Graves v. Graves

• Decision Date: 26 February 1942
• Docket Number: 37835
• Citation: 163 S.W.2d 544,349 Mo. 722
• Parties: Frank H. Graves, Appellant, v. Douglas Graves and Commerce Trust Company
• Court: Missouri Supreme Court

163 S.W.2d 544

349 Mo. 722

Frank H. Graves, Appellant, v. Douglas Graves and Commerce Trust Company

No. 37835

Supreme Court of Missouri

February 26, 1942

Opinion Modified and Rehearing Denied April 16, 1942. Further Rehearing Denied June 3, 1942. Motion to Transfer to Banc Overruled July 1, 1942.

Appeal from Jackson Circuit Court; Hon. John F. Cook Judge.

Affirmed.

Martin J. O'Donnell for appellant.

(1) The use of the word "issue" in the third paragraph instead of the technical term "heirs of the body" operated to prevent the third paragraph from ever taking effect and to make appellant, an adopted child, the owner of one-half of the real estate devised. St. Louis Union Trust Co. v. Hill, 336 Mo. 17; In re McEwan Estate, 128 N.J.Eq. 140, 15 A.2d 340; In re Holden's Tr., 207 Minn. 211, 291 N.W. 104; Leeper v. Leeper, 147 S.W.2d 660; Sewall v. Roberts, 115 Mass. 262; Hartwell v. Tefft, 19 R. I. 644, 35 A. 882; In re Olney, 27 R. I. 495, 63 A. 956; Laws 1917, pp. 193-194; Secs. 9613, 9614, R. S. 1939; Walker v. O'Brien, 115 F.2d 957; Estate of Winchester, 140 Cal. 468. (2) The adoption decree was the sentence of the law declaring plaintiff's status as the child of his adoptive father "to all legal intents and purposes" and under the "fourth" paragraph of the will of Sallie Cowherd required the trustee on the death of the adoptive father to pay said father's portion to plaintiff's guardian. The demurrers were mere collateral attacks on said decree and, hence, the judgment must be reversed. Niehaus v. Madden, 155 S.W.2d 141. (3) Sallie Cowherd by her will carved out of her fee simple estate in the land devised lesser estates than that owned by her, to-wit, life estates in her nephews with contingent remainders to the "heirs of their body" by the second paragraph of the will retaining the reversion in fee simple and by the third paragraph providing that in the event that either nephew died then to his survivor and to the heirs of his body. Both of these estates were less than the fee simple. The result was (1) when Sallie Cowherd died plaintiff's adoptive father inherited the reversion in fee simple, (2) he then held the reversion and the life estate which merged therewith, (3) the contingent remainder was thereby destroyed and the entire fee vested in the adoptive father (perhaps subject to being divested by the birth of an heir of his body), and (4) when the adoptive father died appellant as his son and heir inherited the reversion in fee simple no longer subject to being divested by unborn heirs of his dead father by adoption, (5) and the third paragraph never became effective (A) for the foregoing reasons, (B) for the reason that appellant was issue of his adoptive father under the adoption law and the condition precedent to its taking effect did not exist, (C) no person can by creating two estates tail give effect to the last because the statute is as much a part of the first as if written into it and whether there be heirs of the body or not the statute acting on and written into the first cannot be thus nullified and it compels a reversion to the heirs of the testatrix. Stockwell v. Stockwell, 262 Mo. l. c. 675; Gillilan v. Gillilan, 278 Mo. 99; 23 R. C. L. 518, secs. 56-57; Hyde v. Hopkins, 317 Mo. 587; Collins v. Whitman, 222 S.W. 840; Lewis v. Lewis, 345 Mo. 816; Begley v. Watson, 98 Tenn. 353; Craig v. Warner, 5 Mackey, 460; 4 Kent's Comm. (9 Ed.), 283; 1 Schouler on Wills, sec. 874, p. 1330; Peugnet v. Berthold, 183 Mo. 64; 2 Washburn, Real Prop. (6 Ed.), secs. 1509, 1510, 1611; 3 Washburn, Real Prop. (6 Ed.), sec. 2246; Hopkins, Real Prop., p. 306; Ryan v. Maghan, 99 Tenn. 338; Stockwell v. Bowman, 67 S.W. 379; Chapin v. Knott, 67 N.E. 833; Coats v. Zewell, 25 S.W. 525; 26 S.W. 179; Peterson v. Jackson, 63 N.E. 646; Kamarver v. Kamarver, 381 Ill. 587; 14 Cyc. 33; 18 C. J., pp. 821, 822, and notes; Collins v. Whitman, 22 S.W. 840; Peugnet v. Berthold, 183 Mo. 64; Harrison v. Weatherly, 180 Ill. 418; In re Kenyon, 17 R. I. 149 Stokes v. Van Wzak, 83 Va. 725; Gilman v. Stone, 123 Ky. 137; Begley v. Watson, 98 Tenn. 353; Loring v. Eliot, 16 Gray, 574; 23 R. C. L., p. 1101, sec. 5; Bond v. Moore, 236 Ill. 576; 2 Bl., Comm., 178, 171; Lewin v. Bell, 258 Ill. 227; Lewis v. Pleasant, 143 Ill. 211; Wood v. Chase, 327 Ill. 91; Fuller v. Fuller, 315 Ill. 214; Dinwiddie v. Self, 145 Ill. 290; Peugnet v. Berthold, 183 Mo. 61; Sec. 3498, R. S. 1939; Laws 1917, pp. 193, 194; St. Louis Union Trust Co. v. Hill, 336 Mo. 17; Brock v. Dorman, 339 Mo. 611; Leeper v. Leeper, 147 S.W.2d 660; Niehaus v. Madden, 155 S.W.2d 141; Digby's History of the Law of Real Prop., p. 226; Gannon v. Albright, 183 Mo. 238; Tiffany on Real Property (1939 Ed.), sec. 47; Lewin v. Bell, 258 Ill. 227; Bl., Comm., Book II, 178; Wood v. Chase, 327 Ill. 91. (4) Testatrix having attempted to create one estate tail could not be permitted to attempt to create another and consequently the third paragraph was noneffective and the remainder referred to in the third paragraph was void. Tiffany on Real Estate (2 Ed.), sec. 24; Homer v. Miles, 270 Ill. 20; Brown v. Rogers, 125 Mo. 392.

James E. Goodrich, Hugh M. Hiller and Samuel D. Newkirk for respondent Commerce Trust Company; Michaels, Blackmar, Newkirk, Eager & Swanson of counsel.

(1) The claim of appellant must be determined by a construction of the will of Sallie Cowherd and not by the adoption decree. The intention of the testatrix as disclosed by the will was that all of her property should go to her blood relatives, and the will must be so construed. The appellant not being a bodily heir of Eugene Henry Graves, Jr., a nephew of the testatrix, did not become and is not entitled to any part of the funds which were held by the Commerce Trust Company as trustee. Sec. 568, R. S. 1939; English v. Ragsdale, 147 S.W.2d 653; Grundmann v. Wilde, 346 Mo. 327, 141 S.W.2d 778; Carter v. Boone County Trust Co., 338 Mo. 629, 92 S.W.2d 647; Stevenson v. Stearns, 325 Mo. 646, 29 S.W.2d 116; Snow v. Ferril, 320 Mo. 543, 8 S.W.2d 1008; Armour v. Frey, 226 Mo. 646, 126 S.W. 483; Cornet v. Cornet, 248 Mo. 184, 154 S.W. 121; Reinders v. Koppelman, 94 Mo. 338, 7 S.W. 288; Small v. Field, 102 Mo. 104, 14 S.W. 815; Allison's Executor v. Chaney, 63 Mo. 279; Cross v. Hoch, 149 Mo. 325, 50 S.W. 786; Underwood v. Cave, 176 Mo. 1, 75 S.W. 451; Mersman v. Mersman, 136 Mo. 244, 37 S.W. 909; Coleman v. Haworth, 8 S.W.2d 931; Wyeth v. Merchant, 34 F.Supp. 785; Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672. (2) Because the word "issue" in the clause "die without issue" in the fourth paragraph of the will, and the words "child or children" in said paragraph of the will do not include an adopted child, but must be construed to mean a natural child or children or heirs of the body, and appellant, who only claims to be an adopted child, is excluded as a beneficiary under the will. Melek v. Curators of the University of Missouri, 213 Mo.App. 573, 250 S.W. 614; Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672; In re Woodcock, 103 Me. 214, 68 A. 821; Rodgers v. Miller, 43 Ohio App. Rep. 198, 182 N.E. 654; Gallagher v. Sullivan, 251 Mass. 552, 146 N.E. 769; Sec. 568, R. S. 1939; English v. Ragsdale, 147 S.W.2d 653; Grundmann v. Wilde, 346 Mo. 327, 141 S.W.2d 778; Carter v. Boone County Trust Co., 338 Mo. 629, 92 S.W.2d 647; Stevenson v. Stearns, 325 Mo. 646, 29 S.W.2d 116; Snow v. Ferril, 320 Mo. 543, 8 S.W.2d 1008; Armour v. Frey, 226 Mo. 646, 126 S.W. 483; Cornet v. Cornet, 248 Mo. 184, 154 S.W. 121; Reinders v. Koppelman, 94 Mo. 338, 7 S.W. 288; Small v. Field, 102 Mo. 104, 14 S.W. 815; Allison's Executor v. Chaney, 63 Mo. 279; Cross v. Hoch, 149 Mo. 325, 50 S.W. 786; Underwood v. Cave, 176 Mo. 1, 75 S.W. 451; Mersman v. Mersman, 136 Mo. 244, 37 S.W. 909; Coleman v. Haworth, 8 S.W.2d 931; Wyeth v. Merchant, 34 F.Supp. 785.

Reed & Ingraham, C. Jasper Bell and Burr S. Stottle for respondent Douglas Graves.

(1) The will, as a whole, shows that the testatrix intended her estate (both real and personal) to go to those of her own blood, to-wit, her two nephews and the heirs of their bodies -- not to any adopted child. Under item fourth of the will nephew Eugene having died without issue, the surviving nephew Douglas was entitled to all the personal estate on reaching 40 years of age. (a) "Issue" as used in the will means "Heirs of the Body." Wyeth v. Merchant, 34 F.Supp. 785, affirmed Merchant v. Wyeth, 120 F.2d 242; Grundmann v. Wilde, 346 Mo. 327, 141 S.W.2d 778; Gannon v. Pauk, 183 Mo. 265, 83 S.W. 453; Carter v. Boone County Trust Co., 338 Mo. 629, 92 S.W.2d 647; Brown v. Tuschoff, 235 Mo. 449, 138 S.W. 497; Shaw v. Bank of Dearborn, 324 Mo. 348, 23 S.W.2d 20; Long v. St. Louis Union Trust Co., 332 Mo. 288, 57 S.W.2d 1071; Gallagher v. Sullivan, 146 N.E. 769; Middletown Trust Co. v. Gaffey, 112 A. 689; Abbott v. The Essex Co., 15 L.Ed. 352; Fidelity Union Trust Co. v. Hall, 6 A.2d 124. The adoption statute does not change this established rule of construction. In re Ashhurst's Estate, 3 A.2d 218; Brock v. Dorman, 339 Mo. 611; St. Louis Union Trust Co. v. Hill, 336 Mo. 17; Carter v. Boone County Trust Co., 338 Mo. 629. (b) Where a testator uses a word or clause in a given sense in one part of his will, it will be given the same meaning in other parts of the will unless a contrary intention clearly appears. Snow v. Ferril, 320 Mo. 543, 8 S.W.2d 1008; English v. Ragsdale, 147 S.W.2d 653; Blumer v. Gillespie, 338 Mo. 1113, 93 S.W.2d 939; Bernero v. St. Louis Union Trust Co., 287 Mo. 602, 230 S.W. 620; Mooney v. Tolles, 149 A. 515. (c) A devise to the "child" or "children" of a person (other than the testator himself) does not include an adopted child or children unless such intent is clearly apparent from other provisions or circumstances. Melek v. Curators of University...