Citation. 452 S.W.2d 153,1970 Mo.
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Brief Fact Summary.
The inheritance of property is conditioned on a person remaining unmarried, and that person seeks a fee title to the real estate.
Synopsis of Rule of Law.
All devisees take in fee simple if no intent is expressed to create a life estate only and no further devise is made to take effect after the death of the devisee.
A will was created which devised to Hattie L. Lewis (Plaintiff) real estate as long as she remained unmarried. If she did marry, the will provided that the property would be divided equally between Plaintiff, a niece and a nephew. The nephew died leaving two sons, who have contested Plaintiff’s suit. Forty-three years after the will was probated, Plaintiff was still unmarried and has been in continuous possession of the real estate. She brought a suit to gain title in fee simple determinable. The two sons claim she only has a life estate determinable.
When real property is devised, does the testator intend to create a fee simple determinable when the will does not mention a life estate conveyance and the will indicates no further devise after the death of the devisee?
Plaintiff took a fee simple estate subject to divestiture of an undivided two-thirds interest in the event of her marriage.
The provision of the will concerning marriage is valid. The testator intended to support Plaintiff while she remained unmarried and to require her to share with the other niece and nephew if she did get married. It is not constitute a penalty for marrying because Plaintiff is not cut off if she did marry.
A will must be construed as a whole to arrive at the intent of the testator, which is controlling. Here, the testator was thinking only in terms of fee interests because everything to Plaintiff in fee was conditioned upon her remaining single. It is determinable because it applies only in the event of her marriage. If she did marry, one-third would go to each in fee. There is not expressed intent of any life estate in this will and contains no devise of Plaintiff’s interest to anyone after her death.
All devises are in fee simple if no intent is expressed to create a life estate and no further devise is made to take effect after the death of the devisee. Thus, Plaintiff received a fee simple fee in the real estate, subject to divestiture upon her marriage.
The court seems to favor granting a fee estate rather than a life estate when the will does not have a clear intent to transfer property at less than a fee est