Garth v. Garth

• Decision Date: 08 June 1897
• Citation: 139 Mo. 456,41 S.W. 238
• Parties: GARTH v. GARTH et al.
• Court: Missouri Supreme Court

41 S.W. 238

139 Mo. 456

GARTH v. GARTH et al.

Supreme Court of Missouri.

June 8, 1897.

WILLS — CONSTRUCTION — ADVANCEMENTS.

Testator by his will disposed of property to the amount of $100,000, distributing it among his children. By a clause in the will he left in trust

for the son of a deceased son $9,000, "less the amount of the following described notes, which I hold against my son James M. Garth." He directed that the notes should be taken as part of the $9,000, and the balance thereof invested for the maintenance and education of the child, the principal to be paid over to him when he became of age. If interest were charged on the notes, the legatee would receive about $750. The amount of the principal of the notes was about $4,000. Held, that it was the intent of the testator to treat the notes as advancements, to be charged against the legatee without interest.

Burgess, J., dissenting.

In banc. Appeal from circuit court, Boone county; John A. Hockaday, Judge.

Suit by James Garth, by his guardian, against Walter W. Garth and others. From the decree, plaintiff appeals. Reversed.

For opinion in division, see 37 S. W. 901.

Odon Guitar, for appellant. N. T. Gentry and W. M. Williams, for respondents.

MACFARLANE, J.

This suit is addressed to the equity side of the court, the purpose of which is to obtain the proper construction of the second item of the following will of Jefferson Garth, deceased: "Item 1. I have already advanced to each one of my children, John R. Garth (now deceased), William G. Garth, Samuel A. Garth, Henry H. Garth, James M. Garth (now deceased), Walter W. Garth, and Lizzie Worley, the sum of nine thousand dollars ($9,000), which is to be charged as a part of their distributive share of my estate. Item 2. I will and bequeath to Walter W. Garth, in trust for my grandson James Garth, son of my son James M. Garth, the sum of nine thousand dollars ($9,000), less the amount of the following described notes which I hold against my said son James M. Garth, to wit: One note dated October 9, 1881, for thirty-nine hundred dollars ($3,900), bearing eight per cent. interest from date, credited by four hundred dollars October 9, 1881; one note for one hundred and fifty dollars, dated January 21, 1882, and one note for one hundred dollars, dated March 17th, 1882, both bearing six per cent. interest from date. I direct that said above-described notes be taken by said trustee as part of said nine thousand dollars, and the balance thereof shall be invested by said trustee to the best advantage. The interest arising from the same shall be paid out by him for the maintenance and education of said James Garth, and when said James Garth shall arrive at the age of twenty-one years the principal shall be paid over to him. If, however, said James Garth should die before arriving at the age of twenty-one years, without issue, said trust fund shall revert to, and become a part of, my estate. Item 3. The residue of my estate I direct shall be divided into six (6) equal parts, one-sixth of which I will bequeath to each of my children William G. Garth, Lizzie Worley, Samuel A. Garth, and Walter W. Garth; one-fourth of one-sixth (6) part to each of my grandchildren Archibald T. Garth, Squire T. Garth, Mary Clinkscales, and Maud Grant, children of my son John R. Garth, deceased; one-fourth of one-sixth (6) to my granddaughter Lizzie Crews, daughter of my son Henry H. Garth; and three-fourths of one-sixth (6) to my son William G. Garth in trust for the use and benefit of my son Henry H. Garth and his wife, Rhodie A. Garth, which I direct shall be invested by said trustee to the best advantage, and the interest accruing therefrom shall be paid over to the said Henry H. Garth and Rhodie A. Garth for their maintenance and support as often as, in the judgment of said trustee, he may think best. On the death of said Henry H. Garth this trust shall cease, and said trustee shall pay over any amount in his hands to Rhodie A. Garth and Lizzie Crews, who shall share the same equally. Item 4. I will and direct that all notes held by me at my death against any of the distributees under this will shall be taken by said distributees or their trustee as a part of their distributive share, whether said notes shall be barred by the statute of limitation or not. Item 5. I hereby appoint my son Walter W. Garth executor of this, my last will, and request the probate court of Boone county not to require said executor to give bond for the performance of his duties under this will. Said executor is hereby fully empowered to sell and convey any and all of my real estate at public or private sale, for cash or on time, as he may deem best. In testimony whereof, I have hereto set my hand and seal this 7th day of September, 1888." James Garth, the legatee mentioned in the second item, was a grandson of the testator and son of James M. Garth, mentioned in the first item. The will was dated on the 7th day of September, 1888, and the testator died in March, 1892. At the date of the will, plaintiff was an infant under two years of age. James M. Garth died before the execution of the will. The value of the estate left by the testator was estimated at $100,000 or more. The inventory of the estate, which was read in evidence, shows notes of some of the children of the testator, charged against them. These notes all bear interest. Walter W. Garth, as executor, by answer, joins with plaintiff in asking a construction of the will, in order that he may be advised of his duties in distributing the estate. The claim of plaintiff is that, under a proper construction of the second item of the will, he is entitled to the sum of $9,000, after deducting therefrom the principal of the notes mentioned, or at least he is entitled to the sum of $9,000 less the principal and interest due on the notes at the time the will was executed. Defendants claim that the amounts due on the notes, principal and interest, at the date of the death of the testator, should be deducted from $9,000, and what remains is the true amount to which plaintiff will be entitled on distribution. The circuit court adopted the views of the defendants, and a decree was entered accordingly. From this judgment, plaintiff appealed.

A statute of the state provides that "all courts and others concerned in the execution of last wills shall have due regard to the direction of the will, and the true intent and meaning of the testator, in all matters brought before them." Rev. St. 1889, § 8916. The same rule, independent of statutory mandate, has been the guide of the courts everywhere, and has been declared and enforced by this court in numerous cases. The statute, however, emphasizes the rule, and courts should not vary from it. Small v. Field, 102 Mo. 122, 14 S. W. 815, and cases cited. A secondary rule is that the intention must be gathered from the terms of the will itself, unless inconsistencies or ambiguities in the...