Gregory v. Borders

• Decision Date: 06 February 1940
• Docket Number: 35,632,35,633
• Citation: 136 S.W.2d 306,345 Mo. 699
• Parties: Spence M. Gregory, Idelle G. Sherwin, Christine G. Sherwin, Laetitia R. Larson, Catherine G. Arding, Dovie A. Cameron, Della M. Fink, Hazel Hamblin, Edna Shields, and Shirley Hamblin, a Minor, by Hobart Shields, Her Guardian and Curator, Respondents, v. Perry Borders, Mary Damerell, Joseph S. Borders or J. S. Borders, and J. S. Borders, Administrator with Will Annexed of the Estate of Manloff Gregory, Appellants. Edna Shields, Administratrix de bonis non with Will Annexed of the Estate of Manloff Gregory, J. E. McNabb, Executor of the Estate of Joseph S. Borders and Rhoda Borders, Widow and Sole Devisee of Joseph S. Borders, Plaintiffs-Appellants, v. Perry Borders and Mary Damerell, Defendants-Appellants, Spence M. Gregory, Idelle G. Sherwin, Christine G. Sherwin, Laetitia R. Larson, Catherine G. Arding, Dovie A. Cameron, Della M. Fink, Hazel Hamblin, Edna Shields, Lovie Bryan, Dovie McClintock and Shirley Hamblin, and Hobart Shields, Guardian and Curator of Shirley Hamblin, Defendants-Respondents
• Court: Missouri Supreme Court

136 S.W.2d 306

345 Mo. 699

Spence M. Gregory, Idelle G. Sherwin, Christine G. Sherwin, Laetitia R. Larson, Catherine G. Arding, Dovie A. Cameron, Della M. Fink, Hazel Hamblin, Edna Shields, and Shirley Hamblin, a Minor, by Hobart Shields, Her Guardian and Curator, Respondents, v. Perry Borders, Mary Damerell, Joseph S. Borders or J. S. Borders, and J. S. Borders, Administrator with Will Annexed of the Estate of Manloff Gregory, Appellants. Edna Shields, Administratrix de bonis non with Will Annexed of the Estate of Manloff Gregory, J. E. McNabb, Executor of the Estate of Joseph S. Borders and Rhoda Borders, Widow and Sole Devisee of Joseph S. Borders, Plaintiffs-Appellants, v. Perry Borders and Mary Damerell, Defendants-Appellants, Spence M. Gregory, Idelle G. Sherwin, Christine G. Sherwin, Laetitia R. Larson, Catherine G. Arding, Dovie A. Cameron, Della M. Fink, Hazel Hamblin, Edna Shields, Lovie Bryan, Dovie McClintock and Shirley Hamblin, and Hobart Shields, Guardian and Curator of Shirley Hamblin, Defendants-Respondents

Nos. 35,632, 35,633

Supreme Court of Missouri

February 6, 1940

Rehearing Granted, Reported at 345 Mo. 699 at 705.

Appeal from Livingston Circuit Court; Hon. Ira D. Beals Judge.

Affirmed.

Davis & Davis and Kitt & Kitt for appellants.

(1) The court erred in sustaining the separate demurrer of certain of defendants to plaintiffs' petition. The circuit court, as a court of equity, has jurisdiction as a court of equity to construe wills. Andre v. Andre, 288 Mo. 284; Peer v. Ashauer, 102 S.W.2d 765. Such action was properly brought by J. S. Borders, administrator with the will annexed. Hayden's Executors v. Marmaduke, 19 Mo. 403; Clark v. Carter, 200 Mo. 531; Hough v. Bokern, 30 S.W.2d 48. Plaintiff Joseph S. Borders individually, was a proper person to institute such action, claiming, as he did, that under such will, when properly construed, that he was a substitute beneficiary thereunder. First Baptist Church v. Robberson, 71 Mo. 326; Lich v. Lich, 158 Mo.App. 400. In construing the will, the court must "have due regard to the directions of the will and the true intent and meaning of the testator." R. S. 1929, sec. 567; Grace v. Perry, 197 Mo. 559; Humphreys v. Welling, 111 S.W.2d 125. The intention of the testator must be ascertained from the whole instrument, and it is the duty of the court to give effect, if possible, to every provision in the will, so that every clause shall have some operation and be effective for some purpose. Armor v. Frey, 226 Mo. 666; Evans v. Rankin, 44 S.W.2d 644, 329 Mo. 411; Scott v. Fulkerson, 60 S.W.2d 34, 332 Mo. 734; Carter v. Trust Co., 92 S.W.2d 647, 338 Mo. 629; Selleck v. Hawley, 56 S.W.2d 387, 331 Mo. 1038; Burrier v. Jones, 92 S.W.2d 885, 338 Mo. 679; Snow v. Ferrill, 8 S.W.2d 1008. In arriving at the intention of testator the relationship of the testator to the beneficiaries, the circumstances surrounding him at the time of its execution must be considered and the will read as near as may be from his standpoint, giving effect, if possible, to every clause and portion of it, and to this end, if need be, words may be supplied and omitted. Grace v. Perry, 197 Mo. 559; Humphreys v. Welling, 111 S.W.2d 125; Crowson v. Crowson, 19 S.W.2d 634, 323 Mo. 633; Neidringhous v. Investment Co., 46 S.W.2d 829, 329 Mo. 84; Thatcher v. Lewis, 76 Mo. (2d) 277, 235 Mo. 1130; Burrier v. Jones, 92 S.W.2d 885, 338 Mo. 679; Pearson v. Church, 106 S.W.2d 941; Selleck v. Hawley, 56 S.W.2d 387, 331 Mo. 1038; Snow v. Ferrill, 8 S.W.2d 1008. In construing will, object is to reach testator's intention which is to be gathered not from single words or single passages, but from consideration of whole instrument and general design and scope of will, and all facts, and all technical rules that would stand in way of execution of such intention must be disregarded. Thatcher v. Lewis, 76 S.W.2d 677, 335 Mo. 1130; Chapman v. Chapman, 77 S.W.2d 87, 336 Mo. 98; Blummer v. Gillespie, 93 S.W.2d 939, 338 Mo. 1113; Lunsmann v. Miss. Valley Trust Co., 98 S.W.2d 748, 339 Mo. 669; Humphreys v. Welling, 111 S.W.2d 123; Wooley v. Hays, 285 Mo. 566, 226 S.W. 842. To give effect to intention utmost liberality in construction of the language employed is authorized. In re McClelland's Estate, 257 S.W. 808.

Marvin F. Pollard and Chapman & Chapman for respondents.

(1) There is no ambiguity in the terms of the gift in the residuary clause, "I give and devise unto my wife Mahala Gregory, to hold to her and her heirs forever," and it creates no doubt as to the intention of the testator. These are mere words of limitation creating a fee simple estate in Mahala Gregory, to the property intended to be conveyed, had she survived the testator. Gannon v. Albright, 183 Mo. 250; Roberts v. Crume, 173 Mo. 579; Garrett v. Wiltsie, 252 Mo. 710; Walter v. Dickman, 274 Mo. 190, 202 S.W. 538; McMahill v. Schowengerdt, 183 S.W. 606; VanEvery v. McKay, 53 S.W.2d 876; Chew v. Keller, 100 Mo. 370; Union Trust Co. v. Curby, 255 Mo. 418; In re Estate of Luckhardt, 277 N.W. 836, 115 A. L. R. 437; In re Wells, 113 N.Y. 396, 10 Am. St. Rep. 457; Comfort v. Mather, 2 Watts & Sergeant, 450, 37 Am. Dec. 523; Jackson v. Alsop, 67 Conn. 249, 34 A. 1106; Sword v. Adams, 3 Yeates, 34; Zabriskie v. Huyler, 51 A. 199; Farnsworth v. Whiting, 102 Me. 296, 66 A. 831; Keniston v. Adams, 80 Me. 290, 14 A. 203; Jones v. Warren, 125 Me. 282, 128 A. 1; Kimball v. Story, 108 Mass. 382; In re Spier, 195 N.W. 430; Armstrong v. Moran, 1 Bradf. 314; Hand v. Marcy, 28 N.J.Eq. 59; Hutson v. Read, 32 N.J.Eq. 591; Palmer v. Munsell, 46 A. 1094; In re Tamargo, 220 N.Y. 225, 115 N.E. 462; In re Judson's Estate, 170 N.W. 254. (2) The function of a court is to construe a will and not to make or rewrite one for the testator under the guise of construction. 69 C. J., p. 42; Burrier v. Jones, 92 S.W.2d 887; Scott v. Fulkerson, 332 Mo. 734, 60 S.W.2d 37. (a) Where a will expresses the intention of the testator in clear, unequivocal and unambiguous language, there can be no occasion for judicial construction, and resort to the use of rules of construction is not necessary. Trust Co. v. Curby, 255 Mo. 418; 69 C. J., pp. 43, 52, secs. 1110, 1118; Mo. Baptist Sanitarium v. McCune, 112 Mo.App. 339; Walter v. Dickman, 274 Mo. 190, 202 S.W. 538; Conrad v. Conrad, 280 S.W. 711; Burrier v. Jones, 92 S.W.2d 887; In re Tamargo, 115 N.E. 463. (b) Where the terms of the will are written in clear, plain and unambiguous language (as in case of will of Manloff Gregory), the intent of the testator must be gathered from the four corners of the will, and extrinsic evidence is not necessary and is inadmissible. 1 Schouler on Wills, secs. 467, 569; Roberts v. Crume, 173 Mo. 579; Mersman v. Mersman, 136 Mo. 258; Mo. Baptist Sanitarium v. McCune, 112 Mo.App. 338; McQueen v. Lilly, 131 Mo. 17; Garth v. Garth, 139 Mo. 462; Brown v. Taschoff, 235 Mo. 456; Krechter v. Grafe, 166 Mo. 385; State ex rel. v. McVeigh, 181 Mo.App. 582; Neibling v. Methodist Orphans' Home Assn., 286 S.W. 65; Grenzebach v. Grenzebach, 286 S.W. 81; McCoy v. Bradbury, 290 Mo. 650, 235 S.W. 1047; Graham v. Karr, 55 S.W.2d 1001; Hood v. St. Louis Trust Co., 66 S.W.2d 838; Burrier v. Jones, 92 S.W.2d 888; In re Shelton's Estate, 93 S.W.2d 690; Marr v. Marr, 117 S.W.2d 231; McMahill v. Schowengerdt, 183 S.W. 606; In re Luckhardt, 277 N.W. 836, 115 A. L. R. 441; Comfort v. Mather, 2 Watts & Sergeant, 450, 37 Am. Dec. 523; In re Judson's Estate, 170 N.W. 255; Conrad v. Conrad, 280 S.W. 711; Painter v. Herschberger, 100 S.W.2d 534; Wickliffe v. Wickliffe, 226 S.W. 1038. (c) This renders inadmissible in this case the following evidence: Surrounding circumstances at time of execution of will. Burrier v. Jones, 92 S.W.2d 888. Declarations of testator to third parties as to what he intended by his will. Zabriskie v. Huyler, 51 A. 197; Marr v. Marr, 117 S.W.2d 234.

OPINION

Clark, J.

Cases Numbered 35,632 and 35,633 were, by consent, consolidated in this court and submitted as one case. They both involve a construction of the last will of Manloff Gregory, deceased, which, omitting signatures of testator and witnesses and attesting clause, reads as follows:

"I, Manloff Gregory, of Livingston County, of City of Ludlow, and State of Missouri, being of sound mind and memory, and considering the uncertainty of this frail and transitory life, do, therefore, make, ordain, publish and declare, this to be my last will and testament.

"First. I order and direct that my Executrix hereinafter named pay all my just debts and funeral expenses as soon after my decease as conveniently may be.

"Second. After the payment of such funeral expenses and debts, I give, devise and bequeath to my wife, Mahala Gregory, all of my real estate.

"Third. I give and bequeath to my half-brother, Spence W. Gregory the sum of ($ 1.00) one dollar.

"Fourth. I give and bequeath to Nathan H. Gregory the sum of ($ 1.00) one dollar. (My half-brother.)

"Fifth. I give and bequeath to my half-sister Lovie Jarvis the sum of ($ 1.00) one dollar.

"Sixth. All the residue of my estate, real, personal and mixed, wheresoever it may be found, and of whatsoever it may consist, I give and devise unto my wife, Mahala Gregory, to hold to her and her heirs forever.

"Lastly, I make, constitute and appoint Mahala Gregory to be Executrix of this my Last Will and Testament without Bond hereby revoking all former wills by me made.

"In Witness Whereof, I have hereunto subscribed my name and affixed my seal, the tenth day of March, in the year of our Lord, One Thousand Nine Hundred and Eleven."

Manloff Gregory died on August 2, 1935. His said will was duly admitted to probate in the Probate Court of Livingston County and an administrator with the will annexed was duly appointed. His estate consisted of a tract...