Suydam v. Thayer

| Mo. | Oct 15, 1887

Norton-, C. J.

William A. Hopkins died in Jackson .county on the twenty-fifth of August, 1867, leaving the following will, which was duly admitted to probate:

“In the name of God, Amen. I, William A. Hopkins, of the county of Jackson, in the state of Missouri, being of sound mind and disposing memory, do by these presents make, publish, and .utter this, my last will and testament, to-wit:

“Item First: I hereby will and bequeath that after the payment of my-debts all my property, real and personal, go and belong to my son, Sands W. Hopkins, and if Sands W. shall die without issue, that then the said property shall go and inure to my brother, Charles G. Hopkins, for his natural life, and afterwards to go towards the establishment-of a school according to the ‘Jeffersonian school,’ established by Thomas Jefferson in his will, at Kansas City, Missouri.

“Item Second. I will that my wife, Eliza, shall have a full, decent support out of my estate against all other bequests, during her natural life, as long as she remains my widow, and no longer.

“Item Third. I appoint Charles G. Hopkins my ■executor, and if he should die before my son, Sands W., then in case my son, Sands W., should die without issue before lie is of age, I will that my property shall go to establish the school aforesaid, at Kansas City, Missouri, and that the judge of the circuit court of Kansas City, of Jackson county, shall appoint a commissioner to see that this will be carried out, if the other contingencies shall occur; and in construing my own will, I declare that all these reversions must depend upon my son’s death before he has issue to inherit his estate.

“Item Fourth. I will that Charles Gr. Hopkins be testamentary guardian of my son, Sands W., and I charge him out of my estate to see that my wife, Eliza, is comfortably cared for during her widowhood as aforesaid, and in case of her death to be decently buried with respectable monuments on her grave.

“In testimony whereof, I have hereunto set my hand and seal, at this twenty-second day of January, A. D., 1887.

“William A. Hopkins. [Seal.]

“I hereby make the following addition to my will, to-wit, that my executor sell any or all of my real estate and convey the same for-such price or sumas to him may seem proper.

“In testimony whereof, I hereunto set my hand and seal, this twenty-fourth day of August, 1867.

‘ ‘ William A. Hopkins. [Seal. ] ’ ’

It appears from the record that the estate of decedent consisted of about five thousand dollars of personal property, and a large number of unimproved lots in Kansas City yielding no income, and that the indebtedness of the estate amounted to fifty or sixty thousand dollars. It also appears that Sands W. Hopkins, at the time of the death of his father, was an infant about nine years of age and attained his majority in November, 1879 ; that he married in 1880, and had issue born of the marriage capable of inheriting through him; that both his wife and child are dead, and that said Sands W. survived them, and was living at the time this cause was tried, and was about twenty-eight years of age. On this state of facts, the trial court held that the fee of the real estate of decedent vested absolutely in Sands W., and rendered its judgment accordingly, from which the defendants, the County of Jackson and City of Kansas, have prosecuted their writ óf error, and the only question to be decided is,- whether the trial court correctly construed the will hereinbefore set Jorth.

In construing a will, the object is to reach the intention of the testator, which is to be gathered, not from single words nor single passages, but from a consideration of the whole instrument, and the general design and scope of it. Allison, Ex'r, v. Chaney, 63 Mo. 282. Section 4008, Revised Statutes, 1879, provides that: “ All courts, and others concerned in the execution of last wills, shall have due regard to the directions of the will, and the true intent and meaning of the testator in all matters brought before them.” In giving a practical construction to wills, technical rules, when they stand in the way of the manifest intention of the testator, may ■be disregarded. Carr v. Dings, 58 Mo. 404; Collier's Will, 40 Mo. at 321.

Applying these rules in construing the will in question, viewing it as a whole, and considering the first and third items thereof in the light.of the circumstances •surrounding the testator at the time it was executed, and it may fairly be said that it discloses, on the part of the testator, the intention that the property devised to the son in the first item of' the" will should only be devoted to the establishment of a school in Kansas City “according to the Jeffersonian school established by Thomas Jefferson in his will,” in the event of his son dying without issue before he was of age. The divestiture of the estate given to the son in the first item of the will, and the devotion of the property to the establishment of a school at Kansas.. City were expressly

made, by tbe third item of tbe will, to depend on tbe death of tbe son without issue before be reached full age; and inasmuch as the event, viz., the death of the son without issue before he arrived of age, on the happening of which the estate was to pass over and be applied to the establishment of a school, etc., can never happen, the absolute estate is in the son, and the trial court in so holding did not err,- and its judgment is hereby affirmed,

Judges Ray and Brace concurring, Judge Sherwood absent, and Judge Black not sitting. ■