Prosser v. Hardesty

Brace, J. The plaintiff sues in ejectment to recover the undivided half of a quarter section of land in Platte county. She is the only child of Elizabeth Prosser, nee Elizabeth Cox, daughter of W illiam Cox, who was the owner of said land, and who by his last will and testament disposed of said land by the following clause in his will: “I give and bequeath to my [595] two children Pilgrim Cox and Elizabeth Cox and to their heirs forever my tract of land lying and being in Platte connty, Missouri, described as follows: The northwest quarter of section 32 of township 54 of range 35, in the district of lands subject to sale at Plattsburg, containing one hundred and sixty acres, each of said children to have an undivided half of said real estate, it being placed under exclusive control of my executor who is to manage said real estate and receive the rents of the same and apply them to the maintenance and education of my said children, and when both of the said children arrive at the age of twenty-one then the land is to be exclusively under the control and to be the property of said Pilgrim and Elizabeth Cox. Should either of the said children die before coming of -age or without heirs of their body, then the whole of said real estate is to go to the surviving child and his or her heirs forever, but should either die leaving heirs of his or her body, then the undivided half herein bequeathed to him or her, shall be the property of such heirs. If both of said children should die before arriving of age without lawful heirs of their body, then said real estate shall be equally divided among my other children.” The facts are agreed upon. The.said Pilgrim and Elizabeth Cox who were minors at the time the will was executed, both lived to become of age, and thereafter sold and executed deeds for the land, and the defendant has acquired their title. The said Pilgrim is still living. The plaintiff, as the.only daughter and bodily heir of said Elizabeth who died after she had parted with her title, claims, that the undivided half of the real estate described in the will was thereby devised to her mother for life only, remainder in fee to her, and that she is, therefore, the owner of it. The trial court found for the defendant, and she appeals. The only foundation for this claim is the existence of the word “or” in a [596] provision of the will made in contemplation of a contingency which never happened. By the first paragraph of the will the testator in express terms devises the land in question to his two minor children Pilgrim and Elizabeth Cox, to each an undivided half in fee simple absolute ; makes provision hovrever for its control and management during their minority, but as if to leave no doubt of his intention as to their rights in respect thereof he expressly declares, that when both of said children arrive at the age of twenty-one years the. land is to be exclusively under their control and to he their property. Having thus disposed of the property, in the contingency of his children living to maturity, he then seems to have bethought himself that they might die in infancy, and to meet this contingency makes provision for a remainder in such event by the second and third paragraphs of the will. The plaintiff claims that by the second paragraph a remainder was created not dependent upon the death of one of his children before arriving at age, but dependent solely upon the death of such child without bodily heirs ; to give the will this construction, however, would be to neutralize his intention as expressly declared in the first paragraph of the will, and is itself negatived by the last paragraph in which a remainder is limited after the death of his minor children only in case they die before arriving at age. The evident intent of the testator on the face of the whole will was to provide for a remainder only in case one or both of his minor children died during their minority. By eliminating the word “or” between the words “before coming of age” and the words “without heirs of their body” in the second paragraph of the will, the only doubt as to such intention is removed; the paragraph' is then rendered consistent with itself, a meaning is attached to all its words, and as a whole it is then brought into complete harmony with the other provisions in the will of the testator. That it may and ought to be so read is sound [597] in principle, and is sustained by authority. Jackson v. Blanshan, 6 Johns. 54. But as neither of the testator’s said children died either in infancy, or at all without bodily heirs, there was no remainder raised to be taken by anybody after the death of one or both of such children. In the absence of such contingency, no estate for life only was limited to the plaintiff’s mother, and no remainder vested in anybody. The judgment of the circuit court is right and is affirmed. All concur.