Batley v. Batley

• Decision Date: 11 February 1946
• Citation: 193 S.W.2d 64,239 Mo.App. 664
• Parties: Kenneth Batley et al. v. Harry Batley et al., Beneficiary, under the will of Charles H. Batley, Sr
• Court: Kansas Court of Appeals

193 S.W.2d 64

239 Mo.App. 664

Kenneth Batley et al. v. Harry Batley et al., Beneficiary, under the will of Charles H. Batley, Sr

Court of Appeals of Missouri, Kansas City

February 11, 1946

Appeal from Linn County Circuit Court; Hon. G. Derk Green, Judge.

Affirmed.

Gardner & Carroll, Frank Schibsby, B. A. Babb and Cyril B Brown for appellants.

(1) The purpose of the pretermission statute. Guitar v Gordon, 17 Mo. 408; Hockensmith v. Slusher, 26 Mo. 237; McCourtney v. Mathes, 47 Mo. 533; Woods v. Drake, 135 Mo. 393, 37 S.W. 109; Fitzsimmons v McQuinn (Mo.), 282 S.W. 37; Goff v. Goff, 352 Mo. 809, 179 S.W.2d 707; Lawnick v. Schultz, 325 Mo. 294, 28 S.W.2d 658. (2) Where the tenor of the will shows the intention to disinherit the child, he is not pretermitted. Goff v. Goff, 325 Mo. 294, 179 S.W.2d 707; Beck v. Metz, 25 Mo. 70; Hockensmith v. Slusher, 26 Mo. 237; Pounds v. Dale, 48 Mo. 270; Williamson v. Roberts, 187 S.W. 19; Thomas v. Black, 113 Mo. 66-69, 20 S.W. 657; McCoy v. Bradbury, 290 Mo. 650, 235 S.W. 1047; Woods v. Drake, 135 Mo. 393, 37 S.W. 109; Baker v. Grossglauser, 250 S.W. 377-378; Martin v. Claxton, 308 Mo. 314, 274 S.W. 77; Lawnick v. Schultz, 325 Mo. 294, 28 S.W.2d 658; Goff v. Goff, 352 Mo. 809, 179 S.W.2d 707. (3) When a will discloses that the testator, when he made it, had his child in mind, the conclusive presumption is that he had also in mind the descendant of such child. Guitar v. Gordon, 17 Mo. 408; McCourtney v. Mathes, 47 Mo. 533; Hockersmith v. Slusher, 26 Mo. 237; Woods v. Drake, 135 Mo. 393, 37 S.W. 109; Fugate v. Allen, 119 Mo.App. 183, 95 S.W. 980; Lawnick v. Schultz, 325 Mo. 294, 28 S.W.2d 658; Goff v. Goff, 352 Mo. 809, 179 S.W.2d 707; 26 C. J. S. 1052. (4) In probing the testator's intention, courts will seek light, anywhere, upon an ambiguous will, whether the ambiguity be patent or latent. Kerens v. St. Louis Union Trust Co., 283 Mo. 601, 223 S.W. 645; McCoy v. Bradbury, 290 Mo. 650, 235 S.W. 1047; 26 C. J. S., 1053; McCourtney v. Mathes, 47 Mo. 533; Goff v. Goff, 352 Mo. 809, 179 S.W.2d 707-711; Earnshaw v. Smith, 2 S.W.2d 803; Lucas v. Shumpert, 6 S.E.2d 17, 20, 192 S.C. 208; McCoy v. Bradbury, 290 Mo. 650, 235 S.W. 1047; Pounds v. Dale, 48 Mo. 270; Bradley v. Bradley, 24 Mo. 311; Gibson v. Johnson, 331 Mo. 1198, 56 S.W.2d 783; Thomas v. Black, 113 Mo. 66, 20 S.W. 657; Conrad v. Conrad, 280 S.W. 707; Williamson v. Roberts (Mo.), 187 S.W. 19; Margadine v. Pulte, 27 Mo. 423; Barker v. Hayes, 347 Mo. 264, 147 S.W.2d 429; Goff v. Goff, 352 Mo. 809, 179 S.W.2d 707; Lawnick v. Schultz, 325 Mo. 294, 28 S.W.2d 658; First Trust Co. v. Meyers, 351 Mo. 899, 174 S.W.2d 378; Re Trickett, 197 Cal. 20, 239 P. 406; Re Child's Estate, 68 P.2d 306; Burrier v. Jones, 92 S.W.2d 885; Sec. 526, R. S. Mo. 1939.

Sears Jayne for respondents.

(1) The statute invoked by the trial court under respondents' petition was Section 526, Revised Statutes of Missouri, 1939. (2) Section 526 "arbitrarily applies unless the child or descendants is named or provided for . . . under these statutes it is immaterial that the testator intended to disinherit a child or the descendants of a deceased child unless there is some language or provision in his will indicative of his purpose." Goff v. Goff, 179 S.W.2d 707. (3) The statute includes adopted children. Remmers v. Remmers, 239 S.W. 509; Taylor v. Hamrick, 134 S.W.2d 52. (4) When the testator in his will made reference to "my only living children," he made no reference to his adopted child since the word "child" in a will does not usually include an adopted child. Melek v. Curators of the University, 250 S.W. 614. (5) The word "child" in the testator's will did not include "grandchildren," unless the context clearly calls for such a reading, the courts will not so construe. Stolle v. Stolle, 66 S.W.2d 912; Lich v. Lich, 138 S.W. 558, 58 Mo.App. 400; Grenzebach v. Grenzebach, 286 S.W. 79. (6) The intention to disinherit a child must be manifest in the will itself. It cannot be shown by extrinsic evidence nor can the disinheritance be merely by reference. Hardagine v. Pulte, 27 Mo. 423; Williamson v. Roberts, 187 S.W. 19; McCoy v. Bradbury, 235 S.W. 1047.

Sperry, C. Boyer, C., concurs.

OPINION

SPERRY

This case originated in probate court and involves construction of the will of Charles H. Batley, Sr., deceased.

The case was submitted on an agreed statement of facts. The will was executed in August, 1942, and the sole beneficiaries were "my only living children; Charles H. Batley, Jr., of Brookfield, Missouri, and Harry Batley, Los Angeles, California." After probate of the will Charles H. Batley, Jr., died. His legal representative and Harry Batley are the appellants here.

After the will was admitted to probate Harry Fallini and Eda Santarelli, the only children of Ellen Batley, deceased daughter of testator, filed claim seeking one-fourth of the estate on the grounds that deceased died intestate as to them. Thereafter, Kenneth Eugene Batley, Helen Louise Batley, and Donald R. Batley, minors, acting through their legal guardian, Bernice Batley, filed claim demanding an undivided one-fourth interest of the estate on the grounds that, as to them, testator died intestate. They are the sole surviving children of Kenneth Batley, deceased, who was an adopted son of testator. The two groups, grandchildren of testator, claim the shares of their respective parents, children of testator, by virtue of the provisions of Section 526, Revised Statutes Missouri 1939. They are respondents here.

The probate court found for respondents and, on appeal to the circuit court, judgment was for them. This appeal followed.

Trial was had in circuit court December 20th, and February 19th, following, the court found for respondents. On February 28th, appellants filed motion for new trial and, as grounds therefor, contended that the judgment is against the law and the evidence and for the wrong parties, and that they were in possession of newly discovered evidence, consisting of a letter written by testator to Harry Batley in 1935, wherein testator bitterly denounced Harry Fallini and Eda Santarelli, two of respondents, and expressed an intention to "cut" them "out of my estate."

The two alleged errors are separately assigned here; but the second assignment, regarding the letter above mentioned, is not briefed either under "Points and Authorities" or "Argument." Although allusion is made thereto in the printed argument, it is not contended that error was committed for failure to sustain the motion for new trial because of the newly discovered evidence; nor does there appear, anywhere in the brief, such contention, except under "Assignment of Errors," and no authority is there cited, or reason stated in support of the assignment. We will consider that assignment as abandoned.

Section 526, supra, is couched in simple and plain language. The pertinent portion thereof provides:

"If any person make his last will, and die, leaving a child or children, or descendants of such child or children in case of their death, not named or provided for in such will, . . . every such testator, so far as shall regard any such child or children, or their descendants, not provided for, shall be deemed to die intestate, . . ."

The will contains neither direct mention of, nor provision for, respondents or their desceased parents. Appellants point to the quoted portion of the will, contained in the second paragraph of this opinion, and contend that its effect is to exclude respondents from the benefits of the will, because it indicates that testator had in mind the parents of respondents, and that he intentionally excluded them from benefits. They say that the purpose of the statute "is to produce an intestacy only when the child or the descendant of such child is unknown or forgotten, and thus unintentionally omitted, . . ." They cite Guitar v. Gordon, 17 Mo. 408; Hockensmith v. Slusher, 26 Mo. 237; McCourtney v. Mathes, 47 Mo. 533; Woods v. Drake, 135 Mo. 393; Fitzsimmons v. Quinn, 282 S.W. 37; 26 C. J. S. 1051; Lawnick v. Schultz, 325 Mo. 294, 28 S.W.2d 658. It may be conceded that such is the policy back of the statute, Goff v. Goff, 179 S.W.2d 707, l. c. 711; and where the testator uses language, in the will, indicating that he had in mind all of his children when the will was drawn and executed, and that none was forgotten, and that he intended to exclude those not provided for, then the statute has no application and the will must be enforced as written.

However, the state of mind of the testator with regard to this matter must be ascertained from the language used in the will. Thus it was said in Pounds v. Dale, 48 Mo. 270, l. c. 272:

"He had nine children, and defendant urges that it is unreasonable to suppose that he forgot the seven while naming the two. I certainly would conjecture that all were in mind, and that he meant to disinherit them. But it is a mere guess. The will must show upon its face that he remembered them; and though they be not directly named, there must be provisions or language that point directly to them. To hold, as claimed, that a reference to the two sons as creditors is also a reference to the plaintiff, would make the statute of no effect. Had the testator spoken of his children in the aggregate, specifying none, we must infer that they were all in his mind (McCourtney v. Mathes supra); or if he had made a bequest to a son-in-law, it would be inferred that it was on his daughter's account (Hockensmith v. Slusher, supra); but the inference that, because he provided for the payment of debts due two of his sons, he intended to disinherit the rest, is too remote. The intention, in the absence of the statute might, be inferred from the devise of the widow, for that disposes...