Broaddus v. Park College
| Decision Date | 06 March 1944 |
| Citation | 180 S.W.2d 268,238 Mo.App. 304 |
| Parties | Norris Broaddus and Roy O. Larson, Executors of the Estate of Fred T. Platt, Deceased, Respondent, v. Park College, Parkville, Missouri, Appellant, Hessie Montgomery and Eva Quait, Respondents |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.
Reversed and remanded.
Frank E. Tyler, Lucian Lane and Gossett, Ellis, Dietrich & Tyler for appellant.
(1) Paragraph second is clear, specific and unambiguous. The bequest of $ 5000 made therein to testator's wife was to go to respondents, only in the event that testator's wife died before his death. Since Mrs. Platt survived her husband and is still living, the condition upon which Montgomery and Quait were to be entitled to benefit under the will, did not and cannot occur. R. S. Mo. 1939, sec. 568; Kingston v St. Louis Union Trust Co., 348 Mo. 448, 154 S.W.2d 39; Legge v. Wagner, 155 S.W.2d 146; Coleman v Haworth, 320 Mo. 852, 8 S.W.2d 931; Stevenson v Stearns, 325 Mo. 646, 29 S.W.2d 116; Northcutt v. McAllister, 297 Mo. 475, 249 S.W. 400; 3 Page, The Law of Wills, sec. 1291; Kansas City v. J. I. Case Threshing Machine Co., 337 Mo. 913, 87 S.W.2d 195. (2) The whole will was carefully and skillfully drawn and contains a logical plan for complete distribution. Considered in its entirety, there is no ambiguity in the will. Graves v. Graves, 349 Mo. 722, 163 S.W.2d 544; Lewis v. Lewis, 345 Mo. 816, 136 S.W.2d 66; Allison v. Chaney, 63 Mo. 279; Wiggins v. Perry, 271 S.W. 815; Lunsmann v. Miss. Valley Trust Co., 339 Mo. 669, 98 S.W.2d 748. (3) Paragraph fifteenth did not create any gifts or bequests. It disposed of nothing. Its only purpose was to give instructions to the executors to accelerate the remainders created in paragraph eleventh. St. Louis Union Trust Co. v. Kern, 346 Mo. 643, 142 S.W.2d 493; 3 Page, The Law of Wills, sec. 1390; 2 Am. Law Institute, Restatement of the Law of Property, p. 962; 31 C. J. S. 95; Ward v. Ward, 153 Kan. 222, 109 P.2d 68. (4) The time referred to in the last sentence of paragraph fifteenth by the words, "if my said wife were not living," is the time of her renunciation of the will which was ten months after the will was probated and not the date of testator's death. The words therefore cannot be construed to mean "as if my said wife had predeceased me" or as meaning a constructive death of the wife prior to testator's death. 69 C. J. 1255; Bozarth v. Bozarth's Executor, 24 Mo. 320; Shelton v. Shelton, 348 Mo. 820, 155 S.W.2d 187; Snow v. Ferril, 320 Mo. 543, 8 S.W.2d 1008; English v. Ragsdale, 347 Mo. 431, 147 S.W.2d 653. (5) Respondents, Montgomery and Quait, are the nieces of testator's wife. They were only to get a part of the share the testator left to his wife in the event that his wife did not live to take her share. They were not intended to get part of the balance of the estate after his wife should take her share whether she took under the will or under the law. 69 C. J. 657; 3 Page, The Law of Wills, sec. 1281; St. Louis Union Trust Co. v. Bassett, 337 Mo. 604, 85 S.W.2d 569; Parrott Estate Company v. McLaughlin, 12 F.Supp. 23. (6) By paragraph fifteenth all provisions made for testator's wife, upon her renunciation of the will, were to be null and void. Since she did reject the will the $ 5000 bequest to her under paragraph second thus became null and void and there was, therefore, nothing for respondents, Montgomery and Quait, to take. There can be no valid contingent gift over to a second taker of a bequest that is null and void. 3 Page, The Law of Wills, sec. 1383; Spaulding v. Lackey, 340 Ill. 572, 173 N.E. 110; Colvin v. Hutchison, 338 Mo. 576, 92 S.W.2d 667; R. S. Mo. 1939, sec. 333; Sandusky v. Sandusky, 261 Mo. 351. (7) The definite, certain and specific provisions of paragraph second cannot be enlarged or modified by general language in paragraph fifteenth. No ambiguity is created by paragraph fifteenth. Wiggins v. Perry, 271 S.W.2d 815; Sevier v. Woodson, 205 Mo. 203; Bramwell v. Cole, 136 Mo. 201; Malone v. Moberly, 55 S.W.2d 1008; Cornet v. Cornet, 248 Mo. 184; Gannon v. Albright, 183 Mo. 238; Settle v. Shafer, 229 Mo. 561; McCune v. Woodwillie, 204 Mo. 306.
Lathrop, Crane, Reynolds, Sawyer & Mersereau, Cyrus Crane and Dean Wood for respondents, Hessie Montgomery and Eva Quait.
(1) Paragraph 15 of the will is controlling since testator's wife has renounced the will, and when read in connection with paragraph 2 of the will, provides for the distribution of the $ 5000 bequest to these respondents. English v. Ragsdale, 347 Mo. 431, 435, 147 S.W.2d 653, 655; Malone v. Moberly (Mo. App.), 55 S.W.2d 1008, 1009. (2) Paragraph 15 of the will provides that in the event of its renunciation by the testator's wife, the executors shall distribute the $ 5000 bequest in paragraph 2 to these respondents, in the same manner, proportions and extent as the executors would do if testator's wife were not living at the time of his own death. Malone v. Moberly (Mo. App.), 55 S.W.2d 1008, 1009. These respondents, Hessie Montgomery and Eva Quait, are beneficiaries named in paragraph 2 of the will, and expressly protected by paragraph 15 along with all other beneficiaries named in the will, except testator's wife, from the effects of her renunciation of the will. St. Louis Union Trust Co. v. Bassett, 337 Mo. 604, 615-6, 620, 85 S.W.2d 569, 574-5; Stevenson v. Stearns, 325 Mo. 646, 653-4, 29 S.W.2d 116, 118; In re Packer Estate (Pa.), 139 A. 868, 869; St. Louis Union Trust Co. v. Kern, 346 Mo. 643, 652, 142 S.W.2d 493, 497-8. The testator as a layman was naturally referring to the time of his own death in providing for the distribution of the remaining portion of the estate in the event of renunciation of the will by his wife, the same as his executors would distribute it "if my said wife were not living." Palmer v. French, 326 Mo. 710, 721, 32 S.W.2d 591, 595; O'Rear v. Bogie (Ky.), 163 S.W. 1107, 1109; Cheshire v. Drewry (N. C.), 197 S.E. 1, 7; Coleman v. Haworth (Mo.), 8 S.W.2d 931, 933. (3) The entire will is in harmony with the provision in paragraph 15 that in the event of renunciation, these respondents should receive their $ 5000 bequest from the executors, in the same manner, proportions and extent as they would do, if the testator's wife were not living at the time of his death. Snow v. Ferril, 320 Mo. 543, 557-8, 8 S.W.2d 1008, 1012; Malone v. Moberly (Mo. App.), 55 S.W.2d 1008, 1009. Appellant's contention that paragraph 2 must be treated as entirely obliterated from the will because of the renunciation of the will by testator's wife, would thereby leave the household and personal articles disposed of by paragraph 2, as well as the $ 5,000 bequest therein, wholly unprovided for in the will, and is contrary to law. Kemp v. Hutchinson (Mo. App.), 110 S.W.2d 1126, 1128; Plummer v. Brown, 315 Mo. 627, 665, 287 S.W. 316, 330.
This is a suit brought by Norris Broaddus and Roy O. Larson, Executors of the Estate of Fred T. Platt, deceased, to have the court construe certain provisions of Mr. Platt's will. The suit was instituted by the executors, as plaintiffs, against Hessie Montgomery and Eva Quait, and Park College, Parkville, Missouri, as defendants. The specific object of the suit was to have the court determine whether respondents Montgomery and Quait, or appellant Park College, was entitled to a $ 5000 bequest in said will. The trial court entered judgment declaring that this bequest belonged to Montgomery and Quait, and that Park College had no interest therein. From this judgment the college appealed. The executors are taking a neutral attitude and the real controversy is between the college and Montgomery and Quait.
There are no disputed facts, and the sole question is the construction of the Platt will concerning the disposition of the one item of $ 5000. Fred T. Platt executed his will on the 16th day of April, 1938, consisting of nine typewritten pages, and divided into twenty-two items. He died on June 30, 1939, and letters testamentary were granted July 17, 1939. He left surviving him his widow, Anna S. Platt, who was living at the time this cause was tried in the circuit court. There were no children. Within the time allowed by law, the widow renounced the will and elected to take under the Statutes of Descent and Distribution, which would give her a one-half interest in his entire estate, absolutely, subject to his debts, and in lieu of dower.
The principal provisions of the will which give rise to this controversy are found in Items 2 and 15. By the first sentence of Item 2, he gives and bequeaths to his wife certain personal property such as pictures, jewelry, precious stones, household goods, etc., which items are not here involved. Then he provides:
(Italics ours.)
Item 15 is:
"Fifteenth In case of the death of my wife, Anna...
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