Munro v. Collins

• Decision Date: 19 March 1888
• Citation: 7 S.W. 461,95 Mo. 33
• Parties: Munro et al. v. Collins et al., Appellants
• Court: Missouri Supreme Court

7 S.W. 461

95 Mo. 33

Munro et al. v. Collins et al., Appellants

Supreme Court of Missouri

March 19, 1888

Appeal from St. Louis City Circuit Court. -- Hon. G. W. Lubke Judge.

Affirmed.

John O'Grady and E. B. Wolff for appellants.

(1) It is a settled rule of American as well as English law, that when the first devisee has the absolute right to dispose of the property in his own unlimited discretion, and not a mere power of appointment among certain specified persons or classes, any estate over is void, as being inconsistent with the first gift. This exclusion of the devise over depends upon whether the first taker has the absolute right to dispose of the property. 2 Redfield on Wills, 277; Timewell v. Perkins, 2 A. T. K. 102; Burbank v Whitney, 21 Pick. 147; Jackson v. Coleman, 2 John. 391; Jackson v. Bull, 10 John. 19; Jackson v. Robbins, 15 John. 169; Melson v. Cooper, 4 Leigh, 408; Bernard v. Bailey, 2 Harr. 56; Jackson v. Delaney, 13 John. 537; Bland v Bland, 2 Cox Ch. 349; Pushman v. Filliter, 3 Ves. 7; Wead v. Gray, 78 Mo. 59. (2) Even if it should be held that a trust was imposed by the terms of the will upon the estate devised in favor of plaintiff, still such trust has been satisfied by the provisions in the will of Mrs. Collins, nee Hardesty, in favor of plaintiff and her son.

E. McGinnis for respondents.

(1) The word "request," when used as it is in the will to be construed in this case, creates a valid devise over to the person named as second taker in the will. Schouler on Wills, sec. 263; Schmucker's Estate v. Reel, 61 Mo. 592; Buck v. Ashbrook, 59 Mo. 200; Harbison v. James, 90 Mo. 411; Hall v. Otis, 71 Maine, 326; Cook v. Ellington, 6 Jones' Eq. 371; Wood's Estate, 36 Cal. 75; Knight v. Knight, 3 Beavan, 148. (2) When a will devises property to one absolutely, and, in a subsequent clause, devises it to another upon the death of the first taker, then the first taker has only a life estate, and the person named as second taker has the remainder. Chiles v. Bartleson, 21 Mo. 344; Carr v. Dings, 58 Mo. 400; Bean v. Kenmuir, 86 Mo. 666; Harbison v. James, 90 Mo. 411; R. S., 1879, sec. 4004; Jones v. Stiles, 19 N.J.Eq. 324; Zimmerman v. Anders, 6 Watts & Serg. 218; Wheaton v. Anderson, 23 Wend. 452; Wright v. Dean, 10 Wheat. 204; Smith v. Ball, 6 Pet. 68. (3) When a will devises real estate, money and personal property of a perishable nature, to one, and at her death, what is left of the property is to go to another person named in the will, then the words "what is left" do not confer upon the first taker a power to dispose of the property. Foote v. Sanders, 72 Mo. 616; Green v. Hewitt, 97 Ill. 113; Giles v. Little, 104 U.S. 291; Harbison v. James, 90 Mo. 411; Read v. Watkins, 75 Tenn. 158. (4) Money is not perishable property, and an estate for life in it is only the right to take the interest of it. Field v. Hitchcock, 17 Pick. 182; Burleigh v. Clough, 52 N.H. 267; Vancil v. Evans, 4 Cold. [Tenn.] 340.

Brace J. Ray, J., absent.

OPINION

Brace, J.

The plaintiff, Mary E. Munro, whose maiden name was Mary Ellen Hellingsham, in this action seeks the aid of a court of equity in recovering certain property to which she claims to be entitled as a devisee under the will of her foster father, Frank Hardesty, and the discovery of other assets which she alleges are in the hands of defendant, Collins, to which she is entitled as such devisee. The will of said Hardesty is as follows:

"I, Frank Hardesty, of the city of St. Louis, state of Missouri, being weak in body, but of sound mind, and anxious to make such disposition of my property as to me seems proper, do make my last will and testament in manner and form following: First. I direct all my just debts to be paid as soon after my decease as may be consistent with the best interests of my estate. Second. I will and bequeath to my wife, Mary Hardesty, all the estate, real, personal, and mixed, of which I may die seized, to be held and enjoyed by her as her own, with this request, that the real estate shall be properly cared for, buildings kept in repair, and taxes promptly paid; and, after her death, such of said property as shall then be in her possession, I request shall be given to our adopted daughter, Helen Hause, to be hers absolutely, and in the event of her marriage, to be held and enjoyed by her absolutely and free from the control or interference of her husband, and not liable to any debts or contracts of said husband. In the event of the death of said adopted daughter before my wife, the above request, in reference to the disposition of my property after my wife's death, need not be carried out toward her legal representatives, the bequest extending only to such daughter, unless my wife shall so elect. If said Helen should die leaving a child or children, then I request that such of said property as shall be left after the death of my said wife shall go to such child or children in equal parts. And in the event of the death of both my wife and said Helen, leaving no children, then I direct that such of said property as shall be left shall be divided between the different orphan asylums in St. Louis in equal parts. Lastly, I appoint my said wife, Mary Hardesty, executrix of this my last will, hereby revoking any and all former wills by me at any time made. In witness whereof I hereby set my hand and seal, this 12th day of October, 1864.

"F. Hardesty. (Seal.)"

It was admitted on the trial that plaintiff, Mary E. Munro, is the Helen Hause named in the will. Mary Hardesty, the widow, qualified as executrix, and administered upon the estate, which consisted of real estate, notes, money in bank, and other personal property, and upon her final settlement, the probate court ordered that the balance found to be in her hands be retained by her in pursuance of directions contained in the last will of said Hardesty. The court below, after a careful analysis of all the testimony, in connection with the settlement of Mrs. Hardesty, found that there remained in her hands of said estate on her final settlement, besides the personal property of a perishable nature, cash assets amounting to the sum of $ 4,366.84. The real estate cuts no figure in this controversy.

The court below held, under the provisions of the will, the widow had only a life estate in the cash assets aforesaid, and that upon her death they went to the plaintiff, Mary E. Munro. This ruling of the court is complained of as error, and presents the controlling question in the case. The appellants contending that, by the terms of the will, Mrs. Hardesty took absolutely as her own property all the estate of her deceased husband, and in support of their contention cite numerous authorities, among others, State ex rel. v. Tolson, 73 Mo. 320, and Wead v. Gray, 78 Mo. 59, upon which they strongly rely. It will not be necessary, in order to determine this question, to consult authorities outside of our own state, and in examining them, it will be well to remember that courts, in the construction of wills, endeavor never to lose sight of that leading canon: to ascertain, if possible, the true intent and meaning of the testator in any given case, as the same can be gathered from the whole context of the will, viewed in the light of the circumstances under which it was made, and aim to give effect to that meaning unless some positive legal principle forbids.

In State ex rel. v. Tolson, supra, the provision in the will was: "I give and devise unto my beloved niece, M. S. P., all my estate not hereinbefore devised, * * * To have and to hold and to enjoy to the only proper use and behoof of the said M. S. P. and her heirs forever. The true intent and meaning of this devise is to give to the said M. S. P. all my estate, real, personal, and mixed * * * provided, however, that it is my will and desire that if the said M. S. P. shall die without issue, that then, in such event, the estate herein devised to her shall descend and go to W. and N." And the court held that the money in controversy in that case vested absolutely in M. S. P., and that the limitation over was void for repugnancy. In this case, it will be observed the property was devised in terms most appropriate to convey an absolute estate, and without any intention upon the part of the testator expressed, or that could be implied from the terms of the will, of creating a life estate; but he attempted to limit the absolute estate which he devised to the devisee and her heirs forever, by a remainder contingent upon the failure of issue of her body -- the limitation was repugnant to the devise, and, therefore, void.

In Wead v. Gray, supra, the will was as follows: "I give and bequeath to my only child, Rachel, * * * all of my property, real, personal, and mixed, * * * wishing my said daughter to have, use, and dispose of the same absolutely in any way that to her may seem best * * * ; it being the intention of this my last will and testament that my said daughter shall have and dispose of all my said property in her own right as absolute owner, * * * and that the same and its proceeds and increase, if not disposed of and expended by her in her lifetime, shall descend at her death to her children * * * ; but if the said Rachel should die leaving no children or their descendants, and without having disposed of said property, it is then my will that out of what may remain undisposed of by her" certain legacies shall be paid. And the court held that the will vested the property absolutely in the daughter, with power to dispose of it as well by will as by deed, and having disposed of it by will, there was nothing left for the reversionary legatees.

Here the testatrix, in unmistakable terms, gave the property to her daughter as absolute owner, with...