226 Mo. 97 | Mo. | 1910
This is an action to quiet title to certain real estate in tbe city of St. Louis. All parties claim under a will made by Helene Eucbs, executed April 24, 1897, and a codicil thereto, executed July 29, 1897. The plaintiffs and the two defendants, Friedrich Wilhelm Fuchs and Columbia Fuchs, were children of Dr. A. J. Fuchs, a son of the testatrix. Alma Fuchs Wells and Augusta Fuchs Jones and Friedrich Wilhelm Fuchs are children by his first wife, and Columbia Fuchs a child by his second wife. Defendant Lina Vogeler was a daughter of testatrix, and Julius Vogeler was her husband. The testatrix died October 14, 1897. Dr. Fuchs died in March, 1904.
Plaintiffs claim an undivided one-fourth each in the property under the sixth clause of the will, which reads:
“VI. I give, bequeath and devise to my son Dr. August J. Fuchs (a widower), residing in Maseoutah, St. Clair county, Illinois, the following described real estate, situated in Block No. 1354 of the city of St. Louis, State of Missouri, to-wit:
“Lots number thirty-nine and forty of Block No. 2 of Thomas Allen’s Western Addition to said city of St. Louis, Missouri; said lots having an aggregate front of fifty feet on the south line of Russell avenue by a depth of 125 feet, to an alley, inclusive the two-story stone front building No. 2738 Russell avenue, and other improvements thereon, to have and to hold the same with all the appurtenances thereto belonging, for and during his natural life, he, my said son, August J. Fuchs, to have and enjoy the usufruct, income, rents and revenue of said property for his sole use and benefit during his natural life, he, my said son, to*102 keep the premises in good repair and tenable condition, pay taxes, insurance, etc.; and from and after the date of tbe death of my said son, August J. Fuchs, I give, bequeath and devise all of said real estate, including the buildings and improvements thereon, to his children, Alma Fuchs, aged about twenty years, Augusta Fuchs, aged about eighteen years, Friedrich Wilhelm Fuchs, aged about six years, and to the child or children that may be born to him hereafter. To have and to hold the same from and after the date of the death of my son August J. Fuchs, unto them, my said grandchildren in equal shares, and unto their heirs and assigns forever.”
Defendants, Friedrich Wilhelm and Julius and Lina Vogeler, claim by reason of the codicil of the will, which reads:
“I, the undersigned, Helene Fuchs, widow of Frederick Wilhelm Fuchs, deceased, hereby declare that after my death Dr. A. J. Fuchs, residing in Mascoutah, St. Clair county, State of Illinois, being my heir in my last will and testament such as made in my last will and testament, now in possession of Richard F. Koster in St. Louis, State of Missouri, if my son Dr. A. J. Fuchs, of Mascoutah, county of St. Clair, State of Illinois, die before his son Fred Wm. August Fuchs (now aged six years) also residing in Mascoutah, county of St. Clair, State of Illinois, he to be sole heir of the above named Dr. A. J. Fuchs of Mascoutah, St. Clair county, State of Illinois, if he dies, such inheritance (providing he dies without heirs, that is, his sisters, Alma Fuchs and Grussie Fuchs only to receive from such one hundred dollars each), but the residue to revert to my son-in-law Julius Vogeler, Sr., and his wife Lina. Vogeler, nee Fuchs.”
There was oral evidence tending to show that the plaintiffs had trouble with their father, Dr. Fuchs, and that the testatrix took the side of the father. The codicil was shown to be in the handwriting of Dr.
“And the court doth find, adjudge and decree that under the will of the late Helene Fuchs, as set out in the petition in this cause, the fee simple title to the premises described1 in the petition became vested, upon the death of August J. Fuchs, to-wit, on or about the 14th day of March, 1904, in the 1 defendant Wilhelm Fuchs, and is now vested in him, the said Frederick Wilhelm Fuchs, subject, however, to be determined in the death of him, the said Frederick Wilhelm Fuchs, without leaving him surviving any' lawful child or children, in 'which event said legal title shall become vested in the defendants. Julius Yogeler and Lina Yogeler as joint tenants, subject, however, to the payment by them of the sum of one hundred dollars to each of the plaintiffs herein, to-wit, Alma Fuchs Wells and Augusta Fuchs Jones, which respective sums constitute a charge upon the contingent interest of said Julius Yogeler and Lina Yogeler in and to the premises aforesaid. And the court doth further adjudge and decree that the proper construction of the will of said Helene Fuchs aforesaid vests the title to the premises described in the petition herein according to the previous finding of this decree.”
Plaintiffs bring the case here by appeal taken in due order and within propér time.
It will be observed that the real issue is as to the effect that the codicil to the will has upon the sixth clause thereof.
Points urged will be noted in the course of the opinion.
Proceeding now to the questions of law, from the entire will it is evident that there was an attempted
In this case, we have a testatrix with a will definite and certain as to the distribution of her whole estate. Later, she undertakes hy codicil to change and modify such distribution. This she had the right to do. And further he it said that if such subsequent modification is sufficiently definite and certain, so that the court can determine from the four corners of the instrument, including the modification made hy a codicil, what the actual intent and purpose of the testatrix is, then such interpretation should he adopted, and to that end the will as a whole should he sustained. We take it that a codicil to a will stands in the same position as a subsequent clause in a will. The construction which should he given to one should be given to the
Upon this question, at that time, we had occasion to go over and review the authorities, and a further review thereof would be at the expense of space in this opinion. In that case, we were reviewing clauses of the original will, but we take it there is no differ
When we have a will for construction there are certain rulés which must be the guide. These rules do not permit us to rewrite the will for the party on the one hand, nor do they permit us to say that the party has properly written the will unless it so appears. One rule is as binding as the other. If the provisions of a will are void, we must so declare, notwithstanding the general rule that the court shall attempt to find the real intent of the testator. If certain clauses of the will are void for reasons well founded in law, we must so say. This rule finds expression in the very recent case of Board of Trustees v. May, 201 Mo. l. c. 369, where we said: “We confront at the outset two well-recognized rules in the law: First, courts cannot make wills for parties. Second, wills should be so
It is true that exact language is not required of a testator. Legal terms and phraseology are required. When we take the whole instrument, we may supply words, and even substitute words in order to get at the intent of the testator, and thereby uphold the will. But giving this rule its full force, we cannot make definite that which the testator has made indefinite. We cannot make certain that which the testator has left uncertain. We cannot make certain that which the testator has left equivocal.
Both rules must be considered together and our judgment respond thereto. Vagueness we cannot make light. Uncertainty, by our ipse dixit, we cannot make certain. Language with English meaning we cannot change, whether it be used by one accustomed to the language or otherwise. Radical looseness in the making of wills or codicils thereto cannot be tolerated under rules of law any more than it can be tolerated in many other instruments submitted to the courts for construction. When we say that vagueness destroys the effect of an instrument of writing, it applies to wills as it does to all other writings.
In this case we have set out in full the instrument in so far as the questions involved are concerned. By the original will, Dr. Fuchs was given a life estate in ■the property involved and his children born or unborn were given the fee. This will was definite and
With these directions, the judgment nisi is reversed and remanded.