Blumer v. Gillespie

• Decision Date: 23 April 1936
• Docket Number: 33284
• Citation: 93 S.W.2d 939,338 Mo. 1113
• Parties: Arthur E. Blumer v. John F. Gillespie, Executor of the Last Will and Testament of Louise Blumer, and Julia Siemeister, Defendants, German General Protestant Orphans' Association, a Corporation, Appellant
• Court: Missouri Supreme Court

93 S.W.2d 939

338 Mo. 1113

Arthur E. Blumer v. John F. Gillespie, Executor of the Last Will and Testament of Louise Blumer, and Julia Siemeister, Defendants, German General Protestant Orphans' Association, a Corporation, Appellant

No. 33284

Supreme Court of Missouri

April 23, 1936

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

Affirmed.

Lubke & Lubke and Otto O. Fickeissen for appellant.

(1) The testimony admitted by the court at the trial to show the reasons of Louise Blumer for bequeathing the plaintiff only five dollars by her will and as to her disagreements with the plaintiff was neither material nor relevant and should have been excluded by the court. Hartt v. McNeil, 47 Mo 526. (2) In the construction of wills the intent of the testator, as gathered from the will itself, controls. In re Nichols' Trust Fund, 68 S.W.2d 917; Cravens v. Cravens, 61 S.W.2d 739; Dodge v. Hall, 37 S.W.2d 585; Ganahl v. Ganahl, 19 S.W.2d 898. (3) The will of Esaias W. Blumer bequeathed to Louise Blumer the absolute title to all his personal property and created no trust in favor of the plaintiff. Lemp v. Lemp, 264 Mo. 553; Sevier v. Woodson, 205 Mo. 202; Corby v. Corby, 85 Mo. 371; Balliett v. Veal, 140 Mo 187; Estill v. Ballew, 26 S.W.2d 778; State ex rel. v. McVeigh, 181 Mo.App. 566; 69 C. J., pp. 716, 722, secs. 1832, 1833; Remsen, Preparation of Wills & Trusts (2 Ed.) 269. The words used in the first sentence of the paragraph disposing of the residue of his estate grant an absolute estate, which cannot and will not be cut down or limited by subsequent words which are mere expressions of desire or wish. Snyder v. Toler, 179 Mo.App. 376; Crowell v. Chapman, 257 Mass. 492; Conlin v. Sowards, 129 Wis. 320. The words used in the last sentence that the testator's son shall inherit "what may remain" of his estate after his wife's death clearly indicate a power of disposition on her part and so negative the idea of a life estate in her and a trust for her son's benefit. Harkness v. Zelley, 100 N.J.Eq. 48. The fact that by his will the testator does not request his widow to act in her lifetime, but at her death, regarding the disposition of his property is a circumstance indicating an intention not to create a trust. McDuffie v. Montgomery, 128 F. 105; Dexter v. Young, 234 Mass. 588; In re Crawford, 163 N.Y.S. 1107; Precatory Trusts, 49 A. L. R. 10.

Eagleton, Waechter, Yost, Elam & Clark for respondent.

In the construction of a will the intent of the testator controls, and such intent must be gathered by the court from the instrument as a whole, giving effect to all the provisions thereof, in connection with the surrounding circumstances, and keeping in mind that the blood relatives of the testator are the favorites of the law entitled to first consideration in the determination of doubtful expressions. R. S. 1929, sec. 567; Small v. Field, 102 Mo. 104, 14 S.W. 815; Cross v. Hoch, 149 Mo. 325, 50 S.W. 786; Redman v. Barger, 118 Mo. 568, 24 S.W. 177; Long v. Timms, 107 Mo. 512, 17 S.W. 898; Schorr v. Carter, 120 Mo. 409, 25 S.W. 538; Murphy v. Carlin, 113 Mo. 112, 20 S.W. 786; Coleman v. Haworth, 320 Mo. 852, 8 S.W.2d 931; Mort v. Trustees of Baker University, 78 S.W.2d 498. The testamentary gift to Louise Blumer of the personal property of which Esaias W. Blumer died possessed was cut down, by appropriate words in his will, to a life estate to her with an estate in remainder, created by implication, to their son Arthur E. Blumer, the plaintiff-respondent herein. Threlkeld v. Threlkeld, 238 Mo. 459, 141 S.W. 1121; Lemp v. Lemp, 264 Mo. 533, 175 S.W. 618; St. Louis Union Trust Co. v. Little, 320 Mo. 1058, 10 S.W.2d 47; Snow v. Ferril, 320 Mo. 543, 8 S.W.2d 1008; Warner v. Bates, 98 Mass. 274; Knox v. Knox, 59 Wis. 172, 18 N.W. 155; Lewis v. Pittman, 101 Mo. 281, 14 S.W. 52; Trigg v. Trigg, 192 S.W. 1011; Cook v. Higgins, 290 Mo. 402, 235 S.W. 807; Burnet v. Burnet, 244 Mo. 491, 148 S.W. 872; Smith v. Bell, 6 Pet. 68, 8 L.Ed. 322; In re McClelland's Estate, 257 S.W. 808. The bequest to plaintiff being by express devise, rebuts any statutory presumption that the gift to the testator's widow was absolute. R. S. 1929, sec. 563; Doneghy v. Robinson, 210 S.W. 655. There was no power given to testator's wife, Louise Blumer, to dispose of any part of the corpus of the testator's estate, and even if there had been, such power could not enlarge her life estate into a fee. Chapman v. Chapman, 77 S.W.2d 90; Van Every v. McKay, 53 S.W.2d 875; Bramell v. Cole, 136 Mo. 201, 37 S.W. 924.

OPINION

Frank, J.

Action by Arthur E. Blumer to construe the will of his father, Esaias W. Blumer. The defendant are John F. Gillespie, executor of the last will and testament of Louise Blumer, Julia Siemeister and German General Protestant Orphans' Association. Defendant Louise Blumer was the wife of Esaias Blumer, and plaintiff is their son and only child. The German General Orphans' Association is the appellant.

The pertinent parts of the will of Esaias Blumer read as follows:

"1st. I will and direct that all my lawful debts and all my funeral and testamentary expenses be first paid.

"2nd. The rest and residue of my estate, real, personal and mixed, legal and equitable, wheresoever situated and whatsoever it may consist of, now or at the time of my death belonging, owing or coming to be I give, devise and bequeath to my wife, Louise Blumer. I have unquestioned faith that she will protect, educate and take care of our son, Arthur E., as I should have done had I lived. It is my wish that after my death she make a will bequeathing such of her real and personal estate, as she may inherit from me, to our son, Arthur E., upon her death. My idea and wish being that our son Arthur shall inherit what may remain of my estate after my wife's death."

Louise Blumer died testate after the death of her husband, Esaias Blumer. Her will provides as follows:

"Second: I give and bequeath to my son, Arthur E. Blumer, the sum of five dollars ($ 5.00).

"Third: I give and bequeath to Julie Siemeister, of 4146 Grove street, St. Louis, the sum of two thousand dollars ($ 2,000.00).

"Fourth: All of the rest, residue, and remainder of my property, real, personal, and mixed, I give, devise and bequeath to the German General Protestant Orphans Home, now located at 4447 Natural Bridge Avenue, in the City of St. Louis, Missouri."

The gist of this controversy may be thus stated. Defendant, John F. Gillespie, executor of the will of Louise Blumer, deceased, has in his possession the sum of $ 32,041.06 which he is holding as the assets of the estate of Louise Blumer. This property was acquired by the said Louise Blumer from the estate of her husband, Esaias Blumer, by the terms of his will above set out. Plaintiff contends that by the terms of his father's will, his mother, Louise Blumer, took a life estate only in said property with remainder absolutely to him, and for that reason his mother could not dispose of it by will. On the other hand, appellant contends that the will of Esaias Blumer bequeathed the absolute title to said property to his widow, Louise Blumer, and since she disposed of such property by will, plaintiff has no interest therein except the sum of five dollars bequeathed to him by her will. The court below construed the will in controversy as giving to Louise Blumer a life estate only in the property with remainder absolutely to plaintiff, and ordered, adjudged and decreed that defendant, John F. Gillespie, executor of the will of said Louise Blumer, account to plaintiff for the amount of said property in the sum of $ 32,041.06, with interest thereon from September 18, 1931, to date, in the sum of $ 2,744.85, making a total of $ 34,785.91.

It appears by the will of Louise Blumer above set out, that she gave her son, the plaintiff, $ 5, Julia Siemeister $ 2000, and the remainder of the estate, she gave to German General Protestant Association. If by the terms of her husband's will, Louise Blumer took an absolute title to the property in question, she had a lawful right to dispose of it by will as she did do. On the other hand, if her husband's will gave her a life estate only in such property, with remainder to plaintiff absolutely, she could not dispose of it by will, and at her death it belonged to plaintiff.

It is hardly necessary to mention, and absolutely unnecessary to cite authorities to the effect that in construing a will the single aim and object is to arrive at the intent of the testator. In the search for that intention, the will should be viewed from its four corners, and all of its terms and provisions should be given a fair and reasonable interpretation. The first and last inquiry should be -- what was the intention of the testator?

In construing the will in question, two rules of construction must be observed, (1) where a devise gives an absolute title, that title cannot be cut down by any subsequent provisions of the will unless the later provisions of the will are as clear and definite as the language of the clause which gives the absolute title, and (2) an absolute title cannot be cut down by a subsequent clause of the will which expresses a mere wish or desire as to the use and final disposition of the property, but leaves such use and final disposition to the full discretion of the devisee.

With these rules in mind, we approach the construction of the will in controversy.

The first paragraph of the will directs that deceased's lawful debts and funeral expenses be paid. The second paragraph provides:

"That the rest and residue of my estate, real, personal and mixed legal and equitable, wheresoever situated and whatsoever it may consist of, now or at the time of my death belonging, owing or coming to b...