Asbury v. Shain
| Decision Date | 08 June 1915 |
| Citation | 177 S.W. 666,191 Mo.App. 667 |
| Parties | LEROY ASBURY, by Trustee, Appellant, v. ED C. SHAIN et al., Administrators, Respondents |
| Court | Missouri Court of Appeals |
Argued and Submitted May 6, 1915.
Appeal from Shelby Circuit Court.--Hon. Nat. M. Shelton, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
R. S Matthews, Otho F. Matthews and H. A. Wright for appellant.
(1) The rule of construction of a will is that the whole will must be taken together and that construction given that was the intention of the testator. Sec. 583, R. S. 1909; Grace v Perry, 197 Mo. 550; Peregnet v. Berthold, 188 Mo. 61. (2) The testator in the will in question, in the body thereof, set out and bequeathed for Leroy Asbury, five thousand dollars in money. In the codicil he revoked this provision and gave him $ 5000 in notes and securities. The bequest in the will as first written was a special bequest and like gifts are so declared by the appellate courts of Missouri. Much more so is the bequest in the codicil. There could be no purpose in the mind of the testator in changing the bequest from money to notes, only that the bequest to Leroy Asbury should draw interest from the date of death, so there would be no time lost in finding good loans by the trustee. He gives notes. The interest the notes bear is just as much a part of the bequest as the notes themselves. The interest is a part of the notes. Further, the codicil provides for the payment of the interest for the benefit of the beneficiaries in certain contingencies as cases hereinafter cited, which makes the bequest draw interest from the death of the testator, even if the bequest was for so many dollars in money instead of notes. See Gaston v Hayden, 98 Mo.App. 683. (3) Interest is adjudged from date of death, on a special legacy, even though the bequest is for so many dollars. See In re Estate Catron, 82 Mo.App. 416; Cooke v. Meeker, 36 N.Y. 15; Matteo v. Stanfield, 135 N.Y. 293.
V. L. Drain for respondents.
(1) The legacy giving "notes and securities to the amount of five thousand dollars," is a general legacy, demonstrative in its nature, but not in any sense a specific legacy. 18 Am. and Eng. Ency. of Law (2 Ed.), pages 711-713; Rice Probate Law, pages 368-369; 2 Williams on Executors (6 Ed.), 1250-1251; 2 Redfield on Wills (3 Ed.), 132; Kelley's Probate Guide (4 Ed.), sec. 321; Borland Law of Wills, sec. 62. (2) General legacies do not bear interest from the death of the testator, or from the date of the probate of the will. 18 Am. and Eng. Ency. of Law (2 Ed.), 793; Borland Law of Wills, sec. 86, page 248. (3) Interest cannot be lawfully charged upon this legacy until after the contest proceeding was ended and the result thereof certified to the probate court of Shelby county. State ex rel. v. Adams, 71 Mo. 620; Good Samaritan Hospital v. Trust Co., 137 Mo.App. 179, 117 S.W. 637; In re Catron Estate, 82 Mo.App. 426.
--One John R. Jones, by the third clause of his will, bequeathed to John F. Wood, in trust for testator's grandson, Leroy Asbury, "the sum of $ 5000, to be loaned by said John F. Wood at the best rate of interest possible and on good security until said Leroy Asbury shall attain the age of twenty-one years, such of the interest as said John F. Wood shall deem necessary to be paid to said Leroy Asbury or used for his benefit and the interest not so paid or used to be added to the principal and loaned in the same manner as the principal and when said Leroy Asbury shall have attained the age of twenty-one years said sum of five thousand dollars with the accumulated interest to be paid to him by said John F. Wood. "
By a codicil to this will the testator bequeathed to Wood, in trust for testator's grandson Asbury, "notes and securities to the amount of $ 5000. Said notes and securities to remain on interest and as fast as collected the proceeds to be reinvested in loans at the best rate of interest and to continue to be so invested until the said Leroy Asbury shall have attained the age of twenty-one years when said notes and securities and all new notes and securities for proceeds reinvested and all cash proceeds on hands of such old notes as may have been collected and not reinvested to be turned over by said John F. Wood to said Leroy Asbury.
The will with its codicil was admitted to probate in the probate court but was contested by Leroy Asbury, through his next friend, B. B. Asbury, and the contest determined in the circuit court about May 1, 1912. It appears that this contest was settled under some arrangement as a part of which Leroy Asbury was awarded $ 5000 over and above the amount named in the will. Wood, the trustee named in the will, refused to qualify and from the time of the death of Jones until June 3, 1912, there was no person appointed or who qualified as trustee in his place, but on the latter date it appeared that B. B. Asbury was appointed and qualified. On June 12, 1912, the probate court of Shelby county, having made an order directing the payment of this $ 5000 awarded Leroy Asbury in the settlement of the contest over the will, that sum was paid to his trustee and is not here involved. But the trustee also demanded that the $ 5000 mentioned in the codicil be satisfied by turning over to him interest-bearing notes in that amount and then in the hands of the administrators, or that the administrators turn over to him $ 5000 and interest thereon from the date of the death of the testator. The probate court refused to make such order, but ordered payment of the $ 5000 bequeathed by the codicil, without interest. This amount was thereupon tendered to the trustee and he accepted it without remitting his claim for interest. From this action of the probate court the trustee appealed to the circuit court of Shelby county.
In the circuit court, a jury being waived, the cause was tried by the court, which, in its judgment filed, held that the legacy was a general legacy, and that the claim for interest upon the legacy, the legacy not having been payable or paid until after the conclusion of the contest over the will, did not draw interest from the date of the death of the testator; that neither the legatee nor his trustee was entitled to any interest thereon pending the contest over the will. The court accordingly found in favor of defendants and against plaintiff and ordered and adjudged "that the defendants go hence and that the costs herein be taxed against plaintiff." From this plaintiff duly perfected his appeal to our court.
The sole questions presented to us are whether this legacy is a general or special legacy, or, as sometimes called, a...
To continue reading
Request your trial