Diebold v. Diebold
| Decision Date | 21 May 1940 |
| Citation | 141 S.W.2d 119,235 Mo.App. 83 |
| Parties | F. W. DIEBOLD AND WM. L. LeGRAND, EXECUTORS OF THE WILL OF FRANK L. DIEBOLD, DECEASED, RESPONDENTS, v. PETER L. DIEBOLD, MARY L. LeGRAND, LOUISA DOHOGNE, CLARA ESSNER, LEO DIEBOLD, CHESTER DOHOGNE, SYLVESTER DOHOGNE, GILBERT DOHOGNE, GLORIA MAXINE DOHOGNE AND ALBERT JAMES DOHOGNE, RESPONDENTS, JOSEPH C. DIEBOLD, ANTON DIEBOLD, AND CHRISTINA RESSEL, APPELLANTS |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Scott County.--Hon. Frank Kelly Judge.
Decree modified and affirmed.
J Grant Frye for appellants.
Stephen Barton for executors.
Ray B Lucas for Chester Dohogne, Sylvester Dohogne and Gilbert Dohogne.
The said executors of Frank L. Diebold brought this suit in the Scott County Circuit Court to have the will of the said Frank L. Diebold construed. The case was appealed to the Supreme Court, and by that court certified to this court.
There is no dispute as to the facts. The case was tried upon admissions made by both plaintiffs and defendants in open court, as shown by the bill of exceptions.
Only three of the children, who were three of the devisees or legatees, appealed from the decree: Joseph C. Diebold, Anton Diebold and Christina Ressel, who are entitled to three-tenths of the estate, subject to charges with interest at the date of the trial, as follows: Joseph C. Diebold, $ 977 and interest; Anton Diebold, $ 2503 and interest; and Christina Ressel, $ 4209 and interest.
But two questions are presented for decision:
First, whether the executors under the will have any authority to sell real estate except upon order of the Probate Court, for the purpose of paying debts and legacies.
Second, whether the indebtedness of John Dohogne, in the principal sum of $ 1200, which, with interest at the date of the trial, aggregated $ 1802, should, under the terms of the fourth clause of the will, be charged against the descendants of the deceased daughter of the testator.
John Dohogne is the widower of Agnes Dohogne and the father of their four children, viz., Charley Dohogne, Chester Dohogne, Sylvester Dohogne and Gilbert Dohogne. John Dohogne married Agnes Diebold about 1905. He is still living and has not remarried. Agnes Dohogne died February 19, 1913. The notes of John Dohogne sought to be charged against the interest of her children (including Charley Dohogne who died before the testator leaving two children) were executed, one on November 30, 1925, for $ 1000, and one on March 14, 1927, for $ 200.
The will is dated the 15th day of November, 1928. The testator died on November 16, 1934. The will, omitting the attestation clause and the certificate of the witnesses, is as follows:
The decree contains the following finding:
"The court further finds that at the death of the said Frank L. Diebold, he had notes in his possession on which he had advanced or loaned to, or paid for John Dohogne and certain sons and sons-in-law, where their respective names appear at the head or as principal of said notes, as follows: (Listing twenty-two notes)."
In deciding the first question the trial court held that the testator, by his last will and testament, "did thereby, empower his executors to sell the real estate belonging to him at the date of his death for the purpose of making distribution of his estate among his heirs, distributees and legatees as described in his will; that said executors have power and authority under said will to sell the said real estate and convey title thereto by executor's deed or deeds, duly signed and acknowledged by them and make distribution of the proceeds of such sale or sales in conformity with the provisions of said will and the construction thereof as herein found and construed."
In deciding the second question the trial court held that the testator did not intend to and did not bequeath to the descendants of Agnes and John Dohogne their interest subject to the said notes of John Dohogne, for the reason that, at the time the notes were made, at the time the will was executed, and at the time of the death of the testator, John Dohogne was no longer the son-in-law of the deceased for the reason that John Dohogne's wife (and the deceased's daughter) died in 1913. The notes sought to be charged against the respective interests at the time of the trial, with interest, are as follows:
According to the inventory there were ten pieces of real estate, only one of which exceeded eighty acres. The total value of the real estate, according to the inventory, was $ 10,550. The home tract of 193.85 acres was under-valued approximately $ 3000. There was a $ 1500 mortgage on some of the real estate, which made the readjusted value of the real estate $ 12,050.
The bill of exceptions contains the following, with reference to the value of the personal property:
The solution of the first question requires a construction of the fifth clause of the will.
The appellants' contention with reference to the construction of this clause is as follows:
Appellants cite in support of this rule a long list of Missouri cases including Sevier v. Woodson, 205 Mo. 202, 104 S.W. 1, where the rule, as contended for by the appellants, is clearly announced. It is also announced in the very recent case of McMurry v. McMurry, 340 Mo. 1094, 104 S.W.2d 345. There is no possible doubt as to the existence of this rule, but we do not think it has any application to the solution of the question of whether the will confers upon the executors the power and duty to sell the real estate. That it confers the power to sell the real estate is, it seems to us, quite plain. As to whether it places the absolute duty upon ...
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