| Mo. | Mar 15, 1905
This is a suit in equity to construe a will and a codicil thereto of James B. Brooks, who died in Howard county, Missouri, on the 13th of July, 1902. The plaintiffs are Thos. B. Brooks, the testamentary trustee under the will, and his wife, Mary Brooks, and their children, beneficiaries under the will. And the defendants are Phillip O. Brooks, executor of
The case is here on a certificate of the judgment. The testimony is not preserved in the record and no evidence is contained in the abstract of the record. The question for adjudication arises on the face of the record proper.
The decree finds that James B. Brooks died, testate, leaving as his next of kin a full brother, Thos. B. Brooks; two half-brothers, one of whom is Phillip O. Brooks, said executor, and three half-sisters, one of whom is the said Irene Scott. The full brother is the husband of Mary Brooks, and the father of the six minor plaintiffs.
After stating the relationship of the parties to the testator, the petition states that said James B. Brooks left the following last will and testament:
“I, James B. Brooks, of Howard county, Missouri, of sound mind and disposing memory, do make and publish this my last will and testament.
“1. I will and direct that my funeral expenses and all my just debts be paid out of my estate by my executor, and that a suitable monument be erected to mark my grave.
“2. I will, devise and bequeath all the rest, residue and remainder of my estate, real and personal, of every description to my brother, Thomas B. Brooks, .in trust for the use of his wife, Mary Brooks, during her natural life, and at her death to all the children of said Thomas B. Brooks; said trustee shall have power to invest said estate in real estate for a home for said Mary Brooks and his said children, to her for life and at the termination of said life estate to said children. If any of said children shall have died, leaving children or descendants, such descendants shall take the share his or her father or mother would have taken if living. Said trustee shall also have power to*483 sell and convey any real estate purchased by him and put the proceeds to interest, securing the same by unencumbered real estate of at least double the amount or value loaned, said interest to be paid annually or to compound annually.
“3. Said trustee, instead of investing said estate, may put the same to interest on the terms above mentioned, being careful to have the same well secured and the interest properly paid when due so that said interest may be paid to said Mary Brooks promptly every year. If it turns out.that said interest shall not be sufficient for the support of the' said Mary and said children, said trustee shall have the right to pay over to said Mary such part of the principal as may be actually necessary, but I wish the estate hereby willed to be carefully managed so as to preserve it for the children of said Thomas B. Brooks.
“4. My executor shall have power to sell all my personal property at public or private sale for cash or on credit as he may consider best. He shall also have power to sell and convey all my real estate at public or private sale and to execute and deliver deeds of conveyance to the purchaser or purchasers thereof.
“5. In the event that my brother, Thomas B. Brooks, shall die, his wife surviving him, and her remarriage to another man, her life estate in the property above shall cease and she shall take in lien thereof a share equal to a share of a child of my said brother to hold absolutely in her own right.
“And so soon as it can be done after the death of my said brother Thomas, the circuit court of Howard county shall appoint a trustee in his place.
“I appoint my brother, Phillip O. Brooks, executor of this will and direct that no bond or security be required of him.
“Witness my hand and seal this 31st, day of December, 1901,” etc.
“I, James B. Brooks, being of sound mind, do make this codicil to my last will and testament dated December 31, 1891, as follows:
“I give and bequeath to my sister, Irene Scott, a portion of my estate equal to the share of my brother Thomas B. Brooks’s wife and her children to be paid to her by my executor on final settlement of my estate. That is to say, should the wife of my brother, T. B. Brooks, take a child’s part, then my sister, Irene Scott, shall take a child’s part.
“In testimony whereof I have hereunto set my hand and the seal this 13th day of November, A. D. 1895,” etc.
The petition further states that said Irene Scott claims one-half of the whole estate after the payment of the debts, and that the executor is threatening to pay said one-half to said Irene Scott, and that the plaintiffs have no adequate remedy at law, and hence invoke the aid of a court of equity.
The petition further states that said Irene can have no interest in said property under said will and codicil except upon one or the other of the following interpretations thereof, to-wit:
“First, that the testator intended by said codicil that the said Irene Scott should take a portion of his estate equal to the share that Mary Brooks, the wife of Thomas B. Brooks, would take upon the contingency that she, the said Mary Brooks, should survive her said husband and remarry after his death, and further that the said Irene Scott should take no interest whatever in the testator’s estate unless the said Mary Brooks should both survive her husband, Thomas B. Brooks, and remarry after his death.
“Or, second, that the testator intended by said codicil that the said Irene Scott should take a portion*485 of Ms estate equal to the share that a child of Thomas B. Brooks would take, considering and estimating the said Mary Brooks as also taking a child’s part.”
The petition further states that if said codicil was not intended to convey one or the other of the meanings set forth in said two interpretations, then said codicil is so vague, ambiguous, inconsistent and contradictory that it is void and ineffective and wholly inadequate and insufficient to express any intention of the testator or to serve as words of conveyance and should be held for naught.
The prayer of the petition is that the court interpret the will and direct the trustee and the executor as to the proper disposition of the estate.
The defendants answered separately, but their answers are practically the same. They claim that the said Irene Scott is entitled to an undivided one-half of the whole estate after the payment of the debts thereof, under the terms of the codicil, and deny that the interpretations proposed by the plaintiffs are correct.
The circuit court entered a decree construing the will to mean that it was the intention of the testator, “by said will and codicil to convey absolutely to his half-sister, Irene Scott, one-eighth part of his estate after the payment of funeral expenses and just debts and cost of administration to-be paid to her by the executor upon final settlement of the estate; and that the testator intended by said will and codicil to convey seven-eights of said estate, after the payment of funeral expenses and just debts, to his brother Thomas B. Brooks, in trust under the provision of said will, dated December 31, 1891, for the use of Mary Brooks, the wife of Thomas B. Brooks, until her death or remarriage after the death of Thomas B. Brooks and upon her death or remarriage to be paid over under the provision of said will,” and decreed distribution accordingly. From this decree the defendant appealed to this court.
The sole question presented by this record is the proper interpretation of this will and codicil.
An analysis of the will discloses the scheme thereof to be, that the testator intended, after the payment of his debts and the erection of a monument over his grave, that his whole estate should vest in his full brother, Thomas B. Brooks, in trust, however, for Mary Brooks, the wife of the trustee, during her natural life, and at her death the remainder to go to the children of Thomas B. and Mary Brooks in fee. Power was given to. the trustee to invest in real estate for a home for the beneficiaries, and the trustee was further empowered to sell any of the real estate and reinvest the proceeds either in land or in securities or in such manner that the estate should be preserved to the remaindermen after the death of the life tenant. Power was given to the executor to sell the personal property and also to sell the real property at public or private sale. The fifth clause of the will provided, however, that if Thomas B. Brooks, the testamentary trustee, should die, leaving his wife Mary surviving him, and if said Mary should remarry, her life estate should cease and that in lieu thereof she should take a share equal to a share of her child, absolutely in her own right. In order to perpetuate the trust the will provided that in case of the death of Thomas B. Brooks, the trustee, the court should appoint a successor.
The purpose of the testator as expressed in the will is, therefore, perfectly plain. It was to provide for the wife of the full brother of the testator during her life or widowhood, by giving her a life estate, and to provide for the nieces and nephews of the testator, being the children of the testator’s full brother, by giving them the remainder in fee after the death of the life tenant; but if the life tenant remarried, the testator
The real question in this case is, as to the effect of the codicil upon the will. The codicil gives to Irene Scott, the half-sister of the testator, “a portion of my estate equal to the share of my brother Thomas B. Brooks ’ wife and her children to be paid to her by my executor upon final settlement of my estate. That is to say, should the wife of my brother, T. B. Brooks, take a child’s part, then my sister, Irene Scott, shall take a child’s part.”
Irene Scott contends that the true meaning of the codicil is,, that the estate shall be divided into two equal parts, one of which shall go to her, and the other to the wife and children of Thomas B. Brooks. On the other hand, plaintiffs contend that the will means either, first, that Irene Scott shall have no interest in the property unless Mary Brooks remarries and takes a child’s share, in which event Irene Scott shall have a child’s share, or, second, that it means that when the time for final settlement of the estate arrives, it shall be considered that Mary Brooks will take a child’s share instead of a life estate, and that Irene Scott shall immediately take also a child’s share; or, third, that if one or the other two foregoing constructions can not be placed upon the codicil, then the codicil is so vague and ambiguous that it is void.
It is an established rule of construction in this State, both by virtue of the statutes and the decisions of this court, that the real intention of the testator shall be ascertained and effectuated. That the intention must be gathered from a reading of the whole will and codicil if there be such. The words employed in a will are merely the human means employed to express an idea. Where the idea is clear, the words employed must be read so as to give effect to the intention. [Cross v. Hoch, 149 Mo. 325" court="Mo." date_filed="1899-04-14" href="https://app.midpage.ai/document/cross-v-hoch-8013164?utm_source=webapp" opinion_id="8013164">149 Mo. 325; Briant v. Garrison, 150 Mo. 655" court="Mo." date_filed="1899-06-14" href="https://app.midpage.ai/document/briant-v-garrison-8013252?utm_source=webapp" opinion_id="8013252">150 Mo. 655; Wisker v. Rische, 167 Mo. 533; RoBards v.
“It has become a rule of construction that a clear gift is not to be cut down by any subsequent provision, unless the latter is equally clear; but perhaps the better statement is that a clear gift is not to be cut down by anything which does not, with reasonable certainty, indicate an intention to cut it down. "Whichever form be adopted, the plain intention of the testator, and not the comparative lucidity of the two parts of the will, is to be regarded. ” [29 Am. and Eng. Ency. of Law (1 Ed.), p. 369.]
Jarman on Wills states the law thus: “Another principle of construction is, that where the will contains a clear and unambiguous disposition of property, real or personal, such a gift is not allowed to be revoked by doubtful expressions in a codicil.” [Jarman on Wills (6 Ed.), p. 179.]
The same author says: “Numerous are the questions which have arisen in regard to the extent to which a codicil affects the disposition of a will or antecedent codicil, and which are commonly occasioned by the person framing the codicil not having an accurate knowledge or recollection of the contents of the prior testamentary paper. In dealing with such cases it is an established rule not to disturb the disposition of the will further than is absolutely necessary for the purpose of giving effect to the codicil.” [Idem, p. 174.]
And at page 698 the same author says: “And it has been elsewhere noticed as an established rule that a gift once clearly expressed in the will shall not be cut down by ambiguous expressions contained in the codicil."
Again the same author says: “Where, however, the terms of the prior disposition are themselves ambiguous, their construction may properly be guided by a recital couched in more precise language in a codicil.” [Idem, p. 531.]
In speaking of plainly conflicting provisions in different clauses of the same will this court, in Small v. Field, 102 Mo. l. c. 129, said: "The rule is that, when the testator interprets a particular clause in his will, the courts, when called to construe.it, will follow that interpretation. [Reinders v. Koppelman, 94 Mo. 343.] ”
It is in the light of these rules and principles that the will and codicil in question must be read. The will is clear, plain, and unequivocal. The testator appointed his full brother to be the testamentary trustee, to hold all of his estate for the trustee’s wife and children; the wife to have a life estate and the children the remainder in fee, or, if the wife remarried, her life estate to cease, and she to have a child’s share in lieu thereof. The testator contemplated that the trust estate should continue during the minority of the children. The will, however, contemplates that the trustee shall begin his duties when the estate has been finally administered by the executor. It will be noticed that the testamentary trustee was not made the executor, and that a half-brother of the testator was appointed executor without bond. One of the peculiarities of the will is, that the executor before final settlement, or the trustee thereof after final settlement, is vested with power to sell any or all of the real or personal estate.. The dominant purpose of the will is perfectly manifest.
The will was executed on the 31st of December, 1891; thereafter on the 13th of November, 1895, the codicil was made. The codicil indicates an intention to cut down the estates created by the will. The only question is to what extent they should be cut down.
The first sentence of the codicil, if standing alone, would clearly sustain the contention of the defendants, that the half-sister, Irene, was to have one-half of the estate and the other half thereof was to go to the wife and children of the full brother; for the language employed in the first sentence is, that the half-sister shall have “a portion of my estate equal to the share of my brother Thomas B. Brooks’ wife and her children, to be paid her by my executor on final settlement of my estate.” This is clearly a gift of a ¡portion of the estate to Irene, divested of the trast, for it provides that it shall be paid to her by the executor on final settlement of the estate, which excludes the idea that the trustee was to have any concern therewith.
If this was all that the codicil contained there would be no difficulty in construing the will and codicil as the defendants contend for; but the next sentence is a testamentary construction placed by the testator upon the language employed by him in the first sentence of the codicil, and explains what the testator meant in the first sentence when he said his half-sister, Irene, should have a portion of his estate equal to a share of his brother’s wife and children. The language employed in the second sentence is, “That is to say, should the wife of my brother, T. B. Brooks, take a child’s part, then my sister, Irene Scott, shall take a child’s part.”
It will be observed that the first sentence employs the language, “A portion of my estate equal to. the share,’’etc. That language is susceptible of the construction that the portion thus given to Irene should equal the portion given to the testator’s brother’s wife and
It thus appears that the codicil, when read in connection with the will, clearly shows that the first sentence is susceptible of more than the one construction contended for by the defendants. The testator evidently knew that he had not clearly expressed his idea and intention in the first sentence of the codicil, and, therefore, he added the second sentence to explain more clearly or definitely what he intended by the first sentence of the codicil. He said: ‘ ‘ That is to say, should the wife of my brother, T. B. Brooks, take a child’s part, then my sister, Irene Scott, shall take a child’s part."
It will be observed that the explanation does not fully explain, for the first sentence of the codicil contemplates and directs that the share of Irene shall be paid to her by the executor on final settlement of the estate, and not by the trustee. The second sentence of the codicil clears up the obscurity in the first sentence, as to the part the testator intended to go to his sister
The whole confusion arises out of the discrepancies in the language employed in the first and explanatory sentences of the codicil. It is obvious that the testator realized there was such a difficulty with respect to the first sentence of the codicil, and he tried to remove it by the explanatory sentence, instead of rewriting it.
The term, “That is to say,” has undergone judicial interpretation. In Stukeley v. Butler (Hobart’s Reports) it was held, as stated in the syllabi, that “A scilicet can not restrict a grant where the former words are express' and special. Becus, where the former words are so indifferent that they may receive such a restriction without apparent injury. A scilicet may particularize what before was general, or distribute what was in gross, or explain what was uncertain; but it must not be inconsistent with the premises.”
And in the body of the opinion, Sir Henry Hobart said, “Now I come to the use of a viz. or sc. or in the Ehglish, that is to say, and the nature and force of it. It is neither a direct several clause, nor a direct entire clause, but it is intermedia. First, it is clear that it is not a substantive clause of itself; and therefore you can
The term “that is to say,” as .employed in an indictment, underwent judicial interpretation in King v. Powell (2 Blackstone’s Rep. 787), and was there construed to he intended as explanatory of what preceded it.
The second or explanatory sentence of the codicil can have only one effect upon the first sentence of the codicil in question, and that is, to explain the portion of the estate intended for Irene, and not to explain the time when she should receive the same; for the time at which she should receive such portion was definitely fixed by the first sentence to he, when the executor made final settlement of the estate. That needed no explanation. The only feature of the first sentence of the codicil which needed or admitted of explanation was, as to the portion which Irene was to take. The scilicet explained that portion to he a child’s share. The fact that it also said Irene should take a child’s share if the testator’s brother’s wife took a child’s share, could not he construed to cut down the clear gift of some portion, nor to postpone the time at which she should take the same; for some portion was intended to he devised by the first sentence of the codicil, and the time was certainly fixed thereby.
To construe the scilicet to mean that Irene should only take a portion in the event the testator’s brother’s wife remarried, would he to cut down hy the scilicet the clear intent of the first sentence of the codicil, by making it an uncertain gift, depending entirely upon the contingency of the brother’s wife remarrying, and of
This is the view the circuit court took of the case ant it was clearly the correct view, and, therefore, the judgment of the circuit court is affirmed.