Gillilan v. Gillilan

212 S.W. 348, 278 Mo. 99, 1919 Mo. LEXIS 73

• Court: Supreme Court of Missouri
• Decided: May 16, 1919
• Status: Published

Opinion

BOND, C. J.

I. Suit to determine title to five hundred acres of land in Daviess County, Missouri. •

The case was tried and submitted on an agreed statement of facts setting out in detail the relationship of -the parties and the history of the title. The material facts are as follows:

On December 17, 1882, Nathan Gillilan, the common source of .title, died testate, owning a large amount of property, including the five hundred acres in suit. His will was contested, but was finally established' and recognized as valid, and we quote the two clauses thereof covering the devise of said land:

“Fifth. It is my will and I do hereby give, devise and bequeath to my son George W. Gillilan and to his heirs hereafter born to him, the following described real estate, situated in Daviess County, Missouri, to-wit [description omitted]; this devise and bequest however, in behalf of my son George W. Gillilan shall be to the exclusive use and benefit of my said son George and the heirs of his body hereafter born, excluding his present wife Martha I. Gillilan and her three children, Orna V., Anna F., and Independent N., from all benefit or interest or part whatever in my estate; I do hereby, to make my will clear of all doubt declare that it is my intention, and I do hereby disinherit and exclude the said Martha I. Gillilan and her three children, from all interest or part whatever in my estate.

‘ ‘ Ninth. It is my will and I do hereby provide that after the payment of the several legacies and bequests aforesaid out of and from my estate, the remainder of my said estate, if any, both real and personal, shall be the property of and belong to, and I do hereby give, devise and bequeath the same to my two .sons, George W. and John D. Gillilan in equal parts, share and share alike.”

Besides the two song mentioned in the above clauses of the will, said Nathan Gillilan left a son Robert L., a daughter Ann F. Gay, the four children of his deceased daughter Mary Jane Clendennen, and the four children of his deceased daughter Elizabeth Gillilan, all of whom, or their heirs, are parties to this suit:

In 1882 George W. Gillilan was granted a divorce from his wife Martha (who is mentioned in the fifth clause of the will above) and thereafter married Gratia Kirkland. No children were born of this marriage and at his death in 1914, George Gillilan left, by will, all his property to his widow, Gratia, the present plaintiff, with the exception of a bequest of .'$100 each to the two surviving children of his wife Martha. Suit was brought by these two children (Anna Carr and Independent Gillilan) to ■ contest this will, which contest was still pending at the institution of this suit.

In 1895, John D. Gillilan, the son mentioned in the ninth clause of the will of Nathan Gillilan, died, leaving as his sole heirs two sons, Lorenzo and Nathan, and a daughter, Mary Lee Hayes. Thereafter Nathan Gillilan sold his interest in the land in question (if any) by warranty deed to his brother Lorenzo. >

The trial resulted in a decree by which the court gave one-half of the five hundred acres in dispute to the two children of John D. Gillilan, deceased, (one-sixth to Mary Lee Hayes and two-sixths to Lorenzo Gillilan, he having purchased the one-sixth interest of his brother Nathan); and the other two hundred and fifty acres to Anna Carr and Independent Gillilan, the two children of George Gillilan, deceased, by his former wife Martha, -subject to the dower rights of the plaintiff Gratia Gillilan and the settlement of the contest of the will of George Gillilan.

Gratia Gillilan appealed because she did not get as devisee of her husband a fee simple title to one-half the land which was decreed to Anna Carr and Independent Gillilan (the children of Martha, the former wife of George Gillilan). Ann F. Gay and those answering with her appealed, claiming they alone should have title to''all the land as the only heirs at law of the late Nathan Gillilan, on the theory that the land in suit reverted to his estate upon the lapse of the devise in clause 5 of his will. Lucas R. Gillilan- appealed, claiming all the land as the oldest son of Robert L. Gillilan, the oldest son of Nathan Gillilan, under the common law doctrine of primogeniture. The remaining children of Robert L. Gillilan appealed, claiming equal participancy with said Lucas R. Gillilan.

Primogeniture. II. It is contended on behalf of Lucas R. Gillilan that he, being the oldest child of Robert Gillilan, who was the oldest child of Nathan Gillilan, was entitled to the entire estate for the reason that by. the statutory abolition of tlle fee tail> the land so devised reverted to the common source (Nathan Gillilan) and then descended to him under the rule of primogeniture. The phraseology of so much of the present act (R. S. 1909, sec; 2872) relating to the vestiture of the estate after the death of the person who would have been the first tenant in tail under the English law, is claimed to be susceptible of the construction that it was intended to vest the ’fee in the oldest son of the life tenant • to the exclusion of his other children, since thi statute uses this language: “And the remainder shall pass in fee simple absolute to the person to whom the estate-tail woujld, on the death of the first grantee, devisee or donee in tail, first pass according to the course of the common law, by virtue of such devise, gift, grant or conveyance.” [R. S. .1909, sec. 2872.] We do not think the act bears that meaning. The doctrine of primogeniture is contrary to the theory upon which this and other commonwealths were built. ( This fact is conceded in the opinion of the commissioner cited by appellant Lucas R. Gillilan. [Stockwell v. Stockwell, 262 Mo. l. c. 677.] All that the commissioner said in that case with reference to the-italicized clause above, is that it might furnish “a verbal reason” for a claim that the statute had adopted primogeniture in this State. He, however, immediately added that no such doctrine could exist in this country, citing, in support of his conclusion, Tiedeman on Real Property, sec. 474. To the same effect, Miller v. Ensminger, 182 Mo. l. c. 203.

No part of the common law which was “repugnant to” or “inconsistent with”.our Federal Constitution or State laws, was ever adopted as a part of the jurisprudence of this State. [R. S. 1909, sec. 8047.] J The doctrine of primogeniture is radically opposed to the spirit, if not the letter of both/[and what the learned commissioner meant by the terms “verbal reason” was probably a satirical or derisive allusion to an argument ’which might be made by a verbal play on the language of the statutes, hut which had no real substance.: The idea that any such preference in the descent of real property could co-exist in the laws of any of the states, with the axioms of the Federal Constitution guaranteeing equal protection of the laws to all persons and a republican form of government for each state, or with the social and political life modeled on these fundamental principles, is an unthinkable absurdity. Any intimations of a different import in any of the decisiohs of this court are hereby expressly disapproved. Our conclusion is that Lucas R. Gillilan has no claim whatever other than that possessed equally by his brothers and sisters.

e Tail III. The question which will decide the rights of the appellants in this case arise solely out of the view which we shall take of the intendment and effect of clauses five and nine of the will of Nathan Gillilan, deceased. The lawful intent of a testator is the key which unlocks the legal meaning of his last will and testament. The language used in clause five, supra, would have created an estate in fee tail special in five hundred acres of land devised to George W. Gillilan and in the heirs of his body born after the making of the will, according to the common law of England. The words employed contained terms of both procreation and limitation, and, therefore, fall strictly within the established rule defining estates in fee tail. [Gray v. Ward, 234 Mo. 291; Cox v. Jones, 229 Mo. l. c. 65; Hall v. French, l. 65 Mo. 430; Scudder v. Ames, 142 Mo. 210; Bone v. Tyrell, 113 Mo. l. c. 182; Phillips v. LaForge, 89 Mo. 72; Tiedeman, Real Property (3 Ed.), sec. 41, p. 49; 3 Bacon’s Ab^dgt. 428, 430*.] No estates in fee .tail,' general or special, have existed in this State since 1825, if ever. [R. S. 1999; secs. 2872, 2874, 578; Elsea v. Smith, 273 Mo. l. c. 413.] Neither does the rule in Shelley’s case exist either in deeds or wills.

It is insisted, however, by the learned counsel for plaintiff Gratia Gillilan, that this court should take the view that clause five of the will of Nathan Gillilan devised a defeasible estate in fee to George W. Gillilan, which became absolute upon failure of issue to him, in which event the plaintiff would take all of the land under the devise to her in her husband’s will, in case it should be established in the contest suit still pending. We cannot concur in the view that the language employed in the devise in clause 5, supra, vested George W. Gillilan with an estate in fee of any kind. In support of that notion it is insisted-that the term “heirs” (twice mentioned in clause five) should be substituted by the term “children,” and that after such substitution it should be held that George W. Gillilan took a defeasible fee which became absolute when no children were thereafter born to him. [Tindall v. Tindall, 167 Mo. 218.] The answer to this contention is that the will, considered as a totality, does not evince a paramount purpose on the part of the testator so strong and controlling, to devise by clause five supra, a defeasible fee to his son George, as to make it our duty to carry out that purpose by substituting other language for that which the testator used in his will. We do not question the rule that the terms “children” and “heirs” may be construed to have been used the one for the other whenever such a construction is necessary to carry out the dominant thought of the testator as shown by the language employed in his will. We fully approve the statement of this rule in the cases cited by appellant “that, if the words used in the context warrant it, and such construction will carry into effect the manifest intention that moved the execution of the deed or the signing of the will, then such intention will be made effectual, and the words heirs will be construed as meaning children, and vice versa, and children as issue, grandchildren or descendants, if the justice or reason of the case requires it. [4 Kent (14 Ed.), 419; 3 Wash. Real Property (5 Ed.), 282; Haverstick’s Appeal, 103 Pa. St. 394; Warn v. Brown, 102 Pa. St. 347.]” We also agree to the statement of the rule cited by appellant, viz:

“The presumption that the words ‘heir of the body’ or ‘heirs of. the body’ are used in a technical sense, though it obtains in the large majority of cases, is not always conclusive. The law of construction that the intention of the testator, however expressed, must prevail,- will be enough to vary the meaning of those words, if it is apparent that the testator, though using the technical words, has used them in a non-technical sense.” 2 Underhill, Wills, sec. 651. To the saipe effect: Brown v. Tuschoff, 235 Mo. 458.

In this connection it must be carried in mind that the draughtsman of this will was an ex-judge and a traine.d lawyer, and as such was familiar with the technical meaning of the words and terms used. [40 Cyc. 1399.] The terms of the devise in clause five, supra, twice repeated, were, first, “to my son George W. Gillilan and to his heirs hereafter born to him;” second, “my said son George and the heirs of his body hereafter born,” etc. It has been shown that these terms in the strictest and eompletest sense create an estate in special tail, which, by the statute abolishing entails, became a life tenure in George W. Gillilan with a contingent remainder in fee in his direct descendants born after the making of the will. The case, therefore, in legal effect, is identical with the point in judgment in the case of Emmerson v. Hughes, 110, Mo. 627, where the life estate was conveyed to Mary R. Godman and “then to the heirs of her body arid assigns forever.” In that case Black, J., (Ibid. 630) said: “There is nothing in this deed from which we can say the word ‘heirs’ means children, and this being so, we must give to it its ordinary legal signification.” He then held that the deed created a contingent remainder in fee in the plaintiff, who was the granddaughter of the life tenant and fell within the description of “heirs of the body of the tenant for life.” There can be no reason in this case, ascribable to tbe paramount/-intent of the testator, for construing the term “heirs” to have been used when children were meant, which did not exist in that case. "We are unable, therefore, to follow the theory that such was the intention of the testator and his draughtsman when clause five of the will of Nathan Gillilan was executed.

Having reached that conclusion, it is only necessary to add that the case of Tindall v. Tindall, 167 Mo. 218, relied upon, in the event this court should substitute “children” for “heirs,” has no application. However it may be said of that case that the only point held in judgment (under the facts showing that the devisee, Mrs. Tindall, had six children) was what estate she took in these circumstances under the terms of a deed providing, in case of her death without issue, that the estate was “to descend to her heirs, at law.” The court accordingly held that upon the birth of issue the contingent remainder in these heirs became a vested one in fee. The observation that Mrs. Tindall would have taken a fee if no children had been born to her was, therefore, a mere dictum, with only the persuasive force of an utterance of a learned judge.

Reversion1 IV. The only remaining question presented by this appeal is what became of the estate remaining in Nathan Gillilan (which he had specifically devised in clause five of his will) upon defeat of that devise for lack of heirs thereafter born to George Gillilan, thereby causing a lapse of the contingent remainder to such heirs. In the solution of this question only two views are possible: first, that such a reversion in Nathan Gillilan passed to his descendants as in case of intestacy; second, that it was conveyed by the residuary clause of./the will supra. The latter is the view taken by the learned trial court and is the view taken as a dernier resort by appellant Gratia Gillilan (as shown in her brief) in case this court should take, as it does, the view that clause five of the will created an estate tail special at common law, which was changed by the statute into a life estate in the tenant in tail with a contingent remainder in fee in certain subsequent heirs of the body of the life tenant. In considering this question it must be realized that Nathan Gillilan had a right, not a mere possibility, of reversion after carving out so much of his estate as was devised' through the instrumentality of clause five of the will. The reversion so inhering in him was the proper subject of a grant by clause nine of his will if he so desired; otherwise it would descend to his heirs at law under the statute of descents and distribution as in case of intestacy. Conceding, as claimed for Ann F. Gay and other appellants appearing with her as general heirs at law of Nathan Gillilan, that upon the lapse of a specific ¡devise of realty, the law indulges a presumption that the testator did not intend to make a further devise, yet no such presumption arises when, he has made another devise. The question then presented is, what was his intention by the further devise ? Did he thereby intend to dispose of the property described in the lapsed devise? For, if so, the property must pass thereby. The dominant thought of the author of this will was to provide in the various ways therein shown, for his children and heirs. His secondary intent- was to exclude from the benefits of clause five of his will, the three children and the wife (soon afterwards divorced) of his son George W. Gillilan. Having excluded them from the purview of that clause, he apparently dismissed them from his thoughts and proceeded to dispose of whatever of his estate should remain after his previous bequests and devises. He did this by a further devise, to-wit: “The remainder of my said estate, if any, both real and personal, shall be the property of and I do hereby give, devise and bequeath the same to my two sons, George W. and John D. Gillilan in equal parts, share and share alike.” At the time this residuary clause was inserted in the will, Nathan was the owner of a right to reversion in the land which he had previously devised ip clause five of his will. This reversionary estate was the subject of a valid devise. We have reached the conclusion it was the intention of the testator to devise it by the terms''of clause nine of his will. The making of a will dealing with his entire estate and undertaking to dispose of all of it, disclosed his intention to die testate. Such is the logical and legal presumption which arises from the execution of a will purporting to dispose of the whole estate of . a testator. In the instant case the testator devised his property among his children and heirs in the manner specified in the various clauses of that instrument and then added clause nine to cover any residue. He never for a moment forgot the interests of George, for after having provided for him and his future heirs by a large devise of lands, in a manner which he had reasonable grounds to expect would vest the fee in the expected heirs, he ‘ continued to carry in mind the interests of George, and when he came to deal with the totality of his estate, he expressly provided that George and his son John should take what remained thereof in fee simple, share and share alike.

Our conclusion is that the terms and provisions of this will, taken in its full scope and purpose and in view of the attending circumstances, manifest that it was the distinct purpose and intention of the testator to dispose of all of his estate by the will in question, and by the residuary clause thereof to devise his reversionary rights, upon the lapse of the devise under clause five, to'his two named sons,' George W. and John D. Gillilan.

The judgment of the learned trial court was in accord with this view and, therefore, correct, and must be affirmed. It is so ordered.

PER CURIAM:

The foregoing opinion in Division is adopted by Court in Banc.

All concur, Graves, J., in result, except Woodson, J., absent.