Opinion
No. 42615.
April 14, 1952.
APPEAL FROM THE CIRCUIT COURT, CARROLL COUNTY, JAMES S. ROONEY, J.
J. K. Owens, Walter R. Barnes and I.I. Ozar, all of Kansas City, for appellant.
Nolan M. Chapman, Don Chapman and Nolan M. Chapman, Jr., all of Chillicothe, for respondents Mabel and Lannie F. Morris.
Plaintiff-appellant, claiming to own an undivided one-fourth interest in certain real estate in Livingston County, Missouri, generally referred to in the evidence as the "Morris Home Farm", brought this action in partition against defendant Elizabeth Morris Kriner and respondent Mabel Morris. Respondent Lannie F. Morris, claiming a one-half interest therein, was permitted to intervene as a party defendant. Elizabeth Morris Kriner defaulted. The trial court found and adjudged that title was vested in respondents Mabel Morris and Lannie F. Morris as tenants in common, each owning an undivided one-half interest. From that judgment plaintiff appealed.
The common source of title is Anne M. McFarland. Mrs. McFarland, a widow, residing in Jasper County, Iowa, died testate on the 9th day of February, 1939, leaving no lineal descendants. The construction to be placed upon her will, duly admitted to probate in the county and state of her residence and thereafter recorded in Livingston County, Missouri, determines the questions here involved.
Appellant Ruth Lee Miller, defendant Elizabeth Morris Kriner and respondent Mabel Morris are nieces of testatrix and, in certain contingencies stated in the will, are named as devisees of an interest in the farm. Respondent Lannie F. Morris is the widow of William Allen Morris, who was a surviving brother of testatrix. By the will he took a defeasible life tenure in the farm and, in certain contingencies, he was to take a further beneficial interest therein. Respondent Lannie F. Morris claims he took an undivided one-half interest, which he devised to her and she now owns by virtue of his will.
As stated, in her petition and at the trial of this case, appellant claimed an undivided one-fourth interest in the land. But, in her brief in this court, she states: "Since the trial of this case in the lower court, the appellant is now decisively of the opinion, upon a closer examination and study of the testatrix's intentions as manifested in her will, that she is entitled to the `Whole of the Trust Property and Funds' that were in the hands of the trustee at the death of William Allen Morris, to the exclusion of the respondents herein, instead of a one-fourth interest in said farm, as prayed for by appellant in the court below. Therefore, the appellant wants to impress upon this Court the above point at the hearing of this cause de novo." Respondents assert appellant is restricted to the theory on which the case was tried below. The view we take of the case makes it unnecessary to determine that issue.
The will is dated September 30, 1936. A codicil thereto, also involved in this case, is dated October 8, 1937. Item I of the will provides for payment of debts. Items II to VI thereof, both inclusive, dispose of personal effects. Items VII and VIII and the aforesaid codicil are determinative of issues presented on this appeal. These provisions are:
"Item VII To my brother William Allen Morris, I give, devise and bequeath the use, enjoyment, possession, income and benefit of my share of the Morris home farm in the County of Livingston, State of Missouri, located in the South East Quarter (SE 1/4) of Section One (1) in Township Fifty-eight (58) Range Twenty-four (24), so long as he shall live thereon and shall keep the taxes thereon paid and the improvements thereon in a reasonable state of repair. If and when he shall remove therefrom or shall no longer personally reside thereon, or should he fail to keep the taxes on said premises paid and the improvements thereon in a reasonable state of repair, then his rights, title and interest therein shall end and said real estate shall fall into the residuum of my estate and be disposed of in the manner hereinafter provided concerning such residuum. * * *"
"Item VIII Subject to the foregoing provisions of this will, I give, devise and bequeath all of my property of every kind and character and wherever situated in trust to John E. Cross of Newton, Iowa, for the uses and purposes and upon the terms and conditions hereinafter set out, that is to say:"
(a) Provides that the trustee shall convert all property coming into his hands into cash, and under direction of District Court of Jasper County, Iowa, may invest and reinvest proceeds.
(b) Provides for payment of necessary expense of trustee.
(c) "The net income from the property in the hands of the Trustee shall be used and expended from time to time as necessary for the care and support of my brother, Albert D. Morris. Should the income from the trust property not prove sufficient for that purpose, then the principal may be used so far as necessary upon application to and due order of the court above referred to. The trust shall continue and the trust property be used and disposed of as hereinafter directed so long as my brother Albert D. Morris shall live."
(d) "Upon the death of my brother, Albert D. Morris, one-half of all of the property and funds in the hands of the Trustee, shall be paid and turned over to Mabel Morris, daughter of my brother Harry Morris. The other one-half of such trust property and funds shall be paid and turned over to my brother, William Allen Morris, if he should then be living. If he is not then living but shall have died leaving surviving children of his own blood, or issue of such children, then such children or their issue, shall receive his share of the trust fund in equal shares per stirpes. In the event he leaves no children of his own blood nor any issue of such children surviving, then, and in that event, the whole of said trust property and funds shall be paid and turned over to my niece Ruth Lee Miller and thereupon the trust shall cease."
The codicil, insofar as it is applicable to the issues in this case, reads:
"Item II I now modify paragraph (d) of Item VIII of my original Last Will and Testament by providing that in the event my brother William Allen Morris shall die without issue previous to the death of my brother Albert D. Morris then and in that event the one-half of the trust fund referred to said paragraph (d) of Item VIII of the original Will which otherwise would have gone to William Allen Morris or his issue, shall, instead of passing to my niece Ruth Lee Miller alone, pass to and become the property of Ruth Lee Miller and my niece Elizabeth Morris Kriner, daughter of my brother Edward Morris, in equal shares."
Albert D. Morris predeceased testatrix by some ten months. William Allen Morris survived her by almost ten years, dying December 4, 1948. The trustee never took possession of any of the property mentioned in Item VIII and the trust was never put into operation. William Allen took charge of the farm following the death of testatrix and lived upon it until his death, claiming title to an undivided one-half interest therein. It is conceded that he died without lineal descendants and that his widow, respondent Lannie F. Morris, as the sole beneficiary under his will, became invested with title to all of his property.
Inasmuch as William Allen Morris survived Albert D. Morris, the modification of paragraph (d) of Item VIII never became effective and any possible interest of defendant Elizabeth Morris Kriner in the farm was thereby extinguished, as was also the reduction therein of any interest of appellant Ruth Lee Miller by one-half. This codicil may, therefore, be ignored, except for such light as its terms may shed upon the interpretation of the other clauses of the will.
Appellant's claim of title to the farm runs in this wise: That under the provisions of Item VII William Allen Morris took a life estate in the farm; that testatrix did not intend that the trust provided in Item VIII for the benefit of Albert D. Morris extend to the farm during the life of William Allen, for the reason that Item VII gave all of the use and enjoyment thereof to William Allen during that period; that the trustee having no dominion over the life estate the trust did not become operative as to the farm until the termination of William Allen's life tenure; and that the "trustee took title to only such property or real estate that fell into the residuum. The farm * * * did not fall or go into the residuum until upon the termination of the life estate of William Allen Morris"; that by virtue of the last sentence of paragraph (d) of Item VIII, providing that in the event William Allen left no descendants, "the whole of said trust property and funds shall be paid and turned over to my niece, Ruth Lee Miller", title thereupon vested in appellant; and "that the farm in question was not in the hands of the trustee on the death of either Albert D. Morris or testatrix. Hence said farm could not have been conveyed to Mabel Morris, and William Allen Morris, upon the death of either Albert D. Morris or the testatrix."
One of the links in appellant's chain of contentions upon which she bases her claim of title to the whole of the farm may be disposed of in the beginning: It is the above quoted provision of paragraph (d) of Item VIII that if William Allen left no descendants then "the whole of said trust property and funds shall be paid and turned over to my niece, Ruth Lee Miller * * *." The case was tried below upon an agreed statement of facts, in which it was expressly agreed that respondent Mabel Morris was invested with title to an undivided one-half interest in the farm. But, in any event, the contention is wholly without merit. The two immediately preceding clauses of the same paragraph make it clear that testatrix was referring to the whole of the one-half of the trust property and funds that were to go to William Allen, if living. When read together their meaning cannot be mistaken. Furthermore, the provisions of the codicil "spell out" in clear and unmistakable language that by the term "whole of said trust property and funds", as used in paragraph (d) of Item VIII, testatrix meant the whole of the one-half thereof that would go to William Allen, if living.
Item VII gave to William Allen "use, enjoyment, possession, income and benefit" of the farm so long as he lived thereon, paid the taxes and kept it in reasonable repair. It then provided that if he failed to comply with those conditions, his rights should end "and said real estate shall fall into the residuum of my estate and be disposed of in the manner hereinafter provided concerning such residuum". It is this quoted portion of Item VII upon which appellant bases her contention that testatrix postponed investing the trustee named in Item VIII with title to the remainder of the farm until the rights of William Allen therein were terminated, and her further contention that William Allen having occupied the farm until his death, the trustee took no title to the farm until William Allen's death.
"The law favors vested estates, and one of the recognized rules of construction is that an estate will be held to vest at the earliest possible moment of time, which ordinarily is immediately upon the testator's death, unless a clear and certain intention to the contrary is manifested in the will." Ewart v. Dalby, 319 Mo. 108, 119, 5 S.W.2d 428, 432; Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947, 950; Kingston v. St. Louis Union Trust Co., 348 Mo. 448, 154 S.W.2d 39; St. Louis Union Trust Co. v. Herf, 361 Mo. 548, 235 S.W.2d 241.
Item VIII provides that "subject to the foregoing provisions of this will, I give, devise and bequeath all of my property of every kind and character and wherever situated in trust to John E. Cross * * * for the uses and purposes", etc. Unquestionably, the working of that clause purported to invest the trustee with title to the remainder of the farm. Does the intention of testatrix so clearly expressed in this clause conflict with the clause of Item VII upon which appellant relies? We think it does not. The most that can be said of the clause upon which appellant relies is that it delayed the right of the trustee to dispose of the farm and invest the proceeds of the sale thereof until William Allen's rights thereto were terminated by death or earlier divestiture by breach of the conditions imposed upon his right of use and occupancy. Carter v. Alexander, 71 Mo. 585. In so holding we but give effect to both clauses of the will. To hold otherwise would destroy the clear and unequivocal language of Item III.
When Albert D. Morris predeceased testatrix, the purpose of the trust failed. By its terms it was to continue so long as Albert lived. Appellant contends that the trust, nevertheless, continued until the trustee "shall have completed the last active duty" therein provided, which duty, says appellant, was that of conveying the property to the persons entitled thereto under the provisions of paragraph (d) of Item VIII; and which duty, appellant says, the trustee was precluded from performing because the farm did not go into the residuum until the termination of the life estate. Hence, appellant concludes that the title to the farm could not vest until the death of William Allen; and that he having died without descendants title vested in appellant.
Respondents contend that Albert's death prior to the death of testatrix rendered the trust, upon its effective date, to-wit: the death of testatrix, an inactive, dry trust, and that under and by virtue of the Statute of Uses, VAMS and RSMo § 456.020, title to the property passed under the provisions of paragraph (d) of Item VIII.
The great weight of authority is that when the trust created in Item VIII of Mrs. McFarland's will for the benefit of Albert D. Morris failed by reason of his death prior or to that of testatrix, then, in the absence of a manifestation of a contrary intent on the part of testatrix, the entire beneficial interest in the residue of her estate immediately vested under paragraph (d) of Item VIII. Restatement of the Law of Property, Vol. II, § 230, p. 953; Speed v. St. Louis M. B. Terminal Ry. Co., 163 Mo. 111, 63 S.W. 393; Burnett v. McHaney, 347 Mo. 499, 148 S.W.2d 495; Elliott v. Brintlinger, 376 Ill. 147, 33 N.E.2d 199, 133 A.L.R. 1364, and Annotation at page 1367.
We find no manifestation of any contrary intent in the will. The sole purpose of the trust was the care and support of her brother. By paragraph (d) of Item VIII she declared: "Upon the death of my brother, Albert D. Morris, one-half of all of the property and funds in the hands of the Trustee, shall be paid and turned over to Mabel Morris * * *. The other one-half * * * shall be paid and turned over to my brother, William Allen Morris, if he should then be living * * *."
In Speed v. Terminal Ry. Co., supra, this court construed a deed that created a trust for the benefit of the grantor's father, mother and children other than the grantor, with the remainder to the grantor. The beneficiaries having died, it was held, loc. cit. 129: "On the death of `said children' the entire beneficial interest vested in (the grantor) Isaac Drake McDowell. Therefore, the trust became a dry trust, and on the recognized doctrine that, as the extent of the trustee's title is to be measured rather by its object than the words of the trust, and it `cannot be carried further than the complete execution of the trust necessarily requires,' the trustee had no active duty to perform, and, therefore, it was not essential that the trustee, Patrick, should have joined Isaac Drake McDowell in the execution of the deed of trust under which the defendant claims. In such event there was nothing left in the trustee but a naked use, which the statute of uses at once executed in the plaintiff." That rule is applicable in this case.
Appellant has also suggested that "in giving a life estate to William Allen Morris and on his death" to his children or their issue "is the equivalent of creating in him an estate for life and to his bodily heirs". The trouble with that contention is that the will does not give one-half of the property to William Allen and his bodily heirs; it provides that upon Albert's death one-half of the property shall be paid and turned over to Mabel Morris and the other one-half shall be paid and turned over to William Allen, if he should then be living; as, in fact, he was. By the terms of the will itself, the "bodily heirs" of William Allen, had there been any, were to take that share only in the event he be not living upon the death of Albert. It does not provide that they were to take jointly with him.
The provision in paragraph (d) that upon the death of Albert one-half of such trust property and funds shall be paid and turned over to Mabel Morris" and a like provision as to William Allen invests each of them with a fee simple title to an undivided one-half interest in the farm. The word "heirs" or other words of inheritance are not necessary to create or convey an estate of inheritance unless the intent to pass a less estate shall expressly appear or be necessarily implied. VAMS § 442.460 RSMo 1949. No such intent appears or can be implied.
The judgment of the trial court should be and is affirmed.
All concur.