The plaintiff brought this suit to partition a certain tract of land in the city of St. Louis between herself and the defendant, alleging that they were joint tenants, each owning an undivided one-half interest in the property. Both parties claim under the will of Mary Hazel Bollam, mother of the defendant, and grandmother of the plaintiff. The will of Mary Hazel Bollam has the following provisions affecting the property:
"Third: I give, bequeath and devise to my two sons, George P. Bollam and William F. Bollam, my house and lot, known as premises No. 3234 Lawton Avenue, St. Louis, Missouri; to have and to hold the same as joint tenants and not as tenants in common, in fee simple."
The Fourth and Fifth items give specific bequests. The sixth is as follows:
"Sixth: All the rest, residue and remainder of my estate, of every kind, I give, devise and bequeath to my son William F. Bollam."
Mary Hazel Bollam, the testatrix, died January 24, 1920. George P. Bollam, mentioned in item third of the *Page 494 will, died January 20, 1920, four days before the death of testatrix.
The plaintiff, Mary Lounden, is the only child of George P. Bollam, deceased, and claims half interest in the property by virtue of Section 516, Revised Statutes 1919. That section is as follows:
"Sec. 516. Descendants of devisee shall take property ofdevisee. When any estate shall be devised to any child, grandchild or other relative of the testator, and such devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate, real or personal, as such devisee would have done in case he had survived the testator."
Under that provision of the statute the plaintiff, as the only child of George Bollam, should take as joint tenant with William Bollam, just as her deceased father, George Bollam, would have taken if he had survived the testatrix.
The appellant on the contrary argues that William Bollam takes by survivorship, and therefore the statute, Section 516, which is designed to prevent the lapse of a legacy, would not operate. A distinction is pointed out between a devise of a joint tenancy and a tenancy in common. So far as the devolution of the estate, as determined by the will, is concerned, there is no distinction between the joint tenancy and the tenancy in common, where in the latter case the devise is to a class.
The case of Jamison v. Hay, 46 Mo. 546, is directly in point, and the only case in which the matter is decided in this State. There the testator devised a certain portion of his estate "to the sons and daughters of A." Under the common law rule, some of the sons and daughters of A being dead, the survivors would take the whole estate. The court held that the statute would prevent that result and the lineal descendants of the deceased children of A, under Section 516, would take the part which otherwise would go to the deceased children. The devise in that case beingto the class, the right of survivorship in the absence of the statute, is exactly the same as the right of survivorship in the case of a joint tenancy. *Page 495
The following passage from 40 Cyc. 1930, is cited as announcing a contrary rule:
"Where under the will the donees are to take as joint-tenants,or as a class, there is no lapse from the death of one or more, but the entire gift goes to the survivor or survivors."
That states the rule that obtains at common law in the absence of a statute such as Section 516. That same volume, p. 1936 et seq., discusses the effect of a statute such as ours, showing that it is given full effect.
That passage, it must be noted, makes no distinction between a devise to tenants in common, as a class, and a devise to joint tenants.
It is argued that to give effect to the statute would convert a joint tenancy into a tenancy in common. That would not follow. There could be no joint tenancy unless the statute is applied to the case; the intention of the testatrix to create a joint tenancy would fail.
The matter is treated by appellant's counsel as if William F. Bollam took the whole title by the right of survivorship, just as the law operates upon a joint tenancy fully vested. It is assumed that William, as the survivor of George, took the interest of George. Before one of two joint tenants, by right of survivorship, can take the estate of the other, there must be a joint tenancy in the two with title fully vested, and the other must die after such vesting of the title. William could not take an interest which George did not have. No title as joint tenant, or otherwise, was ever vested in George. When he died the title was in the testatrix.
It is a matter of testamentary construction. What was the intention of the testator? It is argued that the will showed the testator intended the survivor of the two devisees should take the whole estate. The will does not say so, and that conclusion is arrived at by a legal inference from the use of the words "joint tenants." The testatrix is presumed to have intended the legal effect of the language used. She is not presumed to have intended *Page 496 any other effect than what the words actually implied. This on the theory that the testatrix is presumed to know the law. When she provided that her two sons should be joint tenants she is presumed to have known that they could not be joint tenants unless both survived her, and that one could not take the title of the other as survivor until the other had a vested title. She made no provision for the disposition of the estate in case one of the sons should die before she died, but the statute made such provision and she is presumed to have known the statute.
Suppose the testatrix had made the further provision that, in case of George's death before her own death, the interest of George should go to his daughter, the plaintiff, as joint tenant with William. Is there any doubt that the intention thus expressed would be given effect? In that case the will would simply have provided for a contingent or a substitute joint tenant to take in case George should die.
Suppose the will had been more general and had provided that, in case of the death of either George or William before the death of the testatrix, the descendants of such deceased should take the estate devised to him as joint tenants with the other son; would that expressed intention be given effect? If not, why not? It would not convert a joint tenancy into a tenancy in common. It would provide for contingent joint tenants.
That is precisely what the statute provides. The testatrix is presumed, not only to know the statute, but to have written her will with the statute in view. It is written as if the statute were incorporated in it as a part of it. To quote 40 Cyc. p. 1939: "But it must be presumed that the testator made the will in view of the statute and that he intended to have the statute prevail, unless the contrary appears." There are numerous cases of like effect.
Suppose both George and William had died before the testatrix, what would have become of the estate devised to them if the statute could not be given effect? *Page 497
As said above, it is a matter of testamentary construction. Under the common law rule, as numerous cases show, where the devise is to a class, as tenants in common, or to joint tenants, it is presumed that the testator intended the survivor or survivors of the class, or of the joint tenants, should take the whole estate, although death occurred before any title could vest in any one. It was an attempt to solve the intention of the testator. The rule in attempting to solve that intention applies alike to an attempt to create a joint tenancy which is defeated by death, as well as an attempt to create a tenancy in common in a class which is defeated by death. The rule does not apply to an ordinary tenancy in common, but only to a devise to a class.
Those cases in which there is a devise to tenants in common as a class, such as "to the children of A," almost universally hold that where one of the class dies before the testator, the statute, such as we have here, prevents the operation of the common-law rule of construction by vesting the title of the deceased in his descendants. The same reasoning and the same rule would apply to a devise to joint tenants. It only happens that the cases in respect to devises to tenants in common, as a class, are numerous, while a case is hard to find where the matter arose in respect to a devise to joint tenants. We have been unable to find any case where the courts have construed the statute so as to make any distinction between the effect of devises to joint tenants and tenants in common as a class, or any case where the application of the statute has been denied in an attempt to create a joint tenancy by will.
A case of a joint tenancy arose in West Virginia, and the statute, very similar to ours, was applied. [Hoke v. Hoke,12 W. Va. 427.] The case is very elaborate and reviews the authorities. The opinion, quoting from a textbook on Executors, says, l.c. 471: "The clause of the statute of wills now under consideration, presents a question wholly different from the matters relating to survivorship. The issue of the pre-deceased joint-tenant *Page 498 will take the estate as that devisee or legatee would have done.By this statutory substitution, the issue becomes entitled to the estate. His title is the same as if the will had expresslygiven the estate to him substantially for the deceased deviseeor legatee." (Italics ours).
It is said that the purpose of the statute is to prevent a lapse of legacies. It is true that was one of the purposes of the statute, but the language shows that the legislative intention was broader than that. It was said in the Hoke Case, l.c. 470:
"True, it was intended to prevent the lapsing of legacies in certain cases, but in my judgment, it was intended in part to modify the said common law rule, so that if a devise is to two persons jointly, when one of the devisees or legatees dies before the testator, leaving issue who survived the testator, such issue of the predeceased devisee or legatee shall take the estate as that devisee or legatee would have done if he had survived the testator unless a different disposition thereof be made or required by the will."
That the statute means more than the mere purpose of preventing the lapse of a legacy is shown by its language. Section 516 provides: "When any estate shall be devised . . . such descendant shall take the estate, real or personal, as such devisee would have done in case he had survived the testator."
"Any estate" would include estates by joint tenancy as well as any other. Certainly the devise to George Bollam would be included in the term "any estate." The testatrix is presumed to have had this statute before her when she wrote her will, to have known its effect, that it must apply to "any estate," and that the statute should be read into the will as a part of it. We see no escape from the conclusion that the statute should be applied to this case. Several cases which are in point construing such a statute and holding that the testators must have written with the statute in view, some of them reviewing many cases, are as follows: Strong v. Smith, 84 Mich. 567; Rudolph v. Rudolph,207 Ill. 266; Nicholson v. Nicholson, *Page 499 115 Iowa 493; Wooley v. Paxson, 46 Ohio St. 307; Thompson v. Myers, 95 Ky. 597.
The testatrix intended to create a joint tenancy in George and William. That purpose was defeated by the death of George. The statute provides for a substitute joint tenant with William. That reason for the statute is mentioned in many cases, among them the case of McKellar, Administrator, 114 Me. 421, where the court said, at page 423: "The purpose and effect of the statute seems clear. It preserves such a devise from lapsing by substituting in place of the deceased devisee his lineal descendants. By force of the statute they take under the will in his place, and they take the same estate he would have taken thereunder."
Section 516, Revised Statutes 1919, undoubtedly was designed to reach just such cases as this. The judgment is affirmed. JamesT. Blair, Graves and Ragland, JJ., concur; Walker, J., dissents, in a separate opinion, in which David E. Blair, J., concurs; Woodson, C.J., dubitante.