Opinion
March 24, 1928.
1. WILL: Vested Remainder. An item of a will (considered alone) by which testator devised land to his wife for and during her natural life and at her death "to my children Carl and Kate, and their heirs and assigns forever, provided, should one of said children die leaving no descendants then the other to have the entire estate" vested the remainder in Carl and Kate, their heirs and assigns, subject to be defeated only by the death of either without leaving descendants; and as both died leaving children, such contingency did not happen and never could happen, and as Kate, during the lifetime of the wife, acquired, by partition proceedings, the life estate and the interest of Carl, who survived the wife, Kate's deed conveyed the absolute title, and her children, after her death, took nothing by the will, and cannot maintain ejectment to recover the land thus devised.
2. ____: Codicil. A codicil will prevail over a prior inconsistent provision of the will, if it is clear, definite and unequivalent in its language and meaning; but like a subsequent provision in the will itself, a codicil cannot cut down an estate or interest devised by a prior provision unless its language, although inconsistent with the prior provision, is as plain, definite and unequivocal as the language of such prior provision.
3. ____: Absolute Estate: Inconsistent Codicil. The testator, having four children, and by one item of his will having given to Carl and Kate and their heirs and assigns a named tract subject to a life estate in favor of his wife, provided that if either should die "leaving no descendants, then the other to have the entire estate," a contingency that did not happen, and having by another item given another tract to his other two children and to their heirs and assigns forever, provided however if one of them should die before reaching the age of twenty-one years the other was to take the entire estate, and subject to use of the land by his wife for five years to pay his debts, did not cut down the vested estate given to Kate and Carl by the will, by a codicil reciting that "in case of the death of any of my children in his or her minority, or before the lands as provided in my will come into their possession, his or her part of my estate is to be divided equally between the remaining heirs, my wife having the use of the same during her natural life," although Kate died before the wife and never came into possession of the land given to her.
4. ____: Purpose of Words of Codicil. Where it is apparent from the whole will and the codicil that the words used in the codicil that "in case of the death of any of my children before the lands as provided by my will come into their possession, his or her share of my estate is to be divided equally between the remaining heirs" were intended by the testator to apply only to separate tracts of lands given to two sons, they will not be held to include or refer to other lands vested by the will in remainder in a daughter, although she did not come into possession of them before her death, and the words "any of my children" if considered apart from their context and other parts of the will would include her.
5. ____: Interpretation. One of the most persuasive ways of arriving at the intention of the testator is to put one's feet in his shoes and look at the situation through his eyes.
6. ____: Codicil: To Increase Resources to Pay Debts. The testator having subjected lands given to two sons to the use of his wife for five years in order that she might use the income to pay his debts, and it being apparent by other provisions of the will that the purpose of the codicil was to extend the time in which she was to have the use and possession of the land given to them to eight years in order that she might have greater resources with which to pay his debts, it will not be held that by the other words of the codicil that "in case of the death of any of my children in his or her minority, or before the lands as provided by my will come into their possession, his or her share of my estate is to be divided equally between the remaining heirs, my wife having the use of the same during her natural life," testator intended that the unincumbered lands, vested in remainder by another item in the will in his daughter, should be divided equally among his remaining children if she died before coming into possession of them, although twenty-five years after his death she died while her lands were still in possession of the surviving wife. And that conclusion is aided by a consideration of the facts that the daughter was only two years of age when the will was made, and the lands given to her were subject to the wife's life estate; that the sons were nearing their majority, and the lands given to them were not by the will subjected to a life estate in favor of the wife; that it was entirely reasonable that, if either son died before reaching his majority, or before coming into possession, and his share was to go to the other, the wife was to have a life estate therein, as the codicil provided; and that it is unreasonable that the testator would have by the codicil done the useless thing of again giving to the wife a life estate in the lands given to the daughter when he had already by the will given her a life estate in them.
7. ____: Codicil: Ambiguous: Remaining Heirs. The words "the remaining heirs" used in a codicil providing that "in case of the death of any of my children in his or her minority or before the lands as provided in my will come into their possession, his or her share of my estate is to be divided equally between the remaining heirs," are ambiguous. They may be interpreted to mean children of a child of testator if considered only in connection with the words "death before the lands come into their possession;" but they are also used in connection with the words "death in his or her minority," and as testator had no grandchildren when the will was made, and it is unreasonable to suppose that he expected his children, all of whom were then minors and unmarried, to have children of their own before reaching their majorities, the words "remaining heirs" may be as reasonably construed to mean heirs at law as to mean children of a child. And being thus ambiguous, the codicil is not effectual to cut down the vested remainder given to a daughter and son by a plain, clear and unambiguous item of the will, to mean that, in order to take the land, she must come into possession before the death of the wife, which she did not do, but predeceased the wife.
8. ____: Interpretation: Effect to Every Part: Subsequent Clause and Codicil. The rule that the entire will must be considered as a whole, and effect be given to every provision thereof if that be possible, is modified by the further rule that a subsequent clause or codicil is not to be construed to cut down a devise contained in a prior provision of the will, unless the language of the subsequent clause or codicil is as clear, definite and unequivocal as the language of the prior devise.
Corpus Juris-Cvc. References: Wills, 40 Cyc., p. 1392, n. 11; p. 1422, n. 72; p. 2109, n. 66.
Appeal from Lafayette Circuit Court. — Hon. Robert M. Reynolds, Judge.
AFFIRMED.
Aull Aull and Henry C. Chiles for appellants Marie Alise Barnhardt and Ford Hays Barnhardt; George Vaughan of counsel.
(1) In the interpretation of contracts, wills, deeds, or other written instruments, the proper construction of the instrument must be sought from the entire instrument, and not merely from any portion or part of it. Eckle v. Ryland, 256 Mo. 440; Dickerson v. Dickerson, 211 Mo. 496; Buxton v. Kroeger, 219 Mo. 245; Williamson v. Brown, 195 Mo. 336; Gibson v. Bogy, 28 Mo. 478; Orr v. Rode, 101 Mo. 396; McCullock v. Holmes, 111 Mo. 447; Meyer v. Christopher, 176 Mo. 594; Utter v. Sidman, 170 Mo. 284; Armor v. Frey, 226 Mo. 646. Rules of interpretation, formerly adhered to with much strictness, have been changed, modified and abandoned, when in their modern application, they have been found hostile to the end the courts struggle to attain, which is to give effect to the testator's intention, and to effect which they make it the paramount rule to read the whole instrument and if possible give effect and meaning to all its language. Bean v. Kenmuir, 86 Mo. 671; Russell v. Eubanks, 84 Mo. 86; Eckle v. Ryland, 256 Mo. 440. The keystone of construction in determining the meaning of any will is the intent gathered from the four corners, read and considered as a whole. Secs. 555, 2005, R.S. 1919; McMillan v. Hospital, 264 S.W. 413; Cox v. Jones, 229 Mo. 61; Lane v. Garrison, 293 Mo. 537; Kerens v. Company, 283 Mo. 601; Hartnell v. Langan, 282 Mo. 471; Matthews v. Van Cleve, 282 Mo. 19; Wetzel v. Hecht, 281 Mo. 610; Gibson v. Gibson, 280 Mo. 519; Deacon v. Company, 271 Mo. 619; Eckle v. Ryland, 256 Mo. 440; Tevis v. Tevis, 259 Mo. 19; Stewart v. Jones, 219 Mo. 614. And from a consideration of all the provisions of the will, and not from detached portions of it alone. 28 R.C.L. 206, 207, secs. 165, 166; Tevis v. Tevis, 259 Mo. 19; Eckle v. Ryland, 256 Mo. 440; Grace v. Perry, 197 Mo. 550; O'Day v. O'Day, 193 Mo. 62; Drake v. Crane, 127 Mo. 85; Clotilde v. Lutz, 157 Mo. 439. And effect should be given to every word and clause. Tevis v. Tevis, 259 Mo. 19; Eckle v. Ryland, 256 Mo. 440; Clotilde v. Lutz, 157 Mo. 439. In a will, more than in deeds, and yet in the latter, the language used varies so materially and so much that precedents are rarely controlling in a concrete case, except as they may furnish general aiding rules. Therefore the best interpretation of a will or deed is the instrument itself. Cox v. Jones, 229 Mo. 62; Eckle v. Ryland, 256 Mo. 441; Armor v. Frey, 226 Mo. 666; Feller v. Lee, 225 Mo. 332; Chew v. Keller, 100 Mo. 369; Bean v. Kenmuir, 86 Mo. 669; Schorr v. Carter, 120 Mo. 413; Utter v. Sidman, 170 Mo. 294. (2) There is nothing in the record whereby the plaintiffs may be precluded by estoppel; the elements of estoppel are lacking. Burke v. Murphy, 275 Mo. 397; Thompson v. Lindsay, 242 Mo. 76. Plaintiffs are minors and as such could not be precluded by estoppel. Building Loan Assn. v. Eveler, 237 Mo. 681; Nichols v. Robinson, 211 S.W. 14. (3) The plaintiffs were and now are minors, consequently no Statute of Limitations could affect them. Johnson v. Calvert, 260 Mo. 457. Nor would the Statute of Limitations begin to run until the death of the life tenant, who died January 20, 1918, even though the plaintiffs had been sui juris. Rayl v. Golfinopulos, 264 S.W. 911; State ex rel. v. Welch, 175 Mo. App. 311; Elliott v. Mach. Co., 236 Mo. 564; Hall v. French, 165 Mo. 437; Case v. Sipes, 280 Mo. 119; Matthews v. O'Donnell, 289 Mo. 271; Jacks v. Link, 291 Mo. 672; Betts v. Gehrig, 266 S.W. 691; Nichols v. Robinson, 211 S.W. 14; Reed v. Lorne, 163 Mo. 519. Nor could the action of the widow in executing deeds purporting to convey her life interest accelerate the time fixed by the will and codicil for the vesting of the remainder. Crossam v. Crossam, 303 Mo. 572; Wicoff v. Moore, 257 S.W. 474. (4) The partition suit could not affect these appellants since they were not parties to it. The appellants were not in existence at the time the partition suit was instituted. Betts v. Gehrig, 266 S.W. 690. (5) If the testator saw proper to embrace within the will an express provision designating the time when the title in fee should pass, as well as the persons in whom such remainder should vest, and, if under the provisions of the will it is uncertain as to the persons who would take the remainder, it is impossible to comprehend upon what rule, either in law or equity, such clause in the codicil can be ignored in the interpretation of the instrument. There is no uncertainty in this will. Buxton v. Kroeger, 219 Mo. 240. The codicil was expressly inserted in the will, or added thereto, for a purpose, and was intended to express that purpose, and was not intended as a mere empty expression, without force or vitality, in the interpretation of said will and cannot be ignored. Armor v. Frey, 226 Mo. 646; Bean v. Kenmuir, 86 Mo. 670; Buxton v. Kroeger, 219 Mo. 245; Eckle v. Ryland, 256 Mo. 440. (6) The remainder, under the provisions of the will and codicil, is a contingent remainder, or, under some of the decisions, a vested remainder, defeasible on condition subsequent. The death of Kate Hays Barnhardt before the termination of the life estate of the widow, or, the happening of the contingency, defeated the same, if construed to be so vested. Eckle v. Ryland, 256 Mo. 440; Gray v. Clement, 286 Mo. 100; Buxton v. Kroeger, 219 Mo. 224; Dickerson v. Dickerson, 211 Mo. 497; Emison v. Whittlesey, 55 Mo. 258; Maguire v. Moore, 108 Mo. 274; DeLassus v. Gatewood, 71 Mo. 381; Jones v. Waters, 17 Mo. 589; Aubuchon v. Bender, 44 Mo. 560; Rodney v. Landau, 104 Mo. 251; Emmerson v. Hughes, 110 Mo. 630; Sullivan v. Garesche, 229 Mo. 496; 2 Washburn, Real Property (6 Ed.) sees. 1555-1580; Manice v. Manice, 43 N.Y. 380; Edwards v. Hammond, 3 Lev. 132; Doe v. Moore, 14 East, 601; Blanchard v. Blanchard, 1 Allen (Mass.), 223; Donaldson v. Donaldson, 278 S.W. 686. As the title was not to vest in Kate Hays Barnhardt until the death of the widow, or termination of the life estate, or in Carl Wilson Hays, and then only in such of them as were alive at that time, the remainder was necessarily contingent. Dickerson v. Dickerson, 211 Mo. 483; Buxton v. Kroeger, 219 Mo. 231; Tiedeman, Real Property (2 Ed.) secs. 396, 397-403; Emison v. Whittlesey, 55 Mo. 254; DeLassus v. Gatewood, 71 Mo. 381; Rodney v. Landau, 104 Mo. 257; Emmerson v. Hughes, 110 Mo. 630; Maguire v. Moore, 108 Mo. 267; Owen v. Eaton, 56 Mo. App. 563; Taylor v. Adams, 93 Mo. App. 277; Aubuchon v. Bender, 44 Mo. 560; Olney v. Hull, 21 Pick. (Mass.) 311; Thomson v. Ludington, 104 Mass. 193; Denny v. Kettel, 135 Mass. 138; Colby v. Duncan, 139 Mass. 398; Hunt v. Hall, 37 Me. 363; Buck v. Paine, 75 Me. 582; Tillman v. Davis, 95 N.Y. 24; Whitesides v. Cooper, 115 N.C. 570; White's Trustee v. White, 86 Ky. 602; Starr v. Willoughby, 218 Ill. 485; Schaeffer v. Schaeffer, 54 W. Va. 681; 1 Preston on Estates, pp. 36-74; 2 Washburn, Real Prop. (6 Ed.) secs. 1526-1575; Sullivan v. Garesche, 229 Mo. 506; Rinquist v. Young, 112 Mo. 25; Wombles v. Young, 69 Mo. 117; Gray v. Clements, 286 Mo. 100. (7) The will and codicil created two concurrent fees, by way of remainder, one as a substitute for the other, and to take effect in case the prior one fails to vest in interest. Alternative remainders; remainders on a contingency with a double aspect; or, remainders on a double contingency. Eckle v. Ryland, 256 Mo. 450; 23 R.C.L. 487, sec. 12, and p. 551, sec. 96; 1 Fearne on Remainders, p. 373; 2 Washburn, Real Prop. (6 Ed.) sec. 1575; 2 Minor, Real Prop., sec. 737; City of Peoria v. Darst, 101 Ill. 616; Dunwoodie v. Reed, 3 Serg. Ralls, 452; Loddington v. Kime, 1 Ld. Raym. 203; Goodnight v. Dunham, Dougl. 265; Doe v. Burnsall, 6 T.R. 30; Hennessey v. Patterson, 85 N.Y. 91; Doe v. Fonnereau, 2 Dougl. 505, note; Cooper v. Hepburn, 15 Gratt. (Va.) 558; Walker v. Lewis, 90 Va. 582; Allison v. Allison, 101 Va. 556; 2 Minor, Real Prop., sec. 737; 16 Cyc. 650. (8) There is another principle to be reckoned with, namely, in case of doubt, the law favors vested estates and an estate should be held to vest at the earliest possible moment, unless a contrary intention is clearly manifested in the grant. Tindall v. Tindall, 167 Mo. 225; Eckle v. Ryland, 256 Mo. 449. If there be said to have been an equitable estate in remainder, where was it? The answer is found in Eckle v. Ryland, 256 Mo. 454. The tendency of modern decisions on questions of contingent and vested remainders has been more and more to break away from the technical refinements of the old common-law learning. Utter v. Sidman, 170 Mo. 284; Williamson v. Brown, 195 Mo. 313; Godman v. Simmons, 113 Mo. 122; O'Day v. Meadows, 194 Mo. 588; Buxton v. Kroeger, 219 Mo. 245. And allow deeds to be effective in line with the intent of their faces as gathered from the everyday, common sense of their language. Eckle v. Ryland, 256 Mo. 453; Buxton v. Kroeger, 219 Mo. 245; Dickerson v. Dickerson, 211 Mo. 490. (9) The heirs, or the remaining heirs, take as purchasers under the will and codicil of William T. Hays, who devised to them the estate in remainder, by way of substitution for, and not by descent through the deceased mother, Kate Hays Barnhardt. Dickerson v. Dickerson, 211 Mo. 496; Woerner, Am. Law of Admn., p. 902; Williams on Executors (Perkins Ed.) p. 1193; Clark v. Cordis, 86 Mass. 480; Cushman v. Horton, 59 N.Y. 149; Tillman v. Davis, 95 N.Y. 24. If the instrument shows by its context that the word "heirs" was used as equivalent for children, issue, or grandchildren, it may be so considered. Waddell v. Waddell, 99 Mo. 345; 4 Kents Comm. (13 Ed.) 419; Eckle v. Ryland, 256 Mo. 448. The word "heirs" is ordinarily a word of limitation and not of purchase and a party of that designation is held to take by descent or inheritance and not as a purchaser. Eckle v. Ryland, 256 Mo. 448; Garrett v. Wiltse, 252 Mo. 699.
Stephen N. Wilson for apellant Maxine Hays.
(1) There is nothing in the record whereby this defendant may be estopped. B. L. Association v. Evelen, 237 Mo. 681; Burke v. Murphy, 242 Mo. 76; Thompson v. Lindsay, 275 Mo. 397. (2) The Statute of Limitations does not run, or begin to run, against the remainderman during existence of a life estate; the possession by the life tenant or his assigns is rightful against the remainderman, and is not adverse against him. In such cases the statute does not begin to run until death of the life tenant, and to claim to hold absolute title acquired by deeds does not change such possession into adverse possession. Hinters v. Hinters, 114 Mo. 26; Shumate v. Snyder, 140 Mo. 77; Hall v. French, 165 Mo. 430; Graham v. Ketchum, 192 Mo. 15; Charles v. Pickens, 214 Mo. 215; Bradley v. Goff, 243 Mo. 95; Armour v. Frey, 253 Mo. 474. (3) Defendant Carl W. Hays took a contingent interest under the will and codicil of William T. Hays, and until the death of Carl W. Hays his daughter, Maxine Hays, had no right of possession, entry or action, hence no possession by the assigns of Carl W. Hays can be adverse to her. Humewell v. Burchett, 152 Mo. 614; Hall v. French, 165 Mo. 430; Wilson v. Frost, 186 Mo. 317; McMurty v. Fairley, 194 Mo. 512; DeHatre v. Edmonds, 200 Mo. 273; Smith v. Smith, 201 Mo. 544; Armor v. Frey, 253 Mo. 474. (4) The judgment in the partition suit of Carl W. Hays against Kate Hays, a minor, and William T. Hays, by which judgment said Carl W. Hays and said Kate Hays, each, was declared to be the owner in fee of an undivided one-half of the 272 acres sought to be partitioned (same land described in the petition herein) subject to the life interest of said William T. Hays therein, for the lifetime of his mother, Alice Belle Hays, was a void judgment on the face of the record; was not binding on defendant, Maxine Hays, who was not then born; and was in violation of the terms of the will of William T. Hays, deceased, by which the parties to said suit derived their titles. And the said void judgment may be attacked collaterally. Gray v. Clement, 286 Mo. 100; Stockwell v. Stockwell, 262 Mo. 671; Carson v. Hecke, 282 Mo. 580; Norton v. Reed, 253 Mo. 236; Rivard v. Railroad, 257 Mo. 168; Secs. 1995, 2005, R.S. 1919; Gray v. Clement, 296 Mo. 497. (5) The expression in the will, that, "should one of said children die leaving no descendants, then the other to have the entire estate" when construed by Sec. 2268, R.S. 1919 means, leaving no descendants living at time of the death of the ancestor, Carl Wilson Hays or Kate Hays, the devisees named. Naylor v. Godman, 109 Mo. 543; Emmerson v. Hughes, 110 Mo. 627; Godman v. Simmons, 113 Mo. 122; Harnett v. Langan, 282 Mo. 491. (6) The court erred in its construction of the will and codicil of William T. Hays, and in giving judgment against the minor defendant, Maxine Hays. The proper construction must be sought from the entire instrument, and not from a mere portion, in order to determine the intention of the testator and give effect to every word and clause in the whole instrument. Walton v. Dumtra, 152 Mo. 489; Utter v. Sidman, 170 Mo. 284; Meyer v. Christopher, 176 Mo. 594; Williamson v. Brown, 195 Mo. 336; Dickerson v. Dickerson, 211 Mo. 496; Buxton v. Kroeger, 219 Mo. 245; Armor v. Frey, 226 Mo. 646; Eckle v. Ryland, 256 Mo. 424; Tevis v. Tevis, 259 Mo. 19; Kerens v. Union Trust Co., 283 Mo. 601; Lane v. Garrison, 293 Mo. 530, 537. The will by item 2 created a life estate in the widow, and two separate concurrent fees, by way of remainders, one as a substitute for the other, and to take effect in case the other failed to vest by reason of either devisee named having "died leaving no descendants." These two remainders are contingent until the death of both devisees has occurred and the contingent event of having "died leaving no descendants" is finally determined. 23 R.C.L. 487, sec. 12, p. 550, sec. 94, and p. 551, sec. 96; 2 Minor's Institutes, p. 337; Emerson v. Whittlesey, 55 Mo. 258; Maguire v. Moore, 108 Mo. 274; Dickerson v. Dickerson, 211 Mo. 497; Buxton v. Kroeger, 219 Mo. 224; Sullivan v. Garesche, 229 Mo. 506; Eckle v. Ryland, 256 Mo. 440; Gray v. Clement, 286 Mo. 100; Tevis v. Tevis, 259 Mo. 19; Johnson v. Calvert, 260 Mo. 458; Hartner v. Lang, 282 Mo. 493; McFarland v. Bishop, 282 Mo. 554; Schee v. Boone, 295 Mo. 212; Audsley v. Hale, 303 Mo. 472.
Henry Polk Lowenstein, Horace F. Blackwell and Lyons Ristine for respondents Edward J. McGrew, Joseph O. Lesueur, and L.D. Lesueur.
(1) The law favors vested estates, and estates shall be held to vest at the earliest possible period unless a contrary intention is clearly manifested in the grant. Tindall v. Tindall, 167 Mo. 225; Chew v. Keller, 100 Mo. 362; Byrne v. France, 131 Mo. 646. (2) Under item 2 of the will Carl Wilson Hays and Kate Hays, upon the death of the testator, took a vested remainder in the land, subject to be divested should one of said children die leaving no descendants. Collier v. Archer, 258 Mo. 383; Yocum v. Siler, 160 Mo. 281; Gannon v. Allbright, 183 Mo. 238; Gannon v. Pauk, 200 Mo. 75; Brown v. Tuschoff, 235 Mo. 449; Owens v. Men Millions Movement, 296 Mo. 118. (3) The codicil is ambiguous and uncertain, and therefore did not cut down to a less estate the estate devised to Carl Wilson Hays and Kate Hays under item 2 of the will. Hull v. Calvert, 286 Mo. 163; Tebow v. Dougherty, 205 Mo. 315; Wells v. Fuchs, 226 Mo. 97; Chew v. Keller, 100 Mo. 362; Sevier v. Woodson, 205 Mo. 214; Middleton v. Dudding, 183 S.W. 443; Thornbrough v. Cravens, 225 S.W. 445; Cornet v. Cornet, 248 Mo. 223; Real Estate Co. v. Megaree, 280 Mo. 54; Payne v. Reece, 297 Mo. 60; Bowles v. Shocklee, 276 S.W. 18. (4) Carl Wilson Hays and Kate Hays Barnhardt both died leaving descendants, and thereby were vested absolutely with the fee-simple title to said lands, and having previously conveyed by warranty deeds and other conveyances the fee-simple title to said lands for a valuable consideration, the defendant Edward J. McGrew became vested with the fee-simple title, and plaintiffs took nothing, and have no interest in said land. Collier v. Archer, 258 Mo. 383; Brown v. Tuschoff, 235 Mo. 449.
The petition was in two counts, ejectment and partition. The case involves the title to a tract of land in Lafayette County, containing 272 acres. Judgment below went for defendants McGrew and Joseph and L.D. Lesueur. Plaintiffs and defendant Maxine Hays appealed.
William T. Hays was the common source of title. In January, 1887, he died testate and seized of the fee-simple title to said land and other lands, leaving surviving him as his sole heirs at law and devisees under his will his widow, Alice Belle Hays, and his sons, William T., born in April, 1866, Frank W., born in May, 1869, and Carl W., born in May, 1874, and his daughter Kate, born in June, 1884. None of said children had reached majority at the death of testator.
Kate married W.C. Barnhardt on August 20, 1903, and the children of that marriage were Marie Alise Barnhardt, born March 24, 1905, and Ford Hays, born July 1, 1907, who, by their curator, were plaintiffs in the case at bar. Kate died June 16, 1911, leaving said children surviving her. Kate's mother Alice Belle Hays, survived Kate, and died January 20, 1918, leaving as her sole heirs her sons, William, Frank and Carl, and her grandchildren, Marie Alise and Ford Hays Barnhardt, the children of Kate Hays Barnhardt, deceased.
Defendant Carl W. Hays was married January 21, 1901, and defendant Maxine Hays was born on December 10, 1903, as the sole fruit of said marriage. Carl Hays was living when his mother died, and when this suit was instituted, but he did not appeal from the judgment. It has been stipulated that he has died since the judgment was entered below.
On July 3, 1886, William T. Hays, as testator, executed his last will and testament. Items 2 and 3 thereof were as follows:
"Item 2. I give and devise to my wife, Alice Belle Hays, all my lands in Sections twenty-four (24) and twenty-five (25) in Township fifty-one (51), range twenty-seven (27) in Lafayette County, Missouri, being about 272 acres, to have and to hold for and during her natural life and at her death said land to go to my children Karl Wilson Hays and Kate Hays, and their heirs and assigns forever, provided, should one of said children die leaving no descendants then the other to have the entire estate, excepting, however, the coal underlying said land which with all necessary privileges upon the surface thereof for the convenient mining and removal of the same I hereby give and devise to my said wife absolutely.
"Item 3. I give and devise to my children William T. Hays, Jr. and Frank W. Hays all of my land in said County lying in sections nineteen (19) and thirty (30) township fifty-one (51) range twenty-six (26) containing about 300 acres, and to their heirs and assigns forever; should one of them, however, die childless before reaching the age of twenty-one years the other is to take the entire estate; this devise is, however made subject to the right of my wife to have and hold and use said lands and premises for the full term of five years after my death and to take and receive the rents, profits and proceeds thereof for said term of five years, and subject to the further right and power in my said wife to re-secure by mortgage or deed of trust upon said land the debt that may be existing thereon at the time of my death and interest thereon hereby giving my said wife full power and authority to bind said land for said debt, and make execute, acknowledge and deliver all necessary mortgages or deeds of trust for the full execution of said power. It is my intention, however, and I here make an ultimate charge for all such mortgages, debt and interest upon the land given to my wife in the next succeeding item."
One week after the execution of said will testator added thereto the following codicil:
"I, W.T. Hays, of County of Lafayette, State of Missouri, do make this my codicil, to my will of July 3, 1886. I hereby extend the time for which my wife Alice B. Hays is to have and hold and use my lands in sections nineteen (19) and thirty (30) township fifty-one (51) range twenty-six (26) and is to take and receive and use the rents, profits and proceeds for the full term of eight (8) years after my death (instead of five (5) years as provided in will of July 3, 1886). I also hereby empower my wife Alice B. Hays to re-secure by mortgage or deed of trust any debts I may owe on any or all of my lands at the time of my death. In case of the death of any of my children in his or her minority or before the lands as provided in my will of July 3, 1886, come into their possession, his or her part of my estate is to be divided equally between the remaining heirs, my wife Alice B. Hays having the use of the same during her natural lifetime, to take and receive the rents, profits and proceeds thereof. In case my wife Alice B. Hays should die before the provisions of will of July 3, 1886, for the payment of my debts should have been carried out, I desire that my eldest son, W.T. Hays, Jr., and my nephew O.O. Wilson, shall succeed her as Executors of my estate, and O.O. Wilson I hereby appoint Guardian of my children who may be minors at my wife Alice B. Hays death."
Without entering into unnecessary details, it is sufficient to say that, during the lifetime of both Alice Belle Hays and her daughter Kate, such proceedings in partition were had and such conveyances were executed and delivered that Kate undertook to acquire and assumed that she had acquired the fee-simple title to the land in controversy, including the life estate of her mother therein. Thereafter Kate and her husband executed a mortgage or deed of trust on such land to secure the payment of a note therein described. Said mortgage or deed of trust was afterward foreclosed. Defendant McGrew claims title to the land by successive conveyances from the purchaser at said foreclosure sale.
Defendant Joseph O. Lesueur is the trustee, and defendant L.D. Lesueur is the beneficiary, in a certain deed of trust upon said land securing the payment of two notes executed by defendant McGrew, aggregating $17,500 and interest. Neither of the plaintiffs nor defendant Maxine Hays were parties to said notes or deed of trust.
The land involved in this case is the land mentioned in item 2 of the will above quoted. Respondents contend that the language of item 2 devised to Carl and Kate Hays a vested remainder in said land, subject to be defeated as to the undivided one-half interest of either by his or her death leaving no descendants; that, as Carl and Kate died leaving descendants, the contingency never happened and never could happen by which their title as remaindermen could be defeated. Respondents further contend that the subsequent codicil did not and could not have the effect of cutting down the devise to Carl and Kate, unless the language of said codicil is as clear, definite and unequivocal as the language of item 2. They contend that the language of the codicil is ambiguous and hence does not have such effect; that, as Carl and Kate took a vested remainder in the land and had the right to convey their said interests and did so, respondent McGrew acquired such interest and his interest could only be defeated by the happening of the event specified in item 2, to-wit, the death of Carl and (or) Kate leaving no descendants; that, as such event never happened and never can happen, it leaves respondent McGrew with fee-simple title in the land, subject only to the lien of the deed of trust held by the Lesueurs.
Appellants Marie Alise and Ford Hays Barnhardt contend that the codicil clearly evidenced the intent of testator to modify such devise so that the title would "vest in those of his blood at the date of the death of his widow" and not sooner; that, by the language of item 2, Carl and Kate took no title or interest in said land until the death of the life tenant. They contend that, as Kate was dead when the life tenancy terminated and never came into possession of the land, such remainder, under item 2 and under the codicil, then vested in the children of Kate, their mother; that as such children they are unaffected by the partition proceedings, to which they were not parties, or by any subsequent conveyances by their mother, designed to alienate the title, and that they now are the owners, in fee simple of an undivided one-half interest in said land, free and clear of any claims of respondent McGrew or those claiming under him.
We think that, by item 2 of the will, a life estate in the land was devised to testator's widow with remainder (except the underlying coal) in Carl and Kate, their heirs and assigns forever, subject to be defeated only by the death of either Carl or Kate without leaving descendants. That contingency not having occurred, the deed of trust executed by Kate, which was subsequently foreclosed, was sufficient to pass the title and cut off any interest the children of Carl or Kate might have, unless the codicil, the effect of which will be considered later, cut down the estate of Carl and Kate in said lands. By item 2 testator provided for and authorized conveyance by Carl and Kate, subject to the foregoing contingency, by devising the remainder to them, their heirs and assigns forever. Title could only pass to "assigns" of Carl and Kate by assignments made by them in their lifetime.
In Yocum v. Siler, 160 Mo. 281, 61 S.W. 208, the land was devised to William F. Yocum absolutely, with the restriction that if devisee died without legal issue, etc., said land should pass to others named. Devisee left three sons surviving him at his death in 1892. In 1858 he had conveyed the land by warranty deed to one Norris and by mesne conveyances and under the provisions of a will, the title came to Mrs. Siler, the defendant, for life and thereafter to her children. It was held that, as the condition of William Yocum dying without issue did not happen and never could happen, the deed, made by William F. Yocum in his lifetime and before it was known whether or not the contingency might happen, conveyed good title to defendant's remote grantors and through them to the defendant.
In Gannon v. Pauk, 200 Mo. 75, 98 S.W. 471, Michael Gannon, the testator, devised the land to Michael Gannon, Jr., and Joseph E. Gannon "and unto their heirs and assigns forever" and provided that "should either of them die without issue then the survivor, his heirs and assigns to take, own and have the part and portion hereby bequeathed to the one so dying. And in the event both should die without leaving any issue, then," etc. Michael, Jr., and Joseph, during their lifetime and, of course, before it could be known whether either or both or neither would die leaving issue, conveyed whatever title they had to defendants' grantors. Thereafter both of them died leaving issue. It was held that Michael, Jr., and Joseph had the power to make disposition of the land, subject only to the possibility that such disposition might be defeated by the contingency that one or both of them should die without issue and, as that condition did not happen and never could happen, good title was passed to their grantees by the deeds executed by them in their lifetime.
The Yocum and Gannon cases, supra, were by Court en Banc and the authority of those cases has not since been questioned. In our opinion those cases very clearly require the holding in this case that, under item 2 of the will of William T. Hays, deceased, the title to the land in question (except the coal), subject to the life estate of their mother, was devised to Carl and Kate Hays and that they had good right in their lifetime to sell and dispose of all their right, title and interest therein, subject only to the possibility that the interest so sold and disposed of by them or either of them might be defeated by the happening of the contingency that one or both of them should die leaving no descendants. As both Carl and Kate died leaving descendants, such contingency did not happen and never can happen. In so far as item 2 is concerned, their grantees took good title. The cases of Collier v. Archer, 258 Mo. 383, 167 S.W. 511, and Brown v. Tuschoff, 235 Mo. 449, 138 S.W. 497, and other cases cited by respondents also well support the foregoing conclusion.
It remains then to consider what effect the codicil had upon the estate of Carl and Kate devised to them by item 2 of the will. A codicil will prevail over a prior inconsistent provision in a will, if such codicil is clear, definite and unequivocal in its language and meaning. There is no controversy in this case about that proposition of law. Yet a codicil, like a subsequent provision in the will itself, cannot cut down an estate or interest devised by a prior provision unless the language of such codicil, although inconsistent with the prior provision, is as plain, definite and unequivocal as the language of such prior provision. [Wells v. Fuchs, 226 Mo. 97, l.c. 105, 125 S.W. 1137; Sevier v. Woodson, 205 Mo. 202, l.c. 214, 104 S.W. 1; Payne v. Reece, 297 Mo. 54, l.c. 60, 247 S.W. 1006.] Further citation of authority in support of this rule is unnecessary. Appellants do not controvert its correctness. They contend that the codicil is sufficiently clear, definite and unequivocal to meet the test above stated.
The only part of the codicil, which could be said to modify or cut down the estates granted to Carl and Kate in item 2, is as follows:
"In case of the death of any of my children in his or her minority or before the lands as provided in my will of July 3, 1886 come into their possession, his or her part of my estate is to be divided equally between the remaining heirs, my wife Alice B. Hays having the use of the same during her natural lifetime, to take and receive the rents, profits and proceeds thereof."
"Any of my children" necessarily included Kate and, if testator clearly intended to cut down the devise to her so that she would have no vested interest in the land before she actually came into possession, she, of course, could convey no interest, because she never came into possession of the land devised to her in item 2 and the interest she would have taken, had she survived her mother, would go to "the remaining heirs." when the life estate of the widow was terminated.
There are several considerations which suggest the thought that testator did not have in mind the devise to Carl and Kate in item 2 when he executed the codicil, notwithstanding the use therein of the all-inclusive words "any of my children." The intent of the testator, as said by LAMM, J., in Gannon v. Pauk, supra, "may be got at in various ways. One persuasive way would be to put our feet in his shoes and look at the situation through his eyes." We must try, as far as possible, to get at testator's viewpoint.
The will was executed in July, 1886. William T., Jr., was then twenty years old. Frank was seventeen years old. Both were fast approaching majority. Carl was twelve years old and Kate was two years old. By item 3 of the will, William and Frank were devised all of testator's land in sections 19 and 30 and the devise went to them and their heirs and assigns forever, with the provision that "should one of them, however, die childless before reaching the age of twenty-one years the other is to take the entire estate." It was then provided that the widow should have the right to have and hold and use such premises for five years after testator's death and "to take and receive the rents, profits and proceeds thereof for said term of five years, and subject to the further right and power in my said wife to re-secure by mortgage or deed of trust upon said land the debt that may be existing thereon at the time of my death and interest thereon hereby giving my said wife full power and authority to bind said land for said debt, and make, execute, acknowledge and deliver all necessary mortgages or deeds of trust for the full execution of said power. It is my intention, however, and I here make an ultimate charge for all such mortgages, debt and interest upon the land given to my wife in the next succeeding item."
Items 4, 5 and 6 of the will should be quoted in order to understand better the viewpoint of testator in making the codicil. Those items are as follows:
"Item 4. I give and devise to my wife Alice Belle Hays absolutely my house and land known as the `Ewing Place' being Lot No. three (3) of the Lexington Land Company, lying an Section thirty-four (34) in township fifty-one (51) and range twenty-seven (27) in Lafayette County, Missouri, subject to the payment however of all my debts including those which are incumbrances on my other land, which I here make as an ultimate charge on said `Ewing Place' it being my will that after the exhaustion of my personal property and the other provisions made herein for my debts, if it becomes necessary to go upon my real estate, then that this land be sold by my executrix to pay such debts or the balance thereof, remaining due and unpaid.
"Item 5. I give and bequeath to my said wife all the balance of my property, including all my personal property, cash on hand, horses, cattle, sheep, hogs, grain, produce, growing crops, household and kitchen furniture, debts and choses in action coming to me, with which she is, however, to pay as far as may be necessary any obligation that I may owe to the Morrison-Wentworth Bank at the time of my death and to assist her in discharging my other debts including those secured by deed of trust upon my lands. My wife is also to give to my sons, Wm. T. Hays, Jr., and Frank W. Hays each five years after my death one horse suitable for farming purposes, one good milch cow, one brood sow and three shoats each, and is also to educate, clothe and board my children Karl W. Hays and Kate Hays free of charge and expense to them until they arrive at lawful age.
"Item 6. The five years use of the farm described in item three (3) given therein to my wife, is made for the express purpose of assisting her in making payment of my debts, which I think with my personal property reasonably sufficient for that purpose and the other purposes expressed in item five."
In item 3 the possession of William and Frank was only postponed for five years after the death of testator. From items 4, 5 and 6 and the excerpt from item 3, quoted above, it is apparent that testator was very deeply concerned about making adequate provision for the payment of his debts. So far as appears from item 2, the land devised to the widow for life with remainder in Carl and Kate was unencumbered. But it appears that the 300 acres devised by item 3 to William and Frank were encumbered. As stated in item 6, the five years' possession and use given to the widow in which to hold the land devised to William and Frank were "for the express purpose of assisting her in making payment of my debts."
It is reasonable to suppose that, after thinking over the provisions of the will for a week, testator came to the conclusion that the five years he had set for his wife to have the use and possession of the lands in sections 19 and 30, devised to William and Frank, might prove too short a time to enable her to pay off his debts. In order to avoid charging "Ewing Place" (the home place), given to the widow in item 4, with too great an encumbrance, testator apparently concluded that the time should be extended to eight years.
Now, from that viewpoint, the execution of the codicil can be understood as inspired by testator's dissatisfaction with the debt-paying provision of item 3. The codicil extended the time for the widow to hold the lands devised to William and Frank and to apply the proceeds to the debts of testator from five years to eight years and extended the power of the widow so that she could encumber all of his lands instead of limiting such power to the "Ewing Place" (item 4) and the lands in sections 19 and 30 (item 3).
Very enlightening upon the purpose and intent of testator in executing the codicil is the reservation to the widow of a life estate in the lands going to "the remaining heirs," upon the contingency of a child dying during minority and before coming into possession. Testator seems to have been thinking only of his debts in their relation to the lands described in item 3, which he had devised to William and Frank. Their possession had been postponed from five years under item 3 to eight years under the codicil. It was entirely possible that either of them might die before becoming of age or before coming into possession. In that event, the provision that the widow, if living, should take a life estate in the share of either William or Frank appears reasonable. But there is nothing in the codicil cutting down the life estate of the widow already provided for in the lands in sections 24 and 25 devised to Carl and Kate under item 2. The testator surely could not have intended to do the useless thing of granting his widow a contingent life estate in lands in which he had already made provision for her to have that same estate in the first instance.
Another consideration, which suggests the thought that, although testator used the general words "any of my children" in the codicil, he really had in mind only the children mentioned in item 3, is that William and Frank were nearing majority when the will and codicil were executed and neither would come into possession either under item 3 or the codicil until after majority, even though testator should die soon after the execution of the will and codicil. But such coming into possession would likely be in the lifetime of their mother. For that reason, it was natural for testator to provide for his widow to have a life estate in their share, if either failed to come into possession, in addition to the life estate he had already provided for her in the lands mentioned in item 2. Coming into possession by Carl and Kate would likely be postponed much longer, due to the fact that their mother was probably of an age which would give her a life expectancy of a number of years. She actually lived over thirty-one years after testator died. Judged by the age of all the children and the many years she outlived testator, the widow may have been under forty years of age when the will was executed. Possession by William and Frank was a matter for immediate concern, while the question of possession in Carl and Kate was likely to have been much more remote from testator's concern when he added the codicil to the will.
There is much doubt and uncertainty concerning what testator meant by the words "remaining heirs," as used in the codicil. Appellants' contention that they mean the children of a child of testator would have much to commend itself if such words were used only in connection with the words "death . . . before the lands . . . come into their possession." But they are also used in connection with the words "death . . . in his or her minority . . ." It must be remembered that, when the will was drawn, there were no grandchildren of testator in existence. Nor is it reasonable to think that testator expected any of his children to have children of their own before they reached their majorities. For that reason, the use of the words "remaining heirs" may at least as reasonably be construed to mean the heirs at law of testator, as to mean the children of a child of testator. Hence, the term "remaining heirs," as used in the codicil, must be regarded as ambiguous.
From the foregoing considerations, we conclude that the language of the codicil is not of that clear, definite and unequivocal character necessary to cut down the estate vested in Carl and Kate by the prior provision of the will. It was therefore not effectual to postpone their right and interest in the land to the time when they would come into possession at the death of their mother, if they were alive at that time, as appellants contend.
We have already concluded that, under such item 2, unaffected by the codicil, Carl and Kate each become vested with an undivided half interest in the remainder in said land, subject to the contingency that the estate of either might be defeated in the event of his or her death without leaving descendants. As such contingency did not happen and cannot happen hereafter, the deed of trust executed by Kate Hays Barnhardt and her husband, after she had acquired whatever right, title and interest the other children and the widow of testator had in the land, effectually conveyed the title to respondent McGrew, through mesne conveyance from the purchaser at the foreclosure sale under said deed of trust, and Kate's children have no interest in the land.
In coming to this conclusion, we are not unmindful of the rule that the entire instrument, that is the will and codicil, must be considered as a whole and effect be given to each and every provision thereof, if possible. It is unnecessary to refer to the numerous cases cited by appellants in support of this rule. However, this rule of construction is modified by the equally well-recognized rule that a subsequent clause or codicil in a will should not be construed to cut down a devise contained in a prior provision, unless the language of the subsequent provision or codicil is as clear, definite and unequivocal as the language used in the prior provision.
The interest in the other undivided one-half of the land in controversy was effectually cut off by the partition proceedings and the warranty deed of Carl Hays to Kate Hays and her subsequent deed of trust, whether Carl Hays took under item 2 alone or under item 2 modified by the codicil. He outlived his mother, the life tenant, and did not die before he would have come into possession had he not previously conveyed his right, title and interest in the land. And because he died leaving a descendant, under no theory can appellant Maxine Hays now claim any right, title or interest in said land.
It results from the foregoing that the trial court reached the correct result and entered judgment for the right parties. It is unnecessary to consider the correctness of all the conclusions announced by the trial court. Its judgment is affirmed, both upon the appeal of plaintiffs and upon the appeal of defendant Maxine Hays. All concur.