Buder v. Stocke

• Decision Date: 19 November 1938
• Docket Number: 35182,35469,35470,35471,35472
• Citation: 121 S.W.2d 852,343 Mo. 506
• Parties: G. A. Buder, Executor of Estate of Jacob Stocke, Sr., v. Jacob Stocke, Jr., et al., Appellants
• Court: Missouri Supreme Court

121 S.W.2d 852

343 Mo. 506

G. A. Buder, Executor of Estate of Jacob Stocke, Sr., v. Jacob Stocke, Jr., et al., Appellants

Nos. 35182, 35469, 35470, 35471, 35472

Supreme Court of Missouri

November 19, 1938

Appeal from Circuit Court of City of St. Louis; Hon. O'Neill Ryan, Judge.

Reversed and remanded (with directions).

Robert W. Hammerstein and Rassieur, Kammerer & Rassieur for appellants.

(1) A specific bequest of stock is adeemed where the corporation has ceased to exist and the testator has received the assets thereof in liquidation. Ballard v. Carter, 22 Mass 112; Paris v. Erisman, 300 S.W. 480; Hendrix v Machs, 214 Mo.App. 469, 256 S.W. 539; Ewald Iron Co v. Commonwealth, 140 Ky. 692; Yerxa, Andrews & Thurston v. Viviano, 44 S.W.2d 98. (2) By his acts Jacob Stocke, Jr., is estopped from now denying that the brickyard properties belonged to his father personally. Ault v Bradley, 191 Mo. 709; Maupin v. Longacre, 288 S.W. 54; Coney v. Laird, 153 Mo. 408; Welch v. Damaron, 47 Mo.App. 221; Cogswell's Heirs v. Freudenau, 93 Mo.App. 483; Stevens v. Stevens, 273 S.W. 1066. (3) Specific legacies single out the particular or specific thing which the testator intends the donee to have, no regard being had to its value. Specific legacies are immune from abating with general legacies but are subject to the disadvantage of having no recourse against the general estate in case the thing given be lost, adeemed, or from any cause lessened in value, for recompense or satisfaction. Woerner & Wislizenus, Law of Decedents' Estates, p. 391; Bank & Trust Co. v. Hovey, 319 Mo. Sup. 204; Asbury v. Shain, 191 Mo.App. 674; In re Calnanes' Estate, 28 S.W.2d 422; 2 Bouvier's Law Dictionary. (4) General legacies are payable out of the general assets, the chief element of the gift being its quantity or value. Woerner & Wislizenus, Law of Decedents' Estates, p. 391; Bank & Trust Co. v. Hovey, 319 Mo. 204; Asbury v. Shain, 191 Mo.App. 674; In re Calnanes' Estate, 28 S.W.2d 422; 2 Bouvier's Law Dictionary. (5) Demonstrative legacies differ from general and partake of the nature of specific legacies in that they are not liable to abate with general legacies upon a deficiency of assets, and, on the other hand, differing from specific and partaking of the quality of general legacies insofar as, if the fund fail, the legatee will be entitled to receive the legacy out of the general assets. A demonstrative legacy is a pecuniary legacy, or legacy of quantity, the particular fund or personal property being pointed out from which it is to be taken or paid. Woerner & Wislizenus, Law of Decedents' Estates, p. 391; 2 Bouvier's Law Dictionary. (6) The intention of the testator is decisive in determining whether a legacy is either general, specific or demonstrative. Courts proceed upon the presumption that the testator intended a real benefit to the legatee, and hence incline to consider legacies as general, rather than specific, if the language of the will admits of such construction. Woerner & Wislizenus, Law of Decedents' Estates, p. 391; In re Calnanes' Estate, 28 S.W.2d 421; Bank & Trust Co. v. Hovey, 319 Mo. 204. (7) The word "funds" means money in hand; cash; money available for the payment of a debt, legacy, etc.; the proceeds of sales of real and personal estate, or the proceeds of any other assets converted into money; corporate stock and bonds; Government securities; checks; deposits or certificates of deposit; notes, drafts, property of every kind when such property is contemplated as something to be used or applied in the payment of debts. Black's Law Dictionary; Shumaker & Langsdorf, Cyclopedic Law Dictionary; Hasbrook v. Palmer, 11 F. 767; Sherwood v. Home Savs. Bank, 109 N.W. 11; Miller v. Bradish, 69 Iowa 280; Perry, Admr., v. Hunter, 2 R. I. 87; Ayers v. Lawrence, 59 N.Y. 192; Marrow v. Marrow's Extr., 45 N.C. 156; Ramsey v. Cox, 28 Ark. 466; Williams v. Best, 195 N.C. 327; Davis v. State, 226 N.W. 449; Broadway Bank v. McGee Creek Levee & D. D., 127 N.E. 167; Jewett v. State ex rel. Harrod, 94 Ind. 552; Sims v. McMullan, 22 S.W.2d 318.

Frederick A. Judell for Pauling Berri and The Salvation Army.

Salkey & Jones and Fred A. Eppenberger for Central Institute for the Deaf.

(1) The legacies in paragraphs third, fourth and seventh are general, and at the most, the language of paragraph fourteenth makes them demonstrative. A demonstrative legacy is defined as a pecuniary legacy given generally but coupled with a designation of a particular fund as the course of its payment. Bouvier's Law Dictionary (3 Ed.), p. 836. (2) The words "funds on hand" mean not only cash, but also securities, bonds, stocks and other property or assets capable of being converted into cash. (3) It is the duty of the court to give effect to the testator's intention as expressed in his will. Brock v. Dorman, 339 Mo. 611, 98 S.W. 672; St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685; Gardner v. Van Landingham, 334 Mo. 1054, 69 S.W.2d 947. (4) The language of paragraph sixth indicates a clear intention to give Jacob Stocke, Jr., the brick yard business as a going concern, but because of the subsequent changes in that business outside of the control of the testator, rendering impossible the restoration of that business to its condition at the time the will was written, the property and assets of the business should be included in the general estate of the testator and held subject to the payment of the legacies provided in paragraphs third, fourth and seventh. Said property and assets should not in equity be allowed to pass to the residuary estate solely as a result of the forfeiture permitted by Jacob Stocke, Jr. Where a testator refers to an actually existing state of things, his language should be held as referring to the date of the will, and not to the date of his death. Allison v. Hitchcock, 309 Mo. 488, 274 S.W. 800; Dunlap v. Hart, 274 Mo. 600, 204 S.W. 525; Mueller v. Buenger, 184 Mo. 479, 83 S.W. 458; Webb v. Archibald, 128 Mo. 307, 34 S.W. 54; Hale v. Audsley, 122 Mo. 316, 26 S.W. 963.

Edgar H. Wayman and Louis A. McKeown for City of St. Louis.

(1) In construing a will the court must gather testator's intention from words used in the will. Carter v. Boone County Trust Co., 92 S.W.2d 647, 338 Mo. 629. The court should, if possible, give effect to every provision and clause. Selleck v. Hawley, 56 S.W.2d 387, 331 Mo. 1038; Lehmann v. Griffith, 31 S.W.2d 271; Burrier v. Jones, 92 S.W.2d 885, 338 Mo. 679. The intention of a testator is presumed to be to prevent the lapse of a devise or legacy. Conclusion that testator imposed limitation on prior absolute devise is not permissible, unless alleged limitation is susceptible of no other meaning. Palmer v. French, 32 S.W.2d 593, 326 Mo. 710. Charitable trusts are favorites of equity and will be upheld when possible by applying most liberal rules of which the nature of the case admits. Burrier v. Jones, 92 S.W.2d 885, 338 Mo. 679. Where there is a blending of real and personal estate in the residuary clause after pecuniary legacies are given generally, the blending of the personal and real estate is held sufficient to charge the residuary estate with the payment of the legacies. Ganahl v. Ganahl, 19 S.W.2d 901; McQueen v. Lilly, 131 Mo. 18; O'Day v. O'Day, 193 Mo. 62, 4 L. R. A. (N. S.) 922; Rinehart v. Rinehart, 98 W.Va. 93, 126 S.E. 402, 42 A. L. R. 649; In re Estate of Strolberg, 106 Neb. 173, 183 N.W. 97, 26 A. L. R. 643. (2) The intention of the testator is decisive in determining whether a legacy is either general, specific or demonstrative. Courts proceed upon the presumption that the testator intended a real benefit to the legatee, and hence incline to consider legacies as general, rather than specific, if the language of the will admits of such construction. Woerner & Wislezenus, Law of Decedents' Estates, p. 391; In re Calnane's Estate, 28 S.W.2d 421; Bank & Trust Co. v. Hovey, 319 Mo. 204. In construing a will words are usually to be understood in their ordinary sense, so that words with well known technical meaning should be construed according to their technical meaning, unless a contrary meaning clearly appears from the context of the will. Gardner v. Van Landingham, 69 S.W.2d 947, 334 Mo. 1054; Crowson v. Crowson, 19 S.W.2d 634. Funds in hands of executor for the payment of legacies have a well-defined meaning, and include not only cash, but all personal property of the estate capable of being converted into cash. Ganahl v. Ganahl, 19 S.W.2d 901; McQueen v. Lilly, 131 Mo. 18; In re Temple's Estate, 211 Mo.App. 81; 27 C. J. 926; Williams v. Best, 195 N.C. 327; Sims v. McMullen, 22 S.W.2d 318. Corporate stock is personalty. Addis v. Swafford, 180 S.W. 548; Banta v. Hubbell, 150 S.W. 1089, 167 Mo.App. 38; Insurance Agency v. Blossom, 231 S.W. 636.

Cullen, Storckman & Coil for Jacob Stocke, Jr., and Mabel Stocke.

(1) The language of paragraph sixth of the will, when considered in the light of all the circumstances in evidence, conclusively demonstrates that it was the intention of the testator that Jacob Stocke, Jr., receive the assets standing in the name of the Progress Press Brick & Machine Company at the time of the guardianship of testator. Blumer v. Gillespie, 93 S.W.2d 941; Carter v. Boone County Trust Co., 92 S.W.2d 651; Scott v. Fulkerson, 60 S.W.2d 36; Cravens v. Cravens, 61 S.W.2d 741; 14 C. J., p. 384 sec. 506. (2) The bequests provided by paragraph sixth of the will are not adeemed. Walton v. Walton, 17 Johns. Ch. 258, 11 Am. Dec. 456; Wilmerton v. Wilmerton, 176 F. 900, 28 L. R. A. (N. S.) 401; Page on Wills (2 Ed.), p. 2216, sec. 1333; Wiggins v. Cheatham, 143 Tenn. 406, 225 S.W. 1040, 13 A. L. R. 169; Fidelity Title & Trust Co. v. Young, 101 Conn. 359, 125 A. 871; Pope v. Hinckley, 209 Mass....