Stearns v. Dunn

SOMERVILLE, J. The contention of the appellee — and evidently the theory upon which the trial court proceeded — is that the phrase “lapse or fail” was used by the testator in item 6 of the will in the purely technical sense of nonvesting; and that, as the gift did vest in Mrs. Cobb for life by her survival of the testator, there was no gift over of the remainder to her surviving child, Irene; but, following the law of intestacy, the remainder descended in equhl part under the statute to the child, Irene, and the sister, Mrs. Bowles. The contention of the appellant is that the phrase in question was used in the broader sense of a falling in of the estate, as well as of its nonvesting in the life tenant ; and hence, the life estate having vested in Mrs. Cobb, there was a clear gift over of the remainder after her death to her daughter Irene surviving. Every testamentary bequest is said to lapse when the legatee dies during the life of the testator; no provision being made to the contrary. This is certainly the technical significance of the term. But its use in the broader sense of a falling in of the estate after it has vested, whei-e the context of the will and the "general intention of the testator so indicate, has been given judicial recognition and sanction. Van Pretres v. Cole, 73 Mo. 39, 45. Our statute (Code 1907, § 6166) prevents the lapse of bequests made to children or other descendants of the testator, in case of their death during the testator’s life leaving lineal descendants; and, so far as the children of his daughters were concerned, it was wholly unnecessary for Mr. Bowles to make special provision for the devolution upon them of the estates given to his daughters should the latter not survive him. But it is important to observe that the estates given to his daughters were for their lives only, and it would have been a mere contradiction of terms for him to have provided for the contingent disposition of their life estates in the event they did not live to take them, for there would then have been no such estates. There can, in short, be no technical lapse of a devise merely for life. Looking at the will in its entirety, and noting the manifest purpose of the testator to dispose of his entire estate by the will, and to preserve the ultimate enjoyment of the interests separately given to his daughters for their several children, if any survived them, and to give all to one surviving line if the other became extinct; and, further, looking to the advanced age of the testator, and the practical certainty that his daughters would survive him, we think it is certain that he intended to use the phrase “lapse or fail for any reason” as comprehensive of a falling in of Mrs. Cobb’s life estate by her death after it had vested. This view is strengthened by the fact that he unmistakably used “lapse” in just that sense in the preceding paragraph of the will, in dealing with the legacy provided for his sister. Our judgment is that the property devised to Mrs. Cobb for life was devised in remainder to her daughter Irene, and passed to her in fee simple upon the death of Mrs. Cobb. • The order and decree of the probate court will be reversed, and a decree will be here rendered, denying the relief sought, and dismissing the petition. Reversed and rendered. ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.