Friedman v. Marshall

• Decision Date: 07 April 1994
• Docket Number: No. 18964,18964
• Citation: 876 S.W.2d 745
• Parties: Anna Hirschowitz FRIEDMAN and E. Harriett Surasky, Appellants, v. Franklin MARSHALL, Administrator ad litem of the Estate of Philip D. Hirschowitz, deceased; Jane Menz; Gilda Whitaker; and Louie Hirschowitz, Respondents.
• Court: Missouri Court of Appeals

Page 745

876 S.W.2d 745

Anna Hirschowitz FRIEDMAN and E. Harriett Surasky, Appellants, v. Franklin MARSHALL, Administrator ad litem of the Estate of Philip D. Hirschowitz, deceased; Jane Menz Gilda Whitaker; and Louie Hirschowitz Respondents.

No. 18964.

Missouri Court of Appeals,

Southern District,

Division Two.

April 7, 1994.

Application for Rehearing or Transfer to

Supreme Court Denied April 25, 1994.

Application to Transfer Denied June 21, 1994.

David Potashnick, Sikeston, for appellants.

James M. Hux, Hux & Hux, Sikeston, for respondents Menz and Whitaker.

Francis J. Siebert, Scott City, for respondent Louie Hirschowitz.

Franklin Marshall, Sikeston, Administrator ad litem of the Estate of Philip D. Hirschowitz.

CROW, Judge.

This is a will construction case.

Max Hirschowitz ("Max" ¹) signed his last will and testament in 1948. At that time, he had a wife, Mary Hirschowitz ("Mary"), and four children: Philip Hirschowitz ("Philip"), Abram Hirschowitz ("Abie" ²), Louie Hirschowitz ("Louie"), and Anna Friedman ("Anna").

The will contained several devises of real estate. One was Article Third, which devised a parcel ("the subject tract") to Philip.

Article Fifteenth of the will provided:

"It is my will and I direct that in the event any of my heirs die without issue the real estate hereinabove bequeathed unto either of such children shall revert to and become the property of my estate for equal distribution among the surviving heirs, including my beloved wife, Mary Hirschowitz, who shall share an equal portion."

Max died in 1950, survived by Mary and his four children. His will was probated.

Mary died in 1983.

Philip signed his last will and testament in 1989. In it, he devised the subject tract to his wife, Margaret L. Hirschowitz ("Margaret"), for life, with the remainder in fee to:

"... my niece, Jane Menz, a fifty percent (50%) share, and my niece, Gilda Whitacre, a fifty percent (50%) share, absolutely."

Jane and Gilda ³ are children of Abie.

Philip died in 1991. He was not survived by Margaret ⁴ or by issue. His will was admitted to probate.

This suit was filed by Anna, seeking a determination of whether ownership of the subject tract passed to (a) Philip's devisees, Jane and Gilda, per his will, or (b) Max's "surviving heirs" per Article Fifteenth of Max's will because Philip died without issue.

Abie died in 1992, while this suit was pending in the trial court. He was survived by his two daughters, Jane and Gilda (Philip's devisees).

At some point in the trial court, Anna's only child, Ettie Harriett Friedman Surasky ("Ettie"), became a party.

Louie, named in Philip's will as personal representative of Philip's estate, filed an answer in that capacity. The answer pled that Max's will devised the subject tract to Philip in fee simple absolute, hence ownership passed to Jane and Gilda per Philip's will, subject to the necessity of having to sell the tract to pay Philip's debts.

Louie, in his individual capacity, filed an answer asserting the same theory. So did Jane and Gilda.

Anna and Ettie moved for summary judgment, averring that by reason of Article Fifteenth of Max's will, the subject tract reverted to, and became part of, Max's "estate" when Philip died without issue. Consequently, pled Anna and Ettie, the subject tract should be distributed "to the remaining surviving residual legatees" pursuant to Article Ninth of Max's will, which provided:

"All the rest, residue and remainder of my property, both real, personal and mixed, ... I give, devise and bequeath ... as follows:

A one-fifth share to my wife, Mary Hirschowitz;

A one-fifth share to my son Louie Hirschowitz;

A one-fifth share to my son Philip Hirschowitz;

A one-fifth share to my son Abie Hirschowitz;

A one-fifth share to my daughter, Anna Friedman."

At some point in the trial court, Franklin Marshall ("Marshall"), a lawyer, was appointed Administrator ad litem of Philip's estate. Apparently, that was because Louie, the personal representative named in Philip's will, was a party to this suit in his individual capacity and, as we have seen, asserted a theory contrary to that of Anna and Ettie.

Marshall, Jane, Gilda and Louie (individually) moved for summary judgment. Those parties, henceforth referred to as "Respondents," asserted Max's intent in Article Fifteenth of his will was that it apply to only an heir who (a) predeceased him, and (b) died without issue. Therefore, pled Respondents, inasmuch as all of the devisees in Max's will survived him, all of the devises were "absolute devises in fee simple."

The trial court found there were no genuine issues of material fact and that Respondents were entitled to summary judgment as a matter of law. The judgment states, inter alia:

"10. That the devises contained in ... the Last Will and Testament of Max Hirschowitz, deceased, were absolute devises in fee.

11. That the devise over in the event of the death of the primary devisees without issue contained in Article Fifteenth of the Last Will and Testament of Max Hirschowitz refers only to the death of any of the primary devisees prior to the death of the testator. Since each of the primary devisees survived the testator, Max Hirschowitz, said devises became absolute devises in fee simple."

Anna and Ettie, henceforth referred to as "Appellants," bring this appeal. The first of their four points relied on reads:

"The trial court erred in overruling Appellants' motion for summary judgment and sustaining Respondents' motion for summary judgment, because its ruling was against the weight of the evidence, in that the weight of the evidence was that the intent of Max Hirschowitz was to cause lands he bequeathed by his will to revert to his estate for distribution among his surviving heirs if any of his sons died without issue after receiving bequests from the Estate of Max Hirschowitz."

Appellants point out that when Max signed his will in 1948, Anna already had issue--Ettie. By Article Sixth, Max devised a parcel of real estate to:

"... my daughter, Anna Friedman, and granddaughter, Ettie Friedman, as joint tenants with right of survivorship."

Appellants assert all three of Max's sons were childless when Max signed his will; however, Appellants fail to identify anyplace where the record demonstrates this.

The record does establish that Louie, the youngest of Max's children, was 32 when Max died. Louie, like Philip, has no offspring. As reported earlier, Abie, now deceased, was survived by two daughters, Jane and Gilda. Their respective dates of birth are not in the record.

In construing a will, courts must gather the testator's intention from the words used in the will, and give effect to such intention unless it conflicts with some positive rule of law. Carter v. Boone County Trust Co., 338 Mo. 629, 92 S.W.2d 647, 651[1, 2] (banc 1935). Courts must take the will as a whole in arriving at such intention and not give any clause undue preference. Id. at . Where a will has a provision such as "should any of my devisees die without issue living," and there is doubt or uncertainty as to whether the testator meant the death of the devisee before the death of the testator, the will is to be construed as meaning the death of the devisee before the death of the testator. Id. at 653. This is a rule of construction based on the theory that the law favors the vesting of estates at the earliest possible time. Id. at .

An ambiguity in a will is patent if it is apparent to a person who reads the entire will with care. Helmer v. Voss, 646 S.W.2d 738, 741 (Mo. banc 1983). Where an ambiguity is patent, it is appropriate to resort to outside evidence of surrounding circumstances to identify the beneficiaries, to explain their relationship to the testator, or to show the nature and extent of the testator's holdings. Id. Once such explanatory material has been considered, a court must look primarily to the language of the will. Id.

In applying the principles set forth in the two preceding paragraphs, we are mindful that this case reaches us on appeal from a summary judgment.

We learn from ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993), that a party moving for summary judgment bears the burden of establishing a right to judgment as a matter of law on the record submitted. Id. at 382. Any evidence in the record presenting a genuine dispute as to the material facts defeats the moving party's prima facie showing. Id.

Here, we find no dispute in the record or the parties' briefs about any fact pertinent to the determination of Max's testamentary intent. That is, all parties appear to agree on all facts material to that determination. ⁵ Consequently, this case was appropriate for adjudication by summary judgment.

Appellants rely on several provisions in Max's will to support their first point.

Appellants emphasize that Article Fifteenth, quoted supra, provides that if any of Max's heirs die without issue, the real estate devised to such child shall "revert to and become the property of my estate for equal distribution among the surviving heirs...." Appellants maintain the verb "revert" demonstrates Max intended the "die without issue" condition to apply after his death. Appellants argue:

"[L]and cannot revert to an estate unless the testator has died, an estate has been created, lands ... distributed therefrom, and then a condition [occurs] which triggers the return of such property to the estate."

Appellants cite Thomas v. Higginbotham, 318 S.W.2d 234, 237 (Mo.1958), which holds that a testator is presumed to have intended the legal effect of language used in his will. This is on the theory that the testator is presumed to know the law. Id. Therefore, say Appellants, we must presume Max knew the meaning of "revert" when he used it in Article Fifteenth.

In Keller v. Keller, 338 Mo. 731, 92 S.W.2d 157 (1936), cited by Appellants, John G. Keller owned real estate in fee. He and...