Bramell v. Cole

• Decision Date: 01 December 1896
• Citation: 37 S.W. 924,136 Mo. 201
• Parties: Bramell et al. v. Cole et al., Appellants
• Court: Missouri Supreme Court

37 S.W. 924

136 Mo. 201

Bramell et al. v. Cole et al., Appellants

Supreme Court of Missouri, First Division

December 1, 1896

Appeal from Henry Circuit Court. -- Hon. James H. Lay, Judge.

Affirmed.

Edmond A. Nickerson and O. L. Houts for appellant Cole.

(1) The will of Calvin Atkins gave Margaret A. Atkins a life estate in the property he died possessed of with absolute power of disposal and any disposition she made of the property in her lifetime was a legal exercise of the power given her and vested a legal title in anyone to whom she gave it. Harris v. Knapp, 21 Pick. 416; Davis v Bobbs, 20 Ohio St. 550; Turner v. Timberlake, 53 Mo. 371; McKenzie's Appeal, 19 Am. Rep. 525; Reinders v. Koppelmann, 68 Mo. 482; Scholl's Appeal, 2 A. 538; Hazel v. Hagan, 47 Mo. 277; Harbison v. James, 90 Mo. 411; Lewis v Pitman, 101 Mo. 281; Silvers v. Canary, 9 N.E 904; Flanagan v. Flanagan, 8 Abb. (N. C.) 413; Clark v. Middleworth, 82 Ind. 240. (2) When a life estate is expressly given and with an implied power of disposition the disposal of the property by the tenant for life is a legal exercise of the power. Authorities supra. (3) The phrase "to go to her to have full control of the same as long as she lives and that after her death what is left" are words of enlargement and confer an implied power of disposal in the tenant for life if exercised in her lifetime. Clark v. Middleworth, 82 Ind. 240; Roberts v. Lewis, 153 U.S. 7; Davis v. Bobbs, 20 Ohio St. 550; Harris v. Knapp, 21 Pick. 416; McKenzie's Appeal, 19 Am. Rep. 525. (4) The first clause in the will, "I will that my just debts be paid," "and the remainder that is left to go to my beloved wife, Margaret A. Atkins, during her natural lifetime, she to have the entire control of the same," and the second clause, in giving the personal property alone, "to go to her for her to have full control of the same as long as she lives, and then after her death what is left to go to A. W. Cole, etc." shows that the testator intended to give his widow absolute power of disposition over his estate. Davis v. Bobbs, 20 Ohio St. 550; McKenzie's Appeal, 19 Am. Rep. 525; Reinders v. Koppelmann, 68 Mo. 482; Harris v. Knapp, 1 Pick. 416; Turner v. Timberlake, 53 Mo. 371; Scholl's Appeal, 2 A. 538; Hazel v. Hagan, 47 Mo. 277. (5) The increase and accumulations of an estate are distinguishable from its corpus. The interest, accumulations, and increase produced from the funds of this estate over and above the amount that came into the hands of Margaret A. Atkins on final settlement became her own absolute property, and at her death, vested in her legal representatives and not in the distributees under the will. Braswell v. Morehead, 57 Am. Dec. 586; Lewis v. Davis, 3 Mo. 133; Harris v. Knapp, 21 Pick. 416; Munro v. Collins, 95 Mo. 33; Scholl's Appeal, 2 A. 538; Hambright's Appeal, 2 Grant Cases, 320; Faden v. Faden, 1 Head, 444; Lutphen v. Ellis, 35 Mich. 446; Scoree v. Korsiett, 5 Redf. 121. (6) It is, however, unnecessary for this court to construe this will. It was construed by the probate court of Moniteau county, Missouri, and the rights of the parties to this suit determined by the final judgment of that court. R. S. 1889, secs. 239, 246, 228, and 285; Freeland v. Wilson, 18 Mo. 380; Dyer v. Carr's Executor, 18 Mo. 246; State to use v. Anthony, 30 Mo.App. 638; In re Estate of Elliott, 98 Mo. 379.

A. B. Logan and James Parks & Son for respondents.

(1) In construing wills, the pole-star of construction or exposition of a will, the meaning, the intention of the testator is never to be lost sight of. Munro v. Collins, 95 Mo. 33; Small v. Field, 102 Mo. 104; Long v. Timms, 107 Mo. 512; Murphy v. Carlin, 113 Mo. 112. (2) The intention of the testator must be gathered from the will itself, not from particular words, phrases, or clauses, but from the whole instrument and every part thereof, taken as a whole. Nichols v. Boswell, 103 Mo. 151; Jarman's Rules of Construction, 7; Schouler on Wills, sec. 492, and note, page 524. (3) Where there is nothing equivocal or uncertain in the language of the will, proof of the circumstances surrounding the testator remains unimportant, and hence inadmissible. Nichols v. Boswell, 103 Mo. 151; Schouler on Wills [2 Ed.], sec. 580. (4) An absolute power of disposition over property, conferred by will and not controlled by any provision or limitation, amounts to an absolute gift of the property; but where a life estate only is expressly given, the rule is otherwise. Rubey v. Barnett, 12 Mo. 1; Gregory v. Cowgill, 19 Mo. 415; Wommack v. Wommack, 58 Mo. 456; Lewis v. Pittman, 101 Mo. 281. (5) And where a life estate is expressly given by a will, the same will not be converted into a fee by mere words of implication, unless the manifest general intent of the testator requires it. Gregory v. Cowgill, 19 Mo. 415; Lewis v. Pittman, 101 Mo. 281. (6) And where an express life estate is created by the will, an added power of disposition does not convert it into a fee. Lewis v. Pittman, 101 Mo. 281; Munro v. Collins, 95 Mo. 33. (7) Where a power of disposal accompanies a bequest or devise of a life estate, the power is limited to such disposition as a tenant for life can make, unless there are words clearly indicating that a larger power is intended. Riggins v. McClellan, 28 Mo. 23; Foote v. Saunders, 72 Mo. 616; Gaven v. Allen, 100 Mo. 293; Brant v. Coal Co., 93 U.S. 326; Giles v. Little, 104 U.S. 291; Smith v. Bell, 6 Peters, 74; Jones v. Jones, 28 N.W. 177; Miller v. Potterfield, 86 Va. 876; Kaufman v. Breckenridge, 117 Iowa 305; Schouler on Wills [2 Ed.], sec. 559. (8) The use in the will of such phrases as "what is left," etc., do not raise or imply the power of disposition. Gregory v. Cowgill, 19 Mo. 415; Riggins v. McClellan, 28 Mo. 23; Reinders v. Kopplemann, 68 Mo. 482; Foote v. Saunders, 72 Mo. 616; Munro v. Collins, 95 Mo. 33; Lewis v. Pittmann, 101 Mo. 281; Schorr v. Carter, 120 Mo. 409; Smith v. Bell, 6 Peters, 74; Brant v. Coal Co., 93 U.S. 326. (9) As to testate estates, a probate court has no inherent jurisdiction to decide who are entitled as legatees under the will. Schouler's Executors and Administrators [1 Ed.], top page 619, sec. 527; Church v. Robberson, 73 Mo. 326.

Macfarlane, J. Brace, C. J., Barclay and Robinson, JJ., concur.

OPINION

Macfarlane, J.

Calvin Atkins resided in Moniteau county, and died there in March, 1884, leaving a will as follows:

"First.

"I will that all my just debts be paid at as early a day as practicable, and the remainder that is left, to go to my beloved wife, Margaret A. Atkins, during her natural lifetime; she to have the entire control of the same, it consisting of the following real estate: The west half of the northeast quarter of section No. 23 (twenty-three), in township 44 (forty-four), north of range 2 (two), west, containing eighty acres, more or less; it being the same that we now reside upon, and all other lands that I may have any claim to and upon, in any wise, and also all moneys, cash, notes, or bonds, and evidence of debts of every description whatsoever, and also all my personal property and effects of all description and effects of all kinds, to go to her, for her to have full control of the same as long as she lives and that after her death, what is left to go to A. W. Cole and Louisa Bramell and her children, legal heirs of her body, share and share alike, that is to say, the said A. W. Cole and Louisa Bramell, wife of Washington Bramell, is to share equal to any one of the children of the said Washington and Louisa Bramell and no more; and I further revoke all former wills of every description whatsoever and publish this as my last will and testament. And my will is that my beloved wife, Margaret A. Atkins, shall act as my executor of my entire estate both real and personal of every description whatsoever.

"Signed, dated, and delivered this August 21st day, A. D. 1866."

In the month of March, 1884, in the probate court of Moniteau county, Missouri, the will was probated, and Margaret A. Atkins, the widow of deceased, was appointed and qualified as executrix, and took charge of the estate of her deceased husband, Calvin Atkins. On April 8, 1884, she filed an inventory of the estate, showing the aggregate assets thereof to be $ 54,780.52, consisting exclusively of promissory notes. After making an annual settlement, on the fifteenth day of April, 1886, she gave notice of final settlement according to law and in pursuance therewith, on the tenth day of May, 1886, she made proof of publication and presented her settlement to the said probate court, showing a balance due the estate of $ 39,210.59. On the same day, the court approved the settlement and made this order:

"Estate of Calvin Atkins, deceased. -- Now at this day it is ordered by the court, that Margaret A. Atkins, executrix of said estate and widow of said deceased, and sole legatee in the will of said Calvin Atkins, retain as her interest under said will all the money, notes, accounts, and choses in action, remaining in her hands on final settlement of said estate."

In pursuance of this order Mrs. Atkins took possession of the balance of the estate and used it until her death. With a portion of it, and of the interest and accumulations thereon during the years 1887 and 1889, she purchased the lands in question. Mrs. Atkins died February 8, 1892, leaving as her sole heirs at law defendant Alstorfus W. Cole, and plaintiff Louisa Bramell. These heirs I understand were children by a former husband.

During her life Mrs. Atkins conveyed to certain children of Louisa Bramell, respectively, portions of said real estate and retained the title and possession of the remainder consisting of several hundred acres, until her death. These...