259 Mo. 19 | Mo. | 1914
Equity. This is a suit by Nestor C. Tevis to divest title to certain land out of defendants on the payment of purchase money in accordance with a will and to vest title in plaintiff, and for distribution of that money.. From a decree granting the relief
Pending that appeal plaintiff died, and on apt steps the cause stands revived in the names of his administrator, Robert S. Tevis, and his heirs, Julia A., Lillie M., Simon P., and said Robert S. Tevis. Those names are read into the caption as respondents, but for convenience we speak of the original plaintiff as respondent.
It is conceded the proper parties are before the court, hence their several relationships to each other and several interests in the subject-matter (all set forth in the pleadings 'on both sides) are unimportant.
In small compass, the case is this:
In 1893 one Simeon P. Tevis died in Cooper county seized of the land in question situate in that county, and leaving a will. As the case turns on that will, attend-to it:
“I, Simeon P. Tevis, of the county of Cooper in the State of Missouri, hereby revoking all former wills and codicils by me made, do make, publish and declare my last will and testament in manner following, that is to say:
, “Item First. I direct that-all my just debts and funeral expenses be paid by my exeeutor as soon after my death as the same can be legally done.
“Item Second. I give and devise unto my son Nestor C. Tevis, an undivided one-half of the following described real estate situate in Cooper county, Missouri: The west half of the southwest quarter and the west half of the east half of the southwest quarter of section twenty-three, and the west half of the northwest quarter and the northeast quarter of the northwest quarter of section twenty-six-, all in township forty-seven, of range seventeen, my said son Nestor C. Tevis to have the same absolutely.
“It is further my will and I hereby direct that my said son Nestor C. Tevis, his heirs or assigns, shall have*28 the use of the remaining undivided half during the lifetime of my son John Tevis, and my said son Nestor C. Tevis, his heirs or the persons holding under him shall pay annually beginning at the expiration of one year from my death the sum of two hundred and eighty-eight dollars to my said son John Tevis, and I hereby charge the said annual payments as a lien upon said lands. These payments shall be continued during the lifetime of my son John Tevis. Upon the death of my son John Tevis, my son Nestor C. Tevis, or his heirs, shall have the right to purchase said undivided half of the aforesaid land for the sum of twenty-four hundred dollars, which sum of money, or in ease said Nestor C. Tevis, or his heirs, shall elect not to purchase the land, then said undivided half interest shall vest in the heirs of the body of said John Tevis, and if there shall be no heirs of his body then living, the money or the undivided interest in the land shall pass to and vest in my heirs at law.
“Item Third. I charge my other children with the following advancements, that is to say: Daniel Tevis, eight hundred and fifty dollars; Anna MeRosky, fifteen hundred and fifty dollars, and in this sum is included one thousand dollars which I have this day sent her; and my grandchild, Emma Hubbard, for advancements to her and her mother, five hundred and fifty dollars. I hereby direct that each of the four persons last named be first made equal out of my estate, paying to Daniel, Emma Hubbard, and Jeremiah respectively a sufficient amount to make them equal with the amount advanced to Anna MeRosky, and 'after this is done I direct that all of my peroperty, real, personal and mixed, except that hereinbefore specifically devised, be divided equally between the said Daniel Tevis, Emma Hubbard, Jeremiah Tevis and Anna MeRosky.
“Item Fourth. I hereby nominate and appoint my friend Charles T. Leonard executor of this my last*29 will and testament, and I hereby authorize my said executor to sell and convey any and all of my real estate and to dispose of the proceeds as hereinbefore directed.
“In witness whereof I have hereto set my hand this 8th day of January, 1891.”
Plaintiff is testator’s son, the Nestor C. mentioned in item two of the will as devisee of a one-half interest in the land described in that item. The other half is the subject-matter of this suit.
Testator’s son, John, mentioned in that item, died in 1910, unmarried and without heirs of his body surviving him, having received each year from plaintiff the annuity of $288 charged in his favor upon that land by the will.
On John’s death, Nestor C. (having had the use of the land during John’s lifetime as directed by the' will) invoked the right created by the will to have the one-half interest so used by (but not devised to) him at and for the will-fixed sum of $2400. Having so elected to purchase, plaintiff brought the instant suit to divest title out of defendants and vest title to the said undivided one-half interest in him, bringing the money into court for distribution; and, inter' alia, alleging that under the terms of the will he was entitled to share with the other heirs, devisees, etc., in that money.
The petition counting, as it does, on item two of the will and compliance with its terms, whereby plaintiff alleges an election to purchase, a right to share in the purchase money and to have title vested out of defendants and into him, its averments are sufficient to have granted the relief prayed for, if a sound interpretation of the will permit it, hence a reproduction of the entire petition is unnecessary to an understanding of the case.
The answer of defendant McEosky is not abstracted. The answer of the appealing defendants, after making certain admissions and denials, sets
The answer then continues as follows: “That in the third item of said will said testator, after charging some advancements, made a residuary clause as follows: ‘and after this is done I direct that all of my property, real, personal and mixed, except that specifically devised, be divided equally between the said Daniel Tevis, Emma Hubbard, Jeremiah Tevis and Anna’McRosky, ’ and in the fourth item of said will testator empowers and authorizes his executor to sell all of his real estate, by the following clause, viz.: ‘ and I hereby authorize my said executor to sell and convey any and all of my real estate and to dispose of the proceeds as hereinbefore directed.’
“Wherefore, these defendants state that by the terms and provisions of said will the undivided one-half of said land described in plaintiff’s petition not specifically devised to said Nestor C. Tevis, by the terms of said will, vested in the said Daniel Tevis, Emma Hubbard, Jeremiah Tevis and Anna McRosky on the death of said testator.”.
It is next averred in the answer that Mrs. McRosky died testate, her will devising all her property to
“Wherefore these defendants pray for an order, judgment and decree of this court for the determination of the validity of the items of said will hereinbefore mentioned and if for any reason the same or any part thereof -be invalid or inoperative, that said portion of said will be so held, adjudged and decreed, and that the legal effect of such invalidity on the remaining portion of said will be declared, that the invalid portion of said will be declared void, and that said will be •construed, and for a decree adjudging the rights of plaintiff and these defendants in and to said real estate therein described, and in said plaintiff’s petition described, and that the title to said undivided half of said real estate not so specifically devised to Nestor C. Tevis be vested in these defendants, and for such other and further orders, judgments and decrees touching the premises as to equity and justice may seem meet and proper.”
At the trial it stood conceded there was real estate belonging to testator not described in the second item of his will, which sold for, say, $3600; that the personal estate of testator amounted to, say, $3900; and that out of the proceeds of said last-mentioned realty and said personalty Daniel and Jeremiah Tevis and Emma Hubbard were equalized with Anna McRosky as required' by item three of the will.
The court, taking plaintiff’s construction of the will, decreed title to the land described in item two into him, and then went on and divided the $2400 deposited by him as purchase money into five parts, distributing it as follows: $480 to plaintiff; $480 -to Jeremiah Tevis; $480 to Emma Hubbard; $480 to
The facts are undisputed. The controversy, as said, is over the interpretation of the will. The material assignments of error will sufficiently appear in the course of the opimon.
I. Of instructions and a demurrer to the evidence.
The cause is of equitable cognizance in fact and eo nomine; for the petition seeks equitable relief, so does the answer. In this condition of tMngs appellants, complain here of the chancellor’s refusal of a demurrer to the evidence at the close of the whole case, as well as of his refusal of four prayers in the form of declarations of law. Their learned counsel industriously (but with labor lost) briefs assignments of error predicated on such rulings. We need not reproduce the instructions; for we need not consider them or the demurrer. Not only are instructions out of a place in a law suit tried to the court without a jury on facts constituting an agreed case, as here (Eckle v. Ryland, 256 Mo. 424), but it is venerable and acceptable doctrine, well grounded in reason, that instructions and demurrers to evidence fill no useful office at all in eqrnty. Those devices for admimstering justice, when useful, are singular to law, not equity. [Troll v. Spencer, 238 Mo. l. c. 92.] A judge of tMs bench invented the phrase, “.point no point.” If that striking pMase is entitled to live in judicial language, then assignments of error on the giving or refusing of instructions in equity may be assigned to that head.
Fortunately for appellants they did not rest alone on error in instructions, but took exceptions below
II. Of a tender.
Appellants complained of no “tender” before bringing suit. The complaint is without substance, because: The contention gathers head from the supposed failure of proof. The petition alleges that plaintiff elected to take the undivided half of the land in accordance with the right and the privilege conferred upon Mm by the terms of the will “and so notified the defendants and offered to pay them said money, but that defendants refused to accept the same or to convey said land to the plaintiff.” The answer contained no admission of a tender, and in that particular rests on a general demal; but (and tMs is close home) it made averments in the nature of a repudiation of plaintiff’s interpretation of the will. [Deichmann v. Deichmann, 49 Mo. 107.] Their interpretation, then and now, was so radically different from plaintiff’s that a technical tender was not worth while. [Vide, Deichmann case.] The maxim is: EqMty requires no vain and useless thing to be done. It looks to substance, not form. So, the question of tender or no tender was not raised below and the absence of one was not a trial theory. At the trial the following record was made without objection or exception— appellants standing mute: “Judge Williams: We now want the record to show that plaintiff now offers to pay in court and does pay in court, subject to its order, the $2400 tendered in the petition. The money was then deposited in the court subject to the order of this court.” In the face of such pleadings, such record, and such deposit, the question of tender is immaterial.
The point is disallowed to appellants.
III. Did the court interpret the will correctly and make a proper disposition of the purchase money?
The subject-matter under this head is approached in briefs from different angles. We will not follow the classification of appellants’ counsel, but will dispose of questions determinative of the case from our own viewpoint.
(1) In the first place, all sides agree there is a residuary clause in the will (item three), and that four named persons, to-wit, a granddaughter, Emma Hubbard, and three children of testator, to-wit, Daniel and Jeremiah Tevis, and Anna MeRosky, are the beneficiaries of (i. e., the residuary legatees or devisees under) this clause. The main question then is, What property passes by this residuary clause? It is argued on behalf of appellants that the one-half interest in the 240 acres of land mentioned in item two, not devised absolutely to Nestor C., belongs in the residuary clause, and therefore plaintiff is not entitled to any share in that undivided interest nor has he the right to elect to take the same. That conclusion hinges on the theory that the half interest is not “ specifically devised,” hence it falls into the residuary estate. But we are not persuaded to that view of it. The statutory rule is that courts and others concerned in the execution of last wills shall have due regard to the direction of the will and the true intent and meaning of the testator in the matter brought before them. [R. S. 1909, sec. 583.] That statute was but declarative of a settled judicial rule for construing wills. The intent of testator is arrived at by taking all the provisions of his will together. His words are to be taken in their
Giving heed to those guiding principles, we see that in the residuary clause is a provision that after Anna, Daniel, Emma and Jeremiah are equalized in advancements, then “all of my property, real, personal and mixed, except that hereinbefore specifically devised” he divided equally between the four. The record shows a considerable estate in lands and personal property not specifically devised, hence the residuary clause is made operative without putting a strained construction on other provisions. It shows, too, that the four named devisees were equalized in advancements and shared in the residuary estate, hence they took benefits under it.
Now, item two of the will carved out of the general estate 240 acres and disposed of the whole tract; one-half interest was devised absolutely to Nestor C. The same item makes specific provisions disposing of the other half interest. Por instance, it directs to whom it should go and under what circumstances and contingencies. Is all that not specifying? And when a testator has specified his disposition of a given part of his estate has he not “specifically devised” it? We have no doubt of testator’s intention and that is as far as we need go, but we should go that far. He intended to make a specified disposition of the whole 240 acres and as it is the only specific devise prior to the residuary clause, when he used the words “specifically devised” he referred to that land and the whole of it.
Take another view: To say that this testator in his plain and simple will did not except that one-half interest in the 240 acres by the phrase “except that hereinbefore specifically devised” and hold it out of
(2) Aside from the contention just disposed of it is not contended there is anything unjust in fact or irregular in law in the right given Nestor C. to take the other half interest on- the payment of $2400, or that such provision 'cannot be specifically enforced, but if we so interpret the words “specifically devised” as to exclude that half interest from the residuary clause, and make the provisions of item two effective in the matter of a right to elect to take it at the named price, then, and in that event, it is argued that the purchase money goes into the residuary estate. We do not agree to that view of it. In interpreting a will, before the court says anything it should see what testator himself has said. Speaking broadly, the bounden duty of the court is to say the same thing testator has said unless his language creates a situation obnoxious to some rule of law. Take this case: After providing that Nestor C. should have the use of the half interest on condition he pay an annuity of $288 to his brother John during his life (which he faithfully did), the will takes up the question of the disposition of that half interest on John’s death. The plan of testator was to
In dismissing the point, take a supposed case: Suppose, as put by respondent’s counsel, Nestor C. had not elected to take the land at the appraised price, what would become of it? Under the will would he not inherit his share in that land as an heir at law? Clearly so. In that view of it the conclusion is irresistible that, as the money is in the same boat with the land and subject to the selfsame directions in the will, it goes precisely as the land would have gone.
We are of opinion that plaintiff shares in the money. Accordingly we so hold and rule the point against appellants.
(3) The next and final question is: Did the chancellor make a correct distribution of the $2400?
It follows that Anna McRosky having died prior to the event determining the takers and leaving no children surviving her, she took nothing,' hence Bledsoe, her husband, took nothing under her will. Ergo, it was error to make him a distributee as the chancellor did.
Bledsoe McRosky conveyed on the 26th day of June, 1902, a certain interest in described portions of the estate of Simeon P. Tevis to Jeremiah Tevis, one of defendants. Questions are raised about the scope and effect of this conveyance. Those questions are not reached; this, because Bledsoe held under the will of his wife Anna and, since her will was inoperative, his deed to Jeremiah fails as a grant.
The premises all in mind, the conclusion must be that the decree is wrong in its distribution. Accordingly it is reversed and the cause is remanded because of error in the order of distribution. The chancellor is directed to divide the money deposited in court into four parts instead of five, giving one-fourth to Jeremiah, one-fourth to the granddaughter, Emma Hubbard, one-fourth to the heirs of Nestor C. Tevis (who are respondents here under the order of revivor) and one-