Opinion
February 26, 1942. Opinion Modified and Rehearing Denied, April 16, 1942. Further Rehearing Denied, June 3, 1942. Motion to Transfer to Banc Overruled, July 1, 1942.
1. WILLS: Adoption of Children: "Issue" Construed as Heirs of the Body: Adopted Child Excluded. The term "issue" used in the clause dealing with personal property is construed as having the same meaning as "heirs of their body" used in the clause devising realty. The plaintiff, being an adopted child, is excluded.
2. WILLS: Adoption of Children: Statute Does not Require Adopted Child to Take as "Issue." Sec. 9614, R.S. 1939, does not require the construction that an adopted child shall inherit property that was limited to the "issue" of a life tenant, when the term is construed as meaning heirs of the body.
3. WILLS: Estates: Reversion not Merged. There was no merger between the estate of the life tenant and a reversion retained by the testatrix. She disposed of her entire estate and the life tenant was never vested with the fee.
4. WILLS: Estates: Prohibition Against Fee Tail Estates Does not Invalidate Provision of Will. Sec. 3498, R.S. 1939, prohibiting estates tail, does not prevent effect being given to a clause in the will which makes a gift over if the life tenant dies without heirs of his body. [Brown v. Rodgers, 125 Mo. 392, overruled in part.]
Appeal from Jackson Circuit Court. — Hon. John F. Cook, Judge.
AFFIRMED.
Martin J. O'Donnell for appellant.
(1) The use of the word "issue" in the third paragraph instead of the technical term "heirs of the body" operated to prevent the third paragraph from ever taking effect and to make appellant, an adopted child, the owner of one-half of the real estate devised. St. Louis Union Trust Co. v. Hill, 336 Mo. 17; In re McEwan Estate, 128 N.J. Eq. 140, 15 A.2d 340; In re Holden's Tr., 207 Minn. 211, 291 N.W. 104; Leeper v. Leeper, 147 S.W.2d 660; Sewall v. Roberts, 115 Mass. 262; Hartwell v. Tefft, 19 R.I. 644, 35 A. 882; In re Olney, 27 R.I. 495, 63 A. 956; Laws 1917, pp. 193-194; Secs. 9613, 9614, R.S. 1939; Walker v. O'Brien, 115 F.2d 957; Estate of Winchester, 140 Cal. 468. (2) The adoption decree was the sentence of the law declaring plaintiff's status as the child of his adoptive father "to all legal intents and purposes" and under the "fourth" paragraph of the will of Sallie Cowherd required the trustee on the death of the adoptive father to pay said father's portion to plaintiff's guardian. The demurrers were mere collateral attacks on said decree and, hence, the judgment must be reversed. Niehaus v. Madden, 155 S.W.2d 141. (3) Sallie Cowherd by her will carved out of her fee simple estate in the land devised lesser estates than that owned by her, to-wit, life estates in her nephews with contingent remainders to the "heirs of their body" by the second paragraph of the will retaining the reversion in fee simple and by the third paragraph providing that in the event that either nephew died then to his survivor and to the heirs of his body. Both of these estates were less than the fee simple. The result was (1) when Sallie Cowherd died plaintiff's adoptive father inherited the reversion in fee simple, (2) he then held the reversion and the life estate which merged therewith, (3) the contingent remainder was thereby destroyed and the entire fee vested in the adoptive father (perhaps subject to being divested by the birth of an heir of his body), and (4) when the adoptive father died appellant as his son and heir inherited the reversion in fee simple no longer subject to being divested by unborn heirs of his dead father by adoption, (5) and the third paragraph never became effective (A) for the foregoing reasons, (B) for the reason that appellant was issue of his adoptive father under the adoption law and the condition precedent to its taking effect did not exist, (C) no person can by creating two estates tail give effect to the last because the statute is as much a part of the first as if written into it and whether there be heirs of the body or not the statute acting on and written into the first cannot be thus nullified and it compels a reversion to the heirs of the testatrix. Stockwell v. Stockwell, 262 Mo. l.c. 675; Gillilan v. Gillilan, 278 Mo. 99; 23 R.C.L. 518, secs. 56-57; Hyde v. Hopkins, 317 Mo. 587; Collins v. Whitman, 222 S.W. 840; Lewis v. Lewis, 345 Mo. 816; Begley v. Watson, 98 Tenn. 353; Craig v. Warner, 5 Mackey, 460; 4 Kent's Comm. (9 Ed.), 283; 1 Schouler on Wills, sec. 874, p. 1330; Peugnet v. Berthold, 183 Mo. 64; 2 Washburn, Real Prop. (6 Ed.), secs. 1509, 1510, 1611; 3 Washburn, Real Prop. (6 Ed.), sec. 2246; Hopkins, Real Prop., p. 306; Ryan v. Maghan, 99 Tenn. 338; Stockwell v. Bowman, 67 S.W. 379; Chapin v. Knott, 67 N.E. 833; Coats v. Zewell, 25 S.W. 525; 26 S.W. 179; Peterson v. Jackson, 63 N.E. 646; Kamarver v. Kamarver, 381 Ill. 587; 14 Cyc. 33; 18 C.J., pp. 821, 822, and notes; Collins v. Whitman, 22 S.W. 840; Peugnet v. Berthold, 183 Mo. 64; Harrison v. Weatherly, 180 Ill. 418; In re Kenyon, 17 R.I. 149 Stokes v. Van Wzak, 83 Va. 725; Gilman v. Stone, 123 Ky. 137; Begley v. Watson, 98 Tenn. 353; Loring v. Eliot, 16 Gray, 574; 23 R.C.L., p. 1101, sec. 5; Bond v. Moore, 236 Ill. 576; 2 Bl., Comm., 178, 171; Lewin v. Bell, 258 Ill. 227; Lewis v. Pleasant, 143 Ill. 211; Wood v. Chase, 327 Ill. 91; Fuller v. Fuller, 315 Ill. 214; Dinwiddie v. Self, 145 Ill. 290; Peugnet v. Berthold, 183 Mo. 61; Sec. 3498, R.S. 1939; Laws 1917, pp. 193, 194; St. Louis Union Trust Co. v. Hill, 336 Mo. 17; Brock v. Dorman, 339 Mo. 611; Leeper v. Leeper, 147 S.W.2d 660; Niehaus v. Madden, 155 S.W.2d 141; Digby's History of the Law of Real Prop., p. 226; Gannon v. Albright, 183 Mo. 238; Tiffany on Real Property (1939 Ed.), sec. 47; Lewin v. Bell, 258 Ill. 227; Bl., Comm., Book II, 178; Wood v. Chase, 327 Ill. 91. (4) Testatrix having attempted to create one estate tail could not be permitted to attempt to create another and consequently the third paragraph was noneffective and the remainder referred to in the third paragraph was void. Tiffany on Real Estate (2 Ed.), sec. 24; Homer v. Miles, 270 Ill. 20; Brown v. Rogers, 125 Mo. 392.
James E. Goodrich, Hugh M. Hiller and Samuel D. Newkirk for respondent Commerce Trust Company; Michaels, Blackmar, Newkirk, Eager Swanson of counsel.
(1) The claim of appellant must be determined by a construction of the will of Sallie Cowherd and not by the adoption decree. The intention of the testatrix as disclosed by the will was that all of her property should go to her blood relatives, and the will must be so construed. The appellant not being a bodily heir of Eugene Henry Graves, Jr., a nephew of the testatrix, did not become and is not entitled to any part of the funds which were held by the Commerce Trust Company as trustee. Sec. 568, R.S. 1939; English v. Ragsdale, 147 S.W.2d 653; Grundmann v. Wilde, 346 Mo. 327, 141 S.W.2d 778; Carter v. Boone County Trust Co., 338 Mo. 629, 92 S.W.2d 647; Stevenson v. Stearns, 325 Mo. 646, 29 S.W.2d 116; Snow v. Ferril, 320 Mo. 543, 8 S.W.2d 1008; Armour v. Frey, 226 Mo. 646, 126 S.W. 483; Cornet v. Cornet, 248 Mo. 184, 154 S.W. 121; Reinders v. Koppelman, 94 Mo. 338, 7 S.W. 288; Small v. Field, 102 Mo. 104, 14 S.W. 815; Allison's Executor v. Chaney, 63 Mo. 279; Cross v. Hoch, 149 Mo. 325, 50 S.W. 786; Underwood v. Cave, 176 Mo. 1, 75 S.W. 451; Mersman v. Mersman, 136 Mo. 244, 37 S.W. 909; Coleman v. Haworth, 8 S.W.2d 931; Wyeth v. Merchant, 34 F. Supp. 785; Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672. (2) Because the word "issue" in the clause "die without issue" in the fourth paragraph of the will, and the words "child or children" in said paragraph of the will do not include an adopted child, but must be construed to mean a natural child or children or heirs of the body, and appellant, who only claims to be an adopted child, is excluded as a beneficiary under the will. Melek v. Curators of the University of Missouri, 213 Mo. App. 573, 250 S.W. 614; Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672; In re Woodcock, 103 Me. 214, 68 A. 821; Rodgers v. Miller, 43 Ohio App. 198, 182 N.E. 654; Gallagher v. Sullivan, 251 Mass. 552, 146 N.E. 769; Sec. 568, R.S. 1939; English v. Ragsdale, 147 S.W.2d 653; Grundmann v. Wilde, 346 Mo. 327, 141 S.W.2d 778; Carter v. Boone County Trust Co., 338 Mo. 629, 92 S.W.2d 647; Stevenson v. Stearns, 325 Mo. 646, 29 S.W.2d 116; Snow v. Ferril, 320 Mo. 543, 8 S.W.2d 1008; Armour v. Frey, 226 Mo. 646, 126 S.W. 483; Cornet v. Cornet, 248 Mo. 184, 154 S.W. 121; Reinders v. Koppelman, 94 Mo. 338, 7 S.W. 288; Small v. Field, 102 Mo. 104, 14 S.W. 815; Allison's Executor v. Chaney, 63 Mo. 279; Cross v. Hoch, 149 Mo. 325, 50 S.W. 786; Underwood v. Cave, 176 Mo. 1, 75 S.W. 451; Mersman v. Mersman, 136 Mo. 244, 37 S.W. 909; Coleman v. Haworth, 8 S.W.2d 931; Wyeth v. Merchant, 34 F. Supp. 785.
Reed Ingraham, C. Jasper Bell and Burr S. Stottle for respondent Douglas Graves.
(1) The will, as a whole, shows that the testatrix intended her estate (both real and personal) to go to those of her own blood, to-wit, her two nephews and the heirs of their bodies — not to any adopted child. Under item fourth of the will, nephew Eugene having died without issue, the surviving nephew Douglas was entitled to all the personal estate on reaching 40 years of age. (a) "Issue" as used in the will means "Heirs of the Body." Wyeth v. Merchant, 34 F. Supp. 785, affirmed Merchant v. Wyeth, 120 F.2d 242; Grundmann v. Wilde, 346 Mo. 327, 141 S.W.2d 778; Gannon v. Pauk, 183 Mo. 265, 83 S.W. 453; Carter v. Boone County Trust Co., 338 Mo. 629, 92 S.W.2d 647; Brown v. Tuschoff, 235 Mo. 449, 138 S.W. 497; Shaw v. Bank of Dearborn, 324 Mo. 348, 23 S.W.2d 20; Long v. St. Louis Union Trust Co., 332 Mo. 288, 57 S.W.2d 1071; Gallagher v. Sullivan, 146 N.E. 769; Middletown Trust Co. v. Gaffey, 112 A. 689; Abbott v. The Essex Co., 15 L.Ed. 352; Fidelity Union Trust Co. v. Hall, 6 A.2d 124. The adoption statute does not change this established rule of construction. In re Ashhurst's Estate, 3 A.2d 218; Brock v. Dorman, 339 Mo. 611; St. Louis Union Trust Co. v. Hill, 336 Mo. 17; Carter v. Boone County Trust Co., 338 Mo. 629. (b) Where a testator uses a word or clause in a given sense in one part of his will, it will be given the same meaning in other parts of the will unless a contrary intention clearly appears. Snow v. Ferril, 320 Mo. 543, 8 S.W.2d 1008; English v. Ragsdale, 147 S.W.2d 653; Blumer v. Gillespie, 338 Mo. 1113, 93 S.W.2d 939; Bernero v. St. Louis Union Trust Co., 287 Mo. 602, 230 S.W. 620; Mooney v. Tolles, 149 A. 515. (c) A devise to the "child" or "children" of a person (other than the testator himself) does not include an adopted child or children unless such intent is clearly apparent from other provisions or circumstances. Melek v. Curators of University of Missouri, 213 Mo. App. 572, 250 S.W. 614; Leeper v. Leeper, 147 S.W.2d 660; In re Woodcock, 68 A. 821; Ahlemeyer v. Miller, 131 A. 54; Rodgers v. Miller, 182 N.E. 654; Wilder v. Wilder, 102 A. 110; Smith v. Thomas, 147 N.E. 788; In re Yates' Estate, 126 A. 254; Casper v. Helvie, 146 N.E. 123; Russell v. Musson, 216 N.W. 428. (d) The context and grammatical construction of the sentence in which the words "child or children" are used show that those words refer to the same persons and are used in the same meaning as "issue" and "heirs of the body." (e) The intent of the testator governs. Fleischaker v. Fleischaker, 228 Mo. App. 98, 70 S.W.2d 104; Brown v. Tuschoff, 235 Mo. 449, 138 S.W. 497; Mersman v. Mersman, 136 Mo. 244; Memorandum Opinion of Circuit Judge Emory H. Wright. (2) The demurrers were not attacks on the decree of adoption. (3) The limitation over (item third of the will) to the surviving nephew and the heirs of his body was a valid executory devise and should be given effect. (a) The language of the will clearly shows the testatrix intended the land to go to the surviving nephew and the heirs of his body. Sec. 3498, R.S. 1939; Wilhite v. Rathburn, 332 Mo. 1208, 61 S.W.2d 708; Nichols v. Robinson, 211 S.W. 14; Dodge v. Hall, 37 S.W.2d 585; Weller v. Searcy, 343 Mo. 768; Utter v. Sidman, 170 Mo. 284. (b) Appellant's argument would render nugatory the provisions of Section 3498, giving a fee simple estate to the heirs of the body of the nephews. Sec. 3498, R.S. 1939. (c) The limitation over in the will (item Third) to the surviving nephew and the heirs of his body, in the event one nephew should die without issue, is a valid executory devise. First Presbyterian Church of Louisiana v. Lynott, 78 S.W.2d 396; Harnett v. Langan, 282 Mo. 471, 222 S.W. 403; Dodge v. Hall, 37 S.W.2d 585; Norman v. Horton, 344 Mo. 290, 126 S.W.2d 187; Humphreys v. Welling, 341 Mo. 1198, 111 S.W.2d 123; Grundmann v. Wilde, 141 S.W.2d 778; Brown v. Tuschoff, 235 Mo. 449, 138 S.W. 497; Trautz v. Lemp. 329 Mo. 580; Bates v. Bates, 343 Mo. 1013; Sullivan v. Garesche, 229 Mo. 496; Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947; Cox v. Jones, 229 Mo. 52, 129 S.W. 221; Tevis v. Tevis, 259 Mo. 19, 167 S.W. 1003; Long v. St. Louis Union Trust Co., 332 Mo. 288, 57 S.W.2d 1071; Hull v. Calvert, 286 Mo. 163; Carter v. Boone County Trust Co., 338 Mo. 629, 92 S.W.2d 647; Leeper v. Leeper, 147 S.W.2d 660. The clause "die without issue" in item Third of the Will means the death of a nephew at any time, either before or after the death of testatrix. Humphreys v. Welling, 341 Mo. 1198; Carter v. Boone County Trust Co., 338 Mo. 629, 92 S.W.2d 647; Long v. St. Louis Union Trust Co., 332 Mo. 288, 57 S.W.2d 1071; First Presbyterian Church v. Lynott, 78 S.W.2d 396; Schnitter v. McManaman, 85 Neb. 337; Owens v. Men and Millions Movement, 296 Mo. 110; Bates v. Bates, 343 Mo. 1013. (d) The rules stated by appellant as to reversion and merger are erroneous and inapplicable, as applied to the facts here. Sec. 3498, R.S. 1939; 21 C.J., secs. 180, 181, 200, 206, 233, 234, 235; Eckle v. Ryland, 256 Mo. 424. (4) Item third of the will was not void but was a valid executory devise. Brown v. Rodgers, 125 Mo. 392.
Suit by the adopted child and only heir of Eugene Henry Graves, Jr., against Douglas Cowherd Graves and Commerce Trust Company to construe the will and recover an interest in the estate of Sallie Cowherd, deceased. The trial court sustained demurrers to plaintiff's petition. Plaintiff declined to plead further and, upon judgment being rendered against him, has appealed.
Sallie Cowherd died in 1919. Her will, dated July 3, 1919, so far as material here, is as follows:
"Second, I give, devise and bequeath to Eugene Henry Graves, Jr., and Douglas Cowherd Graves, and to the heirs of their body" [certain land].
"Third, In the event that either the said Eugene Henry or Douglas Cowherd Graves die without issue, then I give, devise and bequeath . . . the land . . . to the survivor and to the heirs of his body."
"Fourth, I give and bequeath to the Commerce Trust Company in trust for Eugene Henry Graves, Jr., and Douglas Cowherd Graves." [certain personal property.] "Upon the final settlement of my estate." [the executor is directed to pay to the trustee and the latter to] "pay the interest semi-annually to Eugene Henry Graves, Jr., and Douglas Cowherd Graves, until they respectively reach the age of forty years, at which time it is to pay one-half of the principal respectively to Eugene Henry Graves, Jr., upon his reaching the age of forty years and the other one-half to Douglas Cowherd Graves upon his reaching the age of forty years, and in the event that either die without issue before reaching forty years of age, then it shall pay to the survivor the whole of said sum upon his reaching the age of forty years, should either die leaving a child or children then my trustee is directed to pay the guardian of the child or children the portion that their father would have received had he lived to be forty years of age."
Eugene Henry Graves, Jr., and Douglas Cowherd Graves were nephews and the only heirs of Sallie Cowherd. In August, 1918, Eugene Henry Graves, Jr., adopted plaintiff in accordance with Sections 9608-9616, Revised Statutes Missouri 1939. [Mo. Stat. Ann., pp. 822-828.] On May 30, 1921, Eugene Henry Graves, Jr., died, before reaching the age of forty years, leaving plaintiff as his sole heir. Upon the death of Eugene Henry Graves, Jr., the trustee paid over the trust fund, amounting to about $25,000.00, to Douglas Cowherd Graves and the latter took possession of all the real estate.
If we understand appellant's contentions, they are substantially as follows: that under the adoption statute appellant became the child of his adoptive father for all legal purposes; that the word "issue" as used in the third and fourth paragraphs and the words "child or children" as used in the fourth paragraph of the will are not synonymous with the term "heirs of the body;" that Eugene Henry Graves, Jr., did not die without "issue" because appellant, as an adopted child, is included within that term; that on the death of the testatrix Eugene Henry Graves, Jr., became vested with both a life estate and a remainder in fee which two estates merged in him and on his death passed to appellant by inheritance; that the will attempted to create two estates tail which cannot be done under Section 3498, Revised Statutes Missouri 1929. [Mo. Stat. Ann., p. 1934.]
In will cases, the first consideration is always to try to ascertain the intention of the testator as gathered from the entire instrument. In this will the intention seems clear. The second paragraph created only a life estate in Eugene Henry Graves, Jr., with remainder to the heirs of his body. The third paragraph did not in any way purport to enlarge the life estate into a fee; it merely provided what should become of the fee after the termination of the life estate. If the life tenant had left "heirs of his body," undoubtedly they would have taken the fee to the exclusion of appellant, for appellant could not be included in that term and he does not so contend. Since if there had been "heirs of the body" they would have taken the fee, then the third paragraph could only refer to the disposition of the fee upon a failure of "heirs of the body." In other words, when testator provided for the disposition of the fee upon the death of the life tenant "without issue" she used that term in the same sense in which she had used "heirs of their body" in the second paragraph. That being the intent of the testator, and no positive statute or rule forbidding, we are bound to give effect to it.
The second and third paragraphs relate to real estate only, while the fourth paragraph relates to personal property only. Yet to us it is equally clear that the testatrix [547] in the fourth paragraph used the term "die without issue" in the same sense that she used "without issue" in the third paragraph and "heirs of their body" in the second paragraph. The whole will shows that the testatrix intended to provide for her own blood relatives. We think that the interest of Eugene Henry Graves, Jr., in both the real and personal property terminated at his death and nothing was left for plaintiff to inherit.
Because each will usually differs from all others, it is seldom that precedents are of much value in construing wills. However, the will construed in Grundmann v. Wilde, 346 Mo. 327, 141 S.W.2d 778, is so nearly like the will now under consideration as to make that case authority for the conclusions we have reached here. There the will, in article 6, devised separate parcels of real estate to a son and daughter without defining the estate devised. Article 7 provided that upon the death of either child "without leaving lawful issue" the other child should inherit his or her share as provided in this article 7. One of the children, the daughter, died leaving no natural children, but leaving a child who had been adopted under the former adoption statute, supra. We held that the will granted life estates to the testator's son and daughter with remainder in fee to the lawful issue of each; that upon the death of either without leaving lawful issue the property would vest in the survivor for life with remainder in fee to his or her lawful issue; and that an adopted child could not be included in the term "lawful issue."
Appellant argues that Section 9614, supra, compels us to hold that the term "issue" includes an adopted child and also cites St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685. The same statute and the same case were cited in support of the same contention in Grundmann v. Wilde, supra. This statute makes an adopted person the child of the adoptive parent for inheritance and other purposes, and the proviso of the section says that the adopted child shall not be capable of inheriting property expressly limited to the heirs of the body of the adoptive parent.
Instead of giving support to appellant's contentions, the proviso of Section 9614 compels us to hold that appellant cannot inherit any interest in the real estate devised to his adoptive father because it was expressly devised to him and the heirs of his body. Nor does the statute help appellant so far as the personal property is concerned. The proviso prevents an adopted child from inheriting where property is expressly limited to the heirs of the body of the adoptive parent, but it does not say that that is the only way the adopted person can be prevented from inheriting. Certainly he cannot inherit when, as here, the estate of the adoptive father terminates upon his death.
In the case of St. Louis Union Trust Co. v. Hill, supra, the will granted the property at the death of the first taker to his "heirs at law." We held that an adopted person was included in the terms "heirs at law," but that is not the question in the instant case.
Appellant contends that the testatrix retained the reversion in fee which was inherited by her nephews at her death and cites many cases to the effect that, when the same person becomes vested with a life estate and the remainder in fee, the lesser estate merges in the greater. The complete answer is that testatrix disposed of her entire estate and that Eugene Henry Graves, Jr., was never vested with the fee.
Finally appellant says that the testatrix attempted to create two estates tail which could not be done under Section 3498, supra; that the second paragraph of the will having granted an estate to Eugene Henry Graves, Jr., and the heirs of his body, upon his death without bodily heirs the fee reverted to the heirs of the testatrix. Appellant is supported in this contention by the holding in Brown v. Rodgers, 125 Mo. 392, 28 S.W. 630, except that the holding was that upon the death of the life tenant without bodily heirs the fee vested in the collateral heirs of the life tenant instead of the heirs of the testator. The holding in Brown v. Rodgers was based on the predecessor statute of Section 3498 [R.S. Mo. 1845, sec. 5, p. 219], which then provided that upon the death of the first devisee without issue the estate would vest in his heirs. That statute was amended to its present form in 1865. [R.S. 1865, p. 442.] Whether or not Brown v. Rodgers was correctly ruled, we know of no case which has since approved it. On the contrary, we have many times given effect to testamentary provisions similar to that contained in the third paragraph of the will now under consideration. [Grundmann v. Wilde, 346 Mo. 327, 141 S.W.2d 778; Hartnett v. Langan, 282 Mo. 471, 222 S. [548] W. 403; Leeper v. Leeper, 347 Mo. 442, 147 S.W.2d 660; First Presbyterian Church v. Lynott (Mo.), 78 S.W.2d 396; Sullivan v. Garesche, 229 Mo. 496, 129 S.W. 949; Humphreys v. Welling, 341 Mo. 1198, 111 S.W.2d 123; Norman v. Horton, 344 Mo. 290, 126 S.W.2d 187.]
We hold that the appellant's petition filed in the circuit court showed that he has no interest in the property described and that the court did not err in sustaining the demurrers.
Accordingly, the judgment of the trial court is hereby affirmed. All concur.