McGurry v. Wall

• Decision Date: 12 June 1894
• Citation: 27 S.W. 327,122 Mo. 614
• Parties: McGurry v. Wall et al., Appellants
• Court: Missouri Supreme Court

27 S.W. 327

122 Mo. 614

McGurry v. Wall et al., Appellants

Supreme Court of Missouri, Second Division

June 12, 1894

Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.

Action on special tax bill, lot 1, in block 5, in Hall's addition to the city of St. Joseph, being the subject of the tax. At the instance of the appealing defendants, Jennie Wall was made a codefendant. All of the parties defendant claim title to the lot under the will of Robert Wall, which so far as necessary to quote, is the following:

"Fifth. I devise and bequeath to my said wife, lot one in block 5, in Hall's second addition to the city of St. Joseph Missouri, same being our present residence, for and during her life, provided always she shall so long continue my widow.

"Sixth. Should my wife marry, it is my will that my said son William Wall shall immediately take and have possession of said lot 1, in block 5, in Hall's addition to the city of St Joseph, Missouri, hereby devising the remainder over to him upon the remarrying or death of his mother, Jennie Wall.

"Seventh. Should my son William Wall die before maturity and should my said wife remarry before the death of my said son, it is my will that my brother, John Wall, and our mother Margaret Wall, shall take and have possession of said lot 1, in block 5, above mentioned, and I hereby devise the same to them in equal parts, upon the happening of the two last events together with the full and complete title thereto forever."

William Wall, the only child of the testator and of Jennie Wall, aged three years, died before suit brought, and Jennie Wall has not remarried. The testator's estate has been duly administered and finally settled. Plaintiff is the assignee of the tax bill. In their pleadings, the appealing defendants, Margaret Wall and John Wall, claimed that Jennie Wall was only the owner of a life estate in the lot, and they of the remainder in fee, while Jennie Wall claimed that she herself was the owner in fee of the lot in question. After hearing the evidence in the case, the lower court found and decreed that Jennie Wall was entitled to but a life estate in the premises, and Margaret Wall and John Wall to the remainder therein in fee.

Motions for new trials were filed by the appealing defendants Margaret and John Wall and by Jennie Wall as well, which motions went over to the next term, at which time, all parties being present, the lower court on the motion of Jennie Wall and against the objection of the appealing defendants, entered the following finding and decree, to wit:

"Eliza McGurry, plaintiff, v. Margaret Wall et al., defendants. Now at this time come the parties to this suit, and the motion of the defendant Jennie Wall in this case to set aside the finding, verdict, judgment and decree rendered in the above entitled cause, in so far as it in any way or in any degree adjudged or decreed that her title, estate and interest in and to the lot described in the petition, is any other or less than an absolute ownership thereof in fee simple heretofore taken up by the court, is now further considered and sustained, and the decree rendered in this case is now hereby changed and modified so as to be as follows, to wit:

"First. The court finds that the plaintiff is the owner and holder by assignment of the special tax bill sued on, amounting to one hundred and eighty-eight dollars and twenty cents ($ 188.20), and that the same is a lien on lot one in block 5, in Hall's second addition to the city of St. Joseph, Buchanan county, Missouri.

"Second. That Robert Wall, deceased, died seized of an estate in fee simple in and to said lot, and that, under and by his last will and testament, he devised to Jennie Wall, said defendant, who is now his widow, a life estate, or an estate to be held and enjoyed by her during her widowhood, and the remainder in fee to his infant son.

"That his said infant son, the only child of Robert Wall and Jennie Wall, his wife, died when about the age of three years, and before this suit was instituted, and that upon his death the remainder in fee of said lot passed to, and vested in, said Jennie Wall by inheritance (Jennie Wall is still unmarried), so that when this suit was instituted the said Jennie Wall was, and now is, the owner absolute in fee simple of the aforesaid lot described in said petition, and hereinabove described.

"That the defendants herein other than Jennie Wall have no right, title or interest in or to said lot, or any part thereof, but that they claim an interest therein.

"It is, therefore, ordered, adjudged and decreed that the absolute title in fee simple to said lot be and the same is hereby vested in said Jennie Wall, to the exclusion of the other defendants in this case.

"It is further ordered, adjudged and decreed that plaintiff recover in accordance with the judgment and decree heretofore rendered in this case, the sum of one hundred and eighty-eight dollars and twenty cents ($ 188.20), the amount of said special tax bill sued on, to be levied upon said lot, and that the same is a lien upon said lot and that the said lot be sold, together with all the right, claim and interest of all the defendants therein, to satisfy said sum, together with interest on said sum of one hundred and eighty-eight dollars and twenty cents ($ 188.20) from the date that the decree was rendered in this case, at the rate of fifteen per cent. per annum, and that the plaintiff have special execution in accordance with this decree; and it is further ordered that the plaintiff recover her costs in this behalf expended."

From this finding and decree, Margaret Wall and John Wall have appealed to this court.

Affirmed.

Kelley & Kelley for appellant.

(1) The tax bill was inadmissible in evidence, being founded upon an improper theory of apportionment. Weber v Schergens, 28 Mo.App. 587. A tax bill cannot be sustained on a quantum meruit or quantum valebat. Galbreath v. Newton, 30 Mo.App. 380; St. Louis v. Rankin, 96 Mo. 497. (2) The court erred in its construction of the will. The controlling question in such case is, that the intention of the testator must govern, as gathered from the will itself, not from the particular words phrases or clauses; but from the whole instrument and every part thereof, taken as a whole, shall prevail. Smith v. Bell, 6 Peters, 75; Allison v. Chaney, 63 Mo. 280; Nichols v. Boswell, 103 Mo. 151; 115 Mo. 56; Turner v. Timberlake, 53 Mo. 371; Carr v. Dings, 58 Mo. 400; Schouler on Wills, secs. 468-473; Taggart v. Murray, 53 N.Y. 233; R. S. 1879, sec....