The plaintiff instituted this suit in the Circuit Court of Nodaway County against the defendants, to construe the will of Isaac J. Crossan, and to partition certain lands held by him.
The trial resulted in certain findings for each of the parties, and the decree on certain issues was for the plaintiffs, and for the defendants upon others. In due time and proper form both of said parties appealed the case to this court.
There is no dispute as to the facts of the case. The testator's estate consisted chiefly of farm lands in Nodaway County, and a home in Maryville, in said county, particularly described as Lots Seven and Eight in Block Eleven of Northwest Addition to Maryville. Testator died in August, 1920, and by the provisions of his will he appointed his son Edwin C. Crossan the executor of his will. The will was duly probated and the executor began the administration of the estate. Two months later the executor died, and John F. Roelofson was duly appointed administrator with the will annexed, in his stead.
In due time, Ruth Crossan, the widow of the said Isaac J. Crossan, renounced the provisions of the will of the said Isaac J. Crossan and elected to take under the statute as his widow. The effect of this renunciation upon the will of Isaac J. Crossan is the principal question to be considered in this proceeding. While *Page 583 the home in Maryville is spoken of as the home of Isaac J. Crossan in the will, he and his wife, the said Ruth C. Crossan, had removed therefrom about two years before his death, and the said home after the time of their removal had been rented and was in the possession of and occupied by tenants at the time of the death of the said Isaac J. Crossan. After the death of the said Isaac J. Crossan and as soon as possession of said property in Maryville could be obtained from the tenants then occupying the same, the said widow, Ruth C. Crossan, returned to her former home, and since said time has been living in said home in Maryville.
The most casual reading of the will discloses that the sole object of the testator in making a will was to provide for his widow, the said Ruth C. Crossan. The will makes no change in the course of descent and distribution from that provided in the statute, except in respect to the widow, or for her benefit. By the first paragraph of his will, he disposes of the house and lots in the city of Maryville, in the following manner:
"First. I give and bequeath to my beloved wife, Ruth C. Crossan, our home here in Maryville, Nodaway County, Missouri, together with all household goods therein contained, situate on Lots seven (7) and eight (8) in Block eleven (11), Northwest Addition to Maryville, during her natural lifetime, after which to revert to my daughters, Ida J. Tindall and Rebecca L. Onstott, provided they shall well and tenderly care for my said wife Ruth C. Crossan, during her declining years, otherwise to go to all my then living children, share and share alike."
It was conceded at the trial that this paragraph of the will gave the widow a life estate in this property, and Ida J. Tindall and Rebecca L. Onstott a conditional remainder. It was further conceded that the contingency upon the happening of which the remainder was to become vested in possession was a condition precedent. *Page 584
The widow in due time renounced the provisions of the will, and one of the questions for consideration is the effect of the renunciation of the widow and the consequent termination of the life estate on the contingent remainder of the said Ida J. Tindall and Rebecca L. Onstott. It is the contention of the plaintiffs that as the particular estate was terminated before the condition upon which the remainder was to vest was performed, the estate in remainder failed, in having no particular estate to support it.
The trial court held that though the life estate terminated and the title to the property became vested in the heirs at law, this title, so vested in the said heirs, was liable to be devested out of them and vested in the remaindermen by the performance of the condition, and that the contingent remainder so vested in the daughters by this clause of the will needed no particular estate to support it.
I will insert the rulings of the trial court upon the various questions as they arose, in connection with the facts, as they appear as the trial progressed, which will clearly show the view of the law applicable to the case. The court says:
"The court in considering the said will as above set forth in connection with the renunciation of the widow, construes the first clause of the will as being a devise of the home place, Lots seven and eight in Block Eleven Northwest Addition to Maryville, to the widow, Ruth C. Crossan, for and during her natural life, with the remainder to the daughters, Ida J. Tindall and Rebecca L. Onstott; that the remainder is a contingent remainder, and has to vest in the daughters at the death of Ruth C. Crossan, provided they tenderly care for the mother during her declining years; that the devise of this remainder is in the nature of compensation to them for proper care and attention which the mother will require for her physical comfort and welfare and which the daughters are better fitted to give to the mother, and *Page 585 that it was the intention of the testator that they should receive this compensation, if they performed the conditions, regardless of whether the mother accepted the provisions of the will as made for her or not, and the court holds, as a matter of law, that the renunciation of the widow and consequent termination of the life estate vested in her by the will, did not destroy this contingent remainder of the daughters and that the fee is vested in the heirs at law of Isaac J. Crossan, Sr., subject to the dower right of the wife, Ruth C. Crossan, but subject to be vested out of the said heirs at law upon the death of Ruth C. Crossan, provided the said Ida J. Tindall and Rebecca L. Onstott shall have complied with the conditions imposed by the first clause of said will, and that by reason of the contingent character of the interest of the various parties in and to said lots, the interest cannot be determined until the death of the said Ruth C. Crossan, and partition therefore cannot be had of the said home place, referred to as Lots seven and eight."
While the said Rebecca L. Onstott has been caring for the mother in the home since the death of the father, she is not caring for the mother in pursuance of and under the provisions in said will contained, but is receiving compensation for her services in so caring for the mother. She declined to care for the mother in consideration of the remainder in said property, as provided in said will, but required larger and additional compensation, and is now receiving the same. On cross-examination, she stated:
"Q. I will ask you then, if you did not say in substance that you would not take this house and take care of your mother and that you would have to be paid for taking care of your mother? A. I said I would have to be paid more than the house was worth, because my father told me to do it. He told me just what he meant by this will.
"Q. Did you say that you would not take this house and take care of your mother, but that you would have to *Page 586 be paid for it, in addition for taking care of your mother? A. Yes, I have; for the house alone, I won't do it."
The paragraphs of the will dealing with the farm lands are as follows:
"Second. I give and bequeath to my said wife, Ruth C. Crossan, one-third of all income accruing from my estate (outside of the home place as above) of whatever kind or nature during her natural lifetime.
"Third. It is my will that the remaining two-thirds of accrued income shall be divided equally between all of my children, to-wit: Ida J. Tindall, Rebecca L. Onstott, James A. Crossan, Isaac J. Crossan, Jr., Edwin C. Crossan, Levi G. Crossan, Gilbert R. Crossan and Harry G. Crossan.
"Fourth. After the demise of my said wife, it is my will that all of the residue or remainder of my estate be divided equally, share and share alike, between my children as above enumerated."
It is the contention of the plaintiffs that the interests of the children in said lands are not affected by the will, save as those interests are affected by the provision for the widow in the second clause of the will, and that as the renunciation of the widow practically destroys the effect of the second paragraph of the will, the third and fourth paragraphs fall also, and the title of the lands is the same as it would have been had there been no will.
We do not understand that there is much dispute on this point, and so we repeat that there is not much question about the right to partition of the farm lands, the only question being the effect of the widow's right of dower. As the facts are few and simple, as the principal dispute arises from the effect of the renunciation of the widow on the contingent remainder in the city property and the effect of her dower right on the partition of the farm lands, we do not deem a further statement of the facts to be necessary. *Page 587
I. It must be apparent that the chief legal proposition in this case hinges upon this contention of counsel for plaintiffs. "It is the contention of plaintiffs that as theRenunciation particular estate was terminated before theof Will: Waiver condition upon which the remainder was to vestand Estoppel. was performed, the estate in remainder failed, it having no particular estate to support it."
Counsel for defendants meet the contention of plaintiffs by insisting that "the widow's renunciation of the will nullified the will only as to her, and left the same operative and binding as to the other legatees and devisees and as regards all provisions save those in favor of the widow."
It seems to me a complete answer to this contention is found in the fact that when the widow elected to renounce the will, she thereby also waived the right of demanding the personal services of Ida J. Tindall and Rebecca L. Onstott to attend and care for her during her declining days, which the will required of them, as a condition precedent to their acquiring the title to the remainder in the home in Maryville. Clearly this condition was imposed upon the daughters for the personal benefit of the mother, and she being sui juris I see no earthly reason why she could not waive the performance of the condition, either in express terms or by necessary implication, as she did in this case, by renouncing the will and thereby destroy the particular estate, and prevent a literal compliance with the terms of the conditions; but be that true or not, if she still insists upon the daughters performing the services mentioned in the will, and if she is legally entitled to them, then surely justice, equity and good morals should not require them to perform those services, and at the same time permit the mother to do an act which would destroy the compensation they were to receive for their performance.
My opinion is that the mother either waived the right of the performance of the services, as before stated, *Page 588 or she should be estopped from demanding the services, after she has destroyed the particular estate upon which their compensation rested.
The right and justice of the situation is perfectly clear to my mind, and that is the renunciation of the will destroyed the particular estate, and that same act accelerated or hastened, and caused, the remainder to vest instanter, and therefore it needed no particular estate to support it. I think there can be no doubt but what that was the effect of the acts of the parties done in the premise.
Under this view of the case we are of the opinion that the title to the remainder in and to the home vested in and became the property of the two daughters, the enjoyment of which of course is postponed until their mother's death.
II. Counsel for defendants contend that the trial court erred in holding that the widow's renunciation of the will accelerated the operation of the fourth clause of the will, and in directing partition of the land not assigned for dower. IfRenunciation: we are correct in the conclusions reached inAcceleration Paragraph I of this opinion, then I am unable toof Remainders. see in what manner the renunciation of the will could accelerate the performance of paragraph 4 of the will. The renunciation of the will had no effect upon the 4th clause of the will whatever; and by reading said 4th clause of the will, it will be seen that it contemplates that the estate is to be held intact until the death of his wife, after which "it is my will all of the residue or remainder of the estate be divided equally . . . between my children."
We are therefore of the opinion that this part of the judgment was erroneous, and we therefore reverse this part thereof, and remand the cause to the circuit court with directions to enter judgment as here indicated. *Page 589