112 Mo. 25 | Mo. | 1892
This is an action in- ejectment by which the plaintiff, husband of a granddaughter of John T. Young, deceased, seeks to recover possession of an undivided one-fifth of certain real estate, described in the petition, of which the said Young died seized, and to which plaintiff claims his wife is entitled, under the provisions of the last will and testament of said deceased. The case was tried by the court without a jury on the will and an agreed statement of facts. The finding and judgment were for the defendant, and the plaintiff appeals.
John T. Young died on the seventh of August, 1856, possessed of a large estate consisting of lands, negroes and personal property, all of which he disposed of by his will, executed by him on the eighteenth of May, 1854. He left surviving him his wife, Louisa, and' six children, Sebron S., Ambrose, Eliza J., Thomas R., Warren and Benjamin F., who were the beneficiaries of his will.
The will is too voluminous to be set out in full; it made provision for his widow, the guardianship of his minor children, the settlement of his estate and the
Eorthe purposes of this case, it will be sufficient to-set out the language of the will making devises of the real estate, which is as follows:
“I give and devise to my oldest son, Sebron Sund Young, the west half of the northwest quarter of section 22, township 53, range 27, containing eighty acres; also the east half of the northeast quarter, section 21, township 53, range 27, containing eighty acres more or less, to have and to hold to my son, Sebron S. Young, his heirs and assigns forever with its contents. I give and devise to my second son, Ambrose Young, the northeast quarter of section 28, township 53, range 27; also twenty acres of the-northwest forty of the southwest quarter of section 22, township 53, range 27, all containing one hundred and. eighty acres, with all its appurtenances more or less, to have and to hold to my son, Ambrose Young, his heirs and assigns forever. I give and devise to my third son, Thomas Reynolds Young, the west half of the northeast quarter, section 21, township 53, range 27, eighty aeres; the east half of the northwest quarter, section 21, township 53, range 27, eighty acres; also the southwest quarter of the northwest quarter of section 21, township 53, range 27, forty acres more or less, to have and to hold to my son, Thomas R. Young, his heirs and assigns forever — all its contents. I give and devise to my fourth son, Warren Young, the east half of the southeast quarter, section 21, township 53,. range 27, eighty acres, and the west half of the southeast quarter of section 21, township 53, range 27; also twenty acres of the northwest quarter of southwest quarter of section 22, range 27, all contain
The real estate in question is that devised to Louisa Young for life, remainder to Benjamin Franklin Young, in italics; the immediate provision of the will upon which the question to be decided turns is also italicised.
The plaintiff’s wife, Florence I. Ringquist, is the daughter and only child of the testator’s son, Thomas R. Young, who died April 7, 1856. The defendant is •the widow of Warren Young, who died May 26, 1886, •leaving several children, and is in possession claiming under him and the other children of said testator. Benjamin F. Young, to whom the land was devised, .after the death of the widow, Louisa, died on the twenty-first day of September, 1861, unmarried, leaving no children; the widow of the testator, Louisa, died on the twenty-fifth of October, 1889; and this suit was instituted on the second of January, 1890.
The contention of the iplaintiff is that, upon the death of the said Benjamin F., his interest in the land under the devise became vested in the then living children and grandchildren of the testator, subject to the life-estate of 'the widow, aqd that plaintiff’s wife as the
After careful and repeated readings of this will, we-confess our inability to arrive at the conclusion that such was his intention. Tracing, as well as may be,, the operations of his mind, as it proceeded through it, from the first to the last word written, we find everywhere stamped upon it the predominating idea of a provision for his living children. He seems to have loved his boys all alike and endeavored to provide for them all alike out of his estate. The disposition of his real estate naturally occurred to him as the first thing to be-done, and as his boys presented themselves to his mind, in the order of their seniority, he proceeds at once to devise to each of them a tract of land in fee simple absolute; the devise to his youngest son, Benjamin, being a tract somewhat larger than the others, and he-being an infant is by the testator committed to the guardianship of his mother, to whom is given a life-estate in the land devised to him; and his two older
His mind then passes to the consideration of his large personal estate, which he distributes with much care to his children, and then recurs to his only daughter and the tract of land reserved for her. She seems to have been once married, and now, for the first time, the testator’s mind seems to look beyond his living children to their issue; and he devises that tract to “Eliza Jane Keel'and her lawful heirs for and during her or their natural lives,” and, “if the said Eliza shall die without a lawful heir, the property *' * * shall return to my then living children and heirs forever.”
It is evident and conceded that, in- using the terms ‘ ‘lawful heirs’ ’ — ‘ ‘and lawful heir’ ’ — in this devise, the testator meant “children” or “issue;” on failure of which .or their death and the death of Mrs. Keel, he expressly and unmistakably provides that the land devised to them for life only “shall return” to his “then living children and heirs forever.” By a natural correlation of ideas, the necessity of making a provision for the disposition of the remainder after the termination of the life-estate in this devise, suggested the possibility of the death of some of his boys without issue, for which contingency he then proceeds to provide by saying: “Shotild any of all my children die without a lawful heir or heirs, the property 1 give them shall return to the then living children forever,” thus reducing the absolute estate in fee simple which he had previously
As before said we.fail to discover such a purpose; on the contrary, if what is evident on the face of the will be kept in mind, that when .the testator uses the word “lawful heir” he means “child” or “issue,” and when he uses “heir and assigns forever” or “children forever,” he means exactly what he says and what the words legally import. The contention has no support whatever. We have no power to write ‘ ‘grandchild’ ’ into this will from our own sense of justice or propriety when the testator has not done so, and when we cannot discover it was his intention that it should be so read.
The judgment of the circuit court is, therefore, affirmed.