Estate of Frailey, 12223
| Decision Date | 24 November 1981 |
| Docket Number | No. 12223,12223 |
| Citation | 625 S.W.2d 241 |
| Parties | In the ESTATE OF Leslie O. FRAILEY, Deceased. G. Larry REHM, Plaintiff-Appellant, v. Audrey PULLING, Executrix of the Estate of Leslie O. Frailey, Deceased, Audrey Pulling, Ethel Long, Flossie Wellman, Cora Lacey, Pearl Rodgers, Ruby Causey, Edna Coffee and Elsie Sifford, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Donald R. Rhodes, Bloomfield, for plaintiff-appellant.
James E. McGhee, James E. Spain, Briney, Welborn & Spain, Bloomfield, for defendants-respondents.
On September 19, 1955, Leslie O. Frailey and Minna Frailey, his wife, executed an instrument entitled "Articles of Agreement and Mutual, Joint and Irrevocable Will". This instrument first recognized that these parties owned three tracts of real property as tenants by the entirety. Each tract was separately described. The instrument then provides "the survivor shall take all of the personal property of the deceased, absolutely, and shall have full enjoyment of all of the real estate". Article III provides that after the death of the survivor, Tract No. I
It then provided that Tract II "shall go to the named sisters of the wife, Minna Frailey, to-wit: Cora Lacey, Edna Coffey, Pearl Rodgers and Ruby Causey in the following shares, to-wit: Cora Lacey, Edna Coffey and Pearl Rodgers, shall each take a three-tenth (3/10th) interest and Ruby Causey shall take a one-tenth (1/10th) interest, and to their descendants, per stirpes, in fee."
Tract No. III was devised to a church.
Article IV provided that the residue, after the death of the survivor, should go to "the heirs of the last deceased, per stirpes".
Minna Frailey died first, although the record does not show the date of her death. On November 30, 1965, Leslie O. Frailey executed a Codicil by which he revoked Article IV and provided:
I give, devise and bequeath all of my personal property, including, cash, bonds, bank accounts and all other items, to my brother, Frank Fulton Frailey; my sisters, Ethel Long and Flossie Wellman; AND to my deceased wife's sisters, Cora Lacey, Pearl Rodgers, Ruby Causey and Edna Coffey, and to their descendants, per stirpes; Except that if Edna Coffey should predecease me then Audrey Pulling shall take the full share of Edna Coffey; to share and share alike.
Under the language of the mutual will pertaining specifically to revocation and the stipulation and briefs of the parties, no issue has been raised concerning the efficacy of that revocation. Leslie O. Frailey died on October 4, 1979. His brother, Frank Fulton Frailey, had predeceased him, having died on October 3, 1973. Frank died without issue.
Leslie O. Frailey had a sister in addition to his sisters Ethel Long and Flossie Wellman named in the Will and the Codicil. This sister's name was Bessie Rehm. Bessie Rehm also predeceased Leslie O. Frailey, having died on November 30, 1977. Bessie Rehm left surviving seven children, including the plaintiff-appellant, G. Larry Rehm.
By his petition the appellant seeks to have the Will and Codicil construed to establish that he has an interest in the estate of Leslie O. Frailey. The cause was submitted to the trial court upon a stipulation of the above facts with no additional evidence. In such circumstances, the Will and Codicil must be construed to give effect to the intent of the testator as determined from those instruments with the aid of the meager stipulated facts. St. Louis Union Trust Co. v. Bethesda General Hosp., 446 S.W.2d 823 (Mo.1969). The trial court concluded that under paragraph II of the Codicil, the named sisters of the testator and his deceased wife, all of whom survived, take all of the personal property of the testator and that the appellant takes nothing.
The petition does not allege upon what legal basis the appellant claims an interest in the estate of the decedent other than such an interest is claimed under paragraph II of the Codicil. By his brief the appellant bases his claim upon an ingenious argument centered upon the meaning of the word "descendants". He first points out tract No. I was devised to "the named brother and sisters of the husband, Leslie O. Frailey, to-wit: Frank Fulton Frailey, Ethel Long and Flossie Wellman and their descendants, per stirpes, ...." He then argues that the word "descendant" does not always bear the same meaning, and may even include collateral kindred, citing St. Louis Union Trust Co. v. Kelley, 355 Mo. 924, 199 S.W.2d 344 (1947). He then argues that by the "provided" clause, the testator defined the "descendants" of Frank Fulton Frailey to be a "niece or her equivalent". He concludes that a sister is the equivalent of a niece and therefore the devise in the Codicil to Frank Fulton Frailey does not lapse but passes to his sisters and the children of his deceased sister, Bessie Rehm.
The term "descendant" is normally defined as " 'one who is descended from another; a person who proceeds from the body of another, such as a child, grandchild, etc., to the remotest degree.' Black's Law Dictionary, Fourth Ed." Mercantile Trust Company v. Muckerman, 377 S.W.2d 355, 359 (Mo.1964). The term may bear another meaning established by the context in which the term is used or by the instrument otherwise defining that term. Mercantile Trust Co. v. Muckerman, supra. Assuming, as the appellant does, that by the reference to descendants, the testator intended to provide for substitutional devisees, it does not follow that in regard to Frank Fulton Frailey, the term means niece or equivalent. If, by the "provided" clause, the testator defined the term "descendant" as used in connection with Frank Fulton Frailey, it is more logical to conclude that he defined that term to mean Elsie Sifford and her descendants. If the appellant's theory is followed, then in the Codicil the descendants of Edna Coffey have been defined to mean Audrey Pulling or her equivalent. Such strained constructions are not required or supported by the instruments in question when construed in the light of the factual background.
The appellant's contention...
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