Lewis v. Pitman

• Citation: 14 S.W. 52,101 Mo. 281
• Parties: Lewis, Administrator, v. Pitman, Trustee, et al., Appellants
• Decision Date: 16 June 1890
• Court: United States State Supreme Court of Missouri

14 S.W. 52

101 Mo. 281

Lewis, Administrator, v. Pitman, Trustee, et al., Appellants

Supreme Court of Missouri

June 16, 1890

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.

Affirmed.

Wm. F Broadhead for appellants.

(1) A bequest of chattels generally, without any restriction, as in the second clause of the will, would pass the absolute property. (2) In construing the bequest of chattels, with reference to the devise of the real estate, in the same paragraph of the will, the difference in the language used is striking and significant, and indicates a clear intention to make a different disposition of the two kinds of property. Rhems' Appeal, 8 A. 885; 2 Williams on Executors, 1083; Doe v. Westley, 4 B. & C. 667. (3) The third clause of the will, in disposing of the business, trade-mark, etc contains no restrictions upon the gift of the same to Mrs. Pozzoni. The gift of the "income," being unlimited in the will, is the gift of the income in perpetuity; and, the income being all that was beneficial in the business, the gift of the income was the gift of the business itself. 2 Williams on Executors, 1288 (1193); Adamson v. Armitage, 19 Ves. Jr. 416, 418; Philips v. Chamberlain, 4 Ves. Jr. 51; Rawlings v. Jennings, 13 Ves. Jr. 39; Bishop v. McClellan's Ex'rs, 16 A. Rev. (N. J.) 1; Allen v. Henderson, 5 Am. Law Rep. (N. Series) p. 256. From the nature of the business, consisting largely of "good-will" or reputation, it is not likely that the testator intended to create in the same a life-estate in the wife, with a limitation over to his children. The greatest extent to which courts have gone in recognizing "good-will," as part of the assets of an estate, is to require the administrator, when he disposes of the same for value, to account therefor. Seigman v. Marshall, 17 Md. 550, 569; Roberts v. Quiddington, 28 Beav. 529; 2 Williams on Executors, 1569. The power to sell the "patent rights" and trade-mark -- the only tangible things of value connected with the business, shows an intention to give the absolute property. This is an attribute of ownership. This is not a case of a technical "power" to appoint among certain persons or to sell for certain purposes of the testator. It is a right to sell for the legatee's own use and benefit; and this means absolute dominion or ownership. Kendall v. Kendall, 36 N.J.Eq. 91, 96; Jackson v. Robbins, 16 Johns. 537, 588; Rubey v. Barnett, 12 Mo. 3, 6; Reinders v. Koppelmann, 68 Mo. 482-494; Wead v. Gray, 78 Mo. 59; Munro v. Collins, 95 Mo. at p. 39. (4) The fourth clause, in expressing a desire as to the disposition of the "estate" left by the widow, "whatever she has remaining," contains, at least, an implied power of disposition, as to the personalty. Reinders v. Koppelmann, 68 Mo. 482, 490-4; Bowen v. Dean, 110 Mass. 433; Harris v. Knapp, 21 Pick. 412; Lynde v. Estabrook, 7 Allen, 68, 79; Follweiler's Appeal, 102 Penn. St. 581; Benkert v. Jacoby, 36 Iowa 273. (5) A gift of property generally in a will, without any other restriction than a subsequent clause giving to another what may remain of the property after the death of the person to whom the property is first given, carries the absolute estate. Wead v. Gray, 78 Mo. 59, 63. Where the limitation itself implies an absolute power of disposition as in the present case, by attempting to dispose of what may remain or be left at the death of the first legatee, the estate of the first legatee is absolute, and the limitation over is void. Reinders v. Koppelmann, 68 Mo. at p. 491; Attorney General v. Hall, Fitzg. 314; Jackson v. Robbins, 16 Johns. 537, 584; Jackson v. Bull, 10 Johns. 19; Ide v. Ide, 5 Mass. 500, 504; Campbell v. Beaumont, 91 N.Y. 464; Cole v. Cole, 79 Va. 351; Stowell v. Stowell's Executor, 59 Vt. 494; Judevine's Ex'r v. Judevine, 18 A. 77. (6) The fourth clause of the will is merely the expression of a desire as to the course the wife's property should take upon her decease, and not in form or effect a limitation over of the property bequeathed to her. See Campbell v. Beaumont, 91 N.Y. 464; Howard v. Corusi, 109 U.S. 725; Hoxsey v. Hoxsey, 37 N.J.Eq. 21. (7) The express and implied power of disposition, in the third and fourth clauses of the will, authorized Mrs. Pozzoni to make such disposition by will or by deed; and this power having been fully executed by her will, and by deed, nothing remains upon which a limitation could operate. Bowen v. Dean, 110 Mass. 438-40; Kimball v. Sullivan, 113 Mass. 345; Wead v. Gray, 78 Mo. 59; Howard v. Corusi, 109 U.S. 725.

Taylor & Pollard for respondent.

The will of J. A. Pozzoni gave to his wife only a life-estate in his business and the assets thereof, including trade-marks, trade-name, recipes and good-will, with remainder on her death to his children, share and share alike. Smith v. Bell, 6 Pet. 68; Russell v. Eubanks, 84 Mo. 83; Bean v. Kenmuir, 86 Mo. 666; Harbison v. James, 90 Mo. 411; Monroe v. Collins, 95 Mo. 33; Anderson v. Hall, 80 Ky. 91; Siegwald v. Siegwald, 37 Ill. 435; Green v. Hewitt, 97 Ill. 113. (2) The fourth clause of this will reads: "It is my desire that after my wife's death all of my children shall share, and share alike, in the estate left by her, whether the same be realty or personalty; of course, I refer in this clause to whatever she has remaining of that she acquired by virtue of this will." This language can only be construed to mean that the wife took a life-estate, and that she held the property in trust for the children. Clark v. Booman's Ex'r, 18 Wall. 493; Giles v. Little, 104 U.S. 291; Brant v. Iron Co., 93 U.S. 326; Bradley v. Wescott, 13 Ves. Jr. 445; Boyd v. Strahan, 36 Ill. 355; Taylor v. Martin, 8 A. 920; also cases cited under first point. (3) The fact that Mrs. Pozzoni caused the business of her late husband to be incorporated, in order to perpetuate his name, and to be represented by shares of stock issued to her, and held by her at her death, did not defeat the operation of the fourth clause of his will. This stock was only a change in the method of continuing and perpetuating the business and his name, and, at her death, by operation of his will, went to his administrator for his children, share and share alike, the same as the business would had it not been incorporated. Eans v. Eans, 79 Mo. 65; Monroe v. Collins, 95 Mo. 33-41. (4) The testimony conclusively shows that the good-will of the business was of great value. And, where such is the case, both in this country and Great Britain, it is treated as a valuable asset, to be accounted for by the administrator, surviving partner or trustee. Thompson v. Winnebago, 48 Iowa 155; Biningle v. Clark, 30 Barb. 113; Boon v. Moss, 70 N.Y. 474; Wallingford v. Burr, 17 Neb. 137; Ramelsberg v. Mitchell, 29 Ohio St. 54; Corress v. Fessler, 39 Cal. 336; Herefort v. Cramer, 7 Colo. 483; Beal v. Chose, 31 Mich. 490; Willett v. Blanford, 1 Hare, 253; Fay v. Fay's Adm'r, 6 A. 12; Parsons on Partnership [2 Ed.] p. 273, star p. 262; Story on Partnership [7 Ed.] sec. 99, and cases cited; Woerner's Am. Law of Adm'n, secs. 127 and 307, and cases cited. (5) The estate of J. A. Pozzoni being still open and unsettled at the date of his widow's death, his administrator, and not his heirs, was the proper person to take charge of the personal estate in remainder. Immediately on her death, all interest which she acquired, by his will, in personal property which remained lapsed, and nothing was left for her administrator to administer upon. It follows that it was the duty of plaintiff, and not her administrator, to take charge of said stock. The devisees in remainder would acquire title under Mr. Pozzoni's will, yet, this did not dispense with plaintiff's duty in the premises. State ex rel. v. Moore, 18 Mo.App. 406; Leaky v. Maupin, 10 Mo. 373; Smith v. Dinney, 37 Mo. 20; Murphy v. Harrahan, 50 Wis. 485; Tappan v. Tappan, 30 N.H. 50; Pate v. Barrett, 2 Dana (Ky.) 426; White v. Ray, 4 Iredell, 14; Allen v. Simmons, 1 Curtis, 122; Jenkins v. Freyer, 4 Paige Ch. 47; Lilland v. Robinson, 3 Little, 415; Woodin v. Bagley, 13 Wend. 453; Beecher v. Crouse, 19 Wend. 306; Bradford v. Feeder, 2 McCord Ch. 168; Farley v. Farley, 1 McCord Ch. 506.

OPINION

Black, J.

-- J. A. Pozzoni died testate on the fourteenth of April, 1885, the will being dated March 25, 1878. He left a widow, Annie, and two minor daughters, namely, Rosina M. and Josephine A. Pozzoni. The widow who was the nominated executrix declined to act, and M. D. Lewis was appointed administrator with the will annexed. He brought this suit to obtain a construction of the will of his testator. The defendants are Herman Heinze, administrator with the will annexed of Annie Pozzoni, John Pitman, trustee under her will, and the two daughters who appear by their curator.

The following are the material portions of the will of J. A. Pozzoni:

"Second. I give and bequeath all of my household and kitchen furniture, silverware, etc., at my residence in Kirkwood, or at any other place I may be residing at the time of my demise, and all other personal property I may die possessed of, including money on hand, in bank, and all sums due to me, to my beloved wife, Annie; and I also give, and devise and bequeath to my beloved wife Annie, during her natural life, or so long as she remains my widow, all the real estate that I may die seized of wherever the same may be lying or situate, and at her death the same to be equally divided between my children, named as follows: Lillie Rosina Mary, Anna Louisa and Arthur Wellsby; and should there be other children born to me by my said wife, Annie, after the date of this will, they are also to be equal heirs with those above named.

"Third. It being my desire that my business as proprietor and manufacturer of what is known...