196 Mo. 517 | Mo. | 1906
Plaintiff, as administrator cle honis non with the will annexed, of the estate of Cyrus Newkirk, deceased, brings this suit in equity against the widow, children and grandchildren of the testator, praying the court to construe the will. There was a decree of the court construing the will and from that decree the plaintiff has appealed. Since the rendition of the decree the widow of the testator has died, and her administrator has been made a party to the suit. The testator left surviving him his widow, two sons, three daughters, the children of one deceased son and the children of one deceased daughter. He left an estate consisting of real and personal property. It is not necessary to copy the will here in full as it is long and as there are only two clauses of it which appellant contends were not correctly construed by the decree in the circuit court. We will therefore give our attention particularly to those two clauses.
“Clause 8. To my son, Joseph G. Newkirk and my friend, Jonathan Knight, of Linn county Missouri,. I give and bequeath the sum of twenty-five hundred dollars in trust and by them to be held in trust and for the use and benefit of my daughter, Mary J. Graves, said funds to be derived from the sale of the land herein bequeathed to my beloved wife, Mary F. Newkirk, for her life, after the death of my said wife, unless my said wife and my children who by the terms of this, my will are given an interest in said lands, deem it advisable to sell said land before the death of my said wife, in which event I direct that the above legacy left in trust for my said daughter, shall be a special charge upon the money received from the sale of said lands, which said sum of twenty-five hundred dollars shall be
The decree in that particular is erroneous, it is in .violation of the express requirement of the will. The will bequeaths the $2,500 to the two trustees named and requires them to invest the sum in real estate as a homestead for Mrs. Craves, “taking the title to her for and during her natural life, and at her death to the children of her body or their descendants, share and share alike. ” Under the terms of the will the money was not to be given to Mrs. Craves or any part of it, but to be invested in real estate for a homestead for her in which she was to have a life estate and her children a remainder in fee. [Sec. 4592, R. S. 1899.] The trustees named in that clause were the same persons who were named in the seventeenth clause of the will as executors, one of whom, Mr. Knight, declined to qualify, and the other, Joseph C. Newkirk, qualified as sole executor, but was afterwards removed by the probate court and the plain
By the ninth clause of the will the testator bequeathed to the same trustees the sum of $2,500 for the use and benefit of the three children of his deceased son, Thomas, two girls and one boy, in the proportion of $500 to each of the girls, and $1,500 to the boy, the fund to be invested by the trustees “on as good terms as they can obtain,” the shares to be paid over to the beneficiaries respectively when the boy became twenty-one years old; if either should die without lawful issue, his or her share to be divided between the survivors. The trustees were authorized to use so much of the legacy
Appellant complains that the trial court failed to construe clause 3 of the will: ‘ ‘ Clause 3. To my daughter Caroline Patton, I give and bequeath the following described real estate Situated in Linn county, Missouri, to-wit: Ten acres the southeast quarter of the southeast quarter of the southeast quarter of section sixteen, in township fifty eight of range tventy, to have and to hold the same for and during her natural life and at her death to become the property absolutely of the children of her body. I give nothing more to my said daughter, Caroline, for the reason that I have already provided for her, by this day conveying to her
Appellant assigns as error that part of the decree which requires the sale of the lands devised to Mrs. Patton and the Cherry children, and the lands charged with the legacies to Mrs. Graves and the children of Thomas, in case it should become necessary to pay the costs of the administration and debts of the estate; but as appellant in his brief says that the evidence clearly shows that the assets of the estate primarily chargeable are sufficient to pay those costs and debts, that point is immaterial.
For the errors above mentioned relating to clause 8 and clause 9 of the will the judgment is reversed and the cause remanded to the circuit court with directions to enter a decree construing those two clauses according to the views herein expressed and disposing of the case otherwise as in the original decree.