101 Mo. 281 | Mo. | 1890
J. A. Pozzoni died testate on the fourteenth of April, 1885, the will being dated March 25, 1878. He left a widow, Annie, and two minor daughters, namely, Rosina M. and Josephine A. Pozzoni. The widow who was the nominated executrix declined to act, and M. D. Lewis was appointed administrator with the will annexed. He brought this suit to obtain a construction of the will of his testator. The defendants are Herman Heinze, administrator with the will annexed of Annie Pozzoni, John Pitman, trustee under her will, and the two daughters who appear by their curator.
The following are the material portions of the will of J. A. Pozzoni:
*287 11 Second. I give and bequeath all of my household and kitchen furniture, silverware, etc., at my residence in Kirkwood, or at any other place I may be residing at the time of my demise, and all other personal property I may die possessed of, including money on hand, in bank, and all sums due to me, to my beloved wife, Annie ; and I also give, and devise and bequeath to my beloved wife, Annie, during her natural life, or so long as she remains my widow, all the real estate that I may die seized of wherever the same may be lying or situate, and at her death the same to be equally divided between my children, named as follows: Lillie Rosina Mary, Anna Louisa and Arthur Wellsby; and should there be other children born to me by my said wife, Annie, after the date of this will, they are also to be equal heirs with those above named.
“ Third. It being my desire that my business as proprietor and manufacturer of what is known as ‘Pozzoni’s complexion powder,’ ‘hair dye,’ ‘hair restorative,’ ‘odeande cologne,’ ‘perfumes’ and all other preparations manufactured or ‘put up’ by me, shall be continued in my name after my demise, I give and bequeath unto my said wife, Annie, the sole right to continue said business in all its. details, she alone to derive all the income from the same, free from the control or interference from any person or persons whatsoever. However, should my said wife, Annie, deem it best to sell the patent rights *and trade-marks for the articles hereinbefore mentioned, she shall have full power to do so, keeping the receipts of said sale for her sole use and benefit.
“Fourth. It is my desire that after my wife’s death all of my children shall share, and share alike, in the estate left by her, whether the same be realty or personalty ; of course I refer in this clause to whatever she has remaining of that she acquired from me by virtue of this will.”
The widow by virtue of the third clause of the will took possession of the recipes, trade-marks, and with them, and the stock in trade and store furniture turned over to her by the administrator, continued the business of manufacturing toilet articles for a period of about one year. She then caused to be organized a corporation by the name of J. A. Pozzoni Medicated Complexion Powder Manufacturing Company. She transferred to the corporation the trade-mark, recipes, good-will of the house and stock on hand at the estimated value of twenty thousand dollars, and received therefor one hundred and ninety-eight of the two hundred shares of stock. The stock on hand was of no greater value than two thousand dollars. In less than a month thereafter she died testate. By her will she first declares it to be her desire to secure to her two daughters, Rosina and Josephine, all of her property. She then provides that after, her death all of her property shall pass to her said daughters, and to that end she devises and bequeaths her property, real, personal and mixed, to John Pitman, in trust for the sole use of the daughters, subject to the following directions as to the management of the property. The will then goes on to say that the executor,
Heinze as such administrator took possession of and inventoried all of the property of the testatrix, including certain personal property which she received under her husband’s will, and one hundred and eighty shares in the above-named corporation, which she still held at the time of her death.
The plaintiff states that he is advised that the widow acquired only a life-estate in the personal property‘devised to her by the will of J. A. Pozzoni, while her administrator is advised that she became the absolute owner of such property, and he prays the advice of the court as to the true construction of thé will. The trial court found that she took a life-estate only, and then ordered the administrator of Mrs. Pozzoni to turn over to the plaintiff the one hundred and eighty shares of stock with forty-five hundred dollars ’ dividends collected thereon, and the further sum of $921:71, being the proceeds arising from the sale of other personal property. The trustee, John Pitman, alone appealed.
The daughters get the property under either construction of .the will, and at first blush it would seem this contest is simply as to who shall administer upon the estate. Further reflection shows that there is more in the suit. If the daughters take that portion of the personal property which their mother received and left at her death under their father’s will, then they take it out and out; but if they take it under their mother’s will then it is clothed with a complicated trust. It is, therefore, a matter of some moment to them and also to the trustee that the question of construction should be
The fourth clause declares : “ It is my desire that after my wife’s death all of my children shall share, and share alike, in the estate left by her, whether the same be realty or personalty ; of course I refer in this clause to whatever she has remaining of that she acquired from me by virtue of this will.”
This fourth clause speaks of both personal and real property. It applies to all of the personal property before mentioned, for he says: “I refer in this clause to whatever she has remaining of that she acquired from me by virtue of this will.” It is a qualification of all that had before been said concerning the personal property, and the evident purpose of this clause is, to put the real
If. we follow the common-sense reading of the will from first to last, it seems to us there is no difficulty in discovering its true purpose and meaning as to the personal property, the only property in question, and that is this : The testator gives all of it to his wife with the right and power in her to carry on the manufacturing business, or to dispose of the same, as to her may seem best, with the further qualification that whatever of the property she has remaining at her death shall go to the children.
Thus interpreted does the will violate any rule of law ? It is claimed by the appellant that it does, and this for the reason that where there .is a devise of property, with an absolute power of disposal in the first taker, a subsequent limitation over is void. We shall not review the many authorities cited in support of this proposition of law. It may be conceded that a devise of an estate generally or indefinitely, with a power of disposition over it, carries a fee. Green v. Sutton, 50 Mo. 186. But there is a wide difference between that class of cases and those where there is a devise for life with a power of disposition. Where an express life-estate is created, an added power of disposition does not convert the estate into a fee. Rubey v. Barnett, 12 Mo. 3; Gregory v. Cowgill, 19 Mo. 416; Reinders v. Koppelmann, 68 Mo. 482. Nor is it necessary that the life-estate should be created in express terms. If it is the clear intention from the whole will that the first
In Wead v. Gray, 78 Mo. 62, it was said that Smith ®. Bell is an exceptional case and has not been followed in this state. Smith v. Bell was cited with approval and liberal quotations made from it in the recent case of Harbison v. James, 90 Mo. 411. In that case the testator gave all of his property, real and personal, to his wife with “ the right to sell and reinvest, as she may desire, any part of the same, for her separate use and benefit, and at her death I desire that any portion of my estate remaining undisposed of shall go to my three daughters.” There was no express life-estate created in the wife in that case, and yet it was held, notwithstanding the power of disposition, that she had but a life-estate. The intention of the testator so clearly expressed was allowed to prevail.
Although a life-estate is not created in express terms, still am added power of disposition will not convert it into an absolute estate, if upon a consideration of the whole will it is clear the testator intended to give a life-estate only. This is the deduction to be made from Smith v. Bell and Harbison v. James, and they have the support of other well-considered cases. Giles v. Little, 104 U. S. 291; Siegwald v. Siegwald, 37 Ill. 435 ; Green v. Hewitt, 97 Ill. 113. If the first taker is to have but a life-estate, then it matters not whether this appear.from express words creating a life-estate or
These considerations dispose of this case on the assumption that Mrs. Pozzoni had full power to dispose of the personal property. She had no express power conferred upon her to sell the property devised to her, except that connected with the manufacturing business. This power was conferred for a special and limited purpose, and it has no tendency whatever to enlarge the life-estate to an absolute and unqualified estate. But considerable reliance is, by the appellant, placed upon these words in the fourth clause of the will, namely, “estate left by her,” and “remaining of that she acquired from me.” These words it is argued contain an implied power to dispose of the property. They certainly do contemplate that the property devised will not all be on hand at her death. But it must be remembered that some of the property devised to her was household articles which must in the nature of things perish and wear out by use. Like expressions were relied upon as furnishing an absolute power of disposal in Munro v. Collins, 95 Mo. 33, but this court said no such implication would arise, since a part of the personal property devised was of a perishable nature, and was such as would necessarily be worn out and consumed in using the same.
From the whole will it is clear that the testator intended to give his wife the use of all of his property during her life, and it is equally clear that he intended