Clotilde v. Lutz

• Decision Date: 12 June 1900
• Citation: 57 S.W. 1018,157 Mo. 439
• Parties: CLOTILDE v. LUTZ et al.
• Court: Missouri Supreme Court

57 S.W. 1018

157 Mo. 439

CLOTILDE v. LUTZ et al.

Supreme Court of Missouri, Division No. 2.

June 12, 1900.

WILLS — CONSTRUCTION — LEGACIES — CHARGE ON LANDS — PRESUMPTION.

Testator, who had no personal property at the time he executed his will and bequeathed certain specific legacies, will be presumed to have intended to charge them on his lands.

Appeal from St. Louis circuit court; John A. Talty, Judge.

Action by Maria Clotilde against M. B. Lutz, administrator, and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Rowland L. & John Johnston, for appellant. Cornelius F. Bauer, H. A. Hauessler, and J. G. & Wm. F. Woerner, for respondents.

BURGESS, J.

This case was certified by the St. Louis court of appeals to this court on the ground that the amount involved exceeds the jurisdiction of that court, and that its jurisdiction might be questioned on the ground of real estate being involved. The plaintiff is a legatee under the will of Martha Barbara Lutz, deceased. She died on January 2, 1894. About six weeks prior to her death she made her will, in which she gave various legacies, mostly for religious and charitable purposes, — among them, $500 to a rector, to beautify a church; two $200 legacies to different priests, to be expended for masses for the repose of her soul; $400 for St. Mary's Infirmary; $100 for the benefit of deaf mutes; $400 for the benefit of the Little Sisters of the Poor; $400 for the keeping in repair of her grave; $2,000 to a sister, or, in case of her prior death, to the institution with which she was connected; $500 to each of two sisters. There were several other legacies of minor importance. They all amounted to over $5,000. After providing for these legacies, the will proceeds as follows: "(14) After the payment of all my just debts, funeral expenses, and foregoing bequests, I give and bequeath all the rest and residue of my personal property, whatever the same may consist of, to my beloved husband, George A. Lutz, as his property absolutely, to have and to hold the same unto him, and unto his heirs and assigns, forever. (15) I also give, bequeath, and devise unto my beloved husband, George A. Lutz, a certain lot of ground, being south part of lot No. 23, block 218, fronting twenty-five (25) feet on the west line of South Fourteenth street, including the three-story brick building, known as `No. 413 South Fourteenth Street, St. Louis, Missouri,' erected thereon, as his property absolutely, to have and to hold the same unto him, and unto his heirs and assigns, forever. (16) I furthermore give, bequeath, and devise unto my beloved husband, George A. Lutz, a certain lot of ground, situated in block No. 218 of the city of St. Louis, Missouri, and being lot No. twenty-nine, having a front of fifty feet on the east line of Fifteenth street, by 150 feet in depth, situated in Reilly's addition, as his property absolutely; to have and to hold the same, with all the appurtenances thereto belonging, to him, my said husband, and unto his heirs and assigns, forever. (17) I furthermore give, bequeath, and devise unto my said husband, George A. Lutz, a certain lot of ground, situated in block No. 218 of the city of St. Louis, Missouri, being known as `Lot No. 24 in Reilly's Addition,'" etc., in which latter lot George A. Lutz was only given a life estate, and remainder over to George A. Helein. There is no other residuary clause than the one above quoted, and the said George A. Lutz, husband of testatrix, is appointed executor by the nineteenth section of the will. There was no personalty out of which the legacies could be paid, and one of the legatees filed a motion in the probate court to compel the administrator in charge of the estate to sell the realty to pay them, the administrator having failed to do so. No debts were proven up against the estate. The probate court sustained the motion, and made the order of sale, from which the devisees appealed to the circuit court of the city of St. Louis, where the order of the probate court was reversed. Plaintiff then appealed to the St. Louis court of appeals, and thereafter the case was certified by that court to the supreme court, as before stated.

The question presented by this appeal is whether, under the facts stated, the various legacies bequeathed in the will must fail because there is no personalty out of which they can be paid, or, in the absence of express provision in the will for their payment out of the real estate of which the testatrix died seised, are they a charge on such real estate? The rule announced by this court for the construction of a will is to give full force and effect to every word and sentence in it, if possible to do so, and then construe it as a whole, so as to meet the intention of the testator; and in order to arrive at such intention there is no better way than to put one's self, as near as may be, in the position of the testator at the time of its execution. The will provides that all of the bequests shall be paid, if practicable, within six months after the death of the testatrix, and after the payment of all her debts, funeral expenses, and bequests, she gave all the rest and residue of her personal property, whatever the same might consist of, to her husband, George A....