244 Mo. 491 | Mo. | 1912
OPINION.
I. The question presented,by this appeal is the meaning of the testatrix as expressed in the
When the intent of its maker is discovered, the will is solved, unless that intent runs counter to an inflexible rule of law or public policy. In the case at bar the testatrix, in simple terms incapable of other meaning, stated her intention to give directly — if she
That words, expressions, or clauses, inferential only in import, contained in a will devising in general or indefinite terms real or personal property, with a limitation over after the death of the first taker, are sufficient to create.a life estate in the immediate dev-, isee and uphold the remainder, has been recognized
Looking at the clause of the will in the light of its language, the situation and relation of the parties, and the rulings made in similar cases in this State and elsewhere, no doubt will exist as to the intentions of the testatrix or their legal consequence.
The motive and object of the will of Mrs. Andrews as shown on its face was to provide for all of her next ■of kin. These were her sister and descendants of her ■sister. Her sister, like herself, was advanced in years. The descendants of her sister at the making of the will were three adult children and two grandchildren representing a deceased son of the sister. It was then problematical by reason of the ages of both whether.
II. Tantamount terms to those contained in this, will have been repeatedly considered by this court in the interpretation of other wills containing similar devises.
In a case closely like the present, the will devised' to the wife all the estate of the husband “to be held!
In another case certain personalty, including the shares of stock in a business corporation, belonging to the testator, were devised to his wife with a limitation over to his children of whatever “remained” after the death of the wife. It was held, that a life estate in this personalty was vested in the wife by implication, and that the power of disposal inferable from the use of the words “estate left by her” and “remaining of that she acquired under the will,” was referable to the uses she might make of the property during her tenancy, and did not enlarge the life estate into one in fee. [Lewis v. Pitman, 101 Mo. l. c. 293.]
In another case, the will of the husband gave to his wife, Sarah Ann, all of his estate, both real and personal, “to hold and enjoy absolutely with full power and authority to dispose of all or any part thereof at her option” In a second clause the will provided, “In the event of the death of my said wife prior to my death, or if she survive me, whatever of my property may remain undisposed of at her death,
. In all of .the preceding cases, the life estates were not expressly declared but deduced by implication from the devises over and the terms and objects óf the will.
In another case, the life estate was expressly devised and-entire control of the property given to the wife with a limitation over “of what is left of it” at her death.In referring to the implication of a .right to dispose arising from-these terms, the court said that some of the property was perishable and that some would be consumed in the use, and it was not. designed that such portion should be accounted for to the remainderman; adding, “By a devise over of ‘what is left’'the testator evidently had in mind such possible losses, and did not intend that the legatee for life should be chargeable with them.” The court further added: “By the words ‘what is left’ the testator-intended to include in the bequest over, the entire property which should be in the hands of the life tenant at her death, whether it had been diminished by losses or increased by profits, or whether it consisted of personal property or had been invested in real estate.” [Bramell v. Cole, 136 Mo. l. c. 213-215.]
In another case, the husband conveyed to a trustee certain property for the support, use and benefit of his wife, and directed the trustee to “sell, mortgage, encumber, lease or otherwise dispose of the same.to such person or persons” as the wife might direct and appoint with a limitation over after the death of the wife to other persons. The wife by deed of gift and also by will attempted to convey property to her adopted son. The remainderman brought ejectment
In another case, an express life estate was granted to the wife with a remainder over “of what may be left of my estate after her death” to the brothers of the testator.- In referring to the effect of these words as affording a power of disposal, the court held, that the widow was entitled to consume as much of the estate as she desired and could not be held accountable ■by the remainderman for what she chose to spend “as long as good faith” was preserved. [Burford v. Aldridge, 165 Mo. l. c. 425-426.]
In another case, an express life estate was created in a wife and an express power of absolute disposal superadded. The will contained a further clause devising over “anything that should be left” at her death. It was held that the deed executed in pursuance of that power for a valuable consideration was not subject to be set aside at the suit of the remainderman, since this disposition was in strict accord with the power of disposal given to the wife during her life tenancy. [McMillan v. Farrow, 141 Mo. 55.] This case cites, among’ others, Roth v. Rauschenbusch, 173 Mo. 582, which is also referred to by respondents in the case at bar. That case, however, is not in point, for there no life estate was created either by implication or by express terms, but there was a distinct grant of a fee in item two of the will and an attempt by a subsequent item to make a devise over. The court held, that the testator in that case having devised “the whole of his estate, real, personal and mixed, absolutely and forever” (the italics are the court’s), could
In a very recent case a testator devised certain land and personal property to his children, and by a subsequent clause of his will provided that “upon the death of my children without issue, I direct the share of such child shall revert to my estate to be divided equally amongst my surviving children, ’ ’ etc., and provided further that upon the death of any one of his children, leaving issue, the property should go to such issue. The court reviewed all the precedent decisions, quoting- from them in extenso, and cited the statute (R. S. 190-9, sec. 579), saying: “Manifestly, this statute, when properly analyzed, means that if expressions are embraced in the will whereby it shall appear that such devise was intended to convey an estate for life only and a further devise be made of the devised.premises to take effect after the death of the devisee, then the intention of the testator to devise an absolute estate in fee simple to the devisee will be negatived and the estate devised limited to that of a life estate.” The court said further: “In our opinion, the ninth
The principles to be extracted from these cases are: 1st. That where a life estate is created, whether by implication only or in express words, with a remainder over, the power of the life tenant to defeat the remainder depends upon the exercise of a superadded power of disposition expressly or impliedly given by the will; that such additional power will be strictly construed and confined to its exact intendment, and any attempted exercise thereof beyond its just scope will not affect the rights of the remainderman. 2d. That no fee is vested in the first taker whose power to convey the estate is restricted either as to mode or object, and that a conveyance in any other manner or for any other purpose is ineffectual against a remainder over. 3d. That where the power to dispose is inferential only, its proper extent is to be measured by the situation of the parties, the objects had in view and the intention of the testator, as shown in the will; and that when, as in this case, there was a devise to the first taker of personal as well as real property and a power to
III. We think from the terms of the will, the relationship of the parties, and in accordance with the foregoing principles of law,- the testatrix by that instrument gave a life estate to her sister with full power to dispose of the property for her use, ■ comfort or enjoyment, or any other purpose incident to these ends, but with no power to give it or will it away; for if these powers had been donated, the life estate would have been transformed into an absolute fee, and the plain purpose of the testatrix to give the property left at the expiration of the life estate to the persons named in the devise over would have been set at naught. This interpretation of the will gives full effect to the power to dispose implied in the life tenant by the use of the words “whatever is undisposed of at her (the life, tenant’s) death.”- Any other construction would clearly contravene the intent in the mind of the testatrix when she put the second devise in her will, and further indicated by all of the language and. provisions of the will as a whole that she intended., only to make the prior, devise one for life coupled with a power to dispose adequate to the uses of such tenure and restricted in its exercise by the obligations of good faith on the part of the life tenant or trustee of ■ the preceding devise. In reaching this conclusion we have applied the principle, that the whole efficacy of a will is wrapped up in the lawful.intent of its maker. ■
The judgment in this case is reversed and the •cause remanded to be tried in conformity with the views herein expressed, and for a, decree in accordance with the stipulations made and entered into by the parties and embodied in the agreed statement of facts set out in the record.
The foregoing opinion of Bond, 0., is adopted as the opinion of the court.