Burrier v. Jones
| Decision Date | 18 March 1936 |
| Docket Number | 34040 |
| Citation | 92 S.W.2d 885,338 Mo. 679 |
| Parties | Eliza Burrier, Bird Wise, Blanch Beatty and Melissa Wallace, Appellants, v. E. G. Jones, as Executor of the Will of Lewis Lowmiller, and Macon County, R. Wilson Barrow, as Prosecuting Attorney of Macon County, and W. F. Powers, Ed. A. Gates and W. E. Wilkerson, Judges of the County Court of Macon County |
| Court | Missouri Supreme Court |
Appeal from Macon Circuit Court; Hon. V. L. Drain, Judge.
Affirmed.
Ed S. Jones, William M. Van Cleve, McDonald & Saltsman and C. F. Hale for appellants.
(1) Parol evidence of extrinsic facts and circumstances is not admissible except to explain an ambiguity in the language used in a will and cannot be made to show that the testator meant one thing when he, in fact, said another; nor can it be used to show an intention not expressed in the will or to aid in making such a will as the testator evidently intended to make but did not, in fact, make. In re Aiken's Estate, 5 S.W.2d 664; McCoy v. Bradbury, 290 Mo. 650; Murphy v. Enright, 264 S.W. 811; Deacon v. St. L. Union Trust Co., 271 Mo. 669; Wooley v Hays, 285 Mo. 566. (2) The vagueness, uncertainty and indefiniteness of the testator's intention cannot be made clear, certain and definite by adding words to or taking words from the language of a will, where the language of the will is plain. Board of Trustees v. May, 201 Mo 360; Wells v. Fuchs, 226 Mo. 97; 40 Cyc., pp. 1400 1435. (3) The language used in the second clause of the will does not bring this clause within the requirements of the statutes of Missouri making counties and members of county courts trustees for charitable uses. Secs. 12127, 12128, R. S. 1929. (4) A devise to an inanimate thing or object having no legal entity and incapable of taking title such as "the Macon County Mo, School funds," is void. Robinson v. Crutcher, 277 Mo. 1; Thomas v. Wyatt, 25 Mo. 24; Collins v. Brannin and Trammell, 1 Mo. 384. (5) Both the legal title and beneficial interest being given to "the Macon County Mo, School funds" there is no separation of the legal title and the beneficial interest, as required by law and no trust is created. Robinson v. Crutcher, 277 Mo. 1. A charitable gift cannot be sustained where no beneficiary is indicated and no person is appointed to select the beneficiary. 6 Cyc. 945. (6) Where no trust is created, there is no basis for the application of the cy pres doctrine, nor can the court appoint a trustee. Catron v. Scarritt Collegiate Institute, 264 Mo. 713; Lackland v. Walker, 151 Mo. 210; Robinson v. Crutcher, 277 Mo. 1.
Dan R. Hughes, John R. Hughes, R. Wilson Barrow and Glenn D. Evans for respondents.
A public charity will not be allowed to fail, even if the trustee named does not exist, or the beneficiaries are not designated in the will. 5 R. C. L., pp. 293, 294; 11 C. J., pp. 307, 308; In re Rahn's Estate, 291 S.W. 128; Schneider v. Kloepple, 270 Mo. 389, 193 S.W. 834. The doctrine of judicial administration of cy pres whereby courts of equity in virtue of their inherent jurisdiction approximate the intention of the founder of a public charity or the maker of a will, is universally applied in Missouri. Catron v. Scarritt Collegiate Institute, 264 Mo. 728; In re Rahn's Estate, 291 S.W. 120. When any doubt or uncertainty arises as to the testator's intention, extrinsic facts are admissible to explain the language of the will, regardless of the nature of the ambiguity, whether it be latent or patent. The court is entitled to be advised of all the facts and circumstances, the family relations, nature and character of the property and feelings of the testator. Parol testimony is admissible for this purpose. Willard v. Darrah, 168 Mo. 668; Cox v. Jones, 229 Mo. 62; McMahan v. Hubbard, 217 Mo. 640; Wooley v. Hays, 226 S.W. 842; McCoy v. Bradbury, 290 Mo. 657; 28 R. C. L. 270. The intent of the testator is the controlling factor. The courts shall have due regard to the directions of the will. Technicalities and artificial rules of construction must be disregarded; the real spirit and intent of the testator, as shown by the whole will and circumstances must be followed. Sec. 567, R. S. 1929; Drake v. Crane, 127 Mo. 85. The court always start with the presumption that the testator intended to dispose of his whole estate. Watson v. Watson, 110 Mo. 170; RoBards v. Brown, 167 Mo. 447. In order to prevent partial intestacy, words may be supplied, transposed or changed in the will so "that the instrument may not perish and the manifest intention of the parties be not defeated by the palpable error of the scrivener. Briant v. Lamison, 150 Mo. 668; Presnell v. Headley, 141 Mo. 194; Johnson v. Bolware, 149 Mo. 451; RoBards v. Brown, 167 Mo. 457; Baker v. Grossglauser, 250 S.W. 377. A devise to a county is valid in this State. Fullbright v. Perry County, 145 Mo. 342. A devise to a county to be added to the "Permanent School Fund of the County," held to be valid. Chapman v. Newell, 146 Iowa 415, 125 N.W. 324; Christy v. Ashtabula County Court, 41 Ohio St. 711; Bell County v. Alexander, 22 Tex. 350, 73 Am. Dec. 268. A bequest or devise for the promotion or benefit of education is a public charity. 5 R. C. L. 323; Buchannan v. Kennard, 234 Mo. 117, 136 S.W. 415. Public charities are favored by the law and will be enforced, if possible. All the provisions of the will should be considered to give effect to the full intent of the testator, without violating well settled rules of law. It is permissible to transpose sentences and supply words, when it is apparent such words were unintentionally omitted. Grace v. Perry, 197 Mo. 550, 95 S.W. 875; Gannon v. Pauk, 200 Mo. 85, 98 S.W. 471; Baker v. Grossglauser, 250 S.W. 377. The county court has the power to act as trustee for charitable uses. The provisions of the will clearly create a charitable trust. The statute provides a complete plan to make the trust effective. Sec. 12127, R. S. 1929.
This cause is to construe the will of Lewis Lowmiller who died in Macon County, Missouri, May 23, 1933. The finding and judgment below went for defendants and unsuccessful in motion for new trial, plaintiffs appealed. The appeal was first lodged in the Kansas City Court of Appeals and was transferred here on the ground that title to real estate is involved. [Art. VI, Sec. 12, Constitution; Moore v. McNulty, 76 Mo.App. 379, 164 Mo. 111, 64 S.W. 159; Karl v. Gabel, 48 Mo.App. 517.] Also Macon County is a party, and under Section 12, Article VI of the Constitution, jurisdiction is in the Supreme Court.
The will was written by the defendant, Jones, a notary public, but not a lawyer, and Jones is executor under the will. The will is as follows, except signature and witness paragraph:
The testator was eighty-three years old at the time of his death and was never married. He came to Missouri from Ohio when quite young, with John Lyons in whose family he was reared as a foster son. At the time of his death testator owned a farm of ninety acres in Macon County, and had considerable personal property, the greater part of which consisted of government bonds and cash. Plaintiffs are collateral kin of the testator and reside in Ohio. Plaintiffs, Eliza Burrier and Bird Wise are nieces of testator, and plaintiff, Blanch Beatty is a grandniece. Plaintiff, Melissa Wallace is a half sister.
The contention of plaintiffs, appellants here, is that the second clause of the will is void and cannot be construed as creating a charitable trust or use in Macon County to be administered under Sections 12127, 12128 and 12129, Revised Statutes 1929. Defendants contend that the second clause of the will creates a valid charitable trust for the advancement of education, and that the second clause should be construed to mean "that Macon County, Missouri, has been designated as trustee" and that "the trust can be made operative under the direction and control of the judges of the county court of said county, for the use and benefit of the school funds of the county," under Sections 12127, 12128 and 12129, Revised Statutes 1929.
In the petition plaintiffs allege that the second clause of the will which devises the residue of the estate "to the Macon County Mo, school funds" is void "because of the failure of the said testator to designate in said will a donee, legatee or beneficiary of said property capable of taking the same under the laws of the State of Missouri, and that said clause is void for uncertainty and impossible of execution, and plaintiffs allege that as to all of the property remaining after the payment of testator's debts, the said testator died intestate."
Section 12127, among other things, provides that "each county in this state shall have the power of acting as trustee for charitable uses, and as such trustee to take and hold by gift, grant, bequest or devise, money and other property, real, personal and mixed, to it given, granted, bequeathed or devised, in trust for charitable uses, and shall have the power, by and through its county court, of executing trusts created...
To continue reading
Request your trial
-
In re Bernheimer's Estate
... ... (2) Rules of construction. That ... construction of a will should be adopted which will make ... every clause of the will effective. Burrier v ... Jones, 338 Mo. 679, 92 S.W.2d 885; Humphreys v ... Welling, 111 S.W.2d 123; Bjorkman v. Jerner, 38 ... S.W.2d 269. That construction ... ...
-
Ostmann v. Ostmann
...192, 5 S.W.2d 437; Methodist Episcopal Church v. Thomas, 145 S.W.2d 157. Crowson v. Crowson, 323 Mo. 633, 19 S.W.2d 634; Burrier v. Jones, 338 Mo. 679, 92 S.W. 885. (4) a period of time is to be computed, the rule of computation is to exclude the first day or terminus a quo, and to include ......
-
St. Louis Union Trust Co. v. Kern
... ... given effect unless opposed by some principle of positive ... law. [ McCoy v. Bradbury, 290 Mo. 650, 657, 235 S.W ... 1047, 1049; Burrier v. Jones, 338 Mo. 679, 92 S.W.2d ... 885, 887; Sec. 567, R. S. 1929, 1 Mo. Stat. Ann. 344.] The ... rule for construction of wills is stated in ... ...
-
Masterson v. Masterson
... ... instrument, governs in construing a will. Sec. 567, R. S ... 1929; Cross v. Hoch, 149 Mo. 325, 50 S.W. 586; ... Cox v. Jones, 223 Mo. 53, 129 S.W. 495; ... Stevenson v. Stearns, 325 Mo. 646, 29 S.W.2d 116; ... Snow v. Ferril, 320 Mo. 543, 8 S.W.2d 1008; ... Turner ... Karr, 331 Mo. 1157, 1170(6), 55 ... S.W.2d 995, 1001(8); Gardner v. Vanlandingham, 334 ... Mo. 1054, 1061(1), 69 S.W.2d 947, 949(1); Burrier v ... Jones (Banc), 338 Mo. 679, 684(1), 92 S.W.2d 885, ... Defendant ... takes the position testator's will vested defendant ... ...