68 Mo. 482 | Mo. | 1878
The principal questions discussed in this case involve the proper construction of the will of Koppelmann, which is as follows:
I, the subscriber, John H. Koppelmann, of the city and county of St. Louis, State of Missouri, being of sound and disposing mind and memory, and feeling naturally solicitous to settle my worldly affairs, with which Providence has blessed me, in such manner as to prevent all future doubts and difficulties, declare and publish this, my last will and testament: 1st. I will that all my just debts and funeral expenses be fully paid by my executrix hereinafter mentioned, as soon as convenient after my decease. 2nd. I hereby give and bequeath to my beloved wife, Anna Koppelmann, all my estate, real and personal and mixed, for and during her life time. 3rd. The foregoing bequest is made under the express proviso that my said wife will be a mother indeed to our adopted daughter, Johanna, now six years old, that she will bring her up and educate her according to her best means; also that my said wife will carry on and continue my business in company with my co-partners; 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, then said business shall be reduced to such an extent as to bring it into conformity with the present capital. 4th. After the decease of my said wife, Anna Koppelmann, the property then left shall be divided as folows : One-half shall be given to our said adopted daugh
(Signed) John II. Koppelmann.
The object of all courts in the construction of a will is to ascertain the intention of the testator, where it is possible. It unfortunately happens that where wills are written by persons unskilled not merely in law but in the language in which their intentions are expressed, there are found such contradictory clauses as render it exceedingly difficult to ascertain what is the leading, prominent and controlling object of the will. In such cases courts have established some rules, and some exceptions to them, by which they will be guided — all of them with a view to give effect to the intentions of the testator, as gathered from the entire will.
In this case, the will of Koppelmann gives to Mrs! Koppelmann all his estate, real and personal, for and durin§ ker hfe-time. In a succeeding clause she is impliedly authorized to sell any part of pjg reaj[ estate after the lapse of twenty-live years to enable her to carry on his co-partnership business •and to educate the adopted daughter. The property, left on the decease of his wife he then directs to be given to certain persons, clearly designated. It is insisted that this power impliedly given to sell the real estate, enlarges her interest in it from a life estate to a fee. The answer to this may be best given in the language of Sir Wm. Grant, in Bradly v. Westcott (18 Ves. 445). “The distinction is perhaps slight, which exists between a gift for life with a power of disposition superadded, and a gift to a person indefinitely with a superadded power to dispose by deed
The distinction taken in Bradly v. Westcott, is recognized by this court as early as the case of Rubey v. Barnett, 12 Mo. 1, and subsequently in Gregory v. Cowgill, 19 Mo. 415, and Green v. Sutton, 50 Mo. 190. It is also distinctly announced in Jackson v. Robins, 16 Johns. 587. The result is that where there are inconsistent devises the courts are compelled in some eases to enlarge, in others to cut down the estate, in order to carry out the leading and prominent objects of the testator as indicated by a view of the entire will and all its various provisions. In the present case, however, there is no necessity for enlarging the estate for life, given to Mrs. Koppelmann into a fee in order that she may sell a part or the whole of the real estate if the man
The case of Ramsdell v. Ramsdell, 21 Me. 288, is cited as an authority conflicting with these views, but we do not so understand it. Judge Shepley states it to be a settled rule of law that if the devisee have the absolute right to dispose of the property at pleasure, the devise over is inoperative, but that where the testator gives the first taker an estate for life only by express words and annexes to it a power of disposal on a certain event or for a certain purpose, the life estate is not thereby enlarged into a fee. In that case there was no express estate for life given to the wife, except in regard to certain plate and jewels, and the
In Harris v. Knapp, 21 Pick. 416, the will provided, after directing the sale of all the real estate of testatrix and the payment of her debts, that what remained of real and personal estate should be given, one-half to her daughter M., (a married woman,) for her use and disposal during her life, and whatever remained at her death to M.’s two daughters. This was held to be not merely a bequest of the income of one-half of such residuary fund during her life, but that M. might, in her life-time, dispose of the principal either in whole or in part. The ease seems to have been decided on the principles announced by Sir ¥m. Grant in Barford v. Street. The bequest was confined to personal estate, and the only question was whether the words “for her use and disposal during her life ” limited her to the income of this fund, or gave her a power to dispose of the entire property at pleasure, provided it was done during her life. The court adopted the latter view, and as such a disposition had been made by her and her husband, its validity was sustained.
In Davis v. Boggs, 20 Ohio St. 550, the testator bequeathed to his wife “ in-trust only and during her natural life only” certain rents of real estate, interest on debts due him and dividends on his bank stock, with a proviso that the debts and bank stock should not be diminished. The only question in that case was, whether the legatee took an absolute beneficiary interest in these dividends, or only a trust estate in them, and the court held that, looking into the entire will, it was plain that the testator did not use the words “ in trust only ” in their technical sense, and that they must be rejected as unmeaning, and that the wife took an absolute property in the dividends, rents and interest so bequeathed to her. So that in this case a trust estate was raised to a beneficial-one, as in Baxter v. Bowyer,
In regard to the will now under consideration, although obviously written by one more accustomed to a foreign language than our own, we do not find, any difficulty in reconciling the life estate of the wife, which is very clearly given her, in all of his property of every description, with the subsequent clauses in which we assume that a power to sell the real estate is given her, manifestly with great reluctance, and restricted to specific purposes and postponed to a very remote period. Such a power we have seen from the current of authorities, only a few of which I have referred to, and those chiefly such as the counsel for plaintiff have argued as maintaining a different doctrine, does not, of itself, enlarge a life estate given in terms to a fee. It is not material in the present action, which is for a partition, whether this power of sale of the real estate is properly inferable from the terms of the third clause of the will or not. Mrs Koppelmann has remarried, never has exercised the power, has conveyed all her interest in the estate to Eugene D. Garesche, and Mr. Garesche has conveyed it to the plaintiff, Reinders, now the husband of Mrs. Koppelmann. So that the only importance it has is in connection with its effect upon the proper construction of the second clause in the will, and we are satisfied that it does not enlarge the life estate given in this clause to a fee.
Assuming that one-half of the remainder vested in Johanna, the adopted child, it is insisted that Mrs. Koppelmann is her heir, and not her father, Jaegg^ke, and her brothers. It is urged, that as Johanna would inherit from her mother, by reason of the deed of adoption, the mother should for the same reason in.
Passing over the provision which authorizes one to adopt a child as devisee, the meaning of which is somewhat obscure and need not be investigated in this case, it is clear, at least, that either the husband oí wife may adopt a child, or both, and the rights of the child, which are declared to be the same as against natural (lawful) parents, are limited to the one executing the deed of adoption. In this case Mr. Koppelmann alone executed the deed (so the petition states), and it is not clear that Johanna could have inherited from the mother, had she been seized of a separate estate. This right is given only as against the person executing the deed. This, however, is not material to the present inquiry. It is not a question whether Johanna would have inherited from either the father or mother, but who is to inherit from her. The statute on the subject evidently provides for the heirship of the child from the
“Under the Roman law,” it is said in Vidal v. Commagere, 13 La. Ann. 517, “ the person adopted entered into the family and came under the power of the person adopting him, and the effect was such that the person adopted stood not only himself in the relation of child to him adopting, but his children became grand-children of such. Dig. Lib. 1, p. 7, 1, 23, 27. Hence, when Tiberius was adopted by Augustus, by arrogation, Germanicus became the grand-son of Augustus. The French law also admitted of adoption, and the adopted succeeded to the inheritance of the adoptor. Code Napoleon, art. 350. It was also known to the Spanish law, and the person adopted succeeded as heir to him who adopted him. See Title 16, 4th Partidas.” It was held in that case that an act of the Legislature authorizing the adoption of an orphan child, conferred on the child all the rights of a legitimate child, and among them the right of inheriting the estate of those making the adoption. But this throws no light upon the question now to be determined. Our statute confers the same right.
Rut the law of Justinian changed this. Copying from Mr. Bandars’ translation, it reads thus: “But now by our constitution when a filius familias is given in adoption by his natural father to a stranger, the power of a natural father is not dissolved; no right passes to the adoptive father, nor is the adopted son in his power, although we allow such son the right of succession to his adoptive father dying intestate. But if a natural father should give his son in adoption, not to a stranger, but to the son’s maternal grand-father, or, supposing the natural father has been emancipated, if he gives the son in adoption to the son’s paternal grand-father, or to the son’s paternal or maternal great-grand-father, in this case, as the rights of nature and adoption concur in the same person, the power of the adoptive father, knit by natural ties and strengthened by the bond of adoption, is preserved undiminished, so that the adopted sou is not only in the family but in the power of his adoptive father.” So that the law
Without going into further details it will be obvious that- our statute, so far from following the Roman law, either before or after the time of Justinian, is distinguishable from it in many important particulars. Our law makes'no provision whatever for the assent or concurrence of the natural parents of the party proposed to be adopted, much less for any of those solemn examinations of all parties before a tribunal either judicial, political or religious, such as were required by the Roman law. It makes no distinction between strangers and blood relatives, as to the inheritable capacity of the adopted person, either in acquiring or transmitting property and it makes no provision to prevent the adoptive father or mother from devising the whole estate from the adopted child.
If we look into the Code Napoleon, which contains an article on this subject consisting of several sections (see Code, Title 8) the same important and essential difference .may be found. The adoption is prohibited before majority of the adopted party (§ 346), and the adopted retains all his rights in his own family (§ 348) and if the adopted child die without lawful descendants “ presents made by the adoptor or acquisitions by inheritance to him, and which shall actually exist at the decease of the adopted, shall return to the adoptor, or to his descendants, on condition of contributing to debts without prejudice to third persons. The surplus of the property of the adopted shall belong to his own relations, &c.” Our statute, so far as it
An objection has been made to this proceeding for partition which ought properly to have been noticed in advance, As the petitioner is himself the owner of the life estate in the whole tract proposed to be divided, and also owns the interest of a part of the remainder mentioned, no objection can of course be made to the partition on account of the entire property being subject to a life estate. The objection is, that as Mrs. Koppelmann is still living, her heirs are not ascertainable, and not in existence, and their interests, should she yet have children, would be destroyed. The answer to this objection by the petitioner is that the word “ heirs ” used in the will was meant heir ap
But the question remains, will this remainder defeat the partition because it is unknown who will be the heirs oi> Mrs. Koppelmann until her death. We think not. Apart from any .statute, the English courts had no hesitation in decreeing partitions in such cases. In Wills v. Slade, 6 Ves. Ch. 498, it was held by Lord Eldon that “ it was no objection to a partition that other persons may come in esse and be entitled; for if so, in every case where there is a settled estate with remainder to persons who may come in esse, there never can be a partition.” In Gaskell v. Gaskell, 6 Sim. Ch. 643, it was held
It is insisted, however, that our statute is unconstitutional, for the reason that it conflicts with the provision which declares “that no person shall be dePrived of life, liberty or property without due process of law.” This provision of our constitution, doubtless, may-be found in that of New York where the case of Mead v. Mitchell was decided, and in that of most of the other States, and is certainly in the constitution of the United States, and is in all a translation from Magna Charta, which we may assume was binding on the English judges. The due process of law required is not dispensed with in our statute.
Affirmed.
