201 Mo. 360 | Mo. | 1907
This is an action by plaintiff in the circuit court of Jackson county, Missouri, by which it seeks, first, to have the following clause of a will executed by Elizabeth A. Shrader, deceased, construed, said clause being:
“My Kansas City property on Olive street, No. 705 and 1489, will a portion be for the fitting up our graves be left in the hands of Wash Adams for that purpose; the remainder to be given to the Methodist E*. Church, South, and missionary cause.”
And secondly, to have said property sold and the proceeds applied to the payment of a mortgage of $700 thereon, and $500 to Wash Adams as trustee,, and the remainder of said proceeds to this plaintiff for missionary purposes. Defendants Stella Timberlake May and John I. May by answer aver that they have no interest in the suit and ask to be discharged with their costs. Defendant John G. Paxton, guardian ad litem for Charles Timberlake, averred the ownership of the property to be in Charles Timberlake as the heir at law of Elizabeth A. Shrader, and likewise asked the court to so construe the will and so declare, and denied all other matters set out in the petition. Defendants S. R. Shrader and Wash Adams by joint answer practically admit all the matters and things set out in the petition except the construction of the will contended for
Defendant Finch answered, first, by way of general denial, and then by an admission that the deceased, Elizabeth A. Shrader, made and executed a mortgage of which he was the holder in the sum of $700' and accrued interest, covering the property alleged to be involved in this litigation, which said mortgage is a first lien, and praying the court in the event of a sale to have his debt first fully paid and satisfied. The trial court-found said clause of the will to be void and too uncertain and indefinite to be enforced and denied the prayer of plaintiff’s petition asking for the sale of said property and gave judgment for defendants against plaintiff for costs.
Evidence : Certified copy of the will was introduced by plaintiff containing the clause hereinabove set forth. Plaintiff then introduced its charter, showing it to be a Tennessee corporation with power to receive and hold contributions of property of the character mentioned in this will under the construction thereof contended for by the plaintiff herein. There was also introduced certain sections of the Discipline of the Methodist Episcopal Church, South. The age of the defendant S. R. Shrader was shown to be eighty-one years. It was also shown that Mrs. Shrader did not in fact own the property at No. 705 and No. 1489 on Olive Street, but that she did own two- tracts of land on Olive street, at No. 1705 and-No. 1914, respectively, and had never owned any other tracts of land on Olive street in Kansas City, save and except these two tracts, which she owned at the date of making the will as well as at the date of her death. The deed of trust to Finch was introduced. The evidence further disclosed that neither tract of land was of very great value. By oversight, or otherwise, the evidence fails to. disclose that Mrs. Shrader was a member of the Methodist
OPINION.
As we gather it from the record the following contentions were made by respondent in the circuit court: (1), that plaintiff had no right to maintain this suit under the terms of the will; (2), that the description of the property in the will, involved in this case, is not property which was owned by the decedent and that the property now sought to be brought in under the terms of the will cannot be subjected to its terms, even if the will is in all parts valid and enforceable; (3), that the clause of the will hereinabove set out in the statement of facts, and under which the plaintiff claims, is too indefinite and uncertain to be enforced by the courts and for that reason invalid; (4), that the plaintiff could not introduce in evidence the official book of rules and discipline of the Methodist Episcopal Church, South, to-wit, “to show the authority of this corporation [meaning plaintiff] to act for the Church.” The court excluded the rules last mentioned and also sustained the contention of respondent as to contention three above. Contention four was sustained during the trial and contention three by the express terms of the judgment. We are not further enlightened as to the views of the trial judge upon the first and second contentions. By brief of respondent the first and second contentions do not seem to be seriously urged, so that we will take up the third and fourth contentions, considering the rules and discipline offered as if admitted.
I. The description given in the will is, ‘ ‘ My Kansas City property on Olive street, No. 705 and 1489.”
We have here a general description of, “My Kansas City property on' Olive street, ’ ’ followed by a particular description, “Nos. 705 and 1489.” In our judgment we can Reject this particular description and rely upon the general description. This will not only appears to dispose of all the testator’s property, but also specifically says: ‘ ‘ My Kansas City property on Olive street.” The testator could have had in mind only such property as she owned on Olive street in Kansas City, in so far as the attempted devise in the contested clause of this will is concerned. As to the sufficiency of this description under the evidence in this case we are thoroughly satisfied under the learned discussion of Sherwood, J., in Thomson v. Thomson, 115 Mo. 56; and of Mr. Justice Bradley in Patch v. White, 117 U. S. 210. In our judgment the doctrine of these cases is sufficient to upohld this description under the oral evidence.
II. We reach now the vital question of this case: Is the clause in this will, “The remainder to be given to the Methodist E. Church, South, and missionary cause,” too uncertain and indefinite to be enforced, and for that reason void and of no effect? The trial court held that both clauses, “My Kansas City property on Olive street, Nos. 705 and 1469, will a portion be for.the fitting up of our graves, be left in the hands of Wash Adams for that purpose,” and “the re
We confront at the outset two well-recognized rules in the law: First, courts cannot make wills for parties. Second, wills should be so construed as to carry out the intention of the parties. In the latter we are not limited to the four corners of the instrument, but may be enlightened by evidence, aliunde, as to the conditions and surroundings of the testator, in determining the real intention of the party making the will. But even when guided by these rules the court may by invoking, and without doing violence to, any of the rules of construction in cases of wills, find a condition in the devise which, for vagueness and indefiniteness, cannot be enforced. Such appears to us to be the real question in this case. In the clause under consideration the- testatrix in plain English says she wants the remainder to go to “the Methodist E.. Church, South, and missionary cause.” Had she said “to the Methodist E. Church, South, for missionary cause,” there would be less trouble, for in that instance we would have a trustee named in the will and an indication of how that trustee should apply and use the fund, rather indefinitely stated however, for even in this instance the trustee would not be advised as to what particular “missionary cause” under the control of the trustee,
We are therefore forced to pass upon the clause
These cases all discuss very fully similar provisions in wills and in all they are held void.
The principal case relied upon by appellant is the case of Kinney v. Kinney’s Exr., 86 Ky. 610, 6 S. W. 593. That case is clearly distinguishable from the one at bar. The clause there was, “I do will and bequeath to the Methodist Episcopal Church, South, to be applied to foreign missions, all of my property, real and personal, after the payment of my just debts, for their use and benefit exclusively.” Were we permitted to read in the present will the word “for” in place of the word “and” as we have it, the cases would be somewhat parallel. But were we permitted to do this, and did do it, there is in the Kinney case, supra, a specific designation of what branch of the “missionary cause” is desired, while in the case at bar we would still be in doubt where the fund should go, whether to foreign or home missions. Wills must be definite enough for the courts to take hold of them and enforce them, and such is not the. case in the clause of the will under consideration. We, therefore, hold that the following
For the reasons aforesaid, the judgment should be and is affirmed.