Glidewell v. Glidewell

• Citation: 230 S.W.2d 752,360 Mo. 713
• Decision Date: 08 May 1950
• Docket Number: No. 1,No. 41443,41443,1
• Parties: GLIDEWELL et al. v. GLIDEWELL et al. (GENERAL BOARD OF CHURCH OF THE NAZARENE, Intervenor, et al.)
• Court: Missouri Supreme Court

Page 752

230 S.W.2d 752

360 Mo. 713

GLIDEWELL et al. v. GLIDEWELL et al. (GENERAL BOARD OF CHURCH OF THE NAZARENE,

Intervenor, et al.).

No. 41443.

Supreme Court of Missouri, Division No. 1.

May 8, 1950.

Motion for Rehearing or to Modify Opinion Overruled June 13, 1950.

Opinion Modified on Court's Own Motion June 13, 1950.

L. E. Atherton, Milan, P. M. Marr, Milan, for Roy Glidewell, Victoria Glidewell, Laura Holman, Rosa Robison, James Glidewell, and Nancy Compton, plaintiffs-appellants.

George T. Aughinbaugh, Hunt C. Moore, W. J. Carroll, all of Kansas City, Herbert S. Brown, Trenton, and A. D. Campbell, Milan, for intervenor and trustee appellants.

Kitt & Lintner, Wilder Lintner, Chillicothe, for respondents.

LOZIER, Commissioner.

Plaintiffs are brothers and sisters of Huldah Willis Campbell, and defendants are Huldah's brother, Paul Glidewell (individually and as executor of Huldah's estate) and his children (including his son Wilbur, and his daughter, Huldah Mettle). Plaintiffs and Paul are Huldah's heirs at law . The suit, filed in May, 1947, was one to contest Huldah's 1946 purported will (which had been probated), and to set aside certain conveyances from Huldah to Paul and Mrs. Mettle because of mental incapacity and undue influence. In January, 1948, the General Board of the Church of the Nazarene, a corporation, intervened. As the three trustees of the local church of the Nazarene were already parties, the court appointed a trustee for its membership and he became a party and filed answer.

In its petition, intervenor adopted the allegations of plaintiffs' petition attacking the 1946 purported will and the conveyances, and also sought to establish Huldah's 1923 purported will (probate of which had been refused in December, 1947, on the ground that it had been revoked by the 1946 purported will). By agreement of the parties, the causes were consolidated and all issues were to be tried by the court without a jury, other than the issue as to the 1946 purported will. However, at the conclusion of the trial, it was agreed that this issue, and the issues as to the validity of the conveyances, would not be tried pending determination of the matters involved in these appeals. Plaintiffs, intervenor and the trustee, appealed from the judgment hereinafter summarized, and the appeals are here because title to real estate is involved and the amount in dispute exceeds $7500.

On February 14, 1923, B. L. Willis and Huldah Willis, his wife, executed the following document: 'We, B. L. Willis and Huldah Willis, husband and wife, residing in Sullivan County, Missouri, being of sound mind and memory, do make, publish and declare the following as and for our last will and testament, that is to say: That we both own and possess real and personal property in our own right, and desire to make the following testamentary disposition of the same. That is if I, the said B. L. Willis, shall die before my said wife, it is my will, and I do hereby give, devise and bequeath to my said wife, all property owned by me at my death. And I, the said Huldah Willis, if my said husband survive me, it is my will that he shall take, and I do hereby give, devise and bequeath to him all property possessed and owned by me at my death. And it is our will that if, upon the death of the survivor of us, there shall be any property remaining undisposed of, we give, devise and bequeath the same to the church of the Nazarene, to have and to hold the same absolutely. In witness whereof, we have hereunto set our hands this the 14th day of February, 1923.' Two witnesses subscribed the attestation that B. L. and Huldah declared the instrument as their last will and that the witnesses had signed as such in the presence of B. L. and Huldah and of each other.

B. L. Willis died in 1927 and the document was probated as his last will. In 1938, the probate court, on Huldah's application, entered an order dispensing with administration of his estate on the ground that the personal property did not exceed the amount allowed her as the widow's absolute property. Prior to her death Huldah made several conveyances of real estate, of some of which B. L. Willis died seized in his own name, some of which had been owned by them by the entirety and some of which she acquired after his death.

On May 13, 1946, Huldah executed a document purporting to be her last will wherein she devised a farm to her brother Paul, her residence to Mrs. Mettle, and certain personalty to various parties plaintiff and defendant. At the same time, and as part of the same transaction, she executed two warranty deeds, one conveying the farm to Paul and the other the residence to Mrs. Mettle. She placed the deeds in the custody of the First National Bank at Milan in separate envelopes upon each of which she had signed a written direction to the bank to deliver the deed 'to the grantee upon the death of the grantor.' After her death, in March, 1947, the deeds were delivered to, and recorded by, the grantees.

The judgment was: (1) That both the General Board and the membership of the local church had interests entitling them to be made parties and that neither 'was prohibited by law from taking property under the will of B. L. Willis and Huldah Willis, executed by them on February 14, 1923'; (2) that 'the 1923 joint will was not irrevocable by Huldah Willis and that the evidence was insufficient to establish a legal contract' not to revoke; (3) that under the 1923 will, all of the property of B. L. Willis passed to Huldah in fee simple and that such estate was not cut down nor limited 'by the fifth paragraph of their said will' to a life estate; and (4) that Huldah had the right to make a valid disposition of such property and that, if she had not made such a valid disposition, all such property owned by her at the time of her death would pass 'under the will which she executed with her husband, B. L. Willis, on February 14, 1923.'

It is conceded that the 1923 document was the last will of B. L. Willis. Thus, the initial matter for determination is the nature of the interest acquired by his widow in property owned by him solely at the time of his death. His will was not effective as to the property owned by them by the entirety. See Stewart v. Shelton, 356 Mo. 258, 201 S.W.2d 395. The personalty was negligible. The realty is hereinafter listed.

The result of our search for 'the true intent and meaning of' this testator, Sec. 568, both R.S.Mo.1939 and Mo. R.S.A. and cases cited, is our ruling that the will of B. L. Willis vested in Huldah a life estate with power of disposal of the fee during her lifetime. Paraphrased to read as his single will (as it was), we read: 'I B. L. Willis, residing * * *' etc. 'I own and possess real and personal property in my own right and desire to make the following testamentary disposition of the same, that is, if I shall die before my wife, it is my will and I hereby give, devise and bequeath to my said wife all property owned by me at my death. And it is my will that if upon the death of my said wife there shall be any of my property remaining undisposed of, I give, devise and bequeath the same to the church of the Nazarene, to have and to hold the same absolutely.'

Absent the last quoted sentence, the devise to Huldah would have been one in fee. However, this sentence is a clear, unequivocal qualification or limitation upon the estate intended to be devised to her by the preceding sentence. It is not another devise of the fee; it is both a clear indication that she was to receive a life estate with power of disposal and a devise of the remainder, to take effect upon her death, in the event she had not exercised the power. The words of limitation are clear and unambiguous and supplement the words used in the devise to the wife. Sec. 564, both R.S.Mo.1939 and Mo.R.S.A. and cases cited; Moran v. Sutter, Mo.Sup., 228 S.W.2d 682; and 75 A.L.R. 71. See also Romjue v. Randolph, 166 Mo.App. 87, 148 S.W. 185, for construction of a joint will similar to that involved here.

As we stated in Shelton v. Shelton, 348 Mo. 820, 155 S.W.2d 187: 'The language of one will is rarely, if ever, like another and frequently a slight difference in the words used calls for different constructions of testamentary provisions similar in other respects. * * * Therefore decisions construing similar testamentary provisions are of small value as precedents and must be considered with caution. Bearing this in mind we believe that the effect of the clause under consideration in this case has been settled by our decisions construing similar provisions under similar circumstances. They hold that a gift though not expressly for life but with a limitation over of any part of the estate remaining at the death of the immediate devisee creates a life estate. This is of course a rule of construction to be applied in carrying out the intention of the testator.'

The apparent conflict in the decisions is the result of the application of general principles to the facts in each case. The cases cited by respondents-defendants reaffirm the general uncontraverted rules that 'a limitation over after a devise of the fee is void' and 'that a devise of the fee cannot be cut down by subsequent ambiguous language.' These cases, however, do not support the contention that Huldah was devised a fee in this will. In Armor v. Frey, 226 Mo. 646, 126 S.W. 483, 484, the words 'give, devise and bequeath' to children (first takers) were held to convey only life estates because of a subsequent clause providing that 'upon the death of my children without issue I direct that the share of such child shall revert to my estate.' In Roth v. Rauschenbusch, 173 Mo. 582, 73 S.W. 664, 61 L.R.A. 455; Jackson v. Littell, 213 Mo. 589, 112 S.W. 53, 127 Am.St.Rep. 620; Middleton v. Dudding, Mo.Sup., 183 S.W. 443; and Palmer v. French, 326 Mo. 710, 32 S.W.2d 591, where property was devised to the wife 'absolutely and in...