after
We cannot give sanction to the suggestion of respondent that the devise was made to the life tenants, Iva Robinson and Hattie Campbell, as a class of beneficiaries, and that Hattie Campbell takes the whole devise for life as the surviving member of the class. In our opinion the devise was made to the life tenants as named individuals, and not as a class of beneficiaries. The distinction between a devise to a class and one to named individuals is clearly expressed and stated in Estate of Hittell, 141 Cal. 432, 435, wherein a devise was made by testator to “Anna P. Greer and Mary M. Greer, with whom I live, . . . and whom I regard and treat as my adopted daughters.” Said that court: “Counsel for respondent, as we understand them, do not seriously contend that the will creates the strict legal relation of joint tenancy. But they contend that their client gets the whole estate, not as a surviving joint tenant, but as the remaining person of a ‘class.’ Their contention is, that the devise was to Anna and Mary as a class, and that the case comes within the rule that where there is a devise to a class, those of the class who are in existence at the death of the testator take the whole estate. We think that this position is wholly untenable. The devise in the case at bar is simply to two named individuals, and there is no designation of a ‘class,’ within the meaning given that word by the authorities. The statement that the devisees were persons with whom he lived and treated as his adopted daughters is of no significance, except perhaps as a reason given for his bounty. A common instance of a devise to a class is where a testator gives property, generally to the ‘children’ of a certain person, without naming them—as, to ‘the children of my brother John;’ and in such a case it is held that the devise is to such children of John as will be in existence at the time of the testator’s death. . . . Therefore, in the case at bar, even if a class had been named, the gift would have been to the individuals, because there is nothing in the other parts of the will, or in any extrinsic evidence, showing a different intent, and there are no operative words creating any right of ownership. But, as before stated, there was no class named; and this fact is an insurmountable obstacle in the way of respondent’s contention.” The same distinction seems to have been drawn by this Court en Banc, in both the majority and minority opinions, in Lounden v. Bollam, 302 Mo. 490.
Furthermore, the presumption is that a testator intended to dispose of his entire estate and not to die intestate, either as to the whole or as to any part thereof, and the will should be so construed unless this presumption is clearly rebutted by the provisions of the will or by evidence to the contrary. [40 Cyc. 1409; RoBards v. Brown, 167 Mo. l. c. 457; Watson v. Watson, 110 Mo. l. c. 171; Willard v. Darrah, 168 Mo. l. c. 670, 671.] The manifest intention of the testator herein appears to have been that his brothers and sisters, and the children of such brothers and sisters as may be dead, should
We therefore reach the conclusion herein that the brothers and sisters of testator, and the children, respectively, of such brothers and sisters as may be dead, are clearly entitled to a present partition and distribution of the moiety or share of the lands and real property devised by the fifth clause of testator’s will to his wife, Iva Robinson, without awaiting the death of Hattie Campbell and the termination of her life estate. Any other conclusion, we think, would be in contravention of the existing statutory law of this State and contrary to the manifest intention and directions of testator as expressed in his will. It follows that the judgment of the circuit court is wrong, and it must therefore be reversed.
It is accordingly ordered herein that the judgment nisi be reversed, and that the cause be remanded to the circuit court with directions that the value of all the lands and real property devised by the fifth clause or paragraph of the will of testator, Thomas J. Robinson (including such devised lands and real property, if any, as may have been conveyed or otherwise disposed of by respondent, Hattie Campbell, or which she may have attempted to convey or otherwise dispose of), be first ascertained and determined; next, that there be set off to defendant Hattie Campbell, for her use and enjoyment during the term of her life, by metes and bounds or other definite legal description, a one-half part of said lands and real property, according to such ascertained and determined value of the whole thereof; and then that the remaining, or other, one-half part of said lands and
PER CURIAM:—The foregoing opinion by SEDDON, C., is adopted as the opinion of the court. All of the judges concur, except Gantt, J., not sitting.