Fries v. Fries , 306 Mo. 101 ( 1924 )

Appellant brought this suit to establish his title to a one-third interest in certain real and personal property left by his father, who died testate in 1904, and for partition. The construction of the father's will is the decisive question. Demurrers were filed by the several respondents and sustained, and appellant refused to plead further. Judgment was rendered accordingly, and this appeal followed.

Appellant is the son of Christian Jacob Fries, Sr., by a first marriage. Respondents Amanda and Alma are daughters by a second marriage, and Amanda is the executrix of the will of her mother Elise Fries, who died in October, 1921. Respondents William and Clara Henson are husband and wife, and are grantees of Elise Fries and makers of certain notes in which appellant asserts an interest under the father's will. Strodtman is trustee in a deed of trust which secures the Henson notes.

The petition sets out the will of Christian Jacob Fries, Sr., which, so far as pertinent, reads as follows:

"First. I direct that my just debts and funeral expenses be paid out of my estate by my executrix hereinafter named.

"I give to my children, Christian Jacob Fries, Jr., Amanda Elise Fries, and Alma Mathilda Fries, each the sum of five dollars, to be paid to them respectively after my decease by my executrix.

"I give to my beloved wife, Elise Fries, all of my personal property of every description, to have and to hold to her for her own use and benefit, I also give her my said beloved wife, Elise Fries, all of my real estate, wherever the same may be situated, also to have and to hold unto her for her own use and benefit, to have full charge and control of all real estate, that she may at pleasure, dispose, sell and convey any and all real estate, if she desires to do so.

"And I further direct, that after my decease, my said beloved wife, Elise Fries, may at her pleasure execute a will, and divide and provide for my said children all of real estate and personal property remaining.

"And lastly, I do appoint my said beloved wife, Elise Fries, as executrix of this my last will and testament, and I do direct that she shall not be required to give bond."

The petition alleges the father's estate included: "Lots 8 and 9 in Harney Heights Addition, and in Block number 5090 of the City of St. Louis, Missouri; said lots having an aggregate of one hundred feet on the north line of Geraldine avenue, by a depth northwardly of one hundred thirty-five feet." It is further alleged that this realty was not needed to pay debts or expenses of administration and was received by the said widow under the terms of said will; "that long after final settlement of Christian, Sr's, estate to-wit: on June 9, 1915, the widow, Elise, executed and delivered to Alma and Amanda Fries a warranty deed to all the above described real estate, but reserved a life estate to herself; that though the deed recited it was made for "one dollar and other valuable considerations," yet, in fact, there was no consideration, but the deed was a gift; that it was recorded June 11, 1915; that June 15, 1921, Alma and Amanda re-conveyed lot 8, above described, for "one dollar and love and affection;" this deed was recorded June 21, 1921; that on July 14, 1921, the widow, Elise, by a deed which is alleged to have been without consideration, conveyed to Amanda "the southern twenty-one feet of said lot 8," above described; that on the same day Elise conveyed to respondent Henson "the northern twenty-nine feet of said lot 8" in consideration of a cash payment and the execution of a principal note for $2000 and thirty-three notes for $20 each, secured by the deed of trust in which respondent Strodtman is trustee.

It is then alleged that October 8, 1921, Elise Fries died testate. Her will, in so far as it is material here, reads:

"First. I give and bequeath to my stepson, Christian Fries, the sum of one dollar.

"Second. I give and bequeath to my daughter, Amanda Fries, all the furniture and furnishings in my house, No. 2539 Geraldine Avenue, St. Louis, Missouri.

"Third. All the balance of my estate, real personal and mixed, I give and bequeath to my two daughters, Amanda Fries and Alma Fries, share and share alike.

"Fourth. I hereby appoint my daughter, Amanda Fries, executrix without bond, of this my last will and testament."

Amanda has qualified and is acting as executrix of her mother's will. She and Alma are alleged to be in possession of lot 9 and the south twenty-one feet of lot 8, as described, and Amanda, as executrix, to be in possession of the Henson notes and deed of trust. Further allegations are that at the time of the death of Elise, the widow, there remained in her possession, under the provision of her husband's will, all of lot 9 and the south twenty-one feet of lot 8 and the Henson notes.

Appellant prays that he be decreed to possess a one-third interest and for partition of the property, and for a sale and division of proceeds if the property cannot be divided in kind without prejudice and loss. An order restraining sale of the notes by the executrix was asked.

Appellant's position is that the will of Christian Jacob Fries, Sr., gave his widow a life estate, only, with power to sell and dispose of so much of the property, "during her life, as was necessary for her own use and benefit, maintenance and support, and, in addition, he gave her a power which she could exercise or not, at her pleasure, to dispose of all the real estate and personalty ``remaining' at her death, but limited the beneficiaries whom she might select by expressly directing that if she exercised the power to make a will that she would ``divide and provide for my said children all of said real estate and personal property remaining' — which would necessarily mean an equal division."

I. The third paragraph of the will reads:

"I give to my beloved wife, Elise Fries all of my personal property of every description, to have and to hold to her for her own use and benefit, I also give unto her, my said beloved wife, Elise Fries, all of real estate, wherever the same mayAbsolute be situated, also to have and to hold unto her for herEstate. own use and benefit, to have full charge and control of all real estate, that she may at pleasure, dispose, sell and convey any and all real estate, if she desires to do so."

When this paragraph is considered alone it appears that it is sufficient to invest the widow with the fee simple title. Neither in it nor elsewhere in the will is any devise "made of the devised premises, to take effect after the death of the devisee," and considered alone, it comes within the terms of Section 551, Revised Statutes 1919, and, under that section, would have to be held to convey to the devisee an absolute estate in fee simple. [Payne v. Reece,297 Mo. 54.] The power of disposition conferred by the language of this paragraph is not one merely inferable from the nature of the estate devised but, in addition, is expressly conferred, in terms, and is as full, complete, unrestricted and unhampered as language could make it. It is obvious that merely to add to words which convey a fee express words which make explicit a power to convey which is implicit in words which create the fee, raises no implication of a limitation or diminution of the fee.

II. The fourth paragraph does not show an intent to create a life estate. There is no devise over. There is no request or even recommendation that the devisee shall make a will which will give the property, remaining at her death, to Christian'sProperty children. The paragraph expressly leaves that matterRemaining. to the "pleasure" of the widow. That section does not bring within its contemplation any property which Elise had conveyed prior to her death under her right to dispose of the property as she would; and if it has anything to do with the property which remained it has only that to do with it which its language indicates — i.e., to say to the widow she might "at her pleasure," make a will which would devise the property to Christian's children. This language is purely permissive. There is nothing precatory in it. It contributes nothing toward the implication of an intent to create a life estate, it imposes no obligation to make a will, and none, if one is made, to make it in any particular way, so far as a division of the property by it is concerned. In fact, it expressly leaves the whole matter to the pleasure of the widow.

III. Even if the will be construed so that the devise to the widow be held to be such that the fourth paragraph constituted a direction to her as to the disposition of the property in her hands at her death, yet appellantIllusory is in no better position. The language of theAppointment. fourth paragraph could not be held to require the widow to make an equal division, under any rule, and the division she did make will stand unless this court adopts the doctrine of illusory appointments. That doctrine now has nothing in the way of logic to support it in a case like this and has never been applied as a rule of decision by any American court, save one. It has been wiped out by statute in England. [Fidelity and Columbia Trust Co. v. Barret, 179 S.W. (Ky.) 396, L.R.A. 1916D, p. 493, and note, p. 498, et seq.]

The judgment is affirmed. All concur.