Brinkmeyer v. Helm

• Decision Date: 23 December 1936
• Docket Number: No. 33081.,33081.
• Citation: 100 S.W.2d 452
• Parties: BRINKMEYER et al. v. HELM.
• Court: Missouri Supreme Court

100 S.W.2d 452

BRINKMEYER et al. v. HELM.

No. 33081.

Supreme Court of Missouri, Division No. 2.

December 23, 1936.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

Suit by Edward Brinkmeyer and others against Emilie Helm. From a judgment for defendant, plaintiffs appeal.

Judgment affirmed and case remanded, with directions.

Jesse H. Schaper and Randolph H. Schaper, both of Washington, Mo., for appellants.

James Booth of Pacific, and Herbert A. Krog, of Washington, Mo., for respondent.

WESTHUES, Commissioner.

Appellants, who were plaintiffs below, filed this suit which was in two counts. In the first they sought the construction of the last will and testament of August Brinkmeyer, deceased. In the second count they asked the court to enter judgment against respondent for amounts as represented by certain bequests to plaintiffs as legatees under the aforementioned will. The trial court found in favor of the defendant on both counts, and plaintiffs appealed.

Respondent, defendant below, was a legatee under the will. She was also administratrix of the estate. The plaintiffs were Edward Brinkmeyer, Johanna Meyer, Alwine Gorman, Henry Freese, Tena Brinkmeyer, Oscar Freese, Walter Freese, Harry Freese, Edward Freese, Hazel Freese, Louisa Freese, and Minnie Faeber, all legatees under the will. The will in question read as follows:

"I, August Brinkmeyer, of the City of Washington, Franklin County, Missouri, being of sound and disposing mind and memory, do hereby make and publish this as my last will and testament.

"After the payment of all my just debts and funeral expenses, my beloved wife, Wilhelmine Brinkmeyer, shall be the owner, master and director of all my estate, of whatever kind and description the same may be, to collect and use therefrom for herself, whatever she may need for her support during her natural life.

"After the death of my beloved wife, Wilhelmine Brinkmeyer, I give and bequeath and devise to my daughter, Emilie, now wife of Chas. H. Helm, my real estate, being Lots 11 to 20, inclusive, Block 21, Bassora, in the City of Washington, Franklin County, Missouri, for which I have this day executed a warranty deed to her, effective after the death of myself and wife.

"I give and bequeath to my son, Edward Brinkmeyer, the sum of eight hundred ($800) dollars.

"I give and bequeath to my step-daughter, Johanne, now wife of Fred Meyer, the sum of six hundred (600) dollars.

"I give and bequeath to my step-daughter, Alwine, now wife of Mike Gorman, the sum of three hundred (300) dollars.

"I give and bequeath to my stepson, Henry Freese, the sum of three hundred (300) dollars.

"I give and bequeath to my granddaughter, Tena Brinkmeyer, daughter of my son, Fred Brinkmeyer, deceased, the sum of five (5) dollars.

"I give and bequeath to the seven children of my stepson, Herman Freese, deceased, viz: Oscar Freese, Walter Freese, Harry Freese, Edward Freese, Hazel Freese, Louisa Freese, and Minnie Freese, the sum of One Hundred (100) dollars, to be divided among them in equal shares, share and share alike.

"I hereby set aside the sum of One Hundred (100) dollars to be placed in the hands of my daughter Emilie, now wife of Chas. H. Helm, as a fund to keep my and my wife's graves in good order.

"All the rest, residue and remainder of my estate, of whatever kind and description the same may be, I give and bequeath the same to my daughter, Emilie, now wife of Chas. H. Helm, out of which she shall expend the sum of not less then Three Hundred (300) nor more than Six Hundred Dollars for a monument to be set on our lot in cemetery.

"I appoint my son, Edward Brinkmeyer, as sole executor of this my last will and testament, hereby revoking all former wills be me made.

"In Witness Whereof, I have hereunto set my hand this 21st day of February, 1917.

                          "[Signed] Aug. Brinkmeyer
                "Witnessed
                   "John H. Menzenwerth
                   "Henry H. Thias."
                

It was shown by the evidence that at the date of the execution of the will the testator owned the lots mentioned and bequeathed to the defendant, and also possessed ample cash and personal property to pay all the bequests made. It was further shown by the evidence that at the time of the testator's death he still owned the lots, but the personal property had vanished to such an extent that only about $700 remained.

It was plaintiff's contention that the real estate mentioned in the bequest was charged with the burden of the other bequests mentioned in the will. Plaintiffs alleged in their petition that the devise made to the defendant in the fourth paragraph of the will was void because the property was described as lots 11 and 12, block 21. In their brief, they assert that the will read: Lots 11 and 20 in block 21. This claim is without merit, as plaintiffs are mistaken as to the description of the property. The will reads: "Lots 11 to 20 inclusive, Block 21." It needs no citation of authority that the description lots 11 to 20, inclusive, means and includes, not as appellants assert, lots 11 and 20, but lots 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20. We dismiss this contention without further consideration.

In the trial court's judgment we find the following: "That at the time of the death of the said August Brinkmeyer, he owned and had on hand cash money more than sufficient to pay all of said bequests and that said real estate is not and never has been charged with the payment of said bequests; that it is manifest from the entire will of said testator that it was the design and intent of said testator that said legacies should not be a charge or lien on said real estate, but that defendant took said real estate discharged and free from the payment of any lien created thereon by said will and that said devise to defendant was a specific and not a general devise. And the court finds all the issues made by the pleadings of the first count of plaintiff's petition for defendant."

The conclusion of the trial court was correct. The fact that the testator executed a deed conveying the property to the defendant, on the same date the will was executed, disclosed desire that defendant should have the property free from the other bequests made in the will. It will be noted that the deed was mentioned in the will. We need not pass upon the question of whether the deed was delivered so as to pass title, because the defendant, irrespective of the deed, was entitled to the property under the terms of the will, free from any claim of the other legatees.

The real contest at the trial was over the issues presented by the second count of the petition. In this count the plaintiffs charged that, in consideration of their agreement to forego the right to question the validity of the will, and in consideration of the plaintiff, Edward Brinkmeyer, relinquishing his executorship under the will, the defendant agreed to pay all the legacies as made by the testator. Appellants, in their brief, assert that legatees and devisees may legally enter into a contract to compromise conflicting interests; also that such agreements are supported by a valid consideration when they are entered into to avoid a contest of the will, to preserve harmony, or to definitely settle their various interests. Many cases were cited in support of the above contentions. In this, appellants are correct. See 69 C.J. 1274, § 2673. There must, however, be a contract, and, unless fully executed, it must be supported by a sufficient consideration. 69 C.J. 1277, § 2677. Plaintiffs assert that such an agreement was entered into in this case. There was no written agreement. Plaintiffs had the burden of proof to establish their contention. In this they failed. A short résumé of the evidence upon this point will be sufficient. There was no substantial evidence introduced to show that any of the legatees had any idea of contesting the will. Plaintiffs' evidence, when considered from all angles, shows that no such idea was...