Schorr v. Carter

• Decision Date: 27 February 1894
• Citation: 25 S.W. 538,120 Mo. 409
• Parties: Schorr v. Carter et al., Appellants
• Court: Missouri Supreme Court

25 S.W. 538

120 Mo. 409

Schorr v. Carter et al., Appellants

Supreme Court of Missouri, Second Division

February 27, 1894

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.

Affirmed.

Rassieur & Schnurmacher for appellants.

(1) In the construction of a will, the main object is to ascertain the meaning and intention of the testator. In reaching that result, however, the courts are guided by certain well established and well understood rules of interpretation. 4 Kent, star page 537; Shumate v. Bailey, 110 Mo. 411; Chew v. Keller, 100 Mo. 362; Reinders v Koppelman, 94 Mo. 338. (2) Where the testator is the owner of the fee, a devise of "all right and title" to the same, or "all interest" in the same will pass a fee. And so a devisee of the testator's "moiety," "part" or "share" of real estate, will carry the fee, if such was the testator's interest. 2 Redf. on Wills, star page 332; 3 Wash. on Real Prop., star page 694. (3) In the case of doubt or ambiguity "the courts incline to construe devises so as to give an estate of inheritance." 1 Redf. on Wills star page 421. (4) When the words of a will, in the first instance, indicate a disposition in the testator to give the entire interest, use and benefit of the estate, as he himself possesses it, to the devisee, it will not be restricted or cut down to any less estate by subsequent or ambiguous words inferential in their intent. 2 Redf. on Wills, star page 277; Clark v. Leupp, 88 N.Y. 228; Weed v. Gray, 78 Mo. 59; Nichols v. Boswell, 103 Mo. 151; Roseboom v. Roseboom, 81 N.Y. 359; Woerner on American Law of Administration, sec. 416, page 878, and cases cited in notes. (5) The testator, Adam Schorr, owned the fee to the property in dispute. He devises all his right, title, claim and interest therein to his wife. These words were sufficient and adequate to carry to her the fee, and their force ought not to be regarded as cut down by the subsequent expression that whatever property she might die possessed of, should pass into certain channels. "A remainder can not be engrafted on a fee." Wead v. Gray, 78 Mo. 59. (6) In searching for the intention of the testator, it is proper to consider his situation and surroundings at the time, and the objects of his bounty. Nichols v. Boswell, 103 Mo. 151; Noe v. Kern, 93 Mo. 367; Smith v. Bell, 6 Pet. 75; Hall v. Stephens, 65 Mo. 670. (7) The court erred in excluding the evidence offered by defendant, Mrs. Kennel, as to the expenditures for necessary repairs and the preservation of the property. The damages in ejectment are compensatory, not punitive. Where the defendant's possession is, as in the case at bar, acquired and held in good faith, the damages are the net rents and profits. Had plaintiff been in possession, he could have realized no more. Sedgw. & Wait on Trial of Title to Land, page 440; Fenwick v. Gill, 38 Mo. 510; Stump v. Hornback, 109 Mo. 272.

J. E. & J. F. Merryman for respondent.

The intention of the testator is plain; the whole will must be read together and effect given to every clause of it, and the words used are to be understood in the sense indicated by the whole instrument. The testator's wife was to have the use and enjoyment of all his property during her life, and at her death what had not been consumed or lost, in that use and enjoyment, was to go to his adopted daughter. The construction put upon the will by the circuit court was correct on principle and authority. Chiles v. Bartleson, 21 Mo. 344; Carr v. Diggs, 58 Mo. 400; Bean v. Kenmuir, 86 Mo. 666; Harbison v. James, 90 Mo. 411; Smith v. Bell, 6 Peters, 68; 37 Ill. 443; 97 Ill. 113.

OPINION

Burgess, J.

Action of ejectment against defendant Amelia C. Kennel and her tenants, for the possession of a lot in the city of St. Louis. Both parties claim title under Adam Schorr, who died in July, 1872, childless, seized in fee of the lot sued for. In 1861, he made his will. After providing for the payment of his debts and funeral expenses, the will proceeds as follows:

"I give and bequeath to my beloved wife, Regina Schorr (maiden name Regina Schlienger), all my right, title, claim and interest in three certain tracts or parcels of land [which are thereupon specifically described, and include the premises in dispute]; * * * four shares of the Domicile Saving and Loan Association, numbers 1813, 1814, 1815 and 1816, dated January 15, 1858; and all mixed property whatever I may be possessed of at the time of my death; and after my death, all real, personal and mixed property of whatever she, the said Regina Schorr, may be possessed of at the time, shall be equally divided between my next relations and her next relations or heirs; that is to say, after the payment of all just debts and funeral expenses."

On the twenty-second day of October, 1881, Regina Schorr conveyed by warranty deed the lot in controversy to the defendant, Kennel. She, Regina, died childless in 1885. So far as the record discloses, she left no heirs of any kind or description, while the plaintiff was the nearest of kin to the testator of any of his relations, being a nephew. The answer was a general denial, although it was admitted on the trial that defendants were in possession of the property at the time of the commencement of the suit. The trial resulted in a judgment for the plaintiff for possession of the premises sued for and $ 98.50 damages, from which judgment defendants appealed to this court.

The trial court held that Regina Schorr took only a life estate by the will; that nothing except that passed by her deed to the defendant Kennel, and that after the death of the former, the title, by virtue of the provisions of the will, vested in the plaintiff, he being next of kin to the testator.

In construing a will, all of its provisions should be taken together and effect given to every clause of it, and the words used so construed as to meet as near as possible the intention of the testator. Our statute provides that in the construction of wills, courts "shall have due regards to the intent and meaning of the testator." Shumate v. Bailey, 110 Mo. 411, 20 S.W. 178.

In Morrison v. Thistle, 67 Mo. 596, Sherwood, C. J., says: "Equity looks to the intention -- and will glean it, if possible, from the four corners of the instrument, and will not allow such intention to fail by reason merely of the accidental mislocation of the words designed to impress the estate conveyed with a particular character, and thus effectuate a specific purpose. * * * But the rule is to give, if it may be, to every word in the writing its appropriate meaning, and not to suffer the very intention to be defeated, although it is unequivocal and manifest, by a hairspun, technical construction of the instrument."

In Chiles v. Bartleson, 21 Mo. 344, the will that was before the court for construction contained the following provisions:

"Section 3. I will and bequeath unto my beloved wife, Frances Bartleson, my negro man, Charles, his wife, Clara, and their four children, and all of my lands, with the appurtenances thereunto belonging, with a sufficiency of stock to support the farm. * * * Section 8. And, further, after the above and foregoing bequests have been complied with, then out of the remainder of my estate, it is my will that the bequests made to my four children shall be made equal, according to my estimate, valued agreeably to their several bequests; the residue of my estate to be equally divided between my wife and four children. And, further, it is my will that the bequests made to my wife, Frances, at her...