166 Mo. App. 87 | Mo. Ct. App. | 1912
— 3 ames A. Lea and Nancy Lea were husband and wife without issue of their own, but they had raised to manhood and womanhood three children,
“2. We each will, ■ bequeath, and devise, to the other surviving all the property, real, personal or mixed, or which we or either of us shall die seized, with full power of disposition, for and during the life of such survivor.
“3. We each will, bequeath and devise all the rest, residue and remainder of all the property, real, personal and mixed, remaining undisposed of at the death of the survivor, in this will jointly made by us, to the beloved children, hereinafter named, whom we reared as follows: To Nancy May, ... to-Albert Lea, ... to Ollie Greer; to be equally divided between them and their descendants, to the exclusion of our next of kin, under the laws of descent and distribution, in the absence of any children being born of our union, and we now state that at the making of this will no children having been so born.”
James, the husband, died and subsequently the young man Albert died without issue; then, after-wards, Nancy, the surviving wife, died, and there was-thus left only Nancy May and Ollie Greer. Nancy left collateral kin only and Albert left brothers and sisters. The question for decision is, who takes the one-third interest in the. property originally devised to Albert. The collateral kin of Nancy claim it as coming to them through her; the brothers and sisters of Albert claim it as coming through him, and Nancy May and Ollie Greer claim it as surviving joint tenants.
The trial court decided that Nancy took an absolute estate and that the devise to Albert lapsed by reason of his death prior to Nancy’s decease.
If the second clause of the will was an absolute devise to Nancy, then the last part of that clause, seemingly limiting the estate to one for life, would be void. For, “It is a settled rule or American as well
It is said that “A power to dispose of a thing as one pleases, must necessarily carry along with it a full property in it.” [Ibid.] The same rules are stated in Gannon v. Albright, 183 Mo. 238. A devise of an estate generally or indefinitely, with power to dispose of the same, vests the fee simple in the devisee, and no subsequent ambiguous limitation will lessen the estate. [Cook v. Couch, 100 Mo. 29; Small v. Field, 102 Mo. 104; Roth v. Rauschenbusch, 173 Mo. 582.]
So in Jackson v. Robins, 16 Johns. 537, 587, 588, where the testator devised “all my real and person estate whatsoever unto my dear wife Sarah, to hold the same to her, her executors, administrators and assigns, but in case of her death without giving, devising or bequeathing by will or otherwise selling or assigning the said estate, or any part thereof, then I do give, devise and bequeath, all such estate or all parts thereof as shall so remain unsold, undevised or unbequeathed, to my daughter,” it was held that the first part of the clause gave a fee to the wife and the remainder over
But the power of absolute disposal over property will not operate as the devise of a fee in realty, or absolute title in personalty, where a life estate only is devised. [Grace v. Perry, 197 Mo. 550; Tisdale v. Prather, 210 Mo. 402.] In such case the life estate is not enlarged by unrestrained power of sale, but such power is merely one of appointment, which, if not exercised, leaves the estate in remainder. It is proper enough to say that a devise of an estate generally, with power of absolute sale, passes the fee. But the devise of an estate for life is not a general devise, or, as otherwise expressed, is not a ‘ ‘ gift generally or indefinitely.” Its duration is limited to a life by its own terms. Thus, in Rubey v. Barnett, 12 Mo. 3, after recognition of the rule in accord with the authorities above cited, it is said: “But a devise to a wife for life, and after her decease she to give the same to whom she will, passes but an estate for life with a power; yet-if an express estate for life had not been devised to the wife, an estate in fee would have passed by the other words.”
“This,” says the court, “is the distinction which prevails throughout the cases. When an express estate for life is given, and afterwards a power of disposition is conferred, then the devisee takes but a life estate with a power of disposition, and if no disposition is made, the reversion will go to the heirs of the devisor. But if there is no previous devise of a life estate, but a simple power of disposition is bestowed, then the devisee takes an absolute estate.”
The rule thus stated by Judge Scott more than sixty years ago, is sound today, because it rests upon
That the absolute power of disposal is a gift of the absolute property is the dictate of common sense, says Judge Tucker, in Burwell v. Anderson, 3 Leigh, 348. And further, that: “He who has the absolute property, has, inseparably, the absolute power over it; and he to whom is given the absolute power over an estate, acquires thereby the absolute property; unless there is something in the gift which negatives and overthrows this otherwise irresistible implication. . . . So, though a devise to a wife for life, and after her decease, she to give the same to whom she will, passes but an estate for life with a power; yet, if an express estate for life had not been devised to the wife, an estate in fee would have passed by the other words. Where, indeed, such an inconsistent life estate is given, the fee does not pass; for this whole matter rests upon intention. . . . Where an interest is given, generally, and without limitation, that gift is not converted into a mere power, by annexing thereto a general power of disposition. . . . But where there is an express and inconsistent estate for life given, the construction of the instrument is altogether different. For the express estate for life, negatives the intention to give the absolute property, and converts these words into words of mere power, which, standing alone, would have been construed to convey an interest.”
The rule is written in the same way in numerous cases: “If the testator, im express terms, give an estate for life, the intention is manifest and beyond doubt; and in such case an added power of disposition cannot enlarge the estate.” [Burleigh v. Clough, 52 N. H. 267.]
In Mansfield v. Shelton, 67 Conn. 390, four rules relating to this general subject are stated, the sec-' ond of which is that: “A life estate expressly created
In Collins v. Wickwire, 162 Mass. 143, the will gave the property to the testator’s wife, “during her natural life, with the right to dispose of the same by gift, or will at her decease;” and the principle that where a will gives an absolute ownership with full power of disposal, a limitation over is void because inconsistent with an absolute title, was invoked. But' the court said that the principle was not “applicable where the will purports to give only a life estate to the first taker, with merely a power of disposition of the remainder as a separate interest.”
In Swarthout v. Ranier, 143 N. Y. 499, the provision in the will was that the wife was to have the estate during her life, but it also gave her power to dispose of it, yet it was held to be a life estate with a power.
In Ramsdell v. Ramsdell, 21 Me. 288, the court, after discussing the authorities, says: “The rule to be extracted from these cases would seem to be, that where a life estate only is clearly given to the first taker, with an express power on a certain event or for a certain purpose to dispose of the property, the life estate is not by such a power enlarged to a fee or absolute right; and the devise over will be good.” To the same effect is Wood v. Robertson, 113 Ind. 323.
In applying these rules of construction to this case, we will simplify the provision in question by changing the words so that it will read as a single, instead of a joint will. It then would be that “I will, bequeath and devise to my wife Nancy all the property, real, personal or mixed, of which I shall die seized, with full power of disposition, for and during her life.” There is but one possible suggestion in
It seems to us to be manifest that each testator gave to the other a life estate in their respective estates, and both gave the remainders existing at the death of the survivor, to the three persons named, to be divided equally between them or their descendants.
To whom, then, did the property go on Nancy’s decease? The will says to the three devisees, to be equally divided between them, or “their descendants.” We have already stated that Albert died before Nancy and as it appears that he left no children, but did leave brothers and sisters, the first question on this branch of the case is, are brothers and sisters of a deceased, his descendants, within the meaning of the will? Ordinarily they are not. [Lich v. Lich, 158 Mo. App. 400.] By descendant from a person we mean one who comes from him, not one who may be collaterally connected with him. “Descendants” means “those who have issued from an individual, including his children, grandchildren, and their children to the remotest generation.” [Tichenor v. Brewer, 98 Ky. 349; West v. West, 89 Ind. 529; Gordon v. Pendleton, 84 N. C. 98; Van Beuren v. Dash, 30 N. Y. 393.]
“A descendant is a person who is descended from another, that is, one who proceeds from the body of another, however remotely. The word is the converse or opposite of ascendant. Descendants include every.
But counsel says that the expression “descendants” may, in some contexts, mean a brother or sister. If so, there is no sign of such meaning in this will. Inferences are strong to the contrary. Neither of the three devisees were children of the testators and there is no expression in the will to lead one to suppose there was any kinship, unless it be that Albert bears the same name. The moving cause of the gifts appears to have been affection arising from the association consequent upon having “reared” them. Naturally the testators had no interest, aside from them individually, which would reach further than their descendants. There is nothing in the words of the will, nor in the situation, to lead one to believe the testators meant their bounty to go to any one outside the immediate line of the devisees.
But it may be said that each of the children took an estate in remainder, and though subject to be destroyed by an exercise of the power of sale by the life tenant, nevertheless it was a present interest, even during the existence of the life estate, only liable to be destroyed by an exercise of the power. And, therefore, it was a vested interest in Albert, Nancy May and Ollie, on the death of either of the testators, which could be assigned by them; or, on their death, intestate, would go to their heirs. Therefore Albert, having survived the testator James, there was cast upon him an estate in remainder, and whether considered as a vested or contingent remainder, it nevertheless was an estate or interest which, on his death intestate, would go to his heirs.
To this we say that would be true ordinarily. [Welsh v. Woodbury, 144 Mass. 542; Winslow v. Goodwin, 7 Met. 363; Putnam v. Story, 132 Mass. 205; Grosvenor v. Bowen, 15 R. I. 549; Scofield v. Olcott, 120 Ill. 362.] But, by the terms of the will here in controversy, the estates to Albert and the two other children, were not estates in remainder generally. The estate or interest of each was limited to their “descendants” if either of them should die. So, therefore, as already said, Albert dying without descendants, his legacy lapsed.
We have examined Lemmons v. Reynolds, 170 Mo. 227, and think it has no bearing on the questions presented in this case.
We do not find anything in the will justifying the claim of Nancy May and Ollie Greer. There is nothing to show them to be joint tenants. They own two-thirds of the estate and are tenants in common with
The result is that the share which would have gone to Albert, had he lived, is undisposed of and, ordinarily, would belong to the general estate of the testator and be inherited by his statutory heirs. But in this case there arises this exceptional state of affairs: There are two testators in one will, with no distinction as to what particular property belonged to each, or whether it belonged to them jointly.
The result is, that after handing over to the two surviving devisees their undivided two-thirds of the whole estate, there remains one-third to go to the statutory heirs of both the testators. Then the question arises as to how the shares of the latter two sets of heirs are to be ascertained. We know of no better answer than to say that each set will inherit what is left of their ancestor’s estate after taking out the two-thirds going to the two surviving devisees. And in order that justice may be done, as near as may be, it would appear proper that this two-thirds should be taken from the two estates proportionately. That is, if one testator left a greater estate than the -other, a proportionately greater part of the share of the two devisees should be taken from it. Thus, for convenience, suppose the two estates were in money, amounting, together, to $12,000, of which James’ estate was $9000 and Nancy’s $3000. That would be $8000 for the two devisees, $6000 of which would be taken from the $9000 composing James’ estate, and $2000 would be taken from the $3000 composing Nancy’s estate. And that would leave $3000 to go to the statutory heirs
We have no means of knowing how or in what proportions the property was owned by the two testators, but believe the views herein expressed will enable a proper disposition to be made of the case. The judgment is reversed and cause remanded.