Philbert v. Campbell

296 S.W. 1001 | Mo. | 1927

Lead Opinion

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 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 of years, I think they are joint tenants." The trial court thereupon entered judgment in favor of defendants and against the plaintiff, denying partition of any part of the lands in question. Motion for a new trial was timely filed by plaintiff and overruled by the trial court, and plaintiff was allowed an appeal to this court.

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 becameJoint vested with, and took, an estate for life in all of theEstate. 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 (Sec. 2273, R.S. 1919) provides:"Every interest in real estate granted or devised to two or more persons, other than executors and trustees and husband and wife, shall be a tenancy in common, unless expressly declared,in such grant or devise, to be in joint tenancy." (Italics ours.) The statute aforesaid has been construed on several occasions, and applied by this court in the construction of wills.

In Rodney v. Landan, 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 lifetime, and afterward be joint property, transferable by joint deed of James E. and Mary Jane Reily, or either of them may sell their interest in such property after the decease of their mother, and Mary Jane attains the age of twenty-one years." James E. Reily survived his sister, Mary Jane Reily, who died intestate and without issue, and the mother, Elizabeth C. Reily, survived her son, James E. Reily. The action was in ejectment. Plaintiff claimed title to the whole property and estate so devised by descent from James E. Reily and defendants claimed title under Elizabeth C. Reily, the surviving mother of James E. and Mary Jane Reily, and the widow of testator. Said BLACK, J., speaking for this division of this court in that case: "The next question is whether these remaindermen (James E. and Mary Jane Reily) were tenants in common or joint tenants. According to the statute an interest in real estate granted or devised to two or more persons, not executors, trustees, or husband and wife, is a tenancy in common, `unless expressly declared, in such grant or devise, to be in joint tenancy.' [R.S. 1865, sec. 12, p. 443.] Now, while the testator speaks of this property as their `joint property' transferable by `joint' deed, still there is no express declaration that it is to be held by them in joint tenancy. It is quite common to speak of property as joint property when nothing more is meant than ownership of the same property by different persons. The policy of the American law is opposed to survivorship, and that policy is clearly indicated in our statutes. While joint tenancies are not abolished in this State, still to create such a tenancy there must be an express declaration to that effect in the deed or will creating the estate, and that is not done by the will of James I. Reily. Purdy v. Purdy, 3 Md. Ch. 547, is in point and to the same effect."

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 will. Said this division of this court, speaking through MARSHALL, J.: "In the case at bar, there is a devise of real estate to two persons, and there is no express declaration in the will that they are to hold as joint tenants. Therefore, the express mandate of the statute, that it shall be a tenancy in common, applies and controls. It is essentially true that the intention of the testator shall be sought and effectuated in construing and enforcing wills, but this rock ribbed rule of construction, so strictly and faithfully followed in this State, is subject to this very vital qualification, to-wit, that it must not conflict with any inflexible rule or requirement of law. Such is the case here. The statute has declared the effect of a conveyance or devise of real estate in the event that the grant or devise does not expressly declare that a joint tenancy is intended. No such intention is expressly declared in this will. . . . It is, therefore, not within the power or province of the courts, under any rule of interpretation or to carry out an unexpressed intention of the grantor or testator, to construe such a grant or devise to be a joint tenancy, for the statute says it is a tenancy in common. Grantors or testators who do not wish the statute to apply, and to create only a tenancy in common, are given the right to so arrange it, but they must expressly declare in the grant or devise that a joint tenancy is intended, or else the courts must construe it to be a tenancy in common. There is no distinction under the statute between a deed and a will in this regard."

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. 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."

Construing then the will of Thomas J. Robinson, and arriving at the intention of the testator as expressed therein, in the light of the statute existing at the time of the execution of the will and the death of testator, and in view of our prior holdings and construction of such statute, we are constrained to hold that clause fifth of said will created a tenancy in common in the devisees and life tenants therein named, because of the absence of an express declaration in the devise that the named devisees shall take the devise in joint tenancy.

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 andIntention. 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 (Sec. 555, R.S. 1919) requires that "all courts . . . shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them." But while the rule of construction prescribed and laid down by the statute aforesaid enjoins on us that we shall give effect to the directions of the will, and the true intent and meaning of the testator, yet such rule of construction is subject to the qualification that it must not conflict with any established and inflexible rule or requirement of law. [Lemmons v. Reynolds,170 Mo. 227, 234; Grace v. Perry, 197 Mo. 550, 559.] And, as we have heretofore said, there being no express declaration contained in the devise that the first takers or devisees named shall take the devise in joint tenancy, we must give effect to the inflexible rule or requirement of law prescribed by the statute (Sec. 2273, R.S. 1919), namely, that the estate devised shall be a tenancy in common. It follows therefrom that we cannot say that it was the intent of the testator that respondent, Hattie Campbell, as the surviving devisee, should take the whole devise, for and during her life, by reason of the death of the co-devisee, Iva Robinson.

But it is said by respondent, Hattie Campbell, that the term, "expressly declared," as used in Section 2273 of the statute, aforesaid, does not require the use of the precise term, or words, "joint tenancy," in declaring or creating such a joint tenancy, but that any other words which convey the same meaning and intent may be used in the devise to expressly declare a joint tenancy. It is therefore contended by said respondent that, by the use (in clause fifth of the will) of the language or expression, "all of 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," the testator thereby intended, and expressly declared, that the devisees or takers first named in the devise, Iva Robinson and Hattie Campbell, shall each have a life estate in the whole of the lands devised in said clause of the will, and that, in the event of the death of either devisee, the survivor shall take and enjoy a life estate in the whole of the lands devised. Hence, it is claimed that the testator clearly manifested the intention that the lands devised, or any part thereof, shall not be partitioned until the death of the last surviving life tenant (in this case, Hattie Campbell), and that our statute (Sec. 2005, R.S. 1919) specifically enjoins that "no partition or sale of lands, tenements or hereditaments, devised by any last will, shall be made . . . contrary to the intention of the testator, expressed in any such will." The contention of respondent is ingenious, but is not supported by judicial authority, so far as we find. On the other hand, judicial authority appears to be directly opposed to respondent's contention.

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 otherAt Their one-third thereof, and "after the decease of my twoDeath. daughters," to their children in fee, in specified portions. Sarah Lippincott died leaving surviving children, and was survived by Keziah Woolston, who claimed that she was entitled to the use and possession of the whole farm for life. Said the learned chancellor, in denying the claim of Keziah Woolston: "The estate given to Sarah and Keziah by the will is a tenancy in common, and there is therefore no survivorship. The statute would, if the property had been given to them for life in equal shares, forbid a construction which would hold that the estate is by implication a joint tenancy. It provides that no estate, after the passing of the act (February 4, 1812), shall be considered to be an estate in joint tenancy, except it be expressly set forth, in the grant or devise creating it, that it is the intention of the parties to create an estate in joint tenancy, and not an estate of tenancy in common. [Rev. 167.] Keziah is not entitled to a life estate in the whole farm, but only in the one-third. The persons to whom the remainder is given became, on the death of Sarah, entitled to the possession of the other two-thirds. The fact that, by the language of the will, the remainder is to take effect on the death of the `two daughters' will not, although only one of them is dead, prevent that construction. The words `after the death of my two daughters' will be construed to mean after the death of the two respectively. A gift to A and B as tenants in common, for their lives, and `at their deaths,' or `at the death of A and B,' to their children, goes, on the death of each tenant for life, to his children." (Citing authorities.)

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 will, to more than one-half of the income in any event, and when one of them died the principal was to be divided, for I am of opinion that by the term `at their death' the testator meant at the death of them respectively, not at the death of the survivor. . . . The design of the testator and the scheme of the will were to provide, in the first place, for his sons for life, and then, as they should die, for their respective families of children. . . . He certainly intended that, at the respective deaths of his sons, the shares of the residue, of which he gave them respectively the income, should go over; for he directs that `at their death,' by which he meant their respective deaths, the residue shall be divided between his grandchildren."

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 their respective deaths." Hence, we think that the intent of the testator is clearly manifest, as disclosed by the fifth clause of his will, that division of the moiety or share devised to each of the life tenants is to be made among the brothers and sisters of testator, and if any of testator's brothers and sisters be not living, then to the children of such deceased brothers and sisters, at and upon the respective death of each of the life tenants.

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 lifeDevise tenants as named individuals, and not as a class ofto Class. 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.

It remains for us to say whether the devise to testator's wife, Iva Robinson, lapsed by reason of her death before that of testator, or whether the testator intended to substitute his brothers and sisters, and the children, respectively, of such brothers and sisters as may be dead, as beneficiaries ofLapse. the devise in the event of the death of Iva Robinson before the death of testator. The general rule is that a legacy or devise will lapse where the legatee or devisee dies before the testator. [40 Cyc. 1925.] But it also appears to be the generally recognized rule that "a testator may, by express provisions of his will, prevent a lapse in case of the death of a legatee or devisee before the testator, and a lapse may also be prevented by implication, where the will shows a clear intention of the testator that the property shall go to the heirs of the legatee or devisee. A legacy or devise will not lapse where the testator has provided for a substitution or succession in case of the legatee's or devisee's death. Such a substitution is clearly implied by the use of the term `or,' and therefore a legacy or devise to a particular person or his heirs will not lapse upon the death of the legatee before the testator." [40 Cyc. 1933-1935.] So, in Martin v. Lachasse, 47 Mo. 591, 593, it was said by WAGNER, J., speaking for this court: "It is a conceded principle, most clearly established, that a testamentary disposition will lapse by the death of the legatee during the life of the testator. And this rule equally applies to devises of real as to bequests of personal estate. This rule has been long settled and recognized (Brett v. Rigdon, Plowd. 340; 1 Rop. Leg. 320), and is often productive of hardship, and in some cases defeats the intention of the testator. But the doctrine will not be extended beyond cases falling strictly within it. Therefore, if a legacy or devise be given to one by name, and in the event of his death to another, the alternative gift will take effect if the first legatee or devisee die even in the testator's lifetime. This point was expressly adjudged in a very recent case (Martha May's Appeal, 41 Penn. St. 512). The law favors the vesting of estates, and will always hold them to vest, where it can be done consistently with legal principles and the manifest intent of the testator, in preference to declaring them lapsed. [Collier's Will, 40 Mo. 287.]"

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 take, as substituted beneficiaries, the moiety or share of either of the devisees for life upon their respective deaths, whether such deaths should occur prior, or subsequently, to that of testator; at least, the will, by its terms, places no limitation upon their taking such moiety in the event of the death of either devisee for life before that of testator. But while we are clearly of opinion that the devise to Iva Robinson did not lapse, but passed to the substituted beneficiaries, the brothers and sisters of testator, and their descendants, nevertheless it would seem to make no difference in the instant case, as respecting the rights of the parties herein, whether the devise lapsed or whether it passed to the substituted beneficiaries. Testator died without issue and, under our Statute of Descents and Distributions (Sec. 303, R.S. 1919), the estate, if any, of which he died intestate, descends or passes to his brothers and sisters, and their descendants, in equal parts, unless it be that testator was survived by his father and mother. While there is no positive showing in the record herein that testator was not survived by father and mother, or either of them, yet the ages of the respective parties leads us to believe, and therefore to draw the inference, that testator was not survived by either father or mother, and hence his heirs at law are identical with the substituted beneficiaries provided for in his will.

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 thePartition. 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 real property, according to such ascertained and determined value of the whole thereof, be partitioned in kind, if the same can be done without great prejudice to the parties in interest, among the brothers and sisters of the testator, share and share alike, and, if any such brothers and sisters of the testator be dead, then the share of any deceased brother or sister of testator shall go to the children, if any, of any such deceased brother or sister, per stirpes; and if the said one-half part (in value) of said lands and real property be not susceptible of partition in kind without great prejudice to the parties in interest, that the same be then sold according to law and that the proceeds of such sale be divided and distributed among the said parties, according to their respective rights and interests, as established by the proof and ascertained by the trial court.Lindsay, C., concurs; Ellison, C., not sitting.

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Addendum

The foregoing opinion by SEDDON, C., is adopted as the opinion of the court. All of the judges concur, except Gantt, J., not sitting.