Barnhardt v. McGrew

• Decision Date: 24 March 1928
• Docket Number: No. 25091.,25091.
• Citation: 5 S.W.2d 77
• Parties: MARIE ALISE BARNHARDT and FORD HAYS BARNHARDT, Minors, by D.A. BARNHARDT, Their Curator, Appellants, v. EDWARD J. McGREW, JOSEPH O. LESUEUR, as Trustee, L.D. LESUEUR, and CARL WILSON HAYS, Respondents, and MAXINE HAYS, a Minor, Appellant.
• Court: Missouri Supreme Court

5 S.W.2d 77

MARIE ALISE BARNHARDT and FORD HAYS BARNHARDT, Minors, by D.A. BARNHARDT, Their Curator, Appellants, v. EDWARD J. McGREW, JOSEPH O. LESUEUR, as Trustee, L.D. LESUEUR, and CARL WILSON HAYS, Respondents, and MAXINE HAYS, a Minor, Appellant.

No. 25091.

Supreme Court of Missouri, Division Two.

March 24, 1928.

Appeal from Lafayette Circuit Court. — Hon. Robert M. Reynolds, Judge.

AFFIRMED.

Aull & Aull and Henry C. Chiles for appellants Marie Alise Barnhardt and Ford Hays Barnhardt; George Vaughan of counsel.

(1) In the interpretation of contracts, wills, deeds, or other written instruments, the proper construction of the instrument must be sought from the entire instrument, and not merely from any portion or part of it. Eckle v. Ryland, 256 Mo. 440; Dickerson v. Dickerson, 211 Mo. 496; Buxton v. Kroeger, 219 Mo. 245; Williamson v. Brown, 195 Mo. 336; Gibson v. Bogy, 28 Mo. 478; Orr v. Rode, 101 Mo. 396; McCullock v. Holmes, 111 Mo. 447; Meyer v. Christopher, 176 Mo. 594; Utter v. Sidman, 170 Mo. 284; Armor v. Frey, 226 Mo. 646. Rules of interpretation, formerly adhered to with much strictness, have been changed, modified and abandoned, when in their modern application, they have been found hostile to the end the courts struggle to attain, which is to give effect to the testator's intention, and to effect which they make it the paramount rule to read the whole instrument and if possible give effect and meaning to all its language. Bean v. Kenmuir, 86 Mo. 671; Russell v. Eubanks, 84 Mo. 86; Eckle v. Ryland, 256 Mo. 440. The keystone of construction in determining the meaning of any will is the intent gathered from the four corners, read and considered as a whole. Secs. 555, 2005, R.S. 1919; McMillan v. Hospital, 264 S.W. 413; Cox v. Jones, 229 Mo. 61; Lane v. Garrison, 293 Mo. 537; Kerens v. Company, 283 Mo. 601; Hartnell v. Langan, 282 Mo. 471; Matthews v. Van Cleve, 282 Mo. 19; Wetzel v. Hecht, 281 Mo. 610; Gibson v. Gibson, 280 Mo. 519; Deacon v. Company, 271 Mo. 619; Eckle v. Ryland, 256 Mo. 440; Tevis v. Tevis, 259 Mo. 19; Stewart v. Jones, 219 Mo. 614. And from a consideration of all the provisions of the will, and not from detached portions of it alone. 28 R.C.L. 206, 207, secs. 165, 166; Tevis v. Tevis, 259 Mo. 19; Eckle v. Ryland, 256 Mo. 440; Grace v. Perry, 197 Mo. 550; O'Day v. O'Day, 193 Mo. 62; Drake v. Crane, 127 Mo. 85; Clotilde v. Lutz, 157 Mo. 439. And effect should be given to every word and clause. Tevis v. Tevis, 259 Mo. 19; Eckle v. Ryland, 256 Mo. 440; Clotilde v. Lutz, 157 Mo. 439. In a will, more than in deeds, and yet in the latter, the language used varies so materially and so much that precedents are rarely controlling in a concrete case, except as they may furnish general aiding rules. Therefore the best interpretation of a will or deed is the instrument itself. Cox v. Jones, 229 Mo. 62; Eckle v. Ryland, 256 Mo. 441; Armor v. Frey, 226 Mo. 666; Feller v. Lee, 225 Mo. 332; Chew v. Keller, 100 Mo. 369; Bean v. Kenmuir, 86 Mo. 669; Schorr v. Carter, 120 Mo. 413; Utter v. Sidman, 170 Mo. 294. (2) There is nothing in the record whereby the plaintiffs may be precluded by estoppel; the elements of estoppel are lacking. Burke v. Murphy, 275 Mo. 397; Thompson v. Lindsay, 242 Mo. 76. Plaintiffs are minors and as such could not be precluded by estoppel. Building & Loan Assn. v. Eveler, 237 Mo. 681; Nichols v. Robinson, 211 S.W. 14. (3) The plaintiffs were and now are minors, consequently no Statute of Limitations could affect them. Johnson v. Calvert, 260 Mo. 457. Nor would the Statute of Limitations begin to run until the death of the life tenant, who died January 20, 1918, even though the plaintiffs had been sui juris. Rayl v. Golfinopulos, 264 S.W. 911; State ex rel. v. Welch, 175 Mo. App. 311; Elliott v. Mach. Co., 236 Mo. 564; Hall v. French, 165 Mo. 437; Case v. Sipes, 280 Mo. 119; Matthews v. O'Donnell, 289 Mo. 271; Jacks v. Link, 291 Mo. 672; Betts v. Gehrig, 266 S.W. 691; Nichols v. Robinson, 211 S.W. 14; Reed v. Lorne, 163 Mo. 519. Nor could the action of the widow in executing deeds purporting to convey her life interest accelerate the time fixed by the will and codicil for the vesting of the remainder. Crossam v. Crossam, 303 Mo. 572; Wicoff v. Moore, 257 S.W. 474. (4) The partition suit could not affect these appellants since they were not parties to it. The appellants were not in existence at the time the partition suit was instituted. Betts v. Gehrig, 266 S.W. 690. (5) If the testator saw proper to embrace within the will an express provision designating the time when the title in fee should pass, as well as the persons in whom such remainder should vest, and, if under the provisions of the will it is uncertain as to the persons who would take the remainder, it is impossible to comprehend upon what rule, either in law or equity, such clause in the codicil can be ignored in the interpretation of the instrument. There is no uncertainty in this will. Buxton v. Kroeger, 219 Mo. 240. The codicil was expressly inserted in the will, or added thereto, for a purpose, and was intended to express that purpose, and was not intended as a mere empty expression, without force or vitality, in the interpretation of said will and cannot be ignored. Armor v. Frey, 226 Mo. 646; Bean v. Kenmuir, 86 Mo. 670; Buxton v. Kroeger, 219 Mo. 245; Eckle v. Ryland, 256 Mo. 440. (6) The remainder, under the provisions of the will and codicil, is a contingent remainder, or, under some of the decisions, a vested remainder, defeasible on condition subsequent. The death of Kate Hays Barnhardt before the termination of the life estate of the widow, or, the happening of the contingency, defeated the same, if construed to be so vested. Eckle v. Ryland, 256 Mo. 440; Gray v. Clement, 286 Mo. 100; Buxton v. Kroeger, 219 Mo. 224; Dickerson v. Dickerson, 211 Mo. 497; Emison v. Whittlesey, 55 Mo. 258; Maguire v. Moore, 108 Mo. 274; DeLassus v. Gatewood, 71 Mo. 381; Jones v. Waters, 17 Mo. 589; Aubuchon v. Bender, 44 Mo. 560; Rodney v. Landau, 104 Mo. 251; Emmerson v. Hughes, 110 Mo. 630; Sullivan v. Garesche, 229 Mo. 496; 2 Washburn, Real Property (6 Ed.) sees. 1555-1580; Manice v. Manice, 43 N.Y. 380; Edwards v. Hammond, 3 Lev. 132; Doe v. Moore, 14 East, 601; Blanchard v. Blanchard, 1 Allen (Mass.), 223; Donaldson v. Donaldson, 278 S.W. 686. As the title was not to vest in Kate Hays Barnhardt until the death of the widow, or termination of the life estate, or in Carl Wilson Hays, and then only in such of them as were alive at that time, the remainder was necessarily contingent. Dickerson v. Dickerson, 211 Mo. 483; Buxton v. Kroeger, 219 Mo. 231; Tiedeman, Real Property (2 Ed.) secs. 396, 397-403; Emison v. Whittlesey, 55 Mo. 254; DeLassus v. Gatewood, 71 Mo. 381; Rodney v. Landau, 104 Mo. 257; Emmerson v. Hughes, 110 Mo. 630; Maguire v. Moore, 108 Mo. 267; Owen v. Eaton, 56 Mo. App. 563; Taylor v. Adams, 93 Mo. App. 277; Aubuchon v. Bender, 44 Mo. 560; Olney v. Hull, 21 Pick. (Mass.) 311; Thomson v. Ludington, 104 Mass. 193; Denny v. Kettel, 135 Mass. 138; Colby v. Duncan, 139 Mass. 398; Hunt v. Hall, 37 Me. 363; Buck v. Paine, 75 Me. 582; Tillman v. Davis, 95 N.Y. 24; Whitesides v. Cooper, 115 N.C. 570; White's Trustee v. White, 86 Ky. 602; Starr v. Willoughby, 218 Ill. 485; Schaeffer v. Schaeffer, 54 W. Va. 681; 1 Preston on Estates, pp. 36-74; 2 Washburn, Real Prop. (6 Ed.) secs. 1526-1575; Sullivan v. Garesche, 229 Mo. 506; Rinquist v. Young, 112 Mo. 25; Wombles v. Young, 69 Mo. 117; Gray v. Clements, 286 Mo. 100. (7) The will and codicil created two concurrent fees, by way of remainder, one as a substitute for the other, and to take effect in case the prior one fails to vest in interest. Alternative remainders; remainders on a contingency with a double aspect; or, remainders on a double contingency. Eckle v. Ryland, 256 Mo. 450; 23 R.C.L. 487, sec. 12, and p. 551, sec. 96; 1 Fearne on Remainders, p. 373; 2 Washburn, Real Prop. (6 Ed.) sec. 1575; 2 Minor, Real Prop., sec. 737; City of Peoria v. Darst, 101 Ill. 616; Dunwoodie v. Reed, 3 Serg. & Ralls, 452; Loddington v. Kime, 1 Ld. Raym. 203; Goodnight v. Dunham, Dougl. 265; Doe v. Burnsall, 6 T.R. 30; Hennessey v. Patterson, 85 N.Y. 91; Doe v. Fonnereau, 2 Dougl. 505, note; Cooper v. Hepburn, 15 Gratt. (Va.) 558; Walker v. Lewis, 90 Va. 582; Allison v. Allison, 101 Va. 556; 2 Minor, Real Prop., sec. 737; 16 Cyc. 650. (8) There is another principle to be reckoned with, namely, in case of doubt, the law favors vested estates and an estate should be held to vest at the earliest possible moment, unless a contrary intention is clearly manifested in the grant. Tindall v. Tindall, 167 Mo. 225; Eckle v. Ryland, 256 Mo. 449. If there be said to have been an equitable estate in remainder, where was it? The answer is found in Eckle v. Ryland, 256 Mo. 454. The tendency of modern decisions on questions of contingent and vested remainders has been more and more to break away from the technical refinements of the old common-law learning. Utter v. Sidman, 170 Mo. 284; Williamson v. Brown, 195 Mo. 313; Godman v. Simmons, 113 Mo. 122; O'Day v. Meadows, 194 Mo. 588; Buxton v. Kroeger, 219 Mo. 245. And allow deeds to be effective in line with the intent of their faces as gathered from the everyday, common sense of their language. Eckle v. Ryland, 256 Mo. 453; Buxton v. Kroeger, 219 Mo. 245; Dickerson v. Dickerson, 211 Mo. 490. (9) The heirs, or the remaining heirs, take as purchasers under the will and codicil of William T. Hays, who devised to them the estate in remainder, by way of substitution for, and not by descent through the deceased mother, Kate Hays Barnhardt. Dickerson v. Dickerson, 211 Mo. 496; Woerner, Am. Law of Admn., p. 902; Williams on Executors (Perkins Ed.) p. 1193; Clark v. Cordis, 86 Mass. 480; Cushman v. Horton, 59 N.Y. 149; Tillman v. Davis, 95 N.Y. 24. If the instrument shows by its context that the word "heirs" was used as equivalent for...