William Welch, died- in Adair county in 1889. leaving a large body of land and considerable personal property. He disposed of it to his children by will, probated in July of that year. One
The third clause in the will gave the widow a child’s part (one-fifth).
The fourth clause is the part principally involved. It reads as follows:
“I will that after the above bequests are complied with that the balance and residue of all my estate, real estate, personal property, choses in action, and evidences of debt of every kind, shall pass and descend equally to the following named persons: To my beloved son Walter F. Welch, one-fifth part thereof absolutely forever without condition. To my beloved daughter, Margaret C. Welch, one-fifth part absolutely. To my beloved daughter, Agnes Farley, and the heirs of her body one-fifth part thereof. And to granddaughter, Margaret Ellen Moran, one-fifth part thereof, subject to the condition that her father shall never take any part thereof, . . . And shall the said Margaret Ellen Moran die before the said age of twenty-one years, her said portion of this bequest*306 shall pass and go equally to my said children Walter F. Welch, Thomas E. Welch, Margaret C. Welch, and Agnes Farley, and it is my will that my said married daughter (Agnes) take and keep all of the legacy under this will as her own separate estate to the exclusion of her husband.”
, It will be observed that the will disposes to Agnes and the heirs of her body one-fifth of the whole estate without distinction as to realty or personalty. ■ Defendant’s position is that its effect is to vest a life estate in Agnes to the realty with remainder to her children, but to the personalty, it vested an absolute title in her, and that any interest her children had would be by descent, and that a right of action for such descended interest was barred by limitation when this suit was instituted; it being said that these plaintiffs taking by descent were barred after one year from the death of Agnes, under the provisions of section 1896, Revised Statutes 1909. The position of the plaintiff is that Agnes took a life estate only in the personalty as well as the realty with remainder to these plaintiffs as her heirs, and hence that these plaintiffs take by purchase directly from the testator; and since the Statute of Limitations did not run during the existence of their mother’s life estate and their minority, their right of action is not barred. ■ •
Defendants in admitting that the will devised to Agnes a life estate only in the land, with remainder to these plaintiffs as “heirs of her body,” insist that that results from the statute abolishing the rule in Shelley’s case and estates in fee tail as to real estate (Secs. 578, 2872, R. S. 1909), but that a like rule as to personal property has not been questioned; and since the rule was one of construction, the fact that it no longer exists as to real estate, ought not to influence the construction of a bequest of personal property; and that since the law favors an absolute title to that class of property on account of the inconvenience and impracticability
Chief Justice Marshall in Smith v. Bell,
We have not overlooked citations by defendants on this subject, but we regard them as not authority, at this /day, in this State.
USo therefore if it appears from the will that the testator meant to bequeath only a life estate to his daughter, Agnes, that intention must govern. The controlling influence of intention over mere technical construction whereby plain language is given a meaning contrary to common understanding, or else rendered abortive, has been frequently stated by the Supreme Court,. notably in the recent case of Gibson v. Gibson,
We are aware it has been more than once said that Smith v. Bell was not favored-in this State (Foote v. Sanders,
While unfortunately a testator so often expresses himself in such confusion that Coke was led to say “that wills and the construction of them, do more perplex a man than any other matter, and to make a certain construction of them, exceedeth jurisprudentium artem,” yet we do not think the present case puts .us to that embarrassment. What are we fairly to consider was intended and accomplished by the words “To my beloved daughter Agnes Farley and the heirs of her body?” At the time that was written, and at the time it took effect at the testator’s death, she had no heirs of her body — these plaintiffs being born afterwards. A rule known as the rule in Wild’s case first announced in 6 Coke, 16 (b) is “that if A devises his lands to B, and to his children or issues, and he hath not any issue at the time of the devise, that the same is an estate tail; for the intent of the devisor is manifest and certain that his children or issues should take, and as immediate devisees they cannot take, because they are not in re rum natura, and by way of remainder they cannot take, for that was not his intent, for the gift is immediate, therefore such words shall be taken as words of limitation; the children getting the estate by descent from the parent. The rule, as thus stated, was announced in a case involving lands, but it applies as well to personal property. [Herron v. Stokes, 12 Clark & Fennelly, 161, 181-183 ; Byng v. Byng, 10 H. L. C. 171.] In Clifford v. Coe, 5 App. Cases, 447, 453, it is said, “ ... but if there were not children in existence who could take concurrently with the parent, then the fee is taken by the parent, and by the children in succession after him as tenants in tail; the parent taking a fee tail in
Applying this rule to the case before us, we would be compelled to hold that the words of the will gave an estate in fee tail to the testator’s daughter Agnes, and unless defeated before death, in some of the ways permissible in snch estates, would go in succession by descent, and not by purchase, to these plaintiffs as after-born children. And if the property were real estate, wonld, by force of the statute (Sec. 2872, R. S. 1909) become an estate for life in Agnes with remainder in fee simple absolnte to the children. However, as the statute mentions real estate only, we need not consider it as determining the question.
Bnt the foregoing authorities founded upon the rule in Wild’s case, all concede that the rale has operative effect only in a prima facie way, and therefore it may be overcome by the intention of the testator, made to appear in the will as a whole, to bequeath a life estate to the parent with remainder to the heirs; ■ and that brings us to the question whether such intention appears in this will. ^It will be observed that in giving to his children on whose interests he placed no limitation the testator has said, in each instance, that he gave the property “absolutely,” and when he came to Agnes’ interest he omitted that word and substituted the words “and the heirs of her body.” Wt think this of large significance and that it should have controlling effect. It must mean that the testator did not intend that Agnes should have her share unhamp
In Heron v. Stokes, 12 Clark & Fennelly, referred .to above, the words of the will were “To each of my daughters, 100 1, per annum, for themselves and their children,” and there were no children at the time. Lord Campbell, at page 198 of the report, said that, “You would do great violence to the expressed will of the testator by entirely striking out from the words in favour of the children.”
It is suggested, in opposition to these views, that no provision was made of the property in case Agnes should have no children. This may have been regarded by the testator as improbable; at any rate, it is a contingency which ought not to overcome plain evidence of intention. Nor do we think the possibility of Agnes sharing in her sister Margaret’s interest shows any contrary intent to that we have stated.
The foregoing leads to the conclusion that plaintiffs should have had judgment in the trial court unless they are barred by the Statute of Limitations. We have already seen that if defendants were right in the contention that Agnes took absolute title to the personalty these plaintiffs, as her children, would be entitled to it through descent from her. But since she took only a life estate, the title in the plaintiffs, as intimated at the beginning, is under the will, by purchase (Riggins v. McClellan,
An important matter remains regarding the culpability of the executors. If they had turned over one-fifth of the personal estate to Agnes, or if in money had paid her one-fifth, a question would arise as to whether that would discharge them from the claim of these plaintiffs as remaindermen. They claim the executors were trustees for them and that they should have protected and not jeopardized their interests. On this subject the following is stated to be the law in 16 Oyc. 618b: ‘ ‘ Where specific chattels are bequeathed for life the life tenant is entitled to the actual possession of the property, and cannot be compelled to submit to a sale or a commutation of his interest; but where personal property is included in a general residuary bequest for life it should be sold by the executor, and the interest paid to the legatee for'life, and the principal kept for the remainderman, unless the will shows a contrary intention on the part of the testator. An executor should also invest a bequest for life of money, and should sell and invest the proceeds of property, the use of which is its conversion into money, or the possession of which is not essential to its beneficial enjoyment, or which is of a perishable character, unless the will shows an intention that the possession of the fund or property should be entrusted to the life tenant. The executor may, instead of selling the property, intrust it to the life tenant upon- his giving a sufficient bond; but if he does so without such security and the property is consumed or wasted by the life tenant the executor will be liable to the remainderman for the injury sustained. ”
If paid by the executors to Agnes as owner of a life interest in it, without taking security to protect these plaintiffs as owners in remainder, we will by no means say — it is unnecessary to say — whether that would have discharged them; for we do not find in the record any substantial evidence to justify the claim that it had been paid over to her.
On the question of whether the interest to be allowed plaintiffs should run from the date of the settlement in 1893 or from the date of the death of Agnes in 1905 we have concluded on the latter date. The use and income of the money was hers. It does not appear that anyone expected that plaintiffs had a claim on the interest which should have been paid to their mother. Such interest would be due the mother and at her death would have descended to plaintiffs. It would not have been due them under the will; they would not be entitled to it by purchase, but by descent and therefore the Statute of Limitations discussed above would bar a claim for it. [Sec. 1896, R. S. 1909.]
We will therefore reverse the judgment and remand the cause with directions to enter judgment for plaintiffs for $591.86 with six per cent interest thereon from August 17, 1905, the date of their mother’s death.