Shumate v. Bailey

• Decision Date: 06 June 1892
• Citation: 110 Mo. 411,20 S.W. 178
• Parties: SHUMATE v. BAILEY et al.
• Court: Missouri Supreme Court

20 S.W. 178

110 Mo. 411

SHUMATE v. BAILEY et al.

Supreme Court of Missouri, Division No. 1.

June 6, 1892.

WILLS — CONSTRUCTION — DESCRIPTION OF PROPERTY.

1. In the construction of a will, the intention of the testator, as gathered from the terms he has used to express it, should be given paramount force and effect.

2. The word "estate" is applicable alike to real and personal property, and in this case is held to apply to both.

3. The word "bequeath" is enlarged by the context, in this case, to mean "give" or "devise."

(Syllabus by the Judge.)

Appeal from circuit court, New Madrid county; H. C. O'BRYAN, Judge.

Action by Shumate against Bailey and others. From the judgment of the lower court, defendants appeal. Reversed.

The other facts fully appear in the following statement by BARCLAY, J.:

This is an action for the partition of land in New Madrid county, Mo. After a judgment, ascertaining the interests of the several parties and directing a sale, the land was sold, and the proceeds await the disposition of this appeal. The will mentioned in the opinion reads as follows: "I, John Thomas Miller, of Big Prairie, New Madrid county, Mo., being of sound mind and judgment, do hereby execute this, my last will and testament; and, for the purpose of carrying out the provisions herein contained, do hereby appoint Alfred Sikes, Esq., of Big Prairie, to be my executor and administrator, with full power to him to act in the premises. First. I desire that my wife, Mary Ann Miller, shall have her life rent interest in all my heritable property. Second. That she shall receive, and I hereby bequeath to her, the following personal effects belonging to me, viz., all my household furniture, kitchen utensils, mule, buggy and harness, cow and calf, corn, oats, and fodder, at my house and farm in Big Prairie. Third. That out of the readiest funds of my estate she shall be paid $700.00, (seven hundred dollars,) five hundred of which shall be applied to building her house on whatever location she shall choose, the remaining two hundred dollars being for her immediate necessities. Fourth. That, when the balance (after deducting said payments to my wife) of my estate shall be realized, it shall be divided in three equal parts, one part whereof I bequeath to my said wife, and the remaining two parts to the said Alfred Sikes as curator for my two children, Lelia F. Miller and Cora Ellen Miller; and I direct the said Alfred Sikes to invest said two shares to the best advantage he can for the benefit of my said two children, he paying it over to them, with the accumulations thereon, on their attaining majority, or at their marriage, if that shall sooner happen; and in the event of said children, or either of them, dying without lawful issue, then said shares or share shall revert to my heirs at law. Fifth. That my said wife shall be guardian for my two said children, and shall have the exclusive control of them, boarding and providing for them, free of all expense to them, except for clothing and education, which shall be paid out of their own share of my estate. Witness my hand this twenty-fifth day of January, eighteen hundred and seventy. JOHN T. MILLER." It was duly attested and probated. Its proper construction is the only issue on this appeal. The other facts are mentioned in the opinion of the...