First Trust Co. v. Myers

• Decision Date: 04 October 1943
• Docket Number: 37793
• Citation: 174 S.W.2d 378,351 Mo. 899
• Parties: First Trust Company, and Pete Hedgpeth, Executors of the Will and Estate of Willis G. Brinson, Deceased, Plaintiffs-Respondents, and Pete Hedgpeth, Plaintiff-Appellant, v. Harry E. Myers, Pearl Shaffer, sometimes known as Mrs. George Shaffer, Harriett Criswell, sometimes known as Mrs. Charles Criswell, Marvin B. F. Myers, Defendants-Respondents, and Gordon Frank Lyon, sometimes known as Gordon Frank Lyons, Donald James Lyon, sometimes known as Doland James Lyons, Wallace Lee Lyon, sometimes known as Wallace Lee Lyons, and Frank M. Brinson, Defendants-Appellants
• Court: Missouri Supreme Court

174 S.W.2d 378

351 Mo. 899

First Trust Company, and Pete Hedgpeth, Executors of the Will and Estate of Willis G. Brinson, Deceased, Plaintiffs-Respondents, and Pete Hedgpeth, Plaintiff-Appellant, v. Harry E. Myers, Pearl Shaffer, sometimes known as Mrs. George Shaffer, Harriett Criswell, sometimes known as Mrs. Charles Criswell, Marvin B. F. Myers, Defendants-Respondents, and Gordon Frank Lyon, sometimes known as Gordon Frank Lyons, Donald James Lyon, sometimes known as Doland James Lyons, Wallace Lee Lyon, sometimes known as Wallace Lee Lyons, and Frank M. Brinson, Defendants-Appellants

No. 37793

Supreme Court of Missouri

October 4, 1943

Appeal from Buchanan Circuit Court; Hon. Sam Wilcox, Judge.

Reversed and remanded (with directions).

Ronald S. Reed, Guardian ad litem for Donald Lyon, Gordon Lyon and Wallace Lyon, appellants.

(1) The testator, by the use of the language, "I give, bequeath and devise to my legal heirs, who are as follows," used the term "legal heirs" to indicate those heirs of the testator who would take under the statute of descent and distribution in Missouri. Wooley v. Hays, 226 S.W 842, 16 A. L. R. 1; 30 Am. & Eng. Enc. Law (2d Ed.), p. 730; In re Johnson's Estate, 225 N.W. 818; Harvey v. Johnson, 71 So. 824; Youngblood v Youngblood, 85 N.E. 1135, 78 Ohio St. 405; Roberts v. Crumm, 73 S.W. 662, 173 Mo. 572; Irvine v Ross, 98 S.W.2d 763, 339 Mo. 692; Gardner v. Van Landingham, 69 S.W.2d 947, 334 Mo. 1054; Dickerman v. Alling, 76 A. 362; Ruggles v. Randall, 38 A 885; Tingier v. Chamberlein, 42 A. 718; Holmes v. Holmes, 80 N.E. 614. (2) Those answering description of "legal heirs" at the time of the death of testator are entitled to share in the estate. Brock v. Dorman, 98 S.W.2d 672, 339 Mo. 611; Harwell v. Magill, 153 S.W.2d 362; Garrett v. Damron, 110 S.W.2d 1112; Gilman v. Missionary Soc., 177 N.E. 621, 276 Mass. 580. (3) In construing a will, there is always a strong legal presumption that the word "heirs," when used, is used in its technical sense, as denoting the whole of the indefinite line of inheritable succession. Peacock v. McCluskey, 129 N.E. 561, 296 Ill. 87; Kaup v. Weathers, 135 N.E. 38, 302 Ill. 569; Meeker v. Steepleton, 141 N.E. 158, 309 Ill. 337; Land v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629; Drake v. Crane, 127 Mo. 85, 29 S.W. 990; Zook v. Welty, 137 S.W. 989, 156 Mo.App. 703; Wiegand v. Warner, 134 S.W. 596, 155 Mo.App. 227. (4) Where particular terms, as expressed in some part of the will, are inconsistent with and repugnant to the testator's general intention as ascertained from all of the provisions of the will, the general intention must prevail, and in case of doubt a will should be construed in favor of a general or primary intention. Brown v. Tuschoff, 235 Mo. 449, 138 S.W. 497; Rose v. McHose's Execs., 26 Mo. 590; Peters v. Carr, 16 Mo. 54. (5) The $ 10 legacy to Frank Lyon was conditional upon Frank Lyon, surviving testator, and, as he predeceased testator, was void. Darden v. Bright, 198 A. 431. (6) This was the holding of the trial court and was not attacked by any of the parties at any stage in the proceeding. (7) The minor appellants, children of Frank Lyon, being legal heirs of the testator under the law of descent and distribution in Missouri, are entitled to a one-fifth share of testator's estate. (8) The fact that these minor appellants are not named in the will is immaterial and does not exclude them from taking a share; nor does the fact that a conditional bequest to Frank Lyon was made necessarily mean that testator intended to exclude any of his legal heirs. Mississippi Valley Trust Co. v. Bowler, 149 S.W.2d 379; In re Thomas Estate, 261 N.W. 622; Gregory v. Borders, 136 S.W.2d 306; Verner v. Henry, 6 Watts, 192. (9) Although there is a presumption against partial intestacy where there is a will, such presumption is of no avail where the testator by plain and unequivocal language shows a contrary intention. Crowson v. Crowson, 323 Mo. 633, 19 S.W.2d 634; Burnett v. McHaney, 148 S.W.2d 495. (10) In order to carry out the intention of a testator and prevent the will from failing of effect, a devise or bequest may be implied, although it has not been formally expressed in the will. Ball v. Phelan, 23 L. R. A. (N. S.) 895, 49 So. 956. (11) If the beneficiary is insufficiently designated, the bequest or devise is void for uncertainty, and the property must go as in the case of intestacy. Bishop v. Broyles, 324 Mo. 69, 22 S.W.2d 790; St. Louis Trust Co. v. Little, 10 S.W.2d 47; In re Hanson, 132 N.Y.S. 257; Smith v. Ahern, 161 A. 117; 69 C. J., secs. 1340-55-56-70. (12) If the intention of the testator is doubtful, that doubt is to be solved in favor of a distribution in accordance with the laws of descent and distribution. 16 A. L. R., p. 18; Dollander v. Dhaemers, 130 N.E. 705, 297 Ill. 274; Best v. Farris, 21 Ill.App. 49.

Chas. H. Mayer for Pete Hedgpeth, plaintiff-appellant; Frank M. Brinson, defendant-appellant.

(1) Where a devise or bequest is to one's "heirs" or "legal heirs," there being no expression in the will showing a contrary intention, the law presumes the testator intended that the legatees or devisees should take as they would take by the law of intestate succession. Wooley v. Hays, 285 Mo. 566; Healy v. Healy, 39 A. 793; MacLean v. Williams, 42 S.E. 485; Kelley v. Vigas, 112 Ill. 242; Runyan v. Rivers, 192 N.E. 327; Canfield v. Jameson, 208 N.W. 369; Prather v. Watson's Exr., 220 S.W. 532; Tucker v. Nugent, 102 A. 307; Jones v. Gane, 91 N.E. 129; In re Derby's Estate, 180 A. 216; New York Life Ins. & Trust Co. v. Winthrop, Jr., Exr., 237 N.Y. 93, 142 N.E. 341; Cox v. Heath, 198 N.C. 503, 152 S.E. 388; Wilberding v. Miller, 106 N.E. 665; In re Ashburner's Estate, 28 A. 361. In re Swinburne, 14 A. 850; Brantley v. Bittle, 51 S.E. 561; Farley v. Farley, 115 S.W. 921; Hodges v. Phelps, 26 A. 625. (2) There is nothing in this will or in the surrounding circumstances to overcome the above presumption. (3) The will shows affirmatively that it was the intention of the testator to exclude Frank Lyon as a beneficiary, and it just as certainly shows that the testator had no intention of making Frank Lyon's children beneficiaries.

W. M. Morton for First Trust Company and Pete Hedgpeth, Executors of Will of Willis G. Brinson, plaintiffs-respondents.

(1) The will of Willis G. Brinson is ambiguous. (2) The plaintiffs-respondents, executors of the will of Willis G. Brinson, deceased, have properly brought this action and are entitled to maintain the same. Hamer v. Cook, 118 Mo. 476; Heady v. Crouse, 203 Mo. 100; Davidson v. Real Estate and Inv. Co., 226 Mo. l. c. 23; Andre v. Andre, 288 Mo. 271.

Groves & Watkins, Fred M. Wanger and O. W. Watkins, Jr., for Harry E. Myers, Pearl Shaffer, Harriett Criswell and Marvin B. F. Myers, respondents; Thomas E. Atkinson of counsel.

(1) The use of the words "my legal heirs" does not call for a division under the intestate law. There is no positive rule of law that use of the words "heirs" or "legal heirs" in designating the beneficiaries under a will must refer to the persons entitled to take under the intestate law or that such beneficiaries must take the proportion indicated by that law, when, as in the instant cause, qualifying expressions and other provisions indicate that the words were not used in their technical sense. Reinders v. Koppelman, 94 Mo. 338, 7 S.W. 288; St. Louis Union Trust Company v. Little, 320 Mo 1058, 10 S.W.2d 47; Wooley v. Hays, 285 Mo. 566, 226 S.W. 842; Records v. Fields, 155 Mo. 314, 55 S.W. 1021; DeLaurencel v. DeBoom, 67 Cal. 362, 7 P. 758. (2) Neither Frank Lyon, nor his sons, the minor appellants, could be disinherited of an intestate share of testator's estate unless the will effectively gave the property to other persons -- a result which could only be reached by regarding the list of named beneficiaries as the vital and dispositive words of the will. Hurst v. Von De Veld, 158 Mo. 239, 58 S.W. 1056; Coffman v. Coffman, 85 Va. 459, 8 S.E. 672; Crane v. Doty, 1 Ohio St. 279; Denn v. Gaskin, 2 Cowp. 657; Tea v. Millen, 257 Ill. 624, 101 N.E. 209; Zimmerman v. Hafer, 81 Md. 347, 32 A. 316. (3) The will must be interpreted according to the true intent and meaning of the testator. The manner in which his intention is derived. R. S. 1939, sec. 568; Carter v. Boone County Trust Co., 338 Mo. 629, 92 S.W.2d 647; Gibson v. Gibson, 280 Mo. 519, 219 S.W. 561; Haas v. Atkinson, 9 Mackey, 537; Talcott v. Talcott, 39 Conn. 186; 3 Restatement of the Law of Property, sec. 301; 69 C. J. 296; 28 R. C. L. 267-268; Wooley v. Hays, 285 Mo. 566, 226 S.W. 842; Cornet v. Cornet, 248 Mo. 184, 154 S.W. 121; Price v. Gordon, 347 Mo. 354, 147 S.W.2d 609. (4) The language of the will and the facts and circumstances surrounding its execution show that testator intended his estate to be equally divided among his six relatives named as the principal beneficiaries therein. Intention to cut off Frank Lyon. 2 Bl. Com. 503; Rixey v. Stuckey, 129 Mo. 377, 31 S.W. 770. The environment of testator -- facts and circumstances. Wooley v. Hays, 285 Mo. 566, 226 S.W. 842. The language of the will. St. Louis Union Trust Co. v. Little, 320 Mo. 1058, 10 S.W.2d 47; R. S. 1939, sec. 309. (5) Technical rules of construction are subordinate to the intention of the testator. R. S. 1939, sec. 568; Crowson v. Crowson, 323 Mo. 633, 19 S.W.2d 634; Bates v. Bates, 343 Mo. 1013, 124 S.W.2d 1117; Irvine v. Ross, 339 Mo. 692, 98 S.W.2d 763; Cross v. Hoch, 149 Mo. 325, 50 S.W. 786. (6) When two or more rules of construction come into conflict with each other, the rules will be applied in a flexible manner, so as to give effect to public policy behind the respective rules, the intention of the testator so far as it is not in doubt, and a just result in ...