94 Mo. 338 | Mo. | 1887
Appeal from a decree of the circuit court of the city of St Louis in a suit for partition of certain real estate of which one John H. Koppelman died seized.
The question for consideration arises upon the construction of the fourth item in the will of said Koppel-man, dated May 7, 1869, the second,, third, and fourth items of which are as follows :
£ £ Second. I hereby give and bequeath to my beloved wife, Anna Koppelman, all my estate, real, personal,, and mixed, for and during her lifetime.
“Third. The foregoing bequest is made under the express proviso that my said wife will be a mother indeed for our adopted daughter, Johanna, six years old ; that she will bring her up, educate her according tO' her best means; also, that my said wife shall carry on and continue my business, in company with my copartners ; but I will that no part of my real estate, still less the whole of it, be sold, or otherwise disposed of before the lapse of twenty-five years. And, should it appear hereafter that the business cannot be carried on with the present capital, the said business shall be reduced to such an extent as to bring it in conformity with said capital.
“ Fourth. After the decease of my said wife, -Anna Koppelman, the property then left shall be divided as follows : One-half shall be given to our adopted daughter, Johanna, provided she will be a good girl and demean
•Koppelman, the testator, died in 1869 ; afterwards, in the year 1874, his widow, the said Anna, married one August Reinders, father of - the appellant, ■ Otto W. Reinders, by a former wife. Koppelman never had any children by the said Anna, nor has she ever had any by Reinders, and her age precludes the possibility of her having any issue in the future. At the time of the •execution of the will and the death of the testator, the said Koppelman and wife each had brothers and sisters living. On the fourth of January, 1882, the said Anna, in accordance with the provisions of chapter 15, Revised Statutes, 1879, p. 96, adopted her husband’s son, the said Otto W. Reinders, as her heir, who claims that he is the “nearest and lawful heir” of the said Anna, within the meaning of the fourth item of the said will, and as siich is entitled, if he survives the said Anna, to one-fourth interest in the remainder of the proceeds of the real estate sold in this suit, being one-half of the one-half of the remainder that was, under the provisions of said fourth item of the will, to go to “the nearest and lawful heirs” of the testator and of his said wife, share and share alike.
The respondents claim, and the court below so held, that the said Otto W. Reinders had no interest, contingent or otherwise, in said land, or the proceeds of the sale thereof, under the decree, but, on the contrary, that the brothers and sisters of the said Anna, or their legal representatives, are “the nearest and lawful heirs” of said Anna within the meaning of the testator in his said will. The appellant contends that the decision of this court, in Reinders v. Koppelman, 68 Mo. 482, in which this same will was before the court, is decisive of the question, and in support of his contention, quotes the following extract from the opinion in that case : “The
The question, who would be the heirs of the said Anna at her death within the meaning of the testator, was not in the case, and was not before the' court. As to the intention of the testator in the use of the word “ heirs ” in his will, the court simply held that he meant such- heirs of the said Anna as should be in existence at her death, and not such of her heirs as were in existence at the death of the testator, or at the time he wrote his will. It may be conceded that the testator did not, by the terms “nearest and lawful heirs,” mean the heirs apparent of the said Anna who would take an indefeasible estate in the remainder devised at the death of the testator, and that he did mean the heirs presumptive
The questions still remain: Is such adopted heir within the meaning and intention of the testator’s words ‘ ‘ nearest and lawful heirs ’ ’ as used in his will ? Is the appellant, adopted by the testator’s widow thirteen years after the death of the testator, within that class of persons intended by the testator to take the devise made to “ the lawful and nearest heirs” of the said Anna at her death, if he be then in existence % In the construction of wills, the intention of the testator must govern if not contrary to law, as that intention can be gathered, not from detached passages thereof, but from the whole will, and the testator’s understanding of the meaning of the words used in his will, will be adopted “without resorting to lexicographers to determine what the same words may mean in the abstract, or to adjudicated cases to discover what they have been decided to mean under different circumstances” (Dugans v. Livingston, 15 Mo. 230); and in order that the court may place itself as near as may be in the place of the testator and read his will from the same standpoint from which it was written, the circumstances surrounding the testator, the subject-matter of the devise, and the persons to be benefited may be considered in order to determine the objects of his bounty. Hall v. Stephens, 65 Mo. 670.
Prior, to the execution of the will, the testator had adopted a daughter, and it will be well to observe particularly the language in the fourth item of his will: “After the decease of my said wife, Anna Koppelman, the property then left shall be divided as follows : One-half shall be given to our adopted daughter, Johanna, provided she will be a good girl and demean herself as such towards her parents, and the other half shall go to the nearest and lawful heirs of mine, and of my said
' The judgment of the circuit court is affirmed.