author: VALLIANT, J.

text:
    ZORA LANYON DAMERON, Appellant, v. MARTHA J. LANYON, Administratrix.
    Division One,
    June 1, 1911.
    1. WILL: Construction: Intention. To aid courts in interpreting wills that are obscure in their meaning, all other rules of con-, struction are subject to the governing principle that the intention of the testator is the main fact to be ascertained, and that to find that intention the whole will is to be read.
    2. -: Contingent on Death Before Distribution. A clause in a will by which property is given to a child absolutely, with a limitation over in case the child shall die before receiving his legacy, refers primarily to the child’s death before the legacy is received by him in cash, whether he die before or after the testator. But if he die after the testator, and there is nothing in the will to indicate that the testator, in referring to the death of the child before he might' receive his legacy, had in mind any other event than his own death, then the will will be construed as meaning the death of the child before the death of the testator; but if on reading the whole will it appears that the testator had in mind the death of said child, then the will will he construed as meaning the death of such legatee before coming into possession of his estate, even though the testator has seen fit to subject the gift to the hazzard of accident or delay caused by the wilful or negligent conduct of the executor in making distribution.
    3. -: -: Before He or She Shall Have Received His or Her Share. The will gave to testator’s wife what she would have received had he died without will, .and the residue he gave to his five children “to be divided equally among them,” and then said: “Should either of my children die without issue before he or she shall have received his or her share of my estate, the share of such deceased child shall be equally divided among his surviving brothers and sisters.” Held, that-if this were the whole of the will, it would be held that the residuary clause referred to the death of the child before the testator’s death, and the will would be construed to mean that the child who survived him was at his death vested with the legacy. But where the will goes on to name his wife as sole executrix, without bond, and directs her to keep the estate together for an indefinite number of years, and to use the income as she might see fit, and especially in maintaining a home for herself and the children, all of whom were then minors, and to authorize her to sell- any part of the property “whenever in her opinion it may seem expedient to do so,” and to make only “such advances to my said children at such times and in such amounts as in her opinion will be for their best interests,” and then to say, “It is my desire that my said executrix shall have and exercise the same discretion as to the time and manner of the distribution of my estate that -I would have if living,” it will be held, that no estate at testator’s death vested in one of the children who died without issue within ten months after testator died, as to so much of the estate as the child had not come into possession of. The said child’s estate was contingent upon his receiving it before his own death, and hence as he had not come into possession of it his administrator is not entitled to one-fifth of testator’s residuary property, and his young widow has no right to any of testator’s estate that remains in the hands of the executrix.
    4. -: Unjust and Unreasonable. Even though the court should consider the will unjust and unreasonable, yet the owner of property has the right to dispose of it as he pleases, and if he pleases to keep it in his family, limiting the succession to his children and grandchildren, he has the right, under the statutes, to do that.
    5. -: Determinable Estate: Dower: Inventory. Where the wife of a deceased legatee brings suit against his administrator and the executor of his father’s will to compel the inventory of a certain portion of his father’s estate, and it is held that her husband was given nothing by the will, the question of whether her husband was seized, under the will, during his marriage to plaintiff, of a base or determinable fee, and the question of whether such a fee, created by will, is an estate of inheritance, whereof the widow is entitled to dower, is not in the case. If it was a determinable fee it determined on the death of her husband, and as the property does not belong to his estate it should not be included in the administrator’s inventory.
    Appeal from Jasper Circuit Court. — Won. WugU Dabbs, Judge.
    Affirmed.

      Thomas & Hackney for appellant.
    (1) The interest devised to Clyde B. Lanyon under the will of his father vested immediately on the death of his father. Redell v. Collier, 40 Mo. 287; Bum v. Prance, 131 Mo. 63; Simmons v. Cabanne, 177 Mo. 336; Chew v. Keller, 100 Mo. 362; Lippincott v. Stottseberg, 47 N. J. Eq. 21. "When devises or legacies have once vested, they will not be divested by any doubtful implication. Conditions- which defeat estates are looked upon with disfavor and when the meaning is not clear a construction as nearly as possible in conformity-with the general rules-of inheritance will be adopted. 30 Am. and Eng. Ency. Law, 796. (2) Under the clause of the wjll of Reuben S. Lanyon, deceased, in which he devises to his wife, Martha J. Lanyon, such a share in his estate as she would take under the laws of the State of Missouri, if he died intestate, and that all the rest and residue of his estate real, personal and mixed, he devised to his four children, -share and share alike, but that if either of his children die without issue before he or she receive his or her share of his estate, then that it should go to the survivors, the share devised to Clyde B. Lanyon vested in him and was received by him immediately on the death of the testator. Cook v. McDowell, 52 N. J. Eq. 351; In re Wengerd’s Estate, 143 Pa. St. 615; Hutcheon v. Mannington, 1 Vfes. Jr. 366; Johnes v. Beers, 57 Comm. 295; Burk v. Barrett, 67 N. E. (Ind.) 552; Miller v. Colt, 32 N. J. Eq. 6; 111. Land & Loan Co. v. Bonner, 75 111. 315; Bruner v. Cooper, 2 Am. Law Journal, 188. (3) It is apparent from the will that the testator, having provided for his wife in accordance with the laws of the State of Missouri, had in his mind a provision for his four minor children and with that purpose in view he devised and bequeathed unto his four children, naming them, all the residue and remainder of his estate to be equally divided among them. He also provides that a portion of the devise to his son, Clyde B. Lanyon, should be turned over to him as soon as possible after he arrived at the age of twenty-one; that he be let into the possession of the eighty acre tract of land devised to him and that he also be given the shares of stock or the proceeds of the sale thereof, and that the balance should be held until in the opinion of his executrix the same should be given to him. He further provided that his executrix shall from time to time make advances to his children of parts of their several distributive shares of the estate and that she should keep an accurate account of all such advancements made by her, so that each shall receive no more than his distributive share of the estate. No title or. interest whatever is vested in the executrix, but she is permitted to keep the property intact and to use the income therefrom, if necessary, for the support of the children as long as any of them remain minors, the testator frequently expressing a desire, however, in his will that his executrix should turn over or pay over portions of their shares from time to time, keeping an accurate account thereof. The provision that she should keep the property intact was not‘for the benefit of the executrix, but for the benefit of the devisees and legatees. It was not her property she was to keep and hold under the will, but the property of the testator’s children. She was given authority tc> hold the property for the benefit of the children and distribute it from time to time until the youngest child should attain his majority, when, under the spirit of the will, final distribution of the estate was to be made by the executrix. (4). The word “received” when used as in the sentence, “Should either of my children die without issue before he or she shall have received Ms or her share of my estate, the share of such deceased child shall be equally divided among his surviving brothers and sisters, but if such child shall leave him surviving him a child or children, such child or children shall receive its parent’s share,” when used in a will, has a technical and well-defined meaning. Words and Phrases, 5992. And in the common understanding as well as in the contemplation of the law, the devisee of an estate in fee simple absolute received that estate at the moment when he became entitled to receive it. And the law presumes that the testator used the word in its technical and legal sense.

      H. S. Miller and McReynolds & Hallib%t,rton for respondent.
    (1) All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator in all matters before them. R. S. 1899:, sec. 4650; Grace v. Perry, 197 Mo. 559. What are ordinarily known as technical rules for construing wills should be disregarded when they conflict with the manifest intention of the testator. Mead v. Jennings, 46 Mo. 91; Suydam v. Thayer, 94 Mo. 48; Drake v. Crane, 127 Mo. 85; Metz v. Wright, 116 Mo. App. 631; 29 Am. and Eng. Ency. Law, 849; Schultz v. Coon, 51 Wis. 416; Hollenbeck v. Getz, 63 Conn. 385. (2) The true intent and meaning of Reuben S. Lanyon, by the use in Ms will of the words, “Should either of my children die without issue before he or she shall have received his or her share of my estate, the share of such deceased child shall be equally divided among his surviving brothers and sisters, but if such child shall leave him surviving a child or children, such child or children shall receive its parent’s share,” when taken in connection with the other clauses of the will evidently meant by the'words “shall have received” actual possession and control of his or her share. In other words, physical receipt. A reading of the will and its various clauses impresses upon the mind that, after- giving certain property to Clyde when he was 21, the balance was to be kept and handled by the executrix to maintain a home and support the minor children, with a discretion as to when and what advancements she should make, if any, and that, if any child died before actual receipt of his part, without child or children surviving him, then his part should go to his brothers and sisters. And that, by the terms, “shall have received,” he meant actual, physical receipt or possession. Any other construction would violate his intention, which was to keep the property in his own descendants. Jarman on Wills (5 Amer. Ed.), p-. 617, especially Par. 11, p-. 640; also pp. 578 and 668. 1 Underhill on Wills, secs. 343-,• 344, 345, 348 and 350. LeJeune v. LeJuene, 2 Kern. 701; Ewing v. Winters, 34 W. Ya. 23; Hutchins v. Pearce, 80 Md. 434; Summers v..Smith, 127 111. 645; Hollister v. Butterworth (Conn.), 40 Atl. 1044; Mead v. Maben, 131 N. Y. 255; Galloway v. Carter, 100 N. C. Ill; Hoadley v. Wood; (Conn.), 42 Atl. 263; In re Spencer, 16 R. I. 25; Rammell v. Grillow, 15 L. J. ch. 35; 0 Jur. 704; sec. 346i, Underhill; Summers v. Smith, 127 111. 645-; Marshall v. Marshall, 42 S. C. 436; Williams v. Lewis, 100 N. C. 142; Hulbert v. Emerson, 16 Mass. 244; Olnéy v. Hull, 21 Pick. 311; Den v. Sayre, Pen. (N. J.)', 596; Sedde'l v. Willis, Spencer, 223; Williamson v. Chamberlain, 2 Stockt. 373; Branson v. Hill, 31 Md. 181; Anderson v. Smoot, Speers Eq. 312; Sinton v. Boyd, 191 Ohio St. 30; Slack v. Bird, 8 C. E. Gr. (N. J.), 238; Holcombe v. Lake, 4 Zab. 686; Couch v. Gorham, 1 Conn. 36; West-brook v. Romeyn, Baldwin, C. C. 196; Tucker v. Stites, 10 Geo. (Miss.) 196; Robertson v. Wilson, 38 N. H. 48; Morton v. Morton, 8 Barb. 18; Matter of Ryder, 11 Raige 185; Smith v. Block, 29 Ohio St. 488; Wren v. Hynes, 2 Met. (Ky.) 129; Clark v. Clark, 3 Bradf. 32; 3 Jarman on Wills, p. 640. (3) The provisions of the will of Reuben S. Lanyon, as to the interest of Clyde B. Lanyon can only be construed in one or two ways: 1st. That Clyde B. Lanyon took a life estate in the property willed, subject to become a full estate and right thereto by actual receiving possession or control of all said property so bequeathed and devised to him before his death, or by leaving a child or children surviving him at his death: 2nd. 'That the estate was vested in interest in Clyde B. Lanyon, subject to be devested in case he should die without having received possession or control of the same and without leaving surviving him a child or children.
    The above propositions are sustained in the fol-' lowing cases: Harbison v. Swan, 58 Mo. 147; Naylor v. Hodman, 109 Mo. 543; Yocum v. Siler, 160 Mo. 281; Gannon v.. Albright, 183 Mo. 239; Grace v. Perry, 197 Mo. 561; McCune v. Goodwillie, 204 Mo. 337; Tebow v. Daugherty, 2051 Mo. 326; Sumpter v. Carter, 115 Ga. 893; McGurry v. Wall, 122 Mo. 614; Britton v. Thornton, 112 U. S. —: 28 L. Ed. 817; Andrews v. Sargent, 71 Yt. 257.

      Thomas & Hackney for appellant in reply.
    The respondent’s learned counsel practically concede in their brief that Clyde B. Lanyon, under the will of his father, was seized during his. marriage to appellant of a base or determinable fee, in any event, but claim that if he died without issue before the devise was turned over and received into his actual possession, the executory limitation over to his surviving brother and sisters became operative and that appellant no longer had any interest; but that is not the case. Sec. 345, R. S. 1909. A base or determinable fee created by will is an estate of inheritance. 1 Wash-burn on Real Property (3 Ed.) p. 248'. It is now well settled by the weight of authority that where there is a devise in fee simple with an executory devise over, the wife’s right to dower attaches on the first estate and is not defeated on its determination. 10 Am. and Eng. Ency. Law, 161; Smith v. Spencer, 2 Jur. N. S. 778; Kennedy v. Kennedy, 29 N. J. L. 185; Pollard v. Slaughter, 92 N. C. 72; Evans v. Evans, 9 Pa. St. 190'; Moody v. King, 2 Bing. 447; Jones v. Hughes, 27 G-ratt. (Va.) 560; Rice v. Rice, 133 Ky. 40’6; 14 Oye., p. 906, par. “e;” Jackson v. Kip, 8 N. J. L. 241; Webb v. Trustees, 90 Ky. 117. Had a child been born to appellant and Clyde B. Lanyon, the child of appellant would have inherited the estate devised by Reuben S. Lanyon to Clyde B. Lanyon; and by the executory devise over, if it ever became operative, the brother and two sisters of Clyde B. Lanyon would take the same subject to the dower interest of appellant, together with all the statutory incidents in force in. this State on the death of her husband. So that we maintain that in any event, it was the duty of the administratrix of Clyde B. Lanyon to inventory the one-fourth interest of Clyde B. Lanyon in the estate of his father and that the court erred in finding and adjudging otherwise.

      H. 8. Miller and McReynolds é Halliburton for respondent in reply.
    (1) Clyde B. Lanyon was not seized of an estate of inheritance in the property described in appellant’s motion filed in the probate court and described in the evidence in the trial of the cause, hut by the terms of the will of Eeuben S. Lanyon, his interest was a determinable estate, or a qualified or conditional fee, or a base fee, that is an estate less than a fee to which dower does not attach in this estate. McCune v. Good-willie, 204 Mo. 337; Tebow v. Daugherty, 205' Mo. 326. (2) The estate willed to Clyde' B. Lanyon by his father never vested. The vesting was postponed by the very terms of the will and he had no estate of inheritance and his widow is not entitled to dower. Starr v. “Willoughby, 218 111. 485; Kearney v. Nicholson, 67 S. W. 361; Brookhouse v. Pray, 92 Minn. 448; In Spencer’s Petition, 16 B. I, 25; People use of Jennings v. Jennings, 44 111. 488. (3) While it is true that the law favors the vesting of estates, still, where it is clear from a reading of the entire will that testator intended to postpone the vesting of an estate until the period of distribution has arrived, that intention will be carried out. John v. Askey, 190' 111. 58; Starr v. Willoughby, 218 111. 485; P'atterson v. McCune, 14' N. Y. 385; Kearney v. Nicholson, 67 S. W. 361; March v. March, 186 N. Y. 99. (4) Our courts have construed Sec. 345', E. S. 1909, as to meaning of the words “seized of an Estate of Inheritance” to entitle a widow to dower. “That the husband must have been actually seized (that is in actual possession) or have had a legal seizin with a present right of possession.” Gentry v. Woodson, 10 Mo. 225; Warren v. Williams, 25 Mo. App. 24; Martin v. Trail, 142 Mo. 94; Yon Arb v. Thomas, 163 Mo. 41; Edward v. Bibb, .54 Ala,. 475.
   VALLIANT, J.

— Appellant is the widow of Clyde B. Lanyon who died intestate September 19, 1903, and respondent is the administratrix of his estate. Eespondent is also the executrix of the will of Eeuben S. Lanyon, deceased, who was the father of Clyde B. Lanyon, and who died testate, December 28th, 1902. Appellant filed a motion in the probate court of Jasper county to require respondent, as administratrix of the estate of Clyde B., to include in her inventory an undivided one-fourth of the real estate of which Beuben S'. Lanyon died seized, subject to the widow’s dower, and a one-fifth interest in his personal estate, she averring that such was the share which Clyde B. owned at the time of his death in the estate of Beuben S. Lanyon. The administratrix answered the motion, denying that Clyde B., at the time of his death, owned any part of the estate left by Ms father. The matter came on for hearing in the probate court and resulted in overruling the motion; the widow appealed to the circuit court where the issues wére tried anew; the trial resulted in a judgment against her, overruling her motion, and from that judgment she appealed.

The adjudication of the rights of the parties in issue depends on the construction to be placed on the will of Beuben S. Lanyon. That will, or so much thereof as is material to the issue, is as follows:

“It is my will that my wife, Martha J. Lanyon, have the same share, right, title and interest, in and to my property, real, personal and mixed, as she would have taken under the laws of the State of Missouri, had I died intestate.
“All the rest, residue and remainder of my estate, real, personal and mixed, I give, devise and bequeath unto my four children, namely: Clyde B. Lanyon, Edith E. Lanyon, Shirley May Lanyon and Lavon Lanyon, to be equally divided among’ them; should either of my children die without issue before he or she shall have received his or her share of my estate, the share of such deceased child shall be equally divided among his surviving brothers and sisters, but if such child shall leave Mm surviving child or children, such child or children shall receive its parent’s share.
“I have heretofore purchased the eighty-acre tract of land hereinafter described, and I have also purchased some shares of stock in the Walker-Lanyon Oil Company, of Joplin, Missouri. This property I purchased for my son, Clyde B. Lanyon, although I have taken the title thereto in my own name. The tract of land is worth two thousand dollars, and the shares of stock are worth twelve hundred and eighty-five dollars.
“I give, devise and bequeath unto my son, Clyde B. Lanyon, the said eighty-acre tract of land, the description of which is the south half of the southwest quarter of section number six, in township twenty-six, range number thirty-three, in Newton county, State of Missouri.
“I also give and devise unto my said son Clyde all of my shares of stock in the Walker-Lanyon Oil Company, of Joplin, Missouri, together with all my right, title and interest in and to the property of said Walker-Lanyon Oil Company, of Joplin, Missouri, but said property is to be considered as an advance to him of a part of his share'as a residuary legatee and devisee under this will, and the same is to be charged to him as of the value of three thousand, two hundred and eighty-five dollars. The above described real estate and personal property are to be turned over to said Clyde B. Lanyon when he arrives at the full age of twenty-one years.
“If the shares of stock in said Walker-Lanyon Oil Company be sold during my lifetime, then said Clyde is to have in lieu thereof the price which they bring, whatever that may be. If they sell for a greater price than $1285, my said son shall have the benefit thereof, and should they be sold for a less sum, the loss is to fall upon him.
“I hereby nominate, constitute and appoint my wife, Martha J. Lanyon, as a sole executrix of this my last will and testament and reposing the fullest confidence in her integrity and in her ability to wisely manage my estate it is my will that no bond whatever be required of her.
“I give unto my said executrix full power and authority to compound, compromise and settle any and all claims against or in favor of my said estate. I also give her full power and authority to grant, bargain, and sell any part of the property, real or'personal, belonging to my estate whenever in her opinion it may seem expedient to do so, and I give to my said executrix full power and authority to execute, acknowledge and deliver deeds of conveyance of the same.
“It is my desire that my wife maintain a home for and support my children during their minority, and that she may do so she may use the income of my estate for that purpose.
“It is my will that my said son, Clyde B. Lanyon, be let into the possession of the eighty-acre tract of land above described as soon as possible after he arrives at the age of twenty-one years, and that at the same time he also be given said shares of stock in said Walker-Lanyon Oil Company, or the proceeds of the sale thereof, if they shall have been sold, but he shall receive no further part or share until in the opinion of my executrix the same should be given to him.
“ It is my desire that my executrix shall from time to time make advances to my children of parts of their several distributive shares of my estate, and she shall keep an accurate account of all such' advances made by her so that each shall receive no more than his distributive share of my estate.
“In order that my estate may be put to the best possible use by my said children, I hereby authorize my said executrix to hold the same and only make advances to my said children at such times and in such amounts as in her opinion will be for their best .interests.
“It being my desire that my said executrix shall have and exercise the same discretion as to the time and manner of the , distribution of my estate that I would have if living.
“It is my desire .that my executrix should keep the property of said estate invested in such a manner as to derive an annual income therefrom, and she is authorized to use the income therefrom for the maintenance of a home and for the support of such children as are minors.
“In witness whereof, I have hereunto set my hand and seal this 23rd day of September, A. D. 1901.”

Testator died in December, 1902, leaving his widow and four children, Clyde B., who was the eldest, and three daughters, the eldest of whom, in December, 1902, was eighteen, and the youngest three years old; they are now living. At the date of the execution of the will, Clyde B. was twenty years old; he became twenty-one in January, 1903, and died in September, 1903, leaving a widow, who is the appellant, but no issue. After the death of Reuben S. Lanyon, the executrix gave Clyde possession of the eighty acres willed to him,, and sold the 'Walker-Lanyon Oil Company stock for $1280, taking the purchaser’s notes secured by the stock as collateral; she took the notes and gave Clyde the money for the same; she gave him in fact $1500, which was more than the stock sold for. ‘She did this to enable him to go into business, and loaned him $1000 besides, and when he got married she gave him four, five or six hundred dollars to set him up in housekeeping. Until he married he lived with his mother, and she supported him out of the estate, and from time to time advanced him money as he needed it, the exact amount not shown in the evidence.

The inventory of the Reuben S. Lanyon estate filed in the probate court showed a, considerable quantity of land, besides the eighty acres above mentioned, and also a considerable personal estate, the exact value of which is not given in the record, as the appraisement is not here, but taking the items mentioned in the inventory at their face value, we gather that the personalty was perhaps $50,000.

In her inventory as administratrix of Clyde’s estate, respondent included the eighty acres, but nothing more as from the father’s estate.

Appellant, as widow of Clyde, filed in the probate court her election to take one-half the estate, and also filed same in recorder’s office within less than one year after the death of her husband.

The decision of this case turns on the interpretation to be given the following part of the residuary clause: “Should either of my children die without issue before he or she shall have received his or her share of my estate, the share of such deceased child ' shall be equally divided among his surviving brothers and sisters.” The words especially in dispute are, before he or she shall have received his or her share of my estate.” Do those words mean, before he or she shall have been put in the actual possession of his or her share, or do they mean before he or she shall have become entitled to the actual possession, and, if the latter, when, under other clauses of the will, would he or she become entitled to possession? Were those words designed to provide against a contingency of the death of a child occurring after the death of the testator and before actual distribution of the estate, or were they designed only to provide against a contingency of the death of a child before the death of the testator? Respondent contends for the former and appellant for the latter construction; the trial court construed the clause to refer to the contingency of the death of a child after the death of the testator and before he or she came into actual possession of his or her share.

I. To aid courts in interpreting wills that are obscure in their meaning, some general rules of construction have been laid down, but they are all subject to the governing principle that the intention of the testator is the main fact to be ascertained, and that to find that intention we must read the whole will.

A learned law-writer on this subject has said: “Testamentary language referring to the death or to the survivorship of beneficiaries, whether named as individuals or comprised in a class, presents some of the most difficult problems of construction. ’ ’ [Underhill on Wills, sec. 341.]

In the next section the same author says: “Where there is an immediate gift in the will to A., and a disposition of the property to another ‘in case of Ms (A’s) death,’ or ‘in the event of his death,’ or with any similar expression referring to the death of A., not as an event which is certain to occur, but as a contingent event, no time being mentioned, the gift over will take effect only if A. shall die during the lifetime of the testator. So, also, where the gifts are immediate to several individuals, and in case of the-death of any in the lifetime of the others, then over, those who survive the testator take at once absolutely. ’ ’

The reason for the rule there stated is clear; the testator, in the case contemplated, provides for a remainder over on -the occurrence of a contingency, but death is not a contingency, it is a certainty; therefore, in the case put, if the will were construed to mean •that the remainder was to take effect on the death of A., whensoever it might occur, A. would take a life estate if he survived the testator and the remainder over would be a vested estate. Therefore, when the testator in his will refers to the death of the primary beneficiary in words that indicate that the event he has in mind is an uncertainty, he is presumed to mean a death occurring before some other event, and if there is nothing in the will to indicate what that other event is, the law presumes that the reference is to the contingency of the death of the primary beneficiary before that of the testator. But if the will contains words that show that the testator’s intention was to provide for a contingent remainder or executory devise, in the event of the death of the primary beneficiary occurring before some other event, which might occur after the death of the testator, then the presumption above mentioned is overcome, and the testator’s intention in that respect must govern, that is to say, if the event other than the testator’s own death appears from the will, then we must say that the testator meant the death of the primary beneficiary before the occurrence of that other event.

The text-writer already quoted in section 343 says: “Clauses by which property is given to A. absolutely, with a limitation over in case A. shall die before receiving his legacy, primarily refer to his death before it is actually received by him in cash, whether he die before or after the death of the testator. Though A. may survive the testator, the legacy to him is contingent upon his surviving to receive it. . . . The' difficulty in construing these limitatons over is most striking when they depend upon death simpliciter, without having received the legacy, the testator having omitted all words which would indicate that he meant actual receipt.”

This subject is discussed also in 2 Jarman on Wills (6 Ed.), .p. 746, whence the author says: “Executory gifts over in the event of the legatees dying before ‘receiving’ their legacies have given rise to much litigation. Actual receipt may be delayed by so many different causes that the court is unwilling to impute to the testator an intention to make that a condition of the legacy and thus indefinitely postpone the absolute vesting of it.” But in the course of the elaborate discussion which follows that statement the author at page 751 says: “Hitherto it has been assumed that if the testator clearly intends the legacy to be divested unless actually received by the legatee such intention will prevail. Such was clearly the opinion of Lord Eldon, Sir W. Grant, and Sir J. Leach.” We quote again from Underhill, sec. 343: “Where it is clearly apparent that the testator intended that the legatee should be at the risk of losing what he gave him through the delay or the caprice of the executor, or through accident, as in case it is expressly provided that if the legatee should die before he shall have ‘actually received his legacy’ the part ‘he has not actually received, whether payable or not’ is to go to another, the intention must be respected. The gift over is not invalid for its uncertainty, merely because it is within the power of the executor to defeat the intention of the testator respecting it, by a prompt payment of the legacy, if it is clear that the testator intended he should possess that power. Whether the executor shall possess this power depends upon the language of each will. Its existence must clearly appear, as nothing will be taken by implication in this respect.”

The law is well expressed by the text-writers from whom we have made the above quotations, and when applied to the will in this case it is this: If there is nothing in this will to indicate that the testator, referring to the death of either of his children before he or sbe might receive his or he share, had in mind any other event than his own death, then the will is to be construed as meaning the death of a child before the death of the testator; but if on reading the whole will it appears that the testator did have in mind and was referring to another event, then the will must be construed as meaning death of the primary beneficiary before the occurrence of that other event.

Now let us turn to the will. First it confirms to his wife the share of the testator’s estate that she would take under the law if there were no will; next follows, the residuary clause to his four children containing the words to be construed, to-wit: “Should either of my children die without issue before he or she shall have received his or her share of my estate, the share of such deceased child shall be equally divided among his surviving brothers and sisters,” etc. If that were all there was in the will on that subject it should be construed to refer to the death of a child before the death of the testator, and the words “before he or she shall have received” should be construed to mean before., he or she shall have been entitled to receive, which would be in the ordinary course of administration of the estate.

, There being’ nothing in the residuary clause itself to signify actual receipt, the gift would not be subject to the hazard of accident or delay caused by the willful or negligent conduct of the executrix. But on the other hand, as the text-writers from whom we have quoted say, if the testator has seen fit to so embarrass the gifts to his children as to subject the same to such hazard the beneficiary must submit to it.

In this case the testator had in mind his children and their mother, and whatever hazard he imposed on his children’s right to possession of the gift was confided to their mother. That is a fact to be borne in mind when we come to consider whether the testator intended to subject the rights of his children in any respect to the discretion of the executor. In a case where the executor is a stranger it might with greater force be said that it would be unreasonable to presume that a father intended to put the right of possession to the gifts to his children at the will or caprice of the executor than it would in a case where the discretion is confided to their own mother. There is much confidence expressed by the testator in his wife whom he makes sole executrix. Although she is given charge of the whole estate not only for purposes of ordinary administration, but also under directions to keep it together for an indefinite number of years and use the income as she might see fit, yet she is not to be required to give any bond, and in fact some of the rights conferred on her would seem to constitute her a trustee extending beyond the termination of the ordinary duties of an executor. She was directed to maintain a home for the children during their minority, all of whom were minors a,t the time the will was written, the youngest about three years old, and for this purpose the income of the whole estate was put at her disposal. That purpose was prominent in the mind of the testator; it is stated not only in a forepart of the will but is repeated in the concluding clause, wherein she is directed to keep the property invested so as to derive an income “fo,r the maintenance of a home and for the support of such children as are minors.” She was authorized to sell any part of the property “whenever in her opinion it may seem expedient to do so.” She was also authorized to hold the estate together and make only ‘ ‘ such advances to my said children at such times and in such amounts as in her opinion will be for their best interests.” And to sum it all up the testator said: “It is my desire that my said executrix shall have and- exercise the same discretion as to the time and manner of the distribution of my estate that I would have if living.” As to the son Clyde, whose widow the plaintiff is, there is a special devise of an eighty-acre tract of land to him, and a specific legacy of stock in the "Walker-Lanyon Oil Company. This devise and legacy were not given to Clyde in the residuary clause of the will, and are therefore not subject to the limitation imposed by that clause; the only connection between them and the residuary clause is that their value was to be deducted from his share of the residuum when, in the opinion of his mother, the time was propitious for him to receive such share. As to that devise and legacy the will provided that they were to be given to him when he arrived at the age of 21, but it expressly provided that after that “he shall receive no further part or share until in the opinion of my executrix the same should be given to him.”

Thus we see that when the testator said in the will “ should either of my children die without issue before he or she shall have received his or her share of my estate,” he had in mind not merely the possibility of one of them dying during his own lifetime, but also the period after his own death when it would be expedient in the opinion of his wife to' give to the children or either of them his or her share. Therefore although he did not say in totidem verbis should either of my children die before he or she shall have been put in actual possession of his or her share, then the remainder over, yet, in the light of all that he said elsewhere in the will on the subject, that is what he meant. That being the testator’s intention we are bound to give it effect, even if we should think it unjust or unreasonable, which we do not, because the testator was dealing with his own property and his own children and he had a right to dispose of the property as he pleased, and he pleased to keep it in the family, limit.ing the succession to his children and his grand-children.

We hold, therefore, that Clyde B. Lanyon had no interest that would descend to his widow or heirs at his death in that portion of his father’s estate then remaining in the hands of the executrix.

II. Counsel for appellant contend that Clyde B. Lanyon, under the will of his father, was seized, during his marriage to appellant, of (at least) a base or. determinable fee, and that such a fee,' created by will, is an estate of inheritance, whereof the widow is entitled to dower. In their reply brief the counsel give us an interesting and learned argument on that point. That question, however, is not in this case. If it was a determinable fee it determined on the death of the appellant’s husband, and the property does not belong to his estate, therefore it should not be included in the administratrix’s inventory. If a husband during coverture owns a fee simple title to land and sells the same, the wife not joining or otherwise relinquishing her dower, she is entitled to dower in the land at his death, but the land is not his at his death and is not listed in the inventory of the administrator. In such case the widow seeks her rights against the purchaser from her husband. And in such case all that she is entitled to is dower; the statute which authorizes her, when there is no child of the marriage, to elect one half the estate in lieu of dower, has no application in such case, because the property does not belong to the husband’s estate. If appellant is1 entitled to dower in the land in question her right thereto is in no manner affected by the judgment in this proceeding.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    IRL R. HICKS et al., Appellants, v. CITY OF ST. LOUIS et al.
    Division One,
    June 1, 1911.
    INJUNCTION: Complied With After Appeal: Merits Not Considered. Where citizens of St. Louis county brought injunction against the city of St. Louis, to enjoin the city from shutting off water from the city’s water works, from which they had for some time been obtaining water for their residences and other property, and lost in the trial court, and appeal, and after their appeal the city, at their request and in pursuance to legislative authority granted by the State, enacted ordinances authorizing water to be continued to be furnished to them, on terms acceptable to them, and said ordinances are properly and without objection before the court, the - appeal will be dismissed; for, conceding appellants are right in their contention that the arrangement between them and the city, by which the city for years supplied them with water, amounted to an irrevocable license, they would gain nothing by a decision so holding, since the ordinance grants them all they could obtain by a decree, and therefore the ease is purely a moot one.
    Appeal from St. Louis City Circuit Court. — Ho». James E. Withrow,-Judge.

      Dismissed.

      George 8. Grover for appellants.

      L. E. Walther and Truman P. Young for respondents.
   WOODSON, J.

— This suit was instituted in the circuit court of the city of St. Louis, seeking to enjoin the city from refusing to furnish water to the plaintiffs, who are residents of St. Louis county, outside of, but in near proximity to, the western boundary of said city:

On July 16', 1906, the court issued a temporary injunction against defendants, in conformity to the prayer of the petition. Thereafter, a trial wéts had before the court, and the cause was taken under advisement until December 10th, of the same year. On the latter date, the temporary injunction theretofore issued, was continued in full force until the city should by ordinance cut off appellants’ water supply or until the city should by ordinance authorize said water' supply, or until the further order of the court; and at the same time the case was dismissed as to the city and Mayor Wells, thereby leaving the cause pending against F. Scharwitz, the assessor and collector of water rates of said city. The then accrued costs in the case were taxed against the city water commissioner.

In June, 1907,the temporary injunction theretofore issued was by the court dissolved, and the bill dismissed, and all the costs accruing in the cause since December 10th, 1906, were taxed against the plaintiffs.

After moving unsuccessfully for a new trial, plaintiff duly appealed the cause to the St. Louis Court of Appeals. Thereupon, the court made an order continuing in force the temporary injunction theretofore dissolved, pending the appeal.

On September 23, 1907, tbe latter court, by an order duly entered of record, transferred the case to this court, for tbe reason that tbe city of St. Louis, a party to tbe suit, was a political subdivision of the State, and therefore, tbis court bad tbe sole appellate jurisdiction of tbe controversy.

Tbe facts of tbe case are few and are practically undisputed.

For a period of more than ten years prior to the institution of this, suit, appellants bad lived, aud still live, in the extreme eastern edge of St. Louis county, only a short distance west of tbe western limits of tbe city of St. Louis.

During tbe period first mentioned, and prior thereto, tbe rapid growth of tbe western part of tbe city resulted in tbe settlement of a large population beyond tbe western limits of said city, in tbe eastern edge of said county. Practically, there is no difference in appearance between that part of the city and tbe eastern part of tbe county. On both sides of tbe imaginary dividing line, tbe streets and alleys, lots, and blocks are tbe same, and tbe bouses and improvements upon tbe lots and blocks upon the one side correspond in location and character to those upon tbe other. In tbis entire territory of tbe city, sewers have been constructed as necessities, and wells, cisterns and vaults condemned, and either filled up or unused, as a necessary sanitary measure.

As early as tbe year 1893, upon application of tbe residents of that portion of tbe county, tbe city water commissioner began supplying them water from tbe city water works; but upon what.authority be did so does not clearly appear from tbis record. Doubtless, however, it was under tbe authority of some ordinance.

The city bad previously laid water mains to various points along its western limits. At those points, connections were made with those mains by private pipes constructed and maintained in the county at the expense of, and leading to the various premises of the appellants. A water meter was placed just inside .the city limits at the end of the city main, which was- also at the expense of the consumers, through which the water from the city water works was measured into the pipes of the private consumers residing in the county; but unlike the city consumer, the county consumer paid for his water and pipe and kept both in repair at his own expense, as well as becoming responsible for all leakage. The water thus supplied to the county consumer was paid for by him twice a year, in advance, under written licenses countersigned by the city comptroller, and collected at water rates the- same as in all parts of the city.

Relying upon the faith and permanency of that arrangement, the county consumers, including appelLents, expended and invested large sums of money in the erection of buildings and in making other valuable and permanent improvements upon their premises. That arrangement was quite profitable to the city, and added to the surplus-fund of the water department, which was properly used by the city for some of its various needs.

For many years prior to-1906; the .Board of Public-Improvements of the city, of which the Water Commissioner was a member and still is, had supplied and still supplies city water to the residents of that part of the county on the terms before stated. The city water supply is not only sufficient for its own necessities, but is ample' for that part of the county formerly mentioned.

No objection was ever registered against the -city supplying the residents of the county with water, until the organization of what is- called the ‘ ‘ County Water Company,” in the year 1902, and it is surmised that the latter company had something to do with the threatened discontinuance of said water supply by the city.

Appellants ’ evidence tended to show that the latter company had a small pumping station on the Missouri River, some twelve or fourteen miles west of the city limits, and had begun to extend its water pipes into a portion of the territory above described; but those pipes did not reach a portion of the territory occupied by appellants, and by others who are parties' to similar suits to this one, until after this and those suits had been instituted, and then only with such small supply pipes as to furnish an insufficient water supply, for that part of the county.

After the question had been raised as to the right of the city to furnish water to residents of the county, the mayor of the city requested'an opinion from, the city counselor, as to the right of the city to furnish water for the use of persons residing beyond the city limits.

In reply to that request, the city counselor replied that under an act of the Legislature, passed in the year 1899, the city had the authority to do so, but that a city ordinance was necessary to put that act into operation.

In March, 1906, the city collector of water rates, acting under the orders of the mayor, notified appellants that the city water supply would be cut off on the 30th of that same month, unless good cause was shown to the contary.

Upon the receipt of said notice, the residents of that territory entered a protest against said threatened action of the collector of water rates, which resulted in the suspension of said action for the time being, at least; and in March, May, and June of 1906, said collector reissued water licenses for a supply of city water to said county residents, including the appellants, for various periods ending in the months of September, November, and December of the same year, and received in return therefor the regular water rates prescribed by an ordinance of the city, which the city still retains.

In June, 1906, the mayor peremptorily ordered the city collector of water rates to cut off appellants ’ water supply on July 1st, of that year, and they were duly notified of said order of the mayor.

In consequence of said threatened action of the city, to shut off appellants’ water supply, this suit was instituted in June, 1906. Then followed the temporary restraining order before mentioned, as well as all the •other proceedings of the court heretofore stated.

Such additional facts as may be necessary for a proper disposition of the case will be noted in the opinion.

Appellants base their claim for relief sought in this case, upon the contention that the arrangement made and entered into by and between them and other residents of the eastern part of St. Louis county, and the city of St. Louis, by which the latter furnished the former with water from the city water works, amounted to an irrevocable license on the part of the city, and that it could not legally revoke the same.

Since the rendition of the decree in this case, the city of St. Louis, at the instance and request of the appellants and others similarly situated, in pursuance of the Act of 1899, previously mentioned, enacted ordinance No. 23,568, by which the city granted to them the right and privilege to draw and use water from the city mains just as they had previously been doing.

While this ordinance was passed subsequent to the taking of the appeal in this case, nevertheless, appellants have brought it here by their supplemental abstract of the record, to which counsel for respondents, not only do not object, but upon the contrary, admit it to be true.

Based upon that showing, counsel for respondents insist that this appeal should be dismissed, for the .reason that the city, by said ordinance, has granted to appellants all the rights and remedies they demand, or Sould receive by this suit even though the appeal was meritorious when taken.

In discussing a similar question in the case of State ex inf. v. Standard Oil Co., 218 Mo. l. c. 388, this court, In Banc, said: “As to the first proposition, we have no hesitancy in saying that as an abstract legal proposition under ordinary circumstances any defendant in a suit may abate the same, by voluntarily doing all the things which the pleadings in the cause pray tbe court to compel him to do; and this may be done on motion at any stage of the litigation, before or after trial, or before or after an appeal is granted.” Then follows quite a lengthlv .review of the authorities bearing upon that point. The same rule was announced by this court in the cases of Cape Girardeau & Thebes Bridge Terminal Railroad Company v. Southern Illinois & Missouri Bridge Company, 215 Mo. 286, and State ex rel. v. Philips, 97 Mo. 331.

After a careful consideration of said ordinance, we are satisfied that it grants to appellants all the rights which they could possibly have obtained by the decree of this court, conceding that they were entitled to the decree prayed for.

By requesting the passage of said ordinance, and accepting the benefits thereof, the appellants have resolved the questions presented by the petition in the case into moot questions purely, which this court will not pass upon. See cases supra; also, American Book Co. v. Kansas, 193 U. S. 49. We, therefore, dismiss the appeal without passing upon the merits of the case.

All concur.


text:
    SAMUEL RAYBURN et al., Appellants, v. CITY OF ST. LOUIS et al.
    Division One,
    June 1, 1911.
    Appeal from St. Louis City Circuit Court.— Hon. Matt G. Reynolds, Judge.
    Dismissed.

      Geo. S. Grover for appellants.

      L. E. Walther and T. P. Yoimg for respondents.
   WOODSON, J.

— There is no difference in the facts of this case, and the case of Hicks v. City of St. Louis, the opinion in which, has just been handed down, and which is reported at page 647. The holding in that case is conclusive of this. The appeal must therefore be dismissed, and it is so ordered.

All concur.


text:
    T. J. CRIST et al., Appellants, v. CITY OF ST. LOUIS et al.
    Division One,
    June 1, 1911.
    Appeal from St. Lonis City Circuit Court. — Now. Matt G. Reynolds, Judge.
    Dismisssed.

      Geo. 8. Grover for appellants. -

      L. 8. Walther and T. P. Young for respondents.
   WOODSON, J.

— The facts of this case are identical with those in the case of Hicks v. City of St. Louis, disposed of at this sitting of the court, and reported at page 647; and what was there said, is equally applicable here. Consequently, the appeal in this case is dismissed.

All concur.


text:
    W. H. BOWSER et al., Appellants, v. CITY OF ST. LOUIS et al.
    Division One,
    June 1, 1911.
    Appeal from St. Lonis City Circuit Court. — Hon. Matt G. Reynolds, Judge.
    Dismissed.

      Geo. 8. Grover for appellants.

      L. E. Walther and T. P. Young for respondents.
   WOODSON, J.

— This case is on all-fours with the case of Hicks v. City of St. Louis, decided at the present sitting of the court, and reported at page 647; and the ruling in that case is controlling in this one. The appeal, therefore, is dismissed.

All concur.