State ex rel. Haines v. Tolson

Hough, J. This action is upon the bond of Joseph Tolson, as administrator de bonis non,with the will annexed, of the estate of John McDonald, deceased, for an alleged failure to pay' over to relators the amount found in his hands on his final settlement, which they claim as contingent legatees under the will of said McDonald, who died testate in 1873, in Howard county, Missouri. The will was probated April 14th, 1873, and William Gr. Edwards, who was named as executor, qualified and commenced the administration, and afterward died. February 14th, 1875, Tolson was appointed, and received $2,655.56 as the amount left unadministered in Edwards’ hands. M. S. Page, the principal legatee, was then his wife. November 3rd, 1875, he made his final settlement, showing $2,427.74 in his hands. M. S. Page, then Mrs. Tolson, died without issue in March, 1877, according to the petition, and this action was commenced July 9th, 1877. Tolson claimed the money in his hands as husband, and paid out portions of it to his wife and for her benefit, during her lifetime, in accordance with his construction of the will. The will in question, omitting the formal parts and the first and last clauses, which are not material, is as follows: (2) It is my will and desire that my executor, hereinafter mentioned, shall, as soon as convenient after my demise, pay all and singular my just debts and funeral expenses out of my money and personal property. (3) I give, bequeath and devise unto Fanny Rawlins, the sum of $1, unto the heirs of Mary Haines $1 each, to Strother H. McDonald the sum of $1, to be paid to the aforesaid parties by my executor in convenient time after my demise. (4) I give, bequeath and devise unto my beloved niece, [325] Margaret Shannie Page, all nay estate not hereinbefore devised, that is to say : (Here follows, described by numbers, the real estate devised.) To have, hold and enjoy to the only proper use and behoof of the said M. S. Page, and her heirs forever. The true intent and meaning of this devise is, to give to the said M. S. Page all my estate, real, personal and mixed, not hereinbefore devised in the third section of this will; provided, however, that it is my will and desire, that, if the said M. S. Page shall die without issue, that then, in such event, the estate herein devised to her shall descend and go to William and Nathan Haines, sister Mary Haines’ children. 1. the statute ¿SStaiefpersonai property, It is argued by the appellants that the fourth clause of the will in question created at common law, an estate-tail Margaret Shannie Page, and that by the fourth section of our statute of Uses and qq-usts, (R. g 8941,) this estate was cut down to a life estate m M. S. Page, with remainder in fee to the next taker, and, therefore, as M. S. Page had only a life estate in the money sued for, the administrator with the will annexed, had no right to pay it over to her, but should have taken proper steps to secure the corpus of said fund for the benefit of the relators, and having failed to do so, he is liable on his bond. As the property sued for is money, the section of the statute in relation to Uses and Trusts above cited, can have no application. That section is, by its terms, applicable to lands, only. Besides, mere personal chattels which do not savor of the realty, cannot be entailed, and there is, therefore, no such estate known to the law'-, as an estate-tail in money, and the statute can at most, only take effect as to the land devised to Miss Page. The argument of the appellants, however, necessarily concedes what we think is quite evident, that the will does not, on its face, and by its terms, create a life estate simply, in Miss Page. If it does not create a life estate, it is plain that, so far as the form of the gift is concerned, the wholu [326] property in the money and other personalty passed to Miss Page, with an executory devise over to the relators. It is well settled,however, that an executory limitation of either real or personal estate to take effect after an indefinite failure of issue, is void. Badger v. Lloyd, 1 Salk. 232; Chism v. Williams, 29 Mo. 288. In order to qualify the common law meaning of the words “ die without issue,” counsel for appellants rely upon section 3942 of the Revised Statutes, which is as follows: Section 3942. “ When a remainder in lands or tenements, goods or chattels, 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 tbe person named as ancestor.” Whether an executory devise comes within the provisions of this section, need pot be decided in this case; for even if the statute does not include executory devises, there are words sufficient in the will to limit the words “ die without issue,” to issue living at the death of M. S. Page, as the limitation over is to two persons in being, and not to them and their heirs. Timberlake v. Graves, 6 Munf. 174; Chism v. Williams, 29 Mo. 288; Deihl v. King, 6 Serg. & R. 29; Bedford’s Appeal, 40 Pa. St. 18. So far as the form of the gift then is concerned it is not within the rule agaiust perpetuities. But as Miss Page took the entire property in the money sued for, and not a mere life estate therein, and as the words of the will “to have, hold and enjoy to the only proper use and behoof of the said M. S. Page, and her heirs forever,” evidently contemplate that she should have the right to use the fund bequeathed, we are of opinion that the money vested in her absolutely, and that the limitatkm over is void for repugnancy. 4 Kent 303; Rubey v. Barnett 12 Mo. 6; Allen v. Claybrook, 58 Mo. 131; 2 Redfield on Wills, 277; Amelia Smith’s Appeal, 23 Pa. St. 9. It follows that the present action cannot be maintained. If the plaintiffs have any rights under the statute of Descents and Distri [327] butions, they must be asserted in a different way. The judgment of the circuit court will be affirmed. The other judges concur.