Allison v. Hitchcock

• Decision Date: 14 July 1925
• Docket Number: 24975
• Citation: 274 S.W. 798,309 Mo. 488
• Parties: ELIZABETH GRIERSON ALLISON et al. v. SAMUEL S. HITCHCOCK et al., Appellants
• Court: Missouri Supreme Court

274 S.W. 798

309 Mo. 488

ELIZABETH GRIERSON ALLISON et al. v. SAMUEL S. HITCHCOCK et al., Appellants

No. 24975

Supreme Court of Missouri

July 14, 1925

Appeal from St. Louis City Circuit Court; Hon. Robert W Hall, Judge.

Affirmed.

James C. Shaner and Forrest G. Ferris for appellant.

(1) Under the Missouri statutes the will is considered as speaking from the moment of the death of the testator, unless the intention of the testator appears to be otherwise. Liggat v. Hart, 23 Mo. 127, 138; Webb v Archibald, 128 Mo. 299, 304; McMahan v Hubbard, 217 Mo. 624, 637. (2) A general devise, without mentioning after-acquired real estate, sufficiently indicates an intention to include it, and an intention that all the testator had at his death shall pass. R. S. 1919, sec. 505; Rood on Wills, sec. 526; Webb v. Archibald, 128 Mo. 299, 304; McMahan v. Hubbard, 217 Mo. 624, 637. (3) "I hereby give, bequeath, devise, convey, set over, and confirm unto my beloved wife, Liza Mungall, all of my real estate" (and personal property) is sufficient to pass an absolute fee simple title to all real estate testator owned at the time of his death, including that which he acquired after the execution of the will. R. S. 1919, sec. 551; Rood on Wills, secs. 510, 520; Thornbrough v. Craven, 284 Mo. 552, 561; Webb v. Archibald, 128 Mo. 299, 304; Mueller v. Buenger, 184 Mo. 458, 479. (4) There are no expressions contained in the will of George Mungall whereby it appears that the devise of after-acquired real property to his wife was intended to convey a life estate only, and no further devise having been made of the said after-acquired property, it is understood to be the intention of the testator thereby to devise an absolute estate in the same to his wife, and the will conveys to her an estate in fee simple. (5) In the construction of a will the court always starts out with the presumption that the testator intended to dispose of his whole estate, and not to carve out a particular estate and dispose of that, leaving the remainder to descend to heirs at law according to the Statute of Descents and Distributions. A will that is fairly susceptible of being construed into a testamentary disposal of his whole estate will be so construed in preference to construing it to be a case of partial intestacy. Meiners v. Meiners, 179 Mo. 614, 626; Tebow v. Dougherty, 205 Mo. 315; McMahan v. Hubbard, 217 Mo. 624, 637; RoBards v. Brown, 167 Mo. 447, 457. (6) It is the rule where property is given in clear language sufficient to convey an absolute fee, the interest thus given shall not be taken away, cut down or diminished by any subsequent vague and general expressions. The language in such subsequent clause, to be sufficient to cut down or lessen the first grant, must be as clear, plain and unequivocal as the language of the first grant. Cornet v. Cornet, 248 Mo. 184, 223; Roth v. Rauschenbusch, 173 Mo. 582; Thornbrough v. Craven, 224 Mo. 552, 562; Gannon v. Albright, 183 Mo. 238; Sevier v. Woodson, 205 Mo. 202, 214; R. S. 1919, sec. 551. (7) The particular description, "my real estate consists of premises known as 2732 and 2734 Clark Avenue and 2630 Laclede Avenue," following the grant of "all of my real estate," was intended merely as an exhibition of the location and extent of the devisor's landed estate then owned by him, and not as a limitation of the preceding grant as applicable to after-acquired real estate. Durboraw v. Durboraw, 67 Kan. 139; Luers v. Luers, 145 Iowa 600; Hodgkins v. Hodgkins, 123 A.D. 110; Haley v. Gatewood, 74 Tex. 284; Appeal of Allen, 125 Pa. 544; Noel v. Noel, 109 Kan. 440. (8) The trial court erred in deciding that the testator died intestate as to the real estate in controversy. For authority, the court's memorandum refers to the case of Dunlap v. Hart, 274 Mo. 600, a case which does not support the court's decision.

F. E. Williams and Lubke & Lubke for respondents.

(1) When a testator has not disposed of his property by will, the courts cannot, under guise of construction, make a new or corrected will for him to pass such property. Page on Wills, sec. 466. (2) We must gather the intention of the testator from all the provisions of the will. To ascertain this we must consider the conditions which surrounded him at the time of its execution. Doneghy v. Robinson, 210 S.W. 657. (3) In construing a will, the court should put itself in the place of the testator and read the same in the light of the testator's environment at the time of the execution of the will. Clotilda v. Lutz, 157 Mo. 439; Simmons v. Cabanne, 177 Mo. 336, 354; RoBards v. Brown, 167 Mo. 447, 461. (4) The general expressions of the testator, "I dispose of my real and personal property," and "I . . . devise . . . all of my real estate," are referable to the property at the time the will was written and not to the date it took effect. Simmons v. Cabanne, 177 Mo. 336, 354; RoBards v. Brown, 167 Mo. 447, 461. (5) The presumption that a testator in making a will intends to dispose of his entire estate and not to die intestate as to any part of it, cannot prevail in the absence of language sufficient to carry the entire estate, or in the face of words and provisions inconsistent with the presumption. Smith v. Hutchison, 61 Mo. 87; Farish v. Cook, 78 Mo. 220; Tillerson v. Taylor, 282 Mo. 211. (6) When the testator makes a general devise of all his property, or all his real estate, or all the rest or residue of it, and then proceeds to enumerate it, the question arises as to whether the addition is restrictive or not. When the testator expressly or by clear implication refers to the then existing state of things, after-acquired property will not pass by the devise. Rood on Wills, sec. 527; Decedents' Estates and Wills, Woerner, sec. 412. (7) The specific description, "my real estate consists of premises known as 2732 and 2734 Clark Avenue and 2630 Laclede Avenue," is an explanation and definition following the grant of "all of my real estate" and prevents this grant from opening up to include after-acquired real estate. Dunlap v. Hart, 274 Mo. 600; Rood on Wills, sec. 527; Farish v. Cook, 6 Mo.App. 328, 332; 12 C. J. p. 528. (8) Where the testator makes a general devise of all his property or the residue thereof and enumerates or describes it, or makes a devise of his interest in certain property, and expressly or by clear implication refers to the then existing state of things, after-acquired property or additional interest will not pass by such devises. Dunlap v. Hart, 274 Mo. 600; Mueller v. Buenger, 184 Mo. 458; Hale v. Audsley, 122 Mo. 316; Smith v. Hutchison, 61 Mo. 83; Farish v. Cook, 78 Mo. 212.

OPINION

White, J.

An action to determine title. George Mungall, the common source of title, died June 17, 1913, leaving a will. He left a widow, Eliza, or Lizzie Mungall. Afterwards she married Samuel S. Hitchcock, and died October 5, 1919, leaving a will in which she devised all her property to her surviving husband, Samuel S. Hitchcock, for life, with remainder to her stepson, Louis G. Hitchcock. They are defendants.

Mungall left no children or descendants. The plaintiffs are his collateral heirs, his brothers and sisters, and their descendants, and as such heirs claim the property in dispute, mentioned in the record as the Clifton Place property. The defendants assert that they acquired the property through Lizzie Mungall, the widow, and that George Mungall in his will devised it to her in fee simple. The plaintiffs claim that the will of George Mungall did not mention or dispose of the Clifton Place property. The will, omitting formal parts, was as follows:

"I dispose of my real and personal property as follows:

"First: I desire that my honest debts be paid.

"Second: I hereby give, bequeath, devise, convey, set over and confirm unto my beloved wife, Lizzie Mungall, all of my real estate, money in bank, cash on hand, my business goods and chattels and all personal property.

"My real estate consists of premises known as 2732 and 2734 Clark Avenue, and 2630 Laclede Avenue, which she shall enjoy without let or hindrance, but shall have quiet and peaceable possession thereof for her life time. I request that she take care and maintain my sister, Mrs. Elizabeth Grierson, and her daughter, Isabelle Grierson, during their life. In event of my wife's death, I desire that the Clark Avenue property be given to my sister, Mrs. Elizabeth Grierson and her daughter, Isabelle, if both are living to share alike. In the event of the death of either, her share shall revert back to other heirs."

The disposition of the case turns upon the construction of this will. If by that will George Mungall devised to Lizzie Mungall the Clifton Place property in dispute here, which is not described nor specifically mentioned therein, then the title passed to the defendants. If, however, George Mungall died intestate as to that property, the plaintiffs acquired the title. The trial court found that the will did not dispose of the property, rendered judgment for the plaintiff, and defendants appealed.

I. The first rule in construction of a will is to determine the intention of a testator, and that intention must be gathered from the language used in the light of the circumstances surrounding. [Doneghy v. Robinson, 210 S.W. l. c. 657, 658.]

The evidence shows that the Clifton Place property was acquired by George Mungall after he executed his will, which described all the property he owned at that time. Appellant seeks to apply to this case a presumption that the testator intended to dispose of his whole estate and did not intend to die intestate as to any of his property. Such a presumption is indulged by the courts when it appears consistent with the intention of a testator, but when the...