274 Mo. 600 | Mo. | 1918
-This is a suit to determine interest in two certain tracts of land situate in Buchanan County. On the trial, the court found in favor of defendants and adjudged them to be the owners in fee of the disputed lands. Plaintiff thereupon appealed.
Plaintiff R. C. Dunlap is the administrator cum testaviento1 ann.exo, of one Susan C. Hart, deceased; the other plaintiffs are the residuary legatees of said Susan 0. Hart. Defendants are the heirs at law of one William B. Hart, deceased, who was the husband of the said Susan. William B. Hart executed his will in 1891, and died in 1906. By the terms of this will he gave all of his personal property and two specifically described parcels of real property to his wife, Susan 0. Hart. But sometime during the fifteen years which
“1. I give and bequeath to my beloved' wife, Susan C. Hart, all of my real estate in fee simple and all appurtenances thereto belonging and described as follows: Ninety-six and 22-100' acres of land in the northeast quarter of Section No. three in Township fifty-five, of Range thirty-six; also forty-three acres of land at the southwest corner of the southeast quarter of Section No. thirty-four, of Township No. fifty-six, of Range No. thirty-six, all of said land being in Buchanan County and State of Missouri.
“2. I also give and bequeath to my beloved wife, Susan C. Hart, all of my personal property — household and kitchen furniture, beds and bedding, money, notes and all of my personal effects of every kind and description.
“3. I do hereby appoint my said beloved wife, Susan C. Hart, the executrix of this, my last will and testament, and I hereby direct that she shall not be required to give bond by the probate court.”
Susan C. Hart died in 1913, testate, and by the terms of her will she devised all of her personal and real property (which plaintiffs contend includes the lands here in dispute) to the plaintiffs, except Dunlap. She named as executor of her will one James R. Miller, and provided that he should sell all of her real and personal property and divide the proceeds thereof as elsewhere in her will provided. Prior to the death' of Susan C. Hart said Miller departed this
The single question in the case and that which is decisive of it, is whether the will of William B. Hart had the effect to devise to Susan G. Hart, his wife, the real estate which he acquired after ^-e had sold all of the real estate whicli he devised to her by specific description. If it did, the judgment nisi is erroneous and must be reversed.
On the threshold, we may say in passing, some vague point is made by respondents that Dunlap as administrator has no standing in court as a plaintiff; for that he is not a rea.1 party in interest, no part of the title here sought to be determined 'being, it is averred, in him. We need not concern ourselves about this contention, since if Dunlap is not a. necessary party this question ought to have been raised by demurrer or specifically by answer. It was not raised by demurrer, or anywhere else in the pleadings, and so defendants cannot be heard now to raise it here for the first time; even should we find ourselves compelled for another reason to reverse the case. ■
Did the language which we quote from the will of William B. Hart pass to his wife, by devise, the lands of this testator which he subsequently acquired after the sale of the .lands specifically described and devised to her in the will? We do not think so.
There can be no doubt but that the will of William B. Hart (hereinafter called, for the sake of brevity, the testator), devised specific lands to his wife. We quote the whole pertinent parts of the will and from this will the fact of specificness of devise conclusively appears. We think there was an ademption of the devise, when the testator before his death conveyed away the land devised. From which it follows that the subsequently acquired real estate of testator passed by inheritance to his heirs.
Strictly speaking, and on the theory that the will, perforce the statute, speaks from the death of the testator, it is obviously not entirely accurate to speak of a failure of the will to pass specifically devised property, because such property has been theretofore disposed of, ás a revocation of the will. But since such devise fails because of the fact that when the will becomes effective, the testator had no property within the terms of the gift, the disposal of the property prior to death operated as a revocation in toto, or pro tanto, according as the whole or only a part of the property was disposed of by the testator before his death1. The failure of the devise by a sale, is in the nature of an ademption of the devise, which ademption,, if it shall by a sale or disposal extend to all the property of the testator, obviously operates as a revocation. In the case of Ametrano v. Downs, supra, it was said: “If a testatrix devises real estate and sells
Speaking of this latter point and to others cognate, the Supreme Court of Iowa in the case In Ee Mailer, supra, at page 617, said:
“The conveyance of the subject of the devise operates as a revocation of the will to the extent of the property thus disposed of. [Warren v. Taylor, 56 Iowa, 182. See, also, cases cited in 30 Am. & Eng. Ency. Law (2 Ed.), 622, 623.] On the theory, .however, that the will speaks from the death of the testator and with reference to his estate as it may then exist, it is perhaps not strictly accurate to speak of the result as a ‘revocation’ but the devise fails because, when the will becomes effective, the testator has no property within the terms of the gift. [Warren v. Taylor, 56 Iowa, 182; McNaughton v. McNaughton, 34 N. Y. l. c. 204.] It is equally well settled that upon sale of devised real property by the testator the proceeds of such sale of which he may die possessed will not be substituted for the property itself, unless a direction so to do is found in the will. [Adams v. Winne, 7 Paige, 97; Gilbert v. Gilbert, 9 Barb. 532.]”
But it is ably argued that the well-settled rule (enjoined upon us by the statute itself), of construing a will according to the true intent of the testator compels us to hold that the subsequently acquired lands passed by the will in lieu of those specifically devised but sold by the testator before his death. We do not thinly the statute • nor the rule stated and bottomed on the statute requires us to go so far. If such was in fact the intention of the testator, we agree that the common law has been so far changed as to have permitted the use of a residuary clause by the testator explicitly declaring that all his property, without description or reservation, should pass by the will; but as we have seen there is no
In a case similar, if not on all-fours with the instant one, it was held by the Supreme Judicial Court of Maine that where a testator devises real estate and subsequently conveys it to a person other than the devisee, the devise thereby becomes impliedly revoked, and in such case, the proceeds of the sale, absent a specific provision in the will so declaring, do not go to that devisee, but to the residuary legatee. [Emery v. Union Society, 79 Me. 334.] And the above case was so ruled, although the rule of construction according to the true intent of the testator ivas fully recog-nised as being in force in Maine.
This precise point is a matter of first impression in this court, so far as our own researches, or those of counsel in the case, have enlightened us. For they have cited us no local cases in point, nor have we been able to find any precisely apposite. Discussing, however, what we consider the principles involved, it was held by the St. Louis Court of Appeals that the alienation of devised property by the testator in his lifetime renders the will pro tanto void, notwithstanding our statute providing the methods of revoking wills. [Cozzens v. Jamison, 12 Mo. App. 452.] In this case the learned St. Louis Court of Appeals, at page 457, said:
“The doctrine runs through all the cases, lhat the devisor must be seised of the same estate at the time of his death that he was seised of when he made his will, to make it a good devise. [Ballard v. Carter, 5 Pick. l. c. 116.] If there is a subsequent conveyance of the whole estate, the testamentary disposition is defeated wholly. If the conveyance be of a part only, the operation in pro tanto. [Toll. Ex. 19.]”
The case of Durboraw v. Durboraw, 67 Kan. 130, is urged as being precisely in point. We cannot agree to this suggestion. There was in that case what we regard as a fairly plain residuary clause. In fact,
The presumption that a testator does not intend to die intestate as to any part of his property ,is also urged as a reason why we should hold that the after-acquired property passed by this will. We. recognize and concede the rule urged. [McMahan v. Hubbard, 217 Mo. l. c. 637.] But we think it has no application to the condition presented. The proper function of the presumption invoked is to throw light upon the intent of the testator when that intent is dark and it is sought to ascertain it from the language used in the will. Such a presumption performs but a negligible office when invoked to illuminate a condition arising long after the will was written, and which originated wholly dehors the words of the will and years subsequent to the execution thereof. In such case it would seem that since the thing done was tantamount to and operated as a revocation pro tanto, the latter intention is as easily to be inferred from the facts as the former. That the presumption arises in an effort to construe the language used in the ivill in the light of the circumstances existing when the will was written, seems obvious from the reason given for invoking it at all; for it is said that the presumption is used in order “that the instrument'may not perish and the manifest intent of the parties be not defeated by the palpable error of the scrivener.” [McMahan v. Hubbard, supra.] Here there is no suggestion that the scrivener did not write'exactly what the testator intended should be written. If the conditions had not changed years afterwards the language of the will was in all things clear and sufficient. The difficulty is not that the language does not express the intent
We conclude that the learned trial court took the proper view of the case and that the judgment ought to be affirmed. Let it he so ordered.