This is an action to construe the will of John B. Harper, deceased. The executor and all the devisees and legatees are parties. No question is raised as to the sufficiency of the pleadings, nor as to the circuit court's jurisdiction in the premises. The judgment of that court construed the will adversely to the contentions of two of the defendants, namely, the Men and Millions Movement and The National Benevolent Association of the Christian Church, and each appealed
therefrom. The same questions of law being raised on each appeal, the appeals by stipulation have been consolidated, and will therefore be treated as one cause.
After providing specific legacies for the Missouri Christian College at Camden Point, the State Missionary Board of the Disciples of Christ, the Christian Benevolent Society of St. Louis and the Christian Orphans' Home of St. Louis, the will proceeds as follows:
"Seventh. I give, devise and bequeath all the residue and remainder of my property that I may die seized, after the payment of the aforesaid bequests, to my daughter Nellie May Owens and to my son-in-law William B. Owens to be owned and held by them jointly, to have and to hold unto them and their heirs and assigns forever.
(John B. Harper.)
"Eighth. In case of the death of both my daughter Nellie May Owens and my son-in-law William B. Owens, then in that event, after the payment of the legacies above mentioned, I give, devise and bequeath to my granddaughter, Wavelee Oliver, formerly Wavelee Owens, all the residue and remainder of my property that I may die seized to have and to hold unto her, her heirs and assigns forever.
"Ninth. It is my earnest desire and wish that my said daughter and son-in-law shall from time to time and as they shall deem fit and proper give or make proper provision for my said granddaughter Wavelee Oliver, formerly Wavelee Owens, and leaving the making of such gifts or provisions to the discretion of my said daughter and son-in-law.
"Tenth. It is my will in case my said daughter and son-in-law and granddaughter should all die without leaving any issue, then in such event all of my said property, real and personal, shall be divided into four equal parts, and one part shall go to each of the following — that is to say: one part to the Men and Million Movement; one part to the Christian Orphans' Home of
St. Louis, Missouri; one part to the State Missionary Board to the use of the counties now comprising the Seventh District of the Disciples of Christ, of Northwest Missouri; and one part to National Benevolent Association of the Christian Church, present address, 2955 North Euclid Avenue, St. Louis, Mo.
"I hereby appoint my son-in-law, William B. Owens, and my daughter, Nellie May Owens, executors of this my last will, and it is my will that they be not required to give bond. In case of the death of both my son-in-law and daughter, then in that event it is my wish and desire that my granddaughter be permitted to choose an executor. And it is my further will and it is hereby provided that in the event of the death of my daughter Nellie May Owens, and my son-in-law, William B. Owens, and my granddaughter, Wavelee Oliver, that Roy V. Neff, of Cameron, Missouri, be appointed to act as my executor of this my last will.
"In Witness Whereof, I have signed and sealed, published and declared this instrument as my last will and testament at the City of Maysville, Missouri, this the 13th day of September, 1919.
"JOHN B. HARPER, (Seal)"
The oral evidence offered in connection with the will was brief. The facts disclosed by it may be summarized as follows: At the time the will was written testator's wife was dead, and Nellie May Owens and Wavelee Oliver, nee Owens, his daughter and granddaughter, respectively were his only living descendants. They both survived him, as did his son-in-law, William B. Owens. His estate then and at the time of his decease consisted of 1800 acres of land and personal property of the value of about $20,000. For a number of years prior to his death, testator, his daughter, granddaughter and son-in-law, lived together as one family. He was a member of the Christian Church or Disciples of Christ and took conspicuous interest in its institutional work. During his life he manifested in a marked degree his
sense of obligation to both his family and his church. He was regarded as a man of strong character and unusual business acumen.
The controversy arises over the construction to be given paragraphs "Seventh" and "Tenth" of the will and particularly with reference to the contingency described in the latter in this language: "in case my said daughter and son-in-law and granddaughter should all die without leaving any issue, then in that event," etc. There can be no question but that under paragraph "Seventh," if it were standing alone, Nellie May Owens and William B. Owens would take an estate in fee simple in the lands devised. If "die without leaving any issue," as used in the "Tenth" paragraph, means dying within the lifetime of the testator, then the contingency never happened, and never can happen, and their title is absolute. On the contrary, if "die without leaving any issue" refers to a time subsequent to the death of the testator, then the two paragraphs when read together give Nellie May Owens and William B. Owens merely a defeasible fee. Their estate would terminate upon their dying without issue. Whether, therefore, they take the fee subject to an executory devise, or whether they take absolutely, depends upon the construction adopted with respect to the words, "die without leaving any issue."
Decisions construing the meaning of the words, "dying without issue," or words of like import, when used in wills are without number. Some of the cases take the view that when the context is silent, words referring to the death of the first taker in connection with some collateral event, apply where the contingency happens after, as well as before, the death of the testator. [Britton v. Thornton, 112 U.S. 526; Fifer v. Allen,228 Ill. 507.] But the great weight of authority supports the rule, that when real estate is devised in terms denoting an intention that the primary devisee shall take a fee on the death of the testator, coupled with a devise over in case of his death, without issue, the words refer to a
death without issue during the lifetime of the testator, and the primary devisee surviving the testator takes an absolute estate in fee simple. The intention of the testator is presumed to be to prevent a lapse. [Kohtz v. Eldred, 208 Ill. 60, 69; King v. Frick, 135 Pa. 575; Calloway v. Calloway, 171 Ky. 366, 372; Tarbell v. Smith, 125 Iowa 388; Lumpkin v. Lumpkin, 108 Md. 470; Morgan v. Robbins, 152 Ind. 362; Vanderzee v. Slingerland,103 N.Y. 47; Skey v. Barnes, 25 Eng. Rul. Cas. 603, American Note; 28 R.C.L. 259.]
The rule just stated is in accord with the settled policy of the courts of both this country and England, that words of doubtful meaning will be so construed as to favor the heir; as to give an estate of inheritance to the first devisee; as to vest the title to an estate so that it will not remain in abeyance. In Scofield v. Olcott, 120 Ill. 362
Free access — add to your briefcase to read the full text and ask questions with AI
This is an action to construe the will of John B. Harper, deceased. The executor and all the devisees and legatees are parties. No question is raised as to the sufficiency of the pleadings, nor as to the circuit court's jurisdiction in the premises. The judgment of that court construed the will adversely to the contentions of two of the defendants, namely, the Men and Millions Movement and The National Benevolent Association of the Christian Church, and each appealed
therefrom. The same questions of law being raised on each appeal, the appeals by stipulation have been consolidated, and will therefore be treated as one cause.
After providing specific legacies for the Missouri Christian College at Camden Point, the State Missionary Board of the Disciples of Christ, the Christian Benevolent Society of St. Louis and the Christian Orphans' Home of St. Louis, the will proceeds as follows:
"Seventh. I give, devise and bequeath all the residue and remainder of my property that I may die seized, after the payment of the aforesaid bequests, to my daughter Nellie May Owens and to my son-in-law William B. Owens to be owned and held by them jointly, to have and to hold unto them and their heirs and assigns forever.
(John B. Harper.)
"Eighth. In case of the death of both my daughter Nellie May Owens and my son-in-law William B. Owens, then in that event, after the payment of the legacies above mentioned, I give, devise and bequeath to my granddaughter, Wavelee Oliver, formerly Wavelee Owens, all the residue and remainder of my property that I may die seized to have and to hold unto her, her heirs and assigns forever.
"Ninth. It is my earnest desire and wish that my said daughter and son-in-law shall from time to time and as they shall deem fit and proper give or make proper provision for my said granddaughter Wavelee Oliver, formerly Wavelee Owens, and leaving the making of such gifts or provisions to the discretion of my said daughter and son-in-law.
"Tenth. It is my will in case my said daughter and son-in-law and granddaughter should all die without leaving any issue, then in such event all of my said property, real and personal, shall be divided into four equal parts, and one part shall go to each of the following — that is to say: one part to the Men and Million Movement; one part to the Christian Orphans' Home of
St. Louis, Missouri; one part to the State Missionary Board to the use of the counties now comprising the Seventh District of the Disciples of Christ, of Northwest Missouri; and one part to National Benevolent Association of the Christian Church, present address, 2955 North Euclid Avenue, St. Louis, Mo.
"I hereby appoint my son-in-law, William B. Owens, and my daughter, Nellie May Owens, executors of this my last will, and it is my will that they be not required to give bond. In case of the death of both my son-in-law and daughter, then in that event it is my wish and desire that my granddaughter be permitted to choose an executor. And it is my further will and it is hereby provided that in the event of the death of my daughter Nellie May Owens, and my son-in-law, William B. Owens, and my granddaughter, Wavelee Oliver, that Roy V. Neff, of Cameron, Missouri, be appointed to act as my executor of this my last will.
"In Witness Whereof, I have signed and sealed, published and declared this instrument as my last will and testament at the City of Maysville, Missouri, this the 13th day of September, 1919.
"JOHN B. HARPER, (Seal)"
The oral evidence offered in connection with the will was brief. The facts disclosed by it may be summarized as follows: At the time the will was written testator's wife was dead, and Nellie May Owens and Wavelee Oliver, nee Owens, his daughter and granddaughter, respectively were his only living descendants. They both survived him, as did his son-in-law, William B. Owens. His estate then and at the time of his decease consisted of 1800 acres of land and personal property of the value of about $20,000. For a number of years prior to his death, testator, his daughter, granddaughter and son-in-law, lived together as one family. He was a member of the Christian Church or Disciples of Christ and took conspicuous interest in its institutional work. During his life he manifested in a marked degree his
sense of obligation to both his family and his church. He was regarded as a man of strong character and unusual business acumen.
The controversy arises over the construction to be given paragraphs "Seventh" and "Tenth" of the will and particularly with reference to the contingency described in the latter in this language: "in case my said daughter and son-in-law and granddaughter should all die without leaving any issue, then in that event," etc. There can be no question but that under paragraph "Seventh," if it were standing alone, Nellie May Owens and William B. Owens would take an estate in fee simple in the lands devised. If "die without leaving any issue," as used in the "Tenth" paragraph, means dying within the lifetime of the testator, then the contingency never happened, and never can happen, and their title is absolute. On the contrary, if "die without leaving any issue" refers to a time subsequent to the death of the testator, then the two paragraphs when read together give Nellie May Owens and William B. Owens merely a defeasible fee. Their estate would terminate upon their dying without issue. Whether, therefore, they take the fee subject to an executory devise, or whether they take absolutely, depends upon the construction adopted with respect to the words, "die without leaving any issue."
Decisions construing the meaning of the words, "dying without issue," or words of like import, when used in wills are without number. Some of the cases take the view that when the context is silent, words referring to the death of the first taker in connection with some collateral event, apply where the contingency happens after, as well as before, the death of the testator. [Britton v. Thornton, 112 U.S. 526; Fifer v. Allen,228 Ill. 507.] But the great weight of authority supports the rule, that when real estate is devised in terms denoting an intention that the primary devisee shall take a fee on the death of the testator, coupled with a devise over in case of his death, without issue, the words refer to a
death without issue during the lifetime of the testator, and the primary devisee surviving the testator takes an absolute estate in fee simple. The intention of the testator is presumed to be to prevent a lapse. [Kohtz v. Eldred, 208 Ill. 60, 69; King v. Frick, 135 Pa. 575; Calloway v. Calloway, 171 Ky. 366, 372; Tarbell v. Smith, 125 Iowa 388; Lumpkin v. Lumpkin, 108 Md. 470; Morgan v. Robbins, 152 Ind. 362; Vanderzee v. Slingerland,103 N.Y. 47; Skey v. Barnes, 25 Eng. Rul. Cas. 603, American Note; 28 R.C.L. 259.]
The rule just stated is in accord with the settled policy of the courts of both this country and England, that words of doubtful meaning will be so construed as to favor the heir; as to give an estate of inheritance to the first devisee; as to vest the title to an estate so that it will not remain in abeyance. In Scofield v. Olcott, 120 Ill. 362, 374, it was said: "It has long been a settled rule of construction, . . . that estates, legal or equitable, given by will, should always be regarded as vesting immediately, unless the testator has, by very clear words manifested an intention that they should be contingent on a future event." And again, it was said by Justice SHARSWOOD in Mickley's Appeal, 92 Pa. 514, l.c. 577, that "the first taker is always the first object of the testator's bounty; and his absolute estate is not to be cut down to an estate for life, or, what is practically the same thing, to be subjected to an executory gift over, upon the occurrence of the contingency of death, or death without issue, at any future period within the rule against perpetuities, without clear evidence of such an intent."
But of course the rule, that where property is devised to one with a provision for a gift over in case of the death of the devisee without issue, the event referred to is death without issue during the lifetime of the testator, like all other subordinate aids to construction, must give way to the primary rule that the intent of the testator is to be gathered from the four corners of the
instrument, giving effect if possible to all its language. Accordingly if there are expressions in the will which indicate that the testator referred to death subsequent to his own demise, they must be given effect. [Schnitter v. McManaman, 85 Neb. 337.] However, we find no such indication in the will before us. On the contrary it is reasonably clear that the testator was but making a devise of his residuary estate in the alternative. If Nellie May Owens and William B. Owens were dead when the will took effect, the estate was to go to Wavelee Oliver; if all three were dead, then it was to go to appellants. The possibility that his daughter and son-in-law, or both they and his grandmother, would predecease him was evidently in his mind. By paragraph "Eighth" he provided that, "in case of the death of both my daughter, Nellie May Owens, and my son-in-law, William B. Owens, then andin that event, . . . I give, devise and bequeath to mygranddaughter, Wavelee Oliver, . . . all the residue," etc. In the concluding language, which dealt with the appointment of an executor, he said: ". . . it is my further will . . . that in the event of the death of my daughter, Nellie May Owens, and my son-in-law, William B. Owens, and my granddaughter, Wavelee Oliver, that Roy V. Neff, of Cameron, Missouri, be appointed to act as my executor of this, my last will." Manifestly these provisions related to deaths occurring before the taking effect of the will. And there is no reason to believe that the testator had in mind any different contingency when he used the language: ". . . in case my said daughter and son-in-law and granddaughter should all die without leaving any issue, then in such event allof my said property shall be divided into four equal parts, andone part shall go," etc."
In support of their contention that the words, "die without leaving any issue," in paragraph "Tenth," should be construed as meaning death whenever it should occur, whether before or after the death of the testator,
appellants invoke the statute (Sec. 2268, R.S. 1919) which provides:
"Where a remainder in lands or tenements, goods or chattles, shall be limited, by deed or otherwise, to take effect on the death of any person without heirs, or heirs of his body, or without issue, or on failure of issue, the words `heirs' or `issue' shall be construed to mean heirs or issue living at the death of the person named as ancestor."
This statute was enacted for the purpose of abrogating the early common-law rule under which the words "die without leaving issue" were construed to mean an indefinite failure of issue. [Naylor v. Godman, 109 Mo. 543, 550; Yocum v. Siler, 160 Mo. 281, 295.] The question in this case is not whether the words "die without leaving any issue" mean issue living at the time of the death of the ancestor, or an indefinite failure of issue, but whether they refer to deaths occurring during the life time of the testator, or subsequently. The rule of construction embodied in the statute is therefore inapplicable. [2 Jarman on Wills (6 Ed.) 1963.]
The judgment of the trial court is in harmony with the views herein expressed. It is accordingly affirmed. Small, C.,
concurs; Brown, C., absent.