Redman v. Barger
| Decision Date | 11 December 1893 |
| Citation | 24 S.W. 177,118 Mo. 568 |
| Parties | Redman et al., Plaintiffs in Error, v. Barger et al |
| Court | Missouri Supreme Court |
Error to DeKalb Circuit Court. -- Hon. O. M. Spencer, Judge.
Affirmed.
S. G Loring for plaintiffs in error.
(1) The court erred in overruling the motion to strike from the record the petition of interplea filed by Gibson. Camden v. Plain, 94 Mo. 117. (2) If, under the will of her husband, Nancy Barger took the fee in said lands, then the money arising from the sale thereof became her absolute property. If, as claimed by the interpleader, she only took a life estate in said lands with absolute power of disposition of the same at pleasure when she exercised that power she thereby enlarged her life estate into the fee and the money arising from its sale became her absolute property. Russell v. Eubanks, 84 Mo. 84; Harbison v James, 90 Mo. 427. (3) The court erred in its rulings on the declarations of law and in finding the issues for the interpleader.
Huston & Parrish for defendants in error.
(1) The trial court construed the will so as give a life estate to Nancy Barger, with the remainder after her death over to the legatees named in the will, and in this judgment there is no error. Russell v. Eubanks, 84 Mo. 88; Harbison v. James, 90 Mo. 411; Lewis v. Pitman, 101 Mo 281; Anderson v. Hall, 80 Ky. 91; Smith v. Bell, 6 Pet. 68. (2) The will must be construed according to the intention of the testator, to be gathered from the will itself, not from single words, passages and sentences, but from the whole instrument "taken together in all its scope and design." Russell v. Eubanks, 84 Mo. 82, and authorities cited; Nichols v. Boswell, 103 Mo. 151; Allison v. Cheney, 63 Mo. 280. (3) Power of disposition added to an express life estate does not enlarge it into an absolute one. Lewis v. Pitman, 101 Mo. 281; Ruby v. Barnett, 12 Mo. 3; Gregory v. Cowgill, 19 Mo. 415; Reinders v. Koppelmann, 68 Mo. 482; Anderson v. Hall, 80 Ky. 91. (4) Nor is it necessary that the life estate should be created in express terms. If the intention of the testator to create a life estate can be gathered from a consideration of the whole will, this will be sufficient. Lewis v. Pitman, 101 Mo. 281; Smith v. Bell, 6 Pet. 68; Giles v. Little, 104 U.S. 291; Seigwald v. Seigwald, 37 Ill. 435; Green v. Hewitt, 97 Ill. 113. (5) An express life estate, with power of disposition and remainder over, is not destroyed by the exercise of the power. Lewis v. Pitman, 101 Mo. 281, and authorities cited; Smith v. Bell, 6 Pet. 68; Green v. Hewitt, 97 Ill. 113; Redfield on Wills, sec. 52, p. 345; Burleigh v. Clough, 52 N.H. 267; Harleson v. Reed, 15 Ga. 151.
In the matter of the distribution of the estate of Nancy Barger, deceased, on the final settlement of her administrator in the probate court of DeKalb county, showing a balance in his hands of $ 2,577.88. Said court order distribution of said balance among the defendants in error, two of whom, Marcus A. Barger and Emmett A. Barger, were the children of Abram B. Barger, deceased, and the other three, the children of James H. Barger, deceased, who was also a child of the said Abram, living at the time of the death of the said Abram. From the order the plaintiffs in error who are the children of the said Nancy, deceased, by a former marriage, appealed to the circuit court of said county, where upon a trial de novo said balance was again ordered to be distributed to the defendants in error, and the case is brought here on writ of error, by William Redman and the other children of said Nancy by her former marriage.
The real question in the case turns upon the construction of the will of the said Abram B. Barger, deceased, admitted to probate in said county July 3, 1860, which, omitting the preface is as follows:
The widow, Nancy Barger, qualified as executor, administered the estate of her deceased husband, and upon final settlement took all the estate as devisee under the will. She seems to have lived until about the year, 1883, when, having died, Emmett A. Barger became administrator of her estate, who filed his account for final settlement on the tenth day of November, 1885, showing the balance aforesaid. There is nothing in the record showing of what the estate of which Abram Barger died possessed consisted, further than that it was real estate and personal property, all of which was disposed of by his widow during her life, and it is conceded that the estate that remained in her hands and that was administered on by the said E. A. Barger, was either notes, or money arising from the sale by her of real estate which belonged to her husband, and which she took under the will as devisee, and which she had sold and either collected the purchase price or took from the purchaser promissory notes therefor in her own name.
It further appears from the evidence, and the court so found, that, under an agreement with the widow, E. A. Barger received from his mother during her lifetime $ 1,200 in real estate that had belonged to his father; that Marcus A. Barger (under like contract), of that estate, received $ 1,700, in land and other property, and that James Barger during his lifetime received $ 500 of that estate of his mother, which several amounts were charged to these parties as advancements in the order of distribution made by the court. The subject-matter of the controversy, is the proceeds of the other lands sold by Nancy Barger during her lifetime. Plaintiffs in error claim that by the provisions of the will these lands became the absolute property of Nancy Barger, and as her heirs at law they are entitled to share those proceeds. This contention is sought to be maintained by a very brief and simple mode of construction. It is to divide the item of the will in question into two paragraphs, and as by the first he devises all his estate "real personal or mixed" to his wife, with power to sell and dispose of it at pleasure, it is contended she took an estate in fee simple in all of said lands and the limitation over contained in the second paragraph is void, or that she took an estate for life with absolute power of sale and having exercised that power the life estate ripened into a fee, and there is no estate in remainder for the limitation in the second paragraph to operate upon, and in either view the testator's children can take nothing of the proceeds of his lands disposed of by his widow in her lifetime under the will.
I. Would such a construction carry out the intention of the testator as...
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Brown v. Rogers
...construction of wills, the intention of the testator, ascertained from the language employed, is the controlling guide of courts. Redman v. Barges, 118 Mo. 568; Shumate v. Bailey, 110 Mo. 415. The rule the construction of common law conveyances is not applicable to the construction of execu......