229 Mo. 496 | Mo. | 1910
— Since this cause has been pending in this court the appellant has died, leaving Mary T. Garesche his widow, and Ferdinand T. Garesche, Marie Elise Garesche and Eugenie Terese Garesche, his three children, who are minors and his sole heirs at law, and after due service of scire facias on them, Mary T. Garesche has been appointed and qualified as guardian ad litem of the minor children and the cause has revived in their names as appellants.
It is a suit to quiet title under section 650, Revised Statutes 1899. The property in question is a lot in block 276 of the city of St. Louis particularly described in the petition. Plaintiff claims to be the absolute owner in fee of the lot. Defendant in his answer claimed an undivided vested interest in the lot under the will of his grandmother Maria Taylor, or an undivided vested interest in reversion as an heir at law to his grandmother. The decree of the court was that plaintiff was the absolute owner of the whole lot in fee and that defendant had no interest in it; 'from' that decree defendant appealed.
The title to an undivided one-third of the lot was vested absolutely in Maria Taylor at the time of her death. The other two-thirds interests have been acquired and are now held by the plaintiff. The plain
“1st. I give and bequeath to my children, Rose, Anna, Lise, Yon and Groff, the sum of one dollar each.
“2d. All the rest and residue of my property of which I may be possessed at the time of my death, I give and bequeath to my daughters Kate and Julia, in equal parts between them. To have and to hold the same, as hereinafter .stated. In case of the marriage or the death of either of my said daughters Kate and Julia, the share of the one marrying or dying shall go to the other.
“In the event of the marriag’e of both of my said daughters Kate and Julia, said property shall be divided equally among all of my children.
“In event of the death of both of my said daughters Kate and Julia before marriage, said property shall be divided equally among my surviving children.”
All the children of testatrix named in the will, seven in number, were living at her death, and all are now living except the daughter Lise, who has since died leaving her only heir the original defendant William McRee Garesche. Neither of the daughters Julia and Kate has yet married.
I. Assuming for the present that it was only a life estate given to the daughters Kate and Julia, with remainder over, was it a vested or a contingent remainder? There are two events forecast in the will according to which the estate given to the two daughters is to cease or determine, to-wit: marriage, and death without marriage — if one should marry and the other not, the estate of the married one is to go to the other, if
There is not much difference between counsel on the effect of the condition that marriage should cause a forfeiture of the estate. In his answer .to the petition the defendant said that he was advised that that feature of the will was void because it was in total restraint of marriag’e, but appellant now takes the position that that feature of the will is not entirely in restraint of marriage, but only partly so, since by marriage the daughter does not lose all interest in the property but comes in under the clause “all of my children” among whom the property is to be equally divided in the event of the forfeiture of the particular ' estate by the marriage of both. But the interest which marriage would forfeit, if effect is given to that part of the will, is not compensated by a share with the other children which, as compared with the estate forfeited, is but a small part. The intention of the testatrix, as it very clearly appears, is that the only preference given these two daughters, over all the other children, is to be forfeited if they marry. That feature of the will is in restraint of marriage and is therefore void. The law on this subject received the consideration of this court in an early case and the doctrine there laid down has been the law of this State ever since. [Williams v. Cowden, 13 Mo. 212.] In that case the testator had devised land to his son and daughter with the provision, “if his said daughter should marry or die” the land should go exclusively to the son. The court held that that provision as to marriage was void. In commenting on the subject the court said: “Upon the general proposition, the preservation of domestic happiness, the security of private virtue, and the rearing of families in habits of sound morality and filial
Fearne divides contingent remainders into four classes, from which we take two: “I. Where the remainder depends entirely on a contingent determination of the preceding estate: as if A makes a feoffment to the use of B till C returns from Rome, and after such return of C, then to remain over in fee. . . . . IV. Where a remainder is limited to a person not ascertained, or not in being, at the time when such limitation is made: as if a lease be made to one for life, remainder to the right heirs of J. S. who is living; or remainder to the first son of B, who has no son then born; or if an estate be limited to two for life, remainder to the survivor of them in fee.” [2 Fearne (4 Am. Ed.), secs. 184-7.] That is to say, the remainder is contingent if the event on which it is to take effect is contingent, or if at the time of creating the estate the person who is to take is not ascertained. Both those contingencies are present in this case; the event on which the remainder, if it be a remainder, is to take effect, that is, the death of both without having- been married, may or may never occur; death is certain, but that they will not marry is not certain; and second, which, if either or any of the other children of the testatrix will be living when the particular estate de
There is a learned discussion of this subject in each of the briefs with which we are favored and authorities are there collected and cases discussed. But we do not think it would profit to attempt to review the authorities referred to, since this court has in at least two cases gone over the whole field and laid down the rule as we have above stated it. [DeLassus v. Gatewood, 71 Mo. 371, and Dickerson v. Dickerson, 211 Mo. 483.] We hold that the words “my surviving children” in Maria Taylor’s will mean those of her children who might be living at the time when the estate given to the two daughters should determine, that is, on the death of both before marriage; it was therefore uncertain at the death of the testatrix which if either of her children would be living at that time and the remainder, if it is a remainder, is therefore contingent;
II. But suppose .both Kate and Julia should never marry and no one of the other children of testatrix should survive them; what then would become of the estate? If there was a remainder over and no remainderman to take it, it would go back to the estate and descend to the heirs of Maria Taylor. But would there under the terms of this will be any remainder over? A contingent remainder cannot take effect until the event or the fact on which it depends occurs or comes into existence. If an estate is devised to A for life, remainder to B when .C returns • from Rome, if C dies without having réturned from Rome there is no remainder. If an estate is devised to A for life, remainder to the first son bom to B, and B should die having no son born to him, there is no remainder. In those two supposed cases, on the falling in of the life estate what rémains would be a reversion, going back to the grantor or his heirs. But if the particular estate is not a mere life estate, if it is a determinable fee, liable to be cut down on the happening of the event on which the future estate depends, and that event does not occur, then the fee is not cut down and there is no reversion.
The will of Maria Taylor does not in terms give to the two daughters named a life estate; it gives them the property in fee subject to being cut down to a life estate in the event of their death without ever having married. The language of the will is: . “All the rest and residue of my property of which I may be possessed at the time of my death, I give and bequeath to my daughters Kate and Julia in equal parts between them. To have and to hold the same, as hereinafter stated.” That is to say, it is an absolute estate
If the language of this will had been: All the rest and residue of my property I will and bequeath to my daughters Kate and Julia and to their heirs and assigns forever in fee simple, with this conditional limitation however, that is to say, if neither of them should ever marry, the fee is to determine on the death of the survivor of them and the property is to be divided equally among my surviving children, its legal effect would not have been at all different from what it is in the language used.
The will shows the intention of the testatrix to dispose of her whole estate. On the death of the testatrix that fee vested in these two daughters, subject* to be determined at their death if they should not have married, but if that event should occur the will did not leave the fee to revert to the heirs of the testatrix but provided how it should go, that is, to “my surviving children,” who in that event would take as purchasers, not as heirs. But the will does not expressly provide for one possible event, that is, the death of all her other children before that of the two daughters named and afterwards their death without having been married, but there was no necessity for providing for that event because then one of the contingencies on which the fee
A remainder cannot be limited on a fee even though it be a determinable fee, therefore the devise to take effect on the determination of the fee in this case would not be a remainder, but an executory devise. [2 Washburn R. P. (3 Ed.), sec. 1744; Tiedeman R. P. (6 Ed.), sec. 392.] But an executory devise may be contingent not only on the event that is to determine the fee, but also on the being of the person to take when the event occurs. “Where the estate is to vest upon an uncertain event or in a person not definitely ascertained, the ex-ecutory devise is contingent, and partakes of the nature of a contingent remainder.” [Tiedeman R. P., sec. 386.]
Otoe of the distinctions between a remainder and an executory devise is that a remainder follows a particular estate, while an executory devise follows a fee. [2 Washburn R. P., sec. 1757.] After a particular estate something remains, after a fee nothing; if there be no remainder to go into effect on the determination of the particular estate, or no one to take the remainder, the fee reverts to the grantor or his heirs; if there be no executory devise to take effect on the happening of the condition on which the fee was to determine, or no one to take it, the fee is not cut down but remains, unless there is something else in the will to show that the intention of the testator was that the fee should determine absolutely on the happening of the condition without reference to the devise over.
The intent of the testatrix shown in this will was to dispose of her whole estate, leaving'none of it to be disposed of by the Statute of Descents, giving it all to her children; her two daughters named were her first care, but in a certain event the estate given to them was to determine in favor of her other children surviving them. The testatrix did not intend to cut
The trial court had the correct view of the law of this case. The judgment is affirmed.
