185 Mo. App. 398 | Mo. Ct. App. | 1914
This is a suit to construe the will of one Oscar Simpson, deceased. It is charged that • defendant Corder has wholly neglected and refused to care for, support and maintain plaintiff and still refuses to care for, support and maintain her, as provided under the terms of the will and that plaintiff is entitled to an annuity in the sum of $240 per annum, or the gross sum of $1142.40, for her interest in the estate, ‘ ‘ as under the table of mortality is made and provided. ” “Wherefore plaintiff prays the judgment of this court construing said last will and testament, and'for a judgment and decree against this defendant in the sum of $1142.40, as for the value of the interests of said plaintiff in the lands in said will described. ’ ’
The answer, prefaced with a demurrer to the petition on the ground that it does not state facts sufficient to constitute a cause of action, admits that O'scar Simpson died, as stated, in February, 1908, leaving the will set out in the petition and that it was duly admitted to probate on the 29th day of February, 1908, but denies every other allegation in the petition.
The will referred to sets out that the testator, a bachelor, residing in Concord township, Washington
The fourth clause appoints Charles Corder executor, waiving bond.
The trial was to the court, as in equity.
At the conclusion of the evidence, the court, setting out the will and finding it had been probated found, adjudged and decreed that by the terms of the will, in so far as it relates to the interest of plaintiff, plaintiff took title absolute to all household goods and effects belonging to testator at his death; that under the third clause of the will defendant took a fee in the real estate, describing it, “subject to and charged with the equitable lien of Emily Simpson, plaintiff herein, for her care, support and maintenance during her natural life and for defraying the expenses of her last sickness and proper burial. ’ ’ It further found that the present gross value of the real estate is $1800 and that the present gross value of the life estate of Emily Simpson in the above described real estate, in the form of an annuity is $476.22, “as is provided for in section 8499, Revised Statutes 1909, and according to the Car-
Interposing a motion for new trial as well as one in arrest of judgment and excepting to the action of the court in overruling these motions, defendant perfected his appeal to this court.
That under the terms of the will of Oscar Simpson, plaintiff took title to the personal property, that is to say the household goods and effects, is clear. That defendant took the real estate described, together with the live stock, farming implements an$ other chattels not otherwise disposed of by the will, charged with the trust in - favor of Emily Simpson, is equally clear. The bequest, as it is called, obviously not using that word in its technical sense, for there is not only a bequest of personalty but a devise of realty, is recited to be in consideration of the services Charles Gr. Corder had rendered the testator in the past, “and upon his promise to take care of and provide for my half sister, Emily Simpson, during the rest of her natural life, and defraying all expenses of her last sickness and proper burial.” This was a trust imposed not only upon Corder personally, but also upon the property, which followed the property and remained on it during the life of Emily Simpson.
A precatory trust is defined to be “a trust created by certain words, which are more like words of entreaty and permission than of command or certainty.” [Black, Law Dictionary (2 Ed.).] The words
The question as to whether words used are to be considered as creating precatory trusts has been before our courts in many cases. As see In the matter of Schmucker’s Estate v. Reel, 61 Mo. 592; Noe v. Kern, 93 Mo. 367, 6 S. W. 239; Murphy v. Carlin, 113 Mo. 112, 20 S. W. 786; Cross v. Hoch, 149 Mo. 325, 50 S. W. 786; Stewart v. Jones, 219 Mo. 615, 118 S. W. 1. In these cases it was held that such trusts were created.
In re McVeigh’s Estate, 181 Mo. App. 566, 164 S. W. 673, and Snyder v. Toler, 179 Mo. App. 376, 166 S. W. 1059, the words used were held not "to create such a trust. These two cases last cited discuss the matter so fully that it is not necessary to go into this branch of the subject any further, it being sufficient to say that the words here used clearly imposed a trust upon the property, charging it with the amount necessary “ to take care of and provide for . . . Emily Simpson, during the rest of her natural life, and defraying all expenses of her last sickness and proper burial. ’ ’
So far, therefore, the action of the trial court in holding this to be a trust upon the property in the hands of defendant is correct.
But when we come to consider the action of the learned trial judge in awarding a sum in gross, apparently in commutation of the present worth of the life estate of plaintiff in this land, we are unable to
But we do not think that the value of this property was to be considered here. Plaintiff is entitled to her support, etc., and to look to the property in whosoever ’s hands it may be, but that is all. The value of the property was of no moment. We know of no rule or principle upon which the chancellor was justified in awarding the present worth of plaintiff’s interest as he did. Looking at this will in the light of all the circumstances under which it was executed and the condition of the parties, which is the rule of construction indicated in all cases, and especially so in the ones we have cited above, the intention of the testator is to be sought. As is said in many cases, the court is to put itself as near as possible in the situation of the testator at the time of making his will and so endeavor to arrive at the true intent and meaning of the will, as that intention is expressed. Here was an old man and his sister who had been living together for some twenty-five years, and who had taken defendant into their household, he then an infant eight or nine years old, and raised him as their son. The brother and sister, well advanced in years, the latter seventy-five years of age at the time of this trial, the brother apparently about the same age, when he made the will, had been living together as one household and this defendant had lived with them and been reared by them as a son. The testator was a small farmer, hardly to be considered. even well to do. The family lived modestly, as
Noe v. Kern, 93 Mo. 367, 6 S. W. 239, is an exceptional case in so far as concerns the amount awarded, as well as in other particulars. The court construing the will in connection with the relation of the children to the testatrix, really construed it as in a sense adopting the children, the proper provision for the children of the deceased brother and which she and her husband had undertaken to make towards raising and educating them being construed by our Supreme Court to mean that it was the intention of the testatrix that they should be raised and educated in accordance with the usual requirements “of the circle in society in which they moved,” hence the approval of the large sum awarded. Very much the same view was taken in Murphy v. Carlin, 113 Mo. 112, 20 S. W. 786.
But plaintiff was under no obligation to remain there if ill treated. According to her own testimony in the case, there is no evidence whatever of any ill treatment or failure of support on the part of defendant. Some outsiders, it is true, testified to one instance in which it is alleged that defendant slapped
In the light of the evidence in the case, we are unable to find any fact justifying plaintiff in leaving defendant’s home. If she did so voluntarily and took up a residence elsewhere, it is exceedingly doubtful whether defendant can be compelled to pay for her board and keep. That we do not here decide. If it appeared here, or if it afterwards appears, that defendant refused support to plaintiff, or by his conduct forced her to leave the home, we may have a different ■case. ‘We are compelled to hold, in the light of the testimony, that plaintiff has not made out a case showing that she. had been driven from the home, or that defendant had refused, on any request made by her, to care for or support her. To allow the award of the sum in gross, that is to say, make a computation of the present worth of plaintiff’s life estate in this property and allow her that, as was done, might be to defeat the very object of the testator. He was providing for the support and for a home for his sister during her life, attention during her last sickness, and for her decent burial. If this sum is paid to her in gross, as under the award of the court it would have to be, and she should spend it and be reduced to poverty, who is to look after her declining years, support her, look after her in her last sickness, and bury her? Under this decree that would all have been paid for and the property discharged from the trust and the defendant freed from any obligation to make further payment. Thus the very object of the testator in providing for the declining years of his sister would be
In Bakert v. Bakert, 86 Mo. App. 83, the Kansas City Court of Appeals had to deal with a case presenting some of the features common to this and found on the evidence that the necessary sum required to support the plaintiff was $150 as a fair and proper sum for the annual charge for that purpose. It did not undertake to compute the present worth of the annuity, based on the life expectancy of the beneficiary.
A case somewhat like the one at bar was presented to the Supreme Judicial Court of Massachusetts in Sheldon v. Purple, 15 Pick. (Mass.) 528. This latter action, however, was an action at law, in assumpsit, to recover from the grantee of the real estate upon which the trust had been imposed a sum of money sufficient for the support of plaintiff for a certain period of time. The plaintiff was permitted to recover.
We are compelled, therefore, to hold that under the facts presented by this record, plaintiff cannot recover in this action and on the facts in evidence a sum in gross as compensation for future care and support and for anticipated expenses of her last sickness and for her burial; nor has she made out a case of failure of support in the past.
The judgment of the circuit court is affirmed as to the construction of the will, but is reversed in all other particulars, and the cause is remanded with directions to that court to enter up* a decree construing the will,
