Bond v. Riley

• Decision Date: 25 June 1927
• Docket Number: 25578
• Citation: 296 S.W. 401,317 Mo. 594
• Parties: William H. Bond, Appellant v. Josephine Riley et. al
• Court: Missouri Supreme Court

296 S.W. 401

317 Mo. 594

William H. Bond, Appellant v. Josephine Riley et. al

No. 25578

Supreme Court of Missouri

June 25, 1927

Appeal from Ozark Circuit Court; Hon. Fred Stewart, Judge.

Affirmed.

S. W James, Mark A. McGruder, M. E. Morrow and William D. Roberts for appellant.

(1) A testator's meaning is to be found in his will alone. From the will itself we must learn the testator's intent. But if the language employed is of doubtful meaning or susceptible of either of two constructions evidence as to the condition of the testator's feeling toward the persons affected by the will is competent as it tends to put the court in possession of the facts as the testator viewed them and helps to explain the doubtful passages. Hurst v. Von De Veld, 158 Mo. 239; Murphy v. Carlin, 113 Mo 112; Snyder v. Toler, 179 Mo.App. 381. (2) The court will not make a will for testator. Its duty is to ascertain his intention as gathered from all its words and its four corners, and to give effect to that intention; and in getting at his intention, the court as nearly as may be puts itself in his environment, stands in his shoes and looks with his perspective through his eyes. Stewart v. Jones, 219 Mo. 615; Sanitarium v. McCune, 112 Mo.App. 338; Trustees v. May, 201 Mo. 369. (3) The doctrines that in the construction of a will the court must ascertain the testator's intention from the whole will itself, is so firmly established by the courts of this State, as to become almost an elementary principle of law. Dameron v Layton, 234 Mo. 627; Armour v. Frey, 226 Mo. 646; Lich v. Lich, 153 Mo.App. 401; Matthews v. Van Cleave, 282 Mo. 19; Trustees v. May, 201 Mo. 369; Grace v. Perry, 197 Mo. 559; Brooks v. Brooks, 187 Mo. 476; Metz v. Wright, 116 Mo.App. 631. (4) Explanatory evidence should be restricted to the portrayal of the environment of the testator and his feeling towards the persons affected, and should not include declarations he may have made concerning his interpretation of words employed in the will at his direction. Such declarations would be to violate the rule that "a testator's meaning is to be found in his will alone." A formal will would be of little practical value if it could be contradicted, varied or explained by such proof of such declarations of the testator. Snyder v. Toler, 179 Mo.App. 381; Webb v. Hayden, 166 Mo. 46. Alleged declarations of a testator made after the execution of the will are incompetent in a suit to construe the will.

Seddon, C. Lindsay and Ellison, CC., concur.

OPINION

SEDDON

Suit in equity, brought in the Circuit Court of Howell County by plaintiff, William H. Bond, who is a grandson of Newton Bond, deceased, asking a construction of the will of Newton Bond, which was duly probated in the Probate Court of Howell County on July 3, 1922. The suit was transferred to the Circuit Court of Ozark County upon change of venue. Omitting the formal parts of the will, the several paragraphs or clauses thereof are as follows:

"First. All my just debts, including funeral expenses shall be paid.

"Second. I having heretofore advanced to my daughter, Josephine Riley, her share of my estate, she shall take nothing more under this will.

"Third. I having heretofore advanced to my son, Carroll J. Bond, his share of my estate, he shall take nothing more under this will.

"Fourth. I having heretofore advanced to my son, John C. Bond, his share of my estate, his heirs shall take nothing more under this will.

"Fifth. (1) I give and bequeath to my son, William Bond, lot two in block twenty-seven in the original City of West Plains, Howell County and State of Missouri, subject to the payment of any mortgage or incumbrance that may be on said property at my death.

"Fifth. (2) I give and bequeath to my grandson, William N. Bond, an undivided half interest in the west one hundred and ten feet (110) of lot one in block twenty-seven in the original town, now City of West Plains, in Howell County and State of Missouri, subject to the payment of any mortgage or incumbrance that may be on said property at my death.

"Sixth. I give and bequeath to my daughters, Ellen Haynes and Annie Arnett, the one undivided half interest in the west one hundred and ten feet of lot one in block twenty-seven in the original town, now City of West Plains, in Howell County and State of Missouri, subject to the payment of any mortgage or incumbrance that may be on said property at my death.

"Seventh. It is my request that my executor hereinafter named take charge of the buildings on Lots One and Two, in Block Twenty-seven, and rent said buildings to the best advantage for such time as the rents and profits will pay off any incumbrance on said lots, when all incumbrances by me placed on said lots are fully paid, my said executor shall deliver said property to the parties herein named as my devisees, said executor to keep up the improvements and pay the taxes out of the rents from said property while same is in his possession.

"Eighth. Whatever remains of my estate (other than property hereinbefore named), after paying my just debts and funeral expenses, I give and bequeath to my son, William Bond, and his mother, Perlina Bond, in equal shares.

"Ninth. I hereby appoint W. W. Toler of West Plains, Missouri, Executor of this my last will and testament."

Plaintiff is a son of John C. Bond, who is named in paragraph "Fourth" of the will. John C. Bond was a son of the testator by a first marriage and predeceased his father, Newton Bond, the testator, prior to the making of the will, leaving a widow and five children, including plaintiff, surviving. All of said five children of John C. Bond survived the testator, Newton Bond, their grandfather. The testator had another son by his first marriage named William N. Bond, who also predeceased the testator, prior to the making of said will. William N. Bond was survived by a son, Boyd C. Bond, who, of course, is a grandson of testator. The record herein shows that the testator had only one grandson bearing the Christian name "William," such grandson being the plaintiff herein, William H. Bond. Paragraph "Fifth (2)" of the will describes the beneficiary of the devise made in said paragraph as, "my grandson, William N. Bond," The testator had no grandson bearing the Christain name "William" and the middle initial "N." The grandson, Boyd C. Bond, son of William N. Bond, is not named or provided for in the will of Newton Bond as written and probated, nor is his father, William N. Bond, son of the testator, named or mentioned therein as being the testator's son. The testator also left surviving him a minor son by a second marriage, named William Bond, who is named and provided for in paragraphs "Fifth (1)" and "Eighth" of the will.

Pursuant to the directions of the will, the probate court appointed W. W. Toler as executor of the estate of Newton Bond, but he subsequently resigned his office and an administrator of the estate with the will annexed was appointed in his stead by the probate court. The defendants herein are, respectively, the several beneficiaries named in the will of Newton Bond, the administrator of his estate and the heirs at law of Newton Bond, the testator. The petition alleges that there are conflicting claims to the estate of said Newton Bond under the provisions of the will, and that the administrator of testator's estate and the parties to the suit are in doubt as to the meaning and terms of the will; wherefore, the court is asked to enter a decree construing said will and determining the rights and duties of the parties thereunder.

The testimony discloses that the two sons of testator, namely, John C. Bond, father of plaintiff, and William N. Bond, father of Boyd C. Bond, died several years before the testator made his will. The testator's place of residence, for many years prior to his death, was the city of West Plains. Plaintiff left West Plains, the place of residence of his grandfather, the testator, when he was a young child about eleven years of age, and about fourteen years prior to the making of the will. The record shows that plaintiff, after leaving West Plains, had never returned to see or visit his grandfather, and had never at any time in his life made his home with the testator. There was some testimony, apparently offered by plaintiff for the purpose of showing testator's especial interest in, and affection for, plaintiff, to the effect that, while plaintiff was a very young lad, his grandfather had made to plaintiff some presents of small pecuniary value, consisting of toys, knives, shoes, etc., but that the grandfather had bestowed no similar gifts upon plaintiff's two brothers and two sisters. Plaintiff, in explaining the good feeling and affectionate relation which existed during plaintiff's early boyhood between him and the testator, testified: "He would always take me to town with him and buy me presents and things, and he always liked for me to be with him. I remember one time when he got me some little red boots, and he would get me knives and tops and things. Then he used to send me things when we went away from there (West Plains), even after we went to Texas, and I used to send him things sometimes."

R. S. Hogan, the scrivener who wrote the will and one of the attesting witnesses to its execution, was permitted to testify, over the objections of plaintiff, as follows: "Q. Did you know Newton Bond? A. Yes, sir. Q. Did you write the will in question here? A. Yes, sir. Q. At whose request did you write it? A. At his request. Q. Where was it written? A. At his house. Q. Did you take down the terms of the will? A. Yes, sir; he sent for me and I went over and made a pencil draft; I took down some notes and then had the will typewritten. Q. I will ask you...