Brooks v. Brooks

• Decision Date: 15 March 1905
• Citation: 86 S.W. 158,187 Mo. 476
• Parties: THOMAS B. BROOKS, Trustee, et al. v. PHILLIP O. BROOKS et al., Appellants
• Court: Missouri Supreme Court

86 S.W. 158

187 Mo. 476

THOMAS B. BROOKS, Trustee, et al. v. PHILLIP O. BROOKS et al., Appellants

Supreme Court of Missouri, First Division

March 15, 1905

Appeal from Howard Circuit Court. -- Hon. Jno. A. Hockaday, Judge.

Affirmed.

Sam. C. Major and W. M. Williams for appellants.

(1) No bill of exceptions is necessary to present for the consideration of this court the error relied upon by the appellants for a reversal of the decree rendered by the court below. Bagby v. Emerson, 79 Mo. 140; State ex rel. v. White, 61 Mo. 441; Land Co. v. Bretz, 125 Mo. 422; Ryan v. Growney, 125 Mo. 482; Brown v. Appleman, 83 Mo.App. 83. (2) The court erred in holding that Irene Scott, one of the appellants, was only entitled to an undivided one-eighth of the estate. The proper construction of the will and codicil entitles her to an undivided one-half of the estate, to be paid over by the executor upon the final settlement. (a) The first part of the codicil gives in clear and plain language to the sister Irene Scott, a portion of the estate equal to that given to the wife and children of Thos. B. Brooks. This can not be taken away by a doubtful and vague expression at the close of said codicil. If there be a doubt about the meaning of the phrase "That is to say, should the wife of my brother T. B. Brooks, take a child's part, then my sister, Irene Scott, to take a child's part," this doubtful expression can not lessen or destroy the legacy clearly given by the first part of said codicil. Nichols v Boswell, 103 Mo. 158; Roseboom v. Roseboom, 81 N.Y. 359. (b) The codicil can not mean that the sister, Irene Scott's share is to depend upon the wife of Thomas B. Brooks' taking a share of the estate equal to that of one of his children. Mrs. Brooks is only to take a share equal to that of one of the children of her husband in the event that she survives him and remarries. The codicil provides that the sister's legacy shall be paid to her upon the final settlement. It is not to await an event that can only occur in the future and which may never happen. A construction will not be adopted which might possibly defeat the legacy to the sister in toto. Crecelius v. Horst, 78 Mo. 566.

O. S. Barton and A. W. Walker for respondents.

(1) (a) The motion to dismiss the appeal should be sustained. This court acquires jurisdiction of an appeal only when the facts necessary to confer jurisdiction affirmatively appear from the record. After the case was tried in the circuit court upon agreed facts showing that the amount of the estate in dispute was over five thousand dollars and judgment was rendered against appellants' contention, they were entitled to take an appeal to the Supreme Court only. If an appeal had been granted to the Kansas City Court of Appeals upon a true record, that court would have had no jurisdiction and would have transferred the cause to this court. Rule 7 of this court requires the whole of the evidence to be embodied in the bill of exceptions in cases of equitable jurisdiction. If appellants had complied with this salutary rule they would have given this court jurisdiction to hear and determine their appeal. They have not done so. Certainly they can not confer jurisdiction on the Court of Appeals in a case properly appealable to this court by failing to comply with the rules of this court or to file their bill of exceptions. Kitchell v. Railroad, 146 Mo. 455; Scheurich v. Light Co., 81 S.W. 1226; Rule 7 of this court. (b) Furthermore, this being a case of equitable jurisdiction, this court will not review it upon the merits unless the whole of the evidence is brought up in compliance with Rule 7. State ex rel. v. Jarrott, 81 S.W. 879. (c) The motion to dismiss the appeal should be sustained for the further reason that the appellant, Phillip O. Brooks, has no interest in the suit except as executor. As such he is a mere distributer of the funds in his hands. It is immaterial to him how the funds are divided among the distributees. All he can ask is for a court of competent jurisdiction to direct him how to make the distribution. The decree of the circuit court does that and is sufficient to protect him. He has no right to appeal from it. He is not aggrieved. He has no right to maintain a suit or incur costs on behalf of certain distributees against other distributees simply over a question of distribution of funds among them. 2 Ency. Pl. and Pr., p. 164; Goldtree v. Thompson, 83 Cal. 420; Singmasters' Appeal, 86 Pa. St. 169; McColgan v. McLaughlin, 58 Md. 501. (2) The court adopted the only reasonable construction of the will and codicil. (a) The two sentences of the provision stand together and not in different items or clauses. The one is an interpretation of the other. The testator had no children. Clearly the words "Thos. B. Brooks' wife and her children" are used distributively and the testator intended by the codicil to give his half-sister, Irene Scott, an absolute share in his estate to be ascertained by dividing the estate by the number of his brother's children considering the wife, Mary Brooks, and the half-sister, Irene Scott, also as children. (b) This construction harmonizes and gives effect to both sentences of the provision, and does no violence to either. Clauses should be reconciled and the whole will given effect whenever possible. Carr v. Dings, 58 Mo. 400; Mersman v. Mersman, 136 Mo. 244. (c) The words, "That is to say," in the second sentence, are themselves words of interpretation used by the testator to explain the first sentence. They can not properly be rejected. They show that the second sentence contains the essence of the testator's intention. An interpretation given by a testator should be followed whenever possible. Small v. Field, 102 Mo. 129. (d) The construction contended for by appellants is unreasonable. Their construction when applied would make the second sentence of the codicil read: "That is to say, should the wife of my brother, T. B. Brooks, and her children together be treated as taking a child's part, then my sister, Irene Scott, shall take a child's part." This is strained and unnatural. Had the testator intended to give Irene Scott one-half of his estate, naturally he would have said, "I give and bequeath to my sister, Irene Scott, one-half of my estate after payment of just debts." Those simple and natural words would have expressed the whole idea if appellants' contention be correct. Besides it is unreasonable to suppose that after the testator had by his will of 1891 given his entire estate to the family of his only full brother, he would by a codicil divert one-half of it to a half-sister. Furthermore, the codicil shows no intention of disturbing the trust created by the will of 1891. Had he intended to divert one-half of the estate, he would probadly have modified the provisions creating the trust in doing it.

OPINION

MARSHALL, J.

This is a suit in equity to construe a will and a codicil thereto of James B. Brooks, who died in Howard county, Missouri, on the 13th of July, 1902. The plaintiffs are Thos. B. Brooks, the testamentary trustee under the will, and his wife, Mary Brooks, and their children, beneficiaries under the will. And the defendants are Phillip O. Brooks, executor of the will, and Irene Scott and her husband, said Irene being a half-sister of the testator, and the beneficiary named in the codicil to the will.

The case is here on a certificate of the judgment. The testimony is not preserved in the record and no evidence is contained in the abstract of the record. The question for adjudication arises on the face of the record proper.

The decree finds that James B. Brooks died, testate, leaving as his next of kin a full brother, Thos. B. Brooks; two half-brothers, one of whom is Phillip O. Brooks, said executor, and three half-sisters, one of whom is the said Irene Scott. The full brother is the husband of Mary Brooks, and the father of the six minor plaintiffs.

After stating the relationship of the parties to the testator, the petition states that said James B. Brooks left the following last will and testament:

"I James B. Brooks, of Howard county, Missouri, of sound mind and disposing memory, do make and publish this my last will and testament.

"1. I will and direct that my funeral expenses and all my just debts be paid out of my estate by my executor, and that a suitable monument be erected to mark my grave.

"2. I will, devise and bequeath all the rest, residue and remainder of my estate, real and personal, of every description to my brother, Thomas B. Brooks, in trust for the use of his wife, Mary Brooks, during her natural life, and at her death to all the children of said Thomas B. Brooks; said trustee shall have power to invest said estate in real estate for a home for said Mary Brooks and his said children, to her for life and at the termination of said life estate to said children. If any of said children shall have died, leaving children or descendants, such descendants shall take the share his or her father or mother would have taken if living. Said trustee shall also have power to sell and convey any real estate purchased by him and put the proceeds to interest, securing the same by unencumbered real estate of at least double the amount or value loaned, said interest to be paid annually or to compound annually.

"3. Said trustee, instead of investing said estate, may put the same to interest on the terms above mentioned, being careful to have the same well secured and the interest properly paid when due so that said interest may be paid to said Mary Brooks promptly every year. If it turns out that said interest shall not be sufficient for the support of the said Mary and said children, said trustee shall have the right to pay over to said Mary such...