121 Mo. App. 668 | Mo. Ct. App. | 1906
This is an action in equity to enforce a provision in the will of John Wood, deceased, by which in consideration of the devise of certain lands to John B. Wood, son of the testator, the said devisee was required to support and maintain plaintiff during her natural life. It is conceded that the testator died October 13, 1888, and that his son entered into the possession of the land devised and enjoyed the same until his death, which occurred June 5, 1889. He left surviving him, his widow Viola (the defendant Viola Ogden), who in September following gave birth to a posthumous son (the minor defendant John B. Wood). In 1892, Viola intermarried with the defendant J. W. Ogden and since that date the land has been occupied continuously by the Ogdens and the infant defendant. Plaintiff is the widow of John Wood, the testator. During the interim between the deaths of father and son, she made her home with the latter and was supported by him. After his death she lived on the farm with his widow until the spring of 1890, when she left the place and lived with an unmarried son for whom she kept house. The defendant, Viola, neither before nor since her marriage with her present husband denied plaintiff’s right to live on the farm with her nor is it intimated that plaintiff was actuated in her choice of homes by any nnkind or unwelcome treatment at the hands of the adult defendants or either of them. The only reason, she had for leaving was her preference to live with her op children. And further it appears that before the bringing
The object of plaintiff’s action, as stated in the petition, is to recover a personal judgment against the adult defendants for the amount of the reasonable value of her maintenance since the death of her husband and that such judgment be treated and enforced as a charge against the land. The suit was brought on June 12, 1902, was tried May 7, 1903, and judgment was entered in favor of plaintiff. The court gave her a personal judgment against the two Ogdens in the sum of $300 for the cost of her maintenance to the filing of the petition and one dollar per week thereafter and decreed the whole sum to be a lien on the land devised. Defendants appealed.
The provision of the will of John Wood material to this inquiry is contained in the seventh clause thereof, which is as follows:
“I will, bequeath and devise to my son B. Wood (John B. Wood) the forty-acre tract of land on which I now live, upon consideration that he support and maintain my wife Louisa Wood during her natural lifetime.”
To sustain the judgment requires the holding not only that John B. Wood in accepting the devise of the farm became personally bound to maintain his mother during her natural life, but that her maintenance became a charge on the land, so that although the fee title thereto vested in the devisee immediátely on the death of the testator, it was burdened with a trust that would remain until its purpose had been accomplished and that while in the event of the death of the devisee before that of- the beneficiary of the trust, the legal title to the land would descend to his legal heirs, their acceptance thereof would constitute an acceptance of the burden it carried and make them personally liable for the perform
The most important object to be attained in actions involving the construction of testamentary provisions is the ascertainment and enforcement of the intention of the testator, and speaking for myself, I find no difficulty in reaching the conclusion that the testator evidently intended, as the language employed expressly says, to provide maintenance for his widow during her natural life and not to leave her unprovided for in her old age, should her son’s demise precede her OAyn. That this purpose could be effectuated only by making the condition a charge on the land is obvious since the personal undertaking of the devisee resulting from the acceptance of the devise necessarily would cease at his death and Avould not devolve on his heirs by the descent to them of an unburdened title in fee to the land. Intending to proAdde maintenance for his Avidow during her whole lifetime by coupling the condition for her support with a specific devise, can there be any doubt that the intestate intended the land itself should be a guaranty for the performance of that condition? To say otherwise does violence to common sense and casts a reflection on the humanity of the testator, which the will itself as well as every fact and circumstance demonstrates to be Avholly undeserved. If the testator considered the possibility of his widow surviving the devisee for what purpose Avould he provide for her support during the lifetime of tbe devisee and then make her an object of charity for the remainder of her life? Very likely he enter
There is no inconsistency in the view that a charge of this character my attach to the land devised and also create a personal obligation on the part of the devisee. As Judge Story observed in the case of Sands v. Champlin, 1 Story 376: “It by no means follows, in cases of this sort, that because the charge is on the real estate it is so exclusively; for it may be a charge on. the real estate and also on the person of the devisee in respect of the devise . . . charges are always treated as charges in rem as well as in personam unless the testator uses some other language which limits, restrains or repels that construction.”
The rule I think should apply to cases of this character, is aptly expressed in this paragraph in 30 Am. and Eng. Ency. of Law, p. 798: “A condition for the benefit of a person without any expressed intention that its breach shall work a forfeiture of the estate should be regarded as creating a trust or charge upon the land in such person’s favor, to be enforced as other trusts and charges and not as a limitation upon the estate devised.” (See authorities cited under note 2.)
But we are not at liberty to give effect to the views expressed and must hold that plaintiff is not entitled to maintain this action. In Alexander v. Alexander, 156 Mo. 413, the Supreme Court in construing a similar provision held that the condition imposed upon the devisee being a condition subsequent was of a personal charac
The judgment is reversed.
