Tevis v. Tevis

259 Mo. 19 | Mo. | 1914

LAMM, J.

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 prayed in plaintiff’s bill, defendants (barring Bledsoe McRosky who rested content) appealed.

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 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 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 forth, the entire will and by averment puts a construction on it contra to that of the petition, to-wit, that the provision of item two, beginning with the words “upon the death of my son John Tevis” and ending with the words “vest in my heirs at law,” the last words of the item (quoting) “is vague, uncertain, ambiguous and indefinite, so that the remaining undivided one-half of said land is not specifically devised, nor is there any certain or specific gift of the said sum of twenty-four hundred dollars, or any certain devisee or legatee, and there is no specific gift of either the said sum of twenty-four hundred dollars, or the undivided half of said land, or any certain devisee, and the said clause is in conflict with the residuary clause in the third item of said will, and is therefore void and of no effect.”

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 defendant, Bledsoe McRosky. That subsequently Bledsoe sold and conveyed his interest in the Simeon P. Tevis estate to defendant Jeremiah Tevis, making the defendants (excepting Bledsoe) the owners of the individual one-half interest not specifically devised to Nestor C. Tevis, and then concludes as follows:

“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 Bledsoe McRoskey (Ms wife, devisee Anna MeRosky, having died childless and testate after testator’s death, making Bledsoe her sole devisee and legatee) and 1240 each to Irving Tevis and Anna M. Williams (said Irving and Anna M. being the only heirs of devisee Daniel Tevis, who died after testator and before suit).

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 and bring them here challenging the decree in that it did not do equity and was contrary to the evidence. Those exceptions are efficacious, entitling appellants to a hearing de novo on appeal and seeking the merits.

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. To send this ease back for proof of a formal tender before bringing suit, would merely prolong the litigation and be an unavailing act sounding to folly.

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 ordinary meaning and in the sense indicated by the body of the instrument. The provisions of the will are to be so construed together that all may be operative and none of them perish unless they contravene some settled principle of law.

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 the residuary clause, is to bring about a contradiction and a destructive repugnancy in the provisions of his will. On the other band, excluding that half interest from the residuary clause violates no technical rule known to us and such construction (and this alone) makes item two of the will effective and the whole will operative. The other construction creates such a repugnancy as destroys the plan of the will and makes the provisions of item two perish. It is an unwholesome doctrine in construing wills to first unnecessarily breed repugnancies and uncertainties by subtle and speculative refinements and then when so bred to destroy a plain and perfectly proper provision by means of such uncertainties and repugnancies. We rule - there are no such contradictions,'repugnancies or uncertainties as make invalid any provisions of item two of the will.

(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 give a valuable right of election to Nestor C. to take it for $2400. As we have already ruled, that right of election is clear and free from all ambiguity. It contravenes no property rule. But there was a contingency in testator’s mind, to-wit, that Nestor C. might not want to exercise the right of election. What was to be done on that contingency? Look to the will. In that event that half interest went to the heirs of the body of said John Tevis. Át that point another contingency sprang in testator’s mind, namely, John Tevis might have no heirs of his body then living. What then was to be done? Again, look to the will. The admonitory cry: “the will, the will . . . read the will,” accords with both law and drama. At that point testator proceeded to dispose of the money to be paid by Nestor C. on exercising his election to take the land, on the one hand, and also proceeded to dispose of the undivided interest in the land on the contingency the right of election was not exercised by Nestor C., and on the contingency there were no heirs of the body of John Tevis then living, the will reading: “The money or the undivided interest in the land shall pass to and vest in my heirs at law.” There is no ambiguity or irregularity about that. The only question is: Who were his “heirs at law?” Heirs at law are those who after their ancestor’s death intestate have a right to inherit all lands, tenements and hereditaments which belonged to him or of which he was seized. [Bl. L. Dict. (2 Ed.), tit., “heirs at law”; Rosier v. Graham, 146 Mo. l. c. 360.] If one finds those persons on whom the law easts the inheritance on their ancestor’s death (if there were no will) then one has found the heirs at law of such ancestor. The use of both terms, “heirs of the body” and “heirs at law” are not without significance in showing a use of accurate terminology in the will. In this case, Nestor O. Tevis falls within the class “heirs at law.” It happens in this ease that the residuary legatees also fill the description of that class. It follows that the two together constitute the heirs at law, who in a certain contingency, to-wit, the existence of no heirs of John Tevis’ body, took the land or the money. Observe, in the scheme of the will the money stood for the land and went to the same class, to-wit, “my heirs at law.” This is so, notwithstanding that in one place the will uses the term “purchase.” Strictly speaking one cannot buy from himself and in that sense there might be room for the speculation that testator intended the $2400 to be paid for the purchase from the other heirs at law. But that is not the plan of the will. It does not build itself up around the one narrow concept of “purchase.” The will says nothing about purchase from the other heirs at that price. Contra, the price is for the land — all there is of it. It is equivalent to an appraised value for the whole title and testator evidences his intent by distinctly providing in the next breath that the money or the land should go to his heirs at law. In one view of it and allowing full scope to the idea of purchase, there would be an abatement to the amount of Nestor C. Tevis’s share of the appraised value and that would give the same result in specific performance as allowing him to share in the total price as the will does.

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? Appellants contend lie did not. The point involved is exceedingly nice and seeks more of the record. Anna McRosky as said, died in April, 1899, testate, without children surviving, making her husband Bledsoe, sole beneficiary under her will. Now, John Tevis died after his sister Anna McRosky, to-wit, on the 7th day of May, 1910. Assuming for the purposes of the point, that the money does not pass under the residuary clause (as we have just held), but passes under item two of the will (as also held), then the question springs: Did Anna McRosky take a vested interest which she could devise, or only a contingent interest, to-wit, the chance of having a share on the happening of the contingency that John Tevis died without heirs of his body? Testator held in his mind the contingency that John might have heirs of his body and the converse, to-wit, that he might not. For the purposes of jurisprudence the proposition may be allowed as sound on such a record as this, that while there is life left to a man there is hope — of heirs. Accordingly, the event could not be determined until John’s death. With the premises in mind, let us again look to the will, reading: “Upon the death of my son John Tevis my son Nestor C. Tevis, or his heirs, shall havé the right to purchase said undivided half of the aforesaid land for the sum of $2400, which sum of money, or in case said Nestor C. Tevis, or his heirs, shall elect not to purchase the land, then said undivided half 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.” An analysis of this controlling provision of the will establishes several propositions, thus: The first proposition is that Nestor C. Tevis had the right to pay his money and take title regardless of whether John left living heirs of his body or not. The next proposition is that if John left living heirs of his body at the time appointed for Nestor to take, to-wit, at John’s death, then such heirs of his body took either the money or the land, as the case might be. The next proposition is that on the contingency there were no heirs of John’s body (and only on that contingency) the heirs at law took under the will. We can make nothing out it except that the heirs at law had the mere chance of having on the happening of the mentioned contingency. The persons who were to take on that contingency could not be determined until John’s death without heirs of his body. Such interest was therefore a contingent interest and not devisable prior to the death of John, and we so hold. . We have been so lately over this question in Eckle v. Ryland, supra, q. v., that extended or further exposition would be unprofitable.

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-fourth to the heirs and widow of Daniel Tevis, deceased, who are parties defendant. And otherwise make his decree conform to this opinion. It is so ordered.

All concur.