Prosser v. Hardesty

• Decision Date: 17 November 1890
• Citation: 14 S.W. 628,101 Mo. 593
• Parties: Prosser, Appellant, v. Hardesty
• Court: Missouri Supreme Court

14 S.W. 628

101 Mo. 593

Prosser, Appellant, v. Hardesty

Supreme Court of Missouri

November 17, 1890

Appeal from Platte Circuit Court. -- Hon. J. M. Sandusky, Judge.

Affirmed.

James W. Coburn, C. H. Hillix and C. O. Tichenor for appellant.

(1) The true inquiry is not what the testator meant to express, but what the words used do express. Couch v. Eastham, 29 W.Va. 788; Stokes v. Van Wyck, 83 Va. 729. Words cannot be put into a will, even to meet an unforeseen state of affairs. 1 Redfield on Wills, 437. (2) Where the testator uses a word in a certain sense several times, the presumption arises that he also used it in the same sense at other times unless the context shows to the contrary. McMurray v Stanley, 69 Texas, 231; 2 Jarman on Wills, p. 842, rule 18. (3) Where there are conflicting clauses or expressions the latter must prevail, being supposed to be the expression of the latest wish of the testator. Schreiver's Appeal, 53 Penn. 106; Hendershot v. Shields, 42 N.J.Eq. 318; Covert v. Sebern, 73 Ia. 564, and cases cited. (4) An estate as devised in one portion of a will may be cut down by subsequent clauses of a will; the language, however, must be strong and clear to allow it. (5) The words of a will are rarely changed, not even "and" for "or," and then only to effect the evident intent of the testator, and never to effect what might in itself seem more just or reasonable. Ely v. Ely, 20 N.J.Eq. 48.

Wilson & Wilson and Anderson & Carmack for respondent.

(1) The word "or" in the second clause of the will should be read "and." Jackson v. Blanshan, 6 Johnson, 54; 1 Jarman on Wills [5 Am. Ed.] sec. 306; Carpenter v. Heard, 14 Pick. 449; Jackson v. Reeves, 1 Wendell, 338. (2) The third clause of the will strongly confirms the position that it conforms to the intention of the testator that "or" in the preceding clause of the will should be read "and." In the third clause, he provides for a disposition of the estate when both the devisees should die. Here the question is presented to him pure and simple, divested of all cross devises in the case of the death of one and not the other. "If both the devisees should die before arriving at age without lawful heirs of their body, then said real estate shall be divided among my other children."

OPINION

Brace, J.

-- The plaintiff sues in ejectment to recover the undivided half of a quarter section of land in Platte county. She is the only child of Elizabeth Prosser, nee Elizabeth Cox daughter of William Cox, who was the owner of said land, and who by his last will and testament disposed of said land by the following clause in his will: "I give and bequeath to my two children Pilgrim Cox and Elizabeth Cox and to their heirs forever my tract of land lying and being in Platte county, Missouri, described as follows: The northwest quarter of section 32 of township 54 of range 35, in the district of lands subject to sale at Plattsburg, containing one hundred and sixty acres, each of said children to have an undivided half of said real estate, it being placed under exclusive control of my executor who is to manage said real estate and receive the rents of the same and apply them to the maintenance and education of my said children, and when both of the said children arrive at the age of twenty-one then the land is to be exclusively under the control and to be the property of said Pilgrim and Elizabeth Cox. Should either of the said children die before coming of age or without heirs of their body, then the whole of said real estate is to go to the surviving child and his or her heirs forever, but should either die leaving heirs of his or her body, then the undivided half herein bequeathed to him or her, shall be the property of such heirs. If both of said children should die before arriving of age without lawful heirs of their body, then said real estate shall be...