128 Mo. 299 | Mo. | 1895
Lead Opinion
This is a suit instituted by Mrs. Webb, one of the devisees and heirs at law of Mrs. Margaret Lindsay, deceased, and her husband, against the administrator and the other devisees and heirs at law of the said deceased, to obtain a construction of the last will and testament of said deceased, which, omitting the formal parts, is as follows:
“I give and bequeath to my beloved daughter, Kate Webb, the sum of thirty-seven hundred and fifty dollars to her sole and separate use, and in order to secure the same to her sole and separate use, from the control of her present or any future husband, I hereby appoint and constitute my friend, Repps B. Hudson, to receive and take possession of said thirty-seven hundred and fifty dollars, on my death, and invest the same in land — the deed for said land to be made to her, the said Kate Webb, to her sole and separate use.
“2. I give and devise to Thomas Archibald, William Archibald and Margaret Winkler, my .children, .and Harry Archibald, my grandchild, their heirs and assigns, all my real estate, including the farm of four hundred acres on which I now live, and twenty acres of timber land about one mile south of said farm of four hundred acres, this being all of my real estate — each of the four persons last above named to have one-fourth of said real estate or land; said land is situated in Carroll county, Missouri.
*304 “3. I give and bequeath to my son, "William Archibald, oue thousand dollars, for the purpose of making him even with the other children, on account of which they have received heretofore. Out of the balance of my property I desire my debts to be paid, and should there be anything left, I desire it to be equally divided between Thomas Archibald, William Archibald and Margaret Winkler; above named are all of my children, as I have never had any children by my present beloved husband, Clark Lindsay.”
The will was executed on the sixth of March, 1885. The testatrix died in the year 1891, the owner of the real estate mentioned in the will, and of a tract of one hundred and twenty acres in addition, called the “Winfrey Earm,” acquired by her after the execution of the will; and of personal property of the value of several thousand dollars.
The trial court held that the said Margaret Lindsay died testate as to all her personal property, which is to be distributed according to the terms of the will; but that she died intestate as to the said real estate, purchased after the date of the execution of the will, and that the same descends in equal parts to her heirs at law, the said Kate Webb, Thomas Archibald, Margaret Winkler and Harry Archibald, and decreed accordingly. Erom this decree, defendants appeal, contending that the court committed error in holding that the said Margaret died intestate as to the after acquired real estate aforesaid, and this is the main question to be decided here.
I. In the leading case of Liggat v. Hart, 23 Mo. 127, Leonard, J., said: “Men know that their wills are not to take effect until they die, and they make them for the purpose of fixing the distribution of their property from that moment.” Since that decision, construing the first section of our statute of wills, there never has
The language of the will in question leaves no room for doubt that the testatrix in the disposing clauses of her will was fixing the distribution of her property “from the moment of her death.” The first item of her will, containing the legacy to the plaintiff, discloses this as her thought in the expression “on my death,” which runs through the dispositions of the will. Nor does that language leave any room for doubt that the testatrix intended to dispose of all the property of which she was possessed at the moment of death, for, after making all the specific bequests she desired, she closed the third and last item with a residuary clause disposing of “anything left,” “out of the balance of my property.”
There is nothing in the language of the will, nor rules of law given for its interpretation, upon which the idea of an intestacy as to any of the testatrix’s property can be predicated. There is no room in the case for the indulgence of any presumptions on account of a disherison. There is no disherison in the ease. The testatrix carefully named all those who by nature had immediate claims on her bounty, and as carefully provided for them. That the provision made by her may have been unequal as between them can furnish no basis for a presumption that she intended an intestacy as to any of her property; yet, in order to sustain the trial court in its ruling, we should not only have to indulge in some such presumption, but permit it to
This brings us to the only remaining question, to whom did that farm pass by the will? It passed either by the second item or the residuary clause of the third item of the will. Reading these items together it is impossible to escape the conclusion that the intention of the testatrix was to make a difference between her three children and her grandchild named therein— that there was a part of her estate in which she wished that they should all share equally, and there was a part of her estate in which she wished that only her said three children should share equally and in which her grandchild should have no share. The estate in which the four should share equally was devised by the second item. It was a landed estate. The disposing part of that item is “all my real estate.” This expression, if there had been nothing more, would have been sufficient to pass all her real estate, including any that she might have acquired after the execution of the will. She did not stop there, however, but immediately, in the same item and connection, proceeded to define those terms, by giving her meaning thereof to be the “farm on which I now live” and the timber land south of it. It is not material that she may not have given correctly the number of acres therein.
The estate in which her three children, Thomas Archibald, William Archibald and Margaret Winkler, were to share equally, but in which the grandchild Harry Archibald, was to have no part, was devised in the residuary clause of the third item of the will, and it was to be anything left of her property after her debts were paid, not included in the specific bequests— anything left, whether of real or personal property.
The estate has been administered, the debts have been paid, and according to the manifest intention of the testatrix upon the face of the will. The plaintiff’s trustee is to have the sum of $3,750, to be invested for her benefit in lands, as directed in the first item of the will. Thomas Archibald, William Archibald, Margaret Winkler and Harry Archibald are to have the farm on which Mrs. Lindsay was living at the date of the execution of the will, together with the timber tract south of it in equal shares in fee simple. William Archibald is to have $1,000, to make him even on account of what had been received by the other devisees by way of advancement before the execution of the will. The
The judgment of the circuit court will be reversed and the cause remanded, with directions to enter a decree construing the will in conformity with the views expressed in this opinion,
Dissenting Opinion
(dissenting). — We do not agree to the judgment of reversal, announced by the learned chief justice.
The majority of the court hold that the real estate acquired by Mrs. Lindsay, after making her will, passed to Thomas and William Archibald-and Margaret Winkler by the third paragraph of that document. We dissent from that view.
None of the other points discussed in tha divisional opinion (28 S. W. Rep. 81) is mentioned in the opinion of our brethren, so we assume that no error in the circuit proceedings is found on account thereof.
The ruling above stated is the sole basis for discarding the conclusion reached by the learned trial judge, so we confine our remarks to that point.
In the interpretation of wills, the first and weightiest consideration is the intention of the testator.
If the intention is plain from the language of the document, we have no right to go elsewhere to learn it.
If the terms of the instrument do not make its intent clear, resort may sometimes be had- to other aids.
But it is our opinion that the paper now under review needs no such outside illumination.
Under our positive law governing such dispositions, wills of personal and of real property alike are considered as applying to the testator’s property owned at his death, in the absence of any expression of a different purpose.
Where the intent not to dispose of after acquired realty is manifest, the court will give effect t© that intent, however.
Let us apply these recognized rules of law.
We notice that, by the second paragraph of Mrs. Lindsay’s will, she specially designates, by short descriptions, the tracts she intended to devise, declaring that these tracts were “all” of her real estate.
That' statement is twice made in that paragraph.
In the next paragraph she bequeaths to one of her sons $1,000 “for-.the purpose-of making him even with the other children.” She then directs her debts to be paid “out of the balance” of her “property.” What property did she thus intend to refer to? Having expressly mentioned and disposed of all of her real estate, the “balance” she thus intended to mention was what remained after all real estate was out of view, namely her personal property, less the legacies she had made. And it was upon the remaining personal property that she intended that clause of the will to operate. This seems clear upon considering the entire document.
While it is true that the law does not presume an intestacy, where the language of a will is of doubtful import, it should be remembered also, that plain language is necessary to effect a disinheritance of any of
At the present day the term “property,” in the statute law (R. S. 1889, sec. 6570), in the law of wills, and in the popular understanding, normally comprehends all sorts of property, real and personal.
But the word maybe so placed in speech or writing as to indicate some particular sort or kind of property, and thus to bear a more restricted meaning than it would without the context. Woollam v. Kenworthy (1803), 9 Ves. 137; McKim v. Harwood (1880), 129 Mass. 75; People v. Railroad (1881), 84 N. Y. 565.
Comparing the second paragraph of the will with the third, it appears evident that the testatrix designed and intended in the latter to refer only to her personal property. She did not, in our judgment, intend by that paragraph to pass title to real property or any part of it.
She intended the second paragraph as the ful expression of her purposes touching the realty. Compare Farish v. Cook (1883), 78 Mo. 212, and Hale v. Audsley (1894), 122 Mo. 316 (26 S. W. Rep. 963).
The true meaning of the will was, we believe, properly expressed by the learned circuit judge who held that it did not, because it was not intended to, reach or dispose of the real estate of the testatrix purchased after it was executed.
That view is strengthened by the terms of the legacy to William. Its object was to make him “even” with his brothers and sisters — that is,, to equalize his portion. This language shows the intent of the testatrix to place her children upon a substantial equality, which the ruling now made disturbs.
The “balance” of her property — if it were held to be personalty only — would be trifling in amount, at the
There may, perhaps, be another serious objection to the result reached in this court, to be found upon a close analysis of the meaning of the last three or four lines of the will; but it would, probably, serve no useful purpose to develop that objection, or to prolong these comments.