Carter's Estate v. Carter

• Decision Date: 11 July 1966
• Docket Number: No. 1,No. 51644,51644,1
• Citation: 404 S.W.2d 693
• Court: Missouri Supreme Court
• Parties: In re ESTATE of William J. CARTER, Deceased, Respondent, v. Blanche Margaret CARTER, Appellant

Page 693

404 S.W.2d 693

In re ESTATE of William J. CARTER, Deceased, Respondent, v. Blanche Margaret CARTER, Appellant.

No. 51644.

Supreme Court of Missouri, Division No. 1.

July 11, 1966.

Stewart, Reid & Turner, A. Ronald Stewart, Donald R. Duncan, Springfield, for respondent.

Lon S. Haymes, Springfield, W. Ray Daniel, B. H. Clampett, Daniel, Clampett, Ritterhouse, Ellis & Dalton, Springfield, and Horace S. Haseltine, Lincoln, Haseltine, Forehand & Springer, Springfield, for appellant.

HOUSER, Commissioner.

This is an appeal from a judgment of the Circuit Court of Greene County affirming a judgment of the probate court. We have jurisdiction because title to real estate is involved. Art. V, § 3, Constitution of Missouri, V.A.M.S.; Buschmeyer v. Eikermann, Mo.Sup., 378 S.W.2d 468, 469.

Our task on this appeal is to construe the will of William J. Carter, which was written in his own handwriting and signed and witnessed on May 27, 1957. We reproduce the will, omitting signatures and attestation clause.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Testator died at the age of 65 years on June 1, 1957, leaving surviving him his wife Marie, his daughter Blanche Margaret Carter and his brother Walter S. Carter. Marie elected to take against the will. Marie died on March 8, 1962. Blanche Margaret, the executrix, proposed a final settlement on the basis that the property remaining after payment of debts and expenses belonged to Blanche Margaret absolutely and in fee simple. Persons claiming an interest as the blood heirs of Walter S. Carter, who would have been excluded from any interest in the estate under the proposed settlement, objected. The probate court approved a final settlement upholding the position of the collateral heirs. On appeal the circuit court found an intent to devise a defeasible fee to Blanche Margaret, subject to a shifting executory devise in the direct blood heirs of Walter S. Carter if she died without leaving blood heirs. Blanche Margaret has appealed from the judgment of the circuit court.

The general question is whether the will gave Blanche Margaret an absolute and indefeasible estate in fee simple upon termination of the preceding life estate in her mother, or a defeasible fee subject to divestment if she died without 'direct blood heirs.' The specific question is whether in providing that 'at her death in case she should leave no direct blood heirs' (our emphasis) testator was referring to his wife Marie or his daughter Blanche Margaret.

Both parties assert at the outset that the will, read in its entirety, is clear and unambiguous; that it reveals the intent of the testator, and that resort to auxiliary rules of construction is not necessary.

Blanche Margaret claims that testator's intent to give her an indefeasible estate in fee simple is apparent, considering the entire will; that the court's construction of the words 'at her death' as referring to Blanche Margaret's death ignores the four corners of the will, ignores the logical listing and paraphrasing of the events prefaced by the words 'And at her death,' ignores the presumption that the phrase 'her death' has the same meaning in the disputed sentence that it had when twice previously used by testator, and ignores the situation which would result from the meaning read into the will by the circuit court, namely, that testator, incredibly, would have made no provision for the payment of the expenses of his wife's funeral or for the erection of a monument to mark her grave.

Those who claim as collateral heirs contend that it is clear from the whole will that when testator wrote 'And at her death in case she should leave no direct blood heirs' he was referring to his daughter's death anytime after his death and not his wife's death.

Examining this will from its four corners and as a whole, with due regard to its directions and the true intent and meaning of the testator, § 474.430, V.A.M.S., it clearly and without ambiguity discloses a scheme, plan and design on the part of testator, after provision for his wife during her lifetime or until her remarriage, by which his estate would devolve upon and go to his heirs in his bloodlines: first to his nearest blood heir, his daughter, Blanche Margaret, and at the time of her death if she left no direct blood heirs, then to the direct blood heirs of his brother Walter. This is the dominant purpose and effect of his testament. This controlling intention must be effectuated. The words used in the testamentary writing will be subordinated to such intention and purpose. Pursuant to his general plan testator left his 'entire estate' to his wife until her death or remarriage, with the right in his wife and daughter, by agreement, to convert the real estate into federally insured interest-bearing securities at any time before his wife's death or remarriage. Next, he provided that at his wife's death or remarriage the 'entire estate' should go to his daughter, Blanche Margaret, not in fee simple absolute, but as an estate in fee with an executory devise over, in the nature of a shifting use, to take effect upon the contingency that the daughter die leaving direct blood heirs, failing in which the fee would be defeated and the executory devise over to the direct blood heirs of testator's brother Walter would become effective.

As we construe this will the words 'at her death' immediately following the grant to Blanche Margaret refer to Blanche Margaret and not to Marie. It is generally accepted that a personal pronoun refers back to the closest antecedent noun of the same gender, unless it is clear that reference is made to some other noun. Under this rule of grammar we believe that testator was referring back two words to Blanche Margaret and was not referring back thirty-three words to Marie. Application of these words to Blanche Margaret bespeaks the logical progression of events in the mind of a testator intent on keeping his estate in his bloodlines, after making provision for his wife: first to his daughter, then on the contingency that she die without direct blood heirs, to the blood heirs of his brother. Application of those words to Marie would make possible the coming to pass of a situation which would be utterly inconsistent with the dominant theme of this will, which is to restrict the subsequent devolution of the estate to testator's bloodlines, direct or collateral, on the contingency named. Under Blanche Margaret's construction, if following testator's death Blanche Margaret had died during Marie's lifetime and Marie had then borne children by a subsequent marriage, Marie's said children would take the estate to the exclusion of those in testator's brother's bloodline. We cannot attribute an intent on the part of testator to allow this to happen, when his testament reflect so definitely a desire to terminate Marie's enjoyment of his estate upon her remarriage and to favor his won bloodline and that of his brother. Furthermore, it is of some significance that under Blanche Margaret's construction testator does not refer directly to the contingency of the death of his daughter prior to the death of his wife, except by the reference thereto implicit in the language leaving the estate to Walter's blood heirs in case she (Marie under this construction) 'should leave no direct blood heirs.' That testator would have made such an oblique and implied reference to a contingency of such importance to him is unlikely. Nor would it have been natural for testator to refer to his daughter Blanche Margaret, even indirectly, as a 'blood heir.' It would have been more likely for testator, who four times referred to his daughter as such, using her full name Blanche Margaret Carter three times, to have said something like 'If my daughter dies before my wife dies * * *' or 'If my wife survives my daughter * * *,' but he did not do so.

Blanche Margaret relies on the fact that the grant of the estate to her ends with a period, followed by a space, and that the paragraph ends there, thereby indicating an intent to give her an indefeasible estate in fee simple absolute without limitation or qualification. It is noteworthy that the grant to Marie also ends with a period followed by a space, and that that paragraph could be said to end there, but no one contends that this is indicative of an intention to vest a fee simple title in Marie. The will demonstrates on its face that testator was not skilled in the use of punctuation or paragraphing, and that his spacing was unconventional. He used periods when no punctuation was appropriate or when commas were more appropriate. He omitted commas where appropriate and used them when inappropriate. He capitalized words inappropriately and in the middle of sentences. Under these circumstances testator's spacing, paragraphing, punctuation and capitalization are not reliable guides to ascertain his intention, which we have gleaned from the context of the will. We regard the periods after the grants to Marie and Blanche Margaret as punctuation mistakes which we have a right and duty to disregard under the circumstances. 95 C.J.S. Wills § 612. Treating those...