O'Day v. O'Day

• Decision Date: 31 January 1906
• Citation: 91 S.W. 921,193 Mo. 62
• Parties: O'DAY et al. v. O'DAY et al.
• Court: Missouri Supreme Court

91 S.W. 921

193 Mo. 62

O'DAY et al. v. O'DAY et al.

Supreme Court of Missouri, Division No. 2.

January 31, 1906.

1. WILLS—CONSTRUCTION—INTENT OF TESTATOR.

A will is to be construed in accordance with the intent of testator as gathered from a consideration of the whole instrument, and technical rules must yield to the obvious intent when so ascertained.

2. SAME—LEGACIES—ABATEMENT.

Where a will first directed the payment of debts and funeral expenses, then gave legacies and devises to testator's widow and children, and contained a residuary clause disposing of all the remaining estate, both real and personal, to the widow and children in equal shares, no specific property being charged with the payment of debts, and the shares of testator's children being substantially equal in value, the share of each legatee and devisee should be made to abate ratably to meet testator's debts, and no distinction should be drawn between gifts of land and of personal estate.

3. SAME—SPECIFIC AND DEMONSTRATIVE LEGACIES.

In case of a deficiency of assets over legacies to pay debts, specific and demonstrative legacies abate ratably if the fund out of which the latter legacies are payable are sufficient for their satisfaction.

4. SAME—EXECUTORY DEVISES—INCONSISTENT PROVISIONS.

Under Rev. St. 1899, § 4650, requiring courts in executing wills to have due regard to the directions of the will and the true intent of testator, a clause of a will giving trustees of the estates of two minor legatees power to dispose of the real estate only in case "it is absolutely necessary or unquestionably advisable" does not nullify an executory devise to the survivor of the two minors dependent on the death of the other before majority.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by Sue I. B. O'Day and E. W. Banister, executor of John O'Day, deceased, against John O'Day and others. From the judgment rendered, plaintiffs appeal. Affirmed.

Delaney & Delaney and E. W. Banister, for appellants. Tatlow & Mitchell and J. T. White, for respondents.

BURGESS, P. J.

John O'Day on the 8th day of June, 1901, executed his last will, and the plaintiffs herein were appointed therein to execute said will. This suit is for the purpose of having said will construed, and it was filed in the circuit court of Greene county, Mo., on the __ day of August, 1902, by said Sue I. B. O'Day and said E. W. Banister, and John Baldwin O'Day, Catherine O'Day, and Thomas K. O'Day, infants, and children of the marriage of deceased testator with Sue I. B. O'Day, were made parties defendant. John O'Day and A. C. O'Day, children by a former marriage, were also joined as defendants. After the institution of the suit, at her personal request, Sue I. B. O'Day was also made a party defendant. The infants, John Baldwin O'Day, Catherine O'Day, and Thomas K. O' Day, were duly served with process, and T. J. Delaney was thereupon appointed guardian ad litem for said infant defendants. It being apparent to said T. J. Delaney that a conflict of interest might arise between said John Baldwin O'Day and Catherine O'Day named in the will, on the one side, and the posthumous child, T. K. O'Day, on the other, the appointment of said T. J. Delaney as guardian ad litem for Thomas K. O'Day was, at his own suggestion, set aside, and J. T. White, Esq., was appointed guardian in his stead. The testator died seised of a number of tracts of real estate and possessed of a large amount of money and notes.

Only such parts of the will as seem to be necessary to a proper understanding and solution of the questions involved in this suit will be recited, and such are as follows:

"First. I will and direct that all my just debts and funeral expenses be paid by my executors, hereinafter named, as soon as practicable after my death.

"Second. I give, devise and bequeath to my wife, Sue I. B. O'Day, and to my children, John Baldwin and Catherine, who are minors, as tenants in common, and not as joint tenants, all the following described real estate, * * * To have and to hold all of said several tracts or parcels of land, with all of the buildings, structures and improvements thereon or appertaining thereto, as such tenants in common, and to their heirs and assigns forever. I also give and bequeath to my wife, Sue I. B. O'Day, and said two minor children, John Baldwin and Catherine, the seventy-five thousand dollars (par value) of railroad bonds which are in the hands of E. W. Banister, as agent for me, and in the event that I shall sell any or all of said bonds, then in lieu of the said bonds so sold I give to said three persons above mentioned the proceeds of said bonds, or a sum equal to such proceeds of said bonds so sold, said $75,000 of bonds, or the proceeds of any or all thereof, to be divided equally among said three persons. And in case either of said children, John Baldwin or Catherine, shall die before I do, or at any time before he or she reaches the age of majority, it is my will that the share of the child so dying, whether of the property hereinbefore or hereinafter devised or bequeathed, shall go to the survivor of said children.

"Third. I give, devise and bequeath to my sons, Allie and John (both of whom are of age), the following described real estate: * * * To have and to hold all of said several tracts or parcels of land, with all the buildings and improvements thereon or thereto appertaining, as tenants in common, and not as joint tenants, to them and their heirs and assigns forever. I also give to my said sons, John and Allie, one hundred thousand dollars in cash, or at their option they may take all or any part of said amount in notes belonging to me at the time of my death, at the face value thereof, said sum of one hundred thousand dollars, whether in cash or notes, or part cash and part notes, to be divided equally between them, share and share alike."

"Sixth. All the residue and remainder of my estate, real and personal, and wherever the same is situated, whether now owned or hereafter acquired by me, I give, devise and bequeath to my wife, Sue I. B. O'Day, and my four children, Allie, John, John Baldwin and Catherine, share and share alike, so that none of said five persons shall receive or have any preference over the others, or either of them, as to said residuary estate. It is my wish that my estate shall be divided as herein provided for, without the necessity for any partition or other suit or suits, and I direct and request that my wife and children make an earnest effort to divide said residuary estate among themselves without resorting to any outside aid; and in order to facilitate and make such division possible, in case said John Baldwin O'Day and Catherine O'Day, or either of them, shall not have arrived at the age of majority at the time such division is undertaken, I hereby authorize, empower and direct the executor or executors of this will to act for said minor children, or either of them, in making the division of said residuary estate; and I do for that purpose invest said executors or executor with full power and authority to act for said minor children, or either of them, and to make such division, including the right, authority and power to make, execute and deliver any deed, deeds or other instruments, writing or assurances of any kind which may be necessary or proper to effectuate and carry out a division of said residuary estate as herein contemplated, and I do hereby direct that any deed or other instrument in writing made, executed and delivered by my said executors or executor in charge of my estate, in the name of and for and on behalf of said minor children, or either of them, in order to effectuate such division of said residuary estate, shall have the same force and effect as if the same were executed and delivered by said children, or either of them, for whom said instrument is so made, and they, or either of them, were at the time of its execution and delivery of full age and capacity to execute the same."

By the seventh clause of said will it is provided as follows: "I desire that my wife, Sue I. B. O'Day, shall afer my death have the care, charge, custody and control of the estates of my two minor children, John Baldwin and Catherine, so long as she remains a widow, but in case she shall re-marry, as soon as that event occurs I direct that all the estates of said two minor children shall vest in and be transferred to said E. W. Banister, in trust for said children, until their respective majority. And whether the said estates be under the care and charge of my wife or of said Banister, I vest them, and each of them, while acting as such trustee, with full power to manage and control the same, but it is my desire that the real estate which forms a part of the estate of said minors be preserved and not disposed of unless it is absolutely necessary or unquestionably advisable. And I direct that neither my wife nor said Banister be required to give bond while holding, controlling or handling said estate as executor, trustee or curator."

By the will specific devises of real estate were made to Sue I. B. O'Day and to her two children then living, and specific devises were also made to John O'Day and A. C. O'Day, children aforesaid, but no provision whatever was made for the posthumous child, nor was any reference made to said child in the will.

The testator died seised of a large number of tracts of real estate not specifically devised, and died possessed of $55,131.40 in cash, which sum was on deposit in his name in the bank of the Holland Banking Company, also possessed of 32 bonds of the St. Louis & San Francisco Railroad Company, also the sum of $31,669.93, which was on deposit in the National Exchange Bank, also a large amount of notes of the face value of about $260,000, and other personal property. The $55,131.40 on deposit with the Holland Banking Company was the proceeds of the $43,775 bonds of the St....