*1 damage point $10,000 final award of Appellant’s is years stated, respondent was old. She suf is excessive. As femur, meaning top fracture of left a trochanteric fered leg bone where the muscles attach and the neck of the femur upper hip the neck of understand, into the socket. As we the femur was fits separated, displaced, bent downward and twisted. The fracture was repaired surgery and the of a Peterson oper insertion nail. The successful, leg permanently but her ation was left one-half inch right leg, causing loss of rotation turning leg shorter than the causing limp. operation inward and outward her to The performed general without the use of a anaesthetic and respondent throughout. was conscious delay casualty

There was some after the before she was taken to hospital and she A pain. type suffered intense of psychosis or developed mental aberration and lasted for about three weeks. She was fearful she would be thrown out the window and Her killed. surgeon, Horwitz, Dr. Irwin probably testified she will recur- suffer pains life, rent for the rest of her due to the maladjustment of the pelvic region occasioned length difference in the legs. of her daily surgeon Her made for visits the first five weeks. She was under year days. his care for and six opinion, our under such cases Ayres Key, v. 359 Mo. 221 SW. (2d) 719, 723(4) a remittitur is not called for. judgment

The All affirmed. concur. W. V. and Frances Hogg,

Fred Robert Anderson, Respondents, v. Bess Conn Appellant, No. 41301 225 Falk, (2d) S. 756. One,

Division December Rehearing

Motion or to Overruled, Transfer January to Banc 9, 1950. *2 for; Bendlen, appellant. E. Bendlen and White <&Bendlen

Charles *4 Boy Long Mcllroy respondents. Hamlin, <& F. D. Wilkins for

BRADLEY, an action C. This cause was commenced as County, partition plead in but about acres of land Ralls ings finally under which the cause ivas tried the construction Agnes the will of R. who owned the land at the time of her death, question. partition, denied the decisive The trial court became sold, required pro held that the land be and that the will ceeds, payment debts, legacies, expenses, after and be divided equally plaintiffs between on one hand and defendant on the Defendant, contending plaintiffs other. had no interest in estate,- appealed. dispute gives supreme The in amount jurisdiction appeal. court of the Hogg Agnes 22,

Arthur W. and married November Rector were 1916. Each previously married, Agnes had been owned the marriage land at death, the time and at the time of her children, respondents here, by stated. Arthur W. had three marriage; Hogg July 15, 1945, former Mrs. died testate without descendants; Hogg appellant Mr. named in were executors 1939; Hogg which was executed October April died Appellant is a niece of Mrs. and was reared (appellant) years from the time she married, old and until she n she was the home of Mrs. much of the time after her (appellant’s) marriage.

Following is the will. full; The items involved are set out in substance of the others is stated. my just my

Item 1. I direct that-all debts, expenses funeral (not exceeding and the cost dollars) purchase five hundred of of a my grave, erection monument at my which will be on Barkley cemetery, lot in paid by my shall first be executors, may far named, my personal assets so out of

hereinafter my any sale of lands done, may be made to the before resort therefor. husband, Arthur W: bequeath my

Item 2. *7 specific the my estate, other than one-half of executed, bequests forth, and after item one is hereinafter set surviving under the right as widower according to his dower die before laws of Missouri. If said Arthur bequest part a executed, will shall remain this is his dower and (italics my disposed of and be of hereinafter directed estate as ours). ' Falk, brought my niece, up whom I Item To Bess Conn 3. daughter, give and I love a I and from childhood whom as London, bequeath my in New Mis- property situated residence thirty- thirty-seven (37) souri; being and the aforesaid lots (12) being half of said eight (38) in block and south twelve my absolute; household block, have and to in fee simple hold effects in linens, pictures and all articles and furniture, other ^ my residence, specifically be- except said articles hereinafter bequeath queathed. the Falk I the tract .of To said Bess Conn commonly depot field, being family land known in the the as part (here description). of follows my Agnes Hays Ferguson, Item and 4. For niece namesake five-hundred-fifty- my pay I for one direct executors to her ($550.00) promissory hers, of held Hannibal dollar note the my If Bank, bearing security. and the signature National as paid this above note shall have been before will said my give I above of then her the amount direct executors to ' ** * ours). (italics note in cash. personal property to a and two great Item devised niece certain Isabel, in lots Port Texas. any my death,

Item If die legatee 6.' or devisee herein before any provision, legacy I or then in the absence of other bequest law, for him or his or her heirs at intended except legacy (2) (4).’ as in and stated item two item four owing brothers; debts her two Item cancels testatrix named makes substantial named provision states that she no two sisters a “because of in life and and third named brother their situation their condition”; pro- financial makes comfortable that she no substantial (not appellant) sister; vision for a named niece of deceased and provision no for named heirs of another deceased substantial sister. bequésts Item After of all and payment items herein- out, my estate, any, above the rest and residue if set I direct my given niece, be Bess Conn Falk.’

nil hereby Item 9. (to) do devise the said Arthur W. my

and Bess Falk as trust all real estate Conn trustees in' (other my and property, wheresoever situate than residence field, my than depot other and than Port lots other Isabel specifically bequeathed) purpose managing, in trust for renting collecting therefrom, selling the out and and rents same, converting money purpose and it into for the of distrib- uting paying proceeds out same and the thereof to carry bequests out And I provisions and other this hereby my do authorize direct said trustees named in this my parts item sell the and the said at whole of real estate they public' may best, auction or private cash, at sale for deem proceeds distribute the in with provisions accordance aforesaid, this purpose and for the to execute such deeds conveyances may end; be proper sufficient to that n and it isuny any recommendation such sales be withheld reasonable time to determined them exercise *8 reasonable discretion under the circumstances to avoid sacrifice property. Immediately upon my death, of the said Arthur Hogg hereby and Bess are and Conn authorized directed either my such as executrix, may trustees or as executor and as seem preferable, may necessity require, (to) or as condition or take possession my estate, of real same, pay said rent out the due, taxes thereon repairs as and when and of out upkeep cost by retaining of rents or out of therefrom, income received them portion reasonable of such own rents and income their services that behalf. hereby

I appoint Hogg nominate the said Arthur W. Falk my Bess Conn to be the executrix executor and of last this 'request will and required hereby I that no bond of them. I be authorize them make such as' such executors to sales and con veyances they may necessary as deem in the of the course my administration real purpose paying estate for the purpose and other proper debt's administration paying or of ' legacies. (the one).

Item 10 iegacies last direct herein' bequeathed payable shall be when sufficient' funds for substantial my payments personal assets, thereon become from shall available any, remaining carrying hereof, if after item out one and from my net estate, the' rents and income from real and from the n proceeds of the sales thereof. positive my

And direction herein to sell real estate shall personalty render it under the'rule conversion at my death for purpose (italics of distribution under this will " ours). death was of her by at the time owned testatrix The real estate $3,633.84. at property $19,780.00, personal and the

appraised at be (1) What should questions presented: are we see it five As used in item executed as to time of the term the construction realty, except the equitable conversion, did the (2) the rule of Under prop- testatrix, personal become devises, upon the death of specific any devise is, did testatrix will? That erty purposes of the for the which directs void (3) part of item realty Is to her husband? the devise executed before the will was Mr. should die that if If direc- residuary (4) said estate? go to the therein to him would required renounce void, was Mr. in item is not tion him, would the devise will? and if he did not renounce ? residuary estate executed, go before the will was should he die executor under Hogg, as (5) Did fact that Mr. compen- accepted of the estate upon administration entered statutory rights him his deprive as executor for services sation the widower? 2 could not in item by executed referred to the term The time signed will was 31, 1931, when the

well be construed to mean October knew thereto. Testatrix the witnesses testatrix and witnessed living, and such construction husband, was then that her Wills, Am. adopted. 57 Jur. not be not be sensible and will would as to only possible constructions are two 1121, p. 716. So there Sec. died executed, namely, ivhen testatrix the time meant the term will were provisions of the or when the operative the will became and actually and the estate distributed. carried into effect executed, testa will was Having to the time when the reference will; was in item the first trix twice used the term executed in said, noted; testatrix in item 4. In item as will and the second mentioned) note (referring to the therein “If the above said note *9 my direct will is then I paid been before this shall not have - named) above beneficiary the (the therein executors to her in item 4 as used note in cash.” The term executed amount of the the whole, especially a and could, view of will as think, we in the to the time when 2, to have reference term used in item be construed is made. If a testator fully and distribution administered the estate meaning, a certain it part in of his will with given a word one uses part in another he intended using in the word presumed that will be Ferril, 543, et al. v. 320 Mo. significance. Snow have the it to same English Ragsdale al., al. v. et 347 1008, 1013; l. et (2d)W. c. 8 S. (2d) l. c. 655. 431, 653, 147 W. Mo. S. 239, 122 Mich. N. W. Hall, v. In of Lamb’s Estate the case 1081, devised all concerned the testatrix appears

it that there the.will Following bequest to and the to her brothers sisters. of her estate paragraph provision: in was this and and the same the brothers sisters previ- any legatees of the above-named “But in case of the death testament, my last and this, will or execution of probating to the ous deceased share of such bequeath that the desire, then of, the property to, and become the revert brother or sister shall legatee has but, if deceased legatee; said children of said deceased my decease, then the said deceased living time of no children at the him bequeathed or her terms legatee’s property share of, general fund to part and become a to, this will shall revert my surviving this, named in among legatees be divided March, 1898; her died in last will and testament.” The testatrix testamentary granted probate letters June was admitted to 1898, brothers, 18, 1898; of the died December Ray, Carlton one probating Prior before distribution of the estate. Ray assigned all interest under the will.

will Carlton to his wife his Ray’s pass any It interest assignment was held that did not Carlton wife; legacy passed in his to his the estate to his that under the will finally children since he died before the estate was administered question, supreme Michigan, ruling The in said: settled. court of property to “We think it manifest that the intention was to devise her sisters, children case of their death brothers and and to their in ivas, ‘execution’ in our before her will was executed. The term executing in judgment, used with reference to the act of the executor provisions under the of law for the settlement the estate distributing prop persons, settlement of estates of deceased erty legatees.” Will, to her In re 229 NYS See also Richardson’s 299; Harvey al., 338; Kear, v. 100 Ill. Lambert et al. et re App. NYS Div. 265.

We think in item 2 of and so rule that the term executed as used present actually provisions will means when the of the will were carried into effect and the estate distributed. realty, except conversion,

Under the rule of did the specific prop devises, upon personal the death of testatrix become erty any for purposes is, of the will? That did testatrix devise realty “Equitable may to her husband? conversion be defined as whereby, in property constructive alteration the nature of equity, purposes personalty, real estate is considered for certain versa, or vice is transmissible and descendable as such. It resting upon equity regards things mere fiction principle actually which are having performed directed to be done as been nothing where ought prevent per has intervened which such a Therefore, formance. property converted, to be treated as subject must be imperative or a clear and direction for trust conversion.” Jur., Equitable Conversion, p. 2, 19 Am. It Sec.

will be quoted says noted that the property text that “for to be treated converted”, conversion, under the rule of “it must subject imperative to a or a clear and for trust direction conversion”. It conceded, think, present will, will be we that in the

1114 10, imperative item there is clear and direction that the directions personalty” upon to “shall render the sell estate thetreal testatrix, equitable conversion, of the did so death under rule of render it. We therefore rule under the will the real estate testatrix, devises, upon except specific per the her death became al., sonalty Langston Odom et purposes the of the will. et al. v. 463; 465; 109, 115, (2d) 355 195 W. l. c. Hull Mo. S. v. McCracken al., (Mo. (2d) 405; Rawlings Rawlings et 53 App.), W. v. et al. S. 503, (2d) 735, 332 Mo. 58 W. 739 et v. S. l. c. Powers al. (20, 21); Lodge Ancient, Accepted Masons, App. Grand 825, Free and 237 Mo. (2d) (2); al., 177 S. l. c. 529, 536 Turner et al. Hine et v. 297 153, Mo. S. W. 248 933.

Is provision the of item 2 which Mr. void that if directs executed, die the before will was the devise therein to him go residuary part would 2 not the estate? if said of item is And void, Hogg required to renounce and if he did was the will? him, not renounce the will would devise should he die before the executed, go residuary questions will was to the estate? These two disposes are so related that the answer' of either the other. Respondents say the condition in devise to Mr. in item 2, should he die go before the was would residu ary is, facts, contrary estate under the to the statute law of the State Respondents 325, 1939, void. cite: Secs. 324 and R. S. Mo. RSA 325; Estate, Secs. 324 and In 494, re Dean’s 350 Mo. 166 W. S. 529; (2d) Opel’s Estate, 592, (2d) 1; In re 352 Mo. 179 S. W. Szom bathy al., v. 776, (2d) 1028; Merz et 347 Mo. S. W. Merz Tower v. Bank al., (2d) 611; Grove & Trust 1150, Co. et Mo. S. W. Stone, Nies v. 232 Mo. App. 1226, (2d) S. 407; 117 W. In re McEle vey’s Estate, 244, 305 Mo. S. W.

Our statutes, noted, references to unless refer to otherwise our 1939 Revised Statutes and to same Mo. section number in RSA.

In In question case Dean’s Estate the for decision re was whether widow of the was testator entitled to one half of the net estate as property independent absolute under Sec. 325 fher subject her deceased husband’s will. The matter of Sec. 325 is what shall widow be entitled when the husband dies without descend ants, but the section is applicable when a dies wife without descend ants, here, curtesy abolished, because since has been Sec. the husband fare respective wife alike in their estates. Lee’s Building v. Cross, Summit & Loan (2d) Assn. 345 Mo. 134 S. W. 19, l. (15, 19). c. 25 only Estate, property case of In supra, personal re Dean’s present case, concerned and that is the situation in because

as we have ruled; became, realty, except specific testatrix’s devises, upon her death, personalty 'for purpose of the will under the rule

1115 bequeathed the entire of The Dean will conversion. .residu- a either ary She not file written election estate to the widow. did otherwise; neither did she renounce the under Secs. 327 or sought claim half of under nor otherwise. one will Sec. 333 She gave independent although of will the. will her the net estate the such more; such claim was made the widow because the effect claimed, reducing in her inheritance tax. She have, would as she under statute claimed that she could the one-half interest the take residuary remainder of estate under the will and that and the the statutory exempt from State the one-half interest would be the inheritance under 576. The State contended that the widow tax Sec. residuary partly not the under the could take estate statute will; such; not if partly under the that the will did authorize that pursuant to renounced she desired to take the statute she should have held could one-half will. It was that the widow take the interest the making under the statute without a written election and without renouncing personalty will. the entire the This was because estate was and such here. is situation Opel’s supra, question-of renouncing

In the In re Estate, case of question necessity especially involved, a will was not but the ,a making was of widow an election under the statute involved. In appellant case that of a that it was contended widow who half of deceased husband left no descendants could not take one filing an personal property his under See. 325 without election under Bryant support 329, citing Christian, 98, v. 58 Mo. in Secs. ruling point

of such the court said S. W. contention. [179 (the Bryant case) (2d) l. c. : then this court en banc “Since 3] Estate, (2d) 529, decided in 350 Mo. 166 S. In Re Dean’s half her such circumstances is entitled to one deceased widow under debts, filing election, without an personalty, subject husband’s his contrary right by in deprived provisions and that she is not Bryant holding in the his will. We also in that case that the held Kloche, on in Kloche v. 276 Mo. point case this was overruled ruling 208 W. in the case will show that our S. 825. Cases cited Dean Bryant harmony case is in our decisions since the there with many appeals.” with decisions of our courts opinion

The trial in the case filed written present learned court appears opinion in the trial opinion and that the record. .In court said: very from above perfectly

“It obvious clear words quoted Agnes in R. the real item ten the will that under personalty perforce she was of said item estate owned converted into -death of the and the date of the conversion testatrix. There- was personal fore, Agnes when R. converted real estate into necessary husband to property for her renounce was not estate, in the personal and elect to take one-half because interest election”, given that interest is to him under the law without such supra. citing Opel’s Estate, In re and In re Dean’s Estate necessary not "We rule that It will to review other cases. die provision item if which directs that go to him before the devise therein would *12 necessary residuary for him void, the estate is and that it was not to renounce the will in to under statute. order take the will, the Mr. executor under the entered

Did fact that as as upon compensation accepted the administration of the estate and deprive statutory rights? him We executor of here some his of of as the activities of Mr. in the the estate administration during executor 8 he after the death of his the months survived wife, inventory; paid the testatrix. He verified and filed the the appraisers; paid nursing; acknowledged taxes; paid a claim for presentation against estate; appellant a demand the he and legacy will; appeared satisfied in 4 in executors the item of the he savings probate court and asked for and obtained an order to sell a estate, belonging bond of the and to transfer certain stocks to the April 18, April 1946, prior 22d, estate. to his death and when on in hospital, signed the he for appellant as executors two checks payable $1012.60 each. These were Mr. respectively checks appellant for Hogg’s services as executors under the will. check him, deposited was endorsed in personal his account and charged the estate.

In realty, except specific devises, view the fact that the as to under the rule of the will conversion, was per made sonalty upon the death of purposes testatrix of the we will, Hogg, despite do not think that Mr. his activities executor and the receipt $1012.60, deprived statutory of the rights. of his Bernays’ Estate, In re 135, (2d) case of 344 Mo. 126 209, S. W. l. 122 216, 169, broadly c. ALR is it general stated that it is a principle lawof that one cannot claim a will against under too, and one accepts who beneficial interest under a will thereby adopts every right the whole will and renounces or claim citing Conqueror with inconsistent Wood v. et Trust Co. al., 511, 201; Mo. Trautz Lemp al., 580, S. W. v. et 329 Mo. (2d) 135; Moseley Bogy 46 S. W. v. al., 319, et 272 Mo. 198 S. 847; et al., 576, Colvin al. v. et (2d) Hutchison 338 Mo. 92 S. W. ALR 226; Arrington al., et al. v. McCluer et 326 Mo. (2d) cases, 34 W. All except S. Trautz case, these as was in pointed supra out the ease of In re Estate, (2d) Dean’s S. W. [166 realty personalty. dealt with and not in And the Dean case 533], (2d)W. l. c. S. court considered the Trautz case and [166 533] “ pointed question out that the case held solution of ‘depends upon bequest whether or not the testator intended the in of or in gave be in lieu addition to that which widow;’ the law testamentary provision and decided the there under consideration right to be in lieu of to-a in was intended the widow’s child’s share nothing personalty under Sec. 323”. There is in the Trautz case or any support holding, here, other under the case would facts Hogg, by that Mr. his activities as executor in the administration of acceptance the estate and operate $1012.60 deprive statutory rights surviving him of his as the widower. judgment Dalton, C.,

The should be affirmed and is ordered. so .it dissents; Osdol, C., Van concurs. foregoing

PER opinion Bradley, C., CURIAM: The adopted opinion as the of the court.

Hyde, J., separate opinion; J., concurs in result in Douglas, con- opinion Hyde, J.; Ciarle, curs in in P. J., result and concurs in separate opinion; Conleling, J., separate result in opinion concurs Ciarle, P. J.

Concurring Opinion *13 CLARK, P. principal opinion, J. I concur in the result of the agree but do not that the testatrix intended the “executed” to term finally refer to the time when her estate should be administered.

By pay signed by item testatrix directed her a note executors to surety; if paid her niece with testatrix as the note be before the executed, give will is to the amount to the niece. I think means this outstanding if the note is at the death of testatrix the executors [thereby that, pay releasing shall it to the holder if estate] unpaid death, the note is at her the testatrix did not mean that the give rely upon executors should the amount to the niece and her to pay clause, the note to the holder. In I think word exe- this clearly cuted refers to the time should become effective at the death of the testatrix. The same construction of the is, think, gives I term executed authorized item There the will “according W. one-half Arthur the residue to his estate right surviving Missouri,” dower widower under the laws of but as if he die before the will is becomes [that effective] bequest part his dower and shall remain a of the estate. Arthur W. ‘‘ ’’ by Hogg, having surviving outliving become widower the testa- of the estate under the will trix, took one-half the residue as the equivalent right. of his dower though

But, incorrect, even the construction outlined above is I took one-half of his think that Arthur wife’s estate. up large to of her death she owned a

her life and the moment amount estate, subject right of real to her husband’s inchoate of dower. equitable conversion, by plain Under the doctrine terms of personalty into at will, she transformed the real estate the moment her surviving By her widower failing her death. to renounce the conversion, thereby relinquish but did not to the consented personalty. form right property in the in its converted as his dower surviving principal opinion, reasoned and held in the As making entitled one-half the widower, election, without an was right,” subject debts, “according to his dower personalty, estate right. inconsistent with such and his actions as executor were not Concurring Opinion Separate However, I HYDE, concur in result herein. think J. by holding reach result that the term “before this will we sliould this effective; and not is executed” before the will becomeá before means fully final made. administered and distribution the estate was very general “executed” is “described as word of The word meaning generally as carried into effect.” import wide and defined really meaning 119. I is the one that carries C. J. S. think this out intention of the and is the most reasonable from a testatrix construction of the whole will as well as from consideration of the paragraphs two in which it is used. gives to

Item states that the testatrix her husband one-half of her “according right surviving to his dower widower under estate ’’ clearly the laws of Missouri. This shows that the testatrix intended give for her law would him husband to have what the and was not any statutory attempting deprive rights. him I do not think say anything that she meant this will is reasonable to take away fully from him in case he died before her estate was adminis- finally contrary, provision tered and settled. On the I think this recognition in full and confirmation of what the law would him death; give him interest, by at her and was intended to the same this becoming provision death, of the will effective at which would by operation have vested at her death of law. The testatrix undoubt- *14 edly subject only debts, to make this expenses meant funeral by of monument her reference to and cost Item 1. requires any

I not think that Item 4 do different construction. fact, I think it also shows that she used the term “executed” to go gives mean become effective or to into It effect. a $550.00 note to provides her niece and that if the shall paid “note have been before will is executed” then the this executors her this amount Certainly contemplated it in cash. would not be niece, that her after already by given the note had been to her would thereafter through paying go get the useless act off in order the same money back later when final amount settlement was made. just provision strongly This indicates to me provision as the “according right,” her husband to his dower that the meant, testatrix executed, by being becoming legal the will its effective as a transfer property upon of the her death. I believe this is a more natural layman meaning a than the meaning complete settlement of the year by designated a or two later the executors estate in the will. unnecessary

This construction makes it to reach the result a Hogg got vested interest in one-half of estate, "the at his by holding void death, provision, wife’s about his death before attempt deprive as an him will is his statutory rights in her estate. do not think we should hold a provision of if is a void there reasonable construction upon which it can valid. I think there is a be held such reasonable construction, for stated; judgment reasons above that the should be affirmed reasons. for these Jr., J. his Next Friend J. Bernheimer,

Earle Earle Bernheimer, Sr., Plaintiff-Appellant, v. The First National Of Bank Kan George K. Baum as Trustees of the Trust City, Missouri sas Estate Created Under Virtue of the Will of Bertha C. Hospital Deceased; Jewish Memorial

Bernheimer, Associa Hospital (Sometimes Known as Menorah tion Association), Congregation Corporation, Corpora B’nai Juhudah, tion, Defendants-Appellants, J. Indi Bernheimer, Sr., Earle vidually; J. as Trustee Under and Bernheimer, Sr., Earle , Virtue of the Will of Bertha Deceased; C. Bernheimer Guardian ad litem for the Unborn Lawful Zehring, Robert M. Issue of Earle Defendants-Respondents, Bernheimer, Sr., J. (2d) No. 40443 225 S. W. 745. Banc,

Court en December

Rehearing Denied, January 9, 1950.