Griffith v. Witten

• Decision Date: 06 December 1913
• Parties: RICHARD G. GRIFFITH, Executor, v. ORPHA WITTEN et al.; LAURA L. SHULER, Appellant
• Court: Missouri Supreme Court

161 S.W. 708

252 Mo. 627

RICHARD G. GRIFFITH, Executor, v. ORPHA WITTEN et al.; LAURA L. SHULER, Appellant

Supreme Court of Missouri, First Division

December 6, 1913

Appeal from Daviess Circuit Court. -- Hon. Arch B. Davis, Judge.

Affirmed.

John C Leopard and Alexander & Alexander for appellant.

(1) The true intention of the testator is the cardinal rule to be observed in the construction of wills. R.S. 1899, sec. 4650; Cross v. Hoch, 149 Mo. 325. But the intention must be clearly and definitely expressed by the testator in his will, and not in contravention of any fixed rules of law "for while it is the duty of courts to construe wills they cannot make them." Garth v. Garth, 139 Mo. 456; Lehnhoff v. Theine, 184 Mo. 346. The intention which controls is that which is manifest (1) either expressly or (2) by necessary implication from the language of the will itself, as viewed in the light of the situation of the testator and the circumstances surrounding him at the time the will was executed. Cox v. Jones, 229 Mo. 53; Meiners v. Meiners, 179 Mo. 614. And in order that the devise or bequest may be effectual the implication must be a necessary one, or so strong that a contrary intention cannot reasonably be supposed to have existed in the mind of the testator. 40 Cyc. 1389; Grant v. Hapgood, 13 Pick. 159; Masters v. Townshend, 25 N.E.(N.Y.) 928. In the construction of wills, the inquiry is always, says Brannon, J., in Wills v. Foltz, 12 L.R.A. 283; "not what the testator intended or might have intended to express, but what do the words used express." Where a testator uses in his will technical words or terms, or words having a definite legal signification ("bequeath") he will be presumed to have used them in that sense, and the will will be so construed unless a clear and unequivocal intention to the contrary is apparent from the context. And in case of doubt the technical meaning will always be followed. Drake v. Crane, 127 Mo. 85; Annabel v. Patch, 3 Pick. (Mass.) 360; Sheafe v. Cushing, 17 N.H. 508. And where the same words are employed by the testator in different parts of his will they must be presumed to be used always in the same sense. Elliot v. Carter, 12 Pick. 436; Stewart v. Stewart, 61 N.J.Eq. 25; Carr v. Smith, 161 N.Y. 636. Words in a will which are merely expressive of a desire or intention on the part of the testator, and are merely advisory and precatory in character, do not amount to a testamentary disposition. Meyer v. Rusterholz, 55 N.E. 870; Sheafe v. Cushing, 17 N.H. 508; Vincent v. Murray, 73 N.C. 15; Graham v. Graham, 48 Am. Rep. 364. And do not control or alter express dispositions in the will, unless it is apparent from the language of the will that it was the testator's intention that such words of desire or intention should be mandatory. (2) A testator is presumed to have intended to dispose of his entire estate, and not to have died intestate as to any part of it. But the presumption against partial intestacy arises however only where an intention to pass the whole estate is expressed in some definite form. Gallagher v. McKeague, 110 Am. St. 821; Talbott v. Talbott, 1 Ky. L.R. 64; Hafins v. Hafins, 92 Pa. St. 305. Where it appears that the testator failed to dispose of part of his property by his will, the court has no power to put a different construction on the will in order to prevent a partial intestacy, but the testator must be held to have died intestate as to that part. Miller v. Worrall, 62 N.J.Eq. 776; Nixon v. Watson, 73 N.E. 306; Walters v. Neafus, 125 S.W. 167; Duffield v. Morris, 8 W. & S. (Pa.) 348; Coberly v. Earle, 54 S.E. (W. Va.) 336; Byers v. Byers, 6 Dana (Ky.), 313; Burke v. Boone, 51 A. 396. (3) Where testator's intention as expressed in his will is ambiguous or obscure, such a construction should be adopted as will dispose of his property in a just and natural way, such as by equal distribution among his children. 40 Cyc. 1411, notes 10, 11; Graham v. Graham, 48 Am. Rep. 364. It is the uinversal rule, both in England and this country, that heirs are always favored in preference to those not so closely related to the testator. 40 Cyc. 1412; Miller v. Worrall, 62 N.J.Eq. 776. And hence heirs will not be disinherited by conjecture but only by express words in the will or by necessary implication arising therefrom. 40 Cyc. 1412; Guitar v. Gordon, 17 Mo. 408. The burden of showing an intention to displace the heir at law is upon those who claim against him. Augustus v. Seabolt, 3 Met. (Ky.) 155. (4) Two clauses relating alone to the disposition of certain property and to the same persons with respect thereto, should, in order to arrive at the intention of the testator, be construed together as one clause. ("An equal share . . . these all to have an equal share of the remaining sum.") Driggs v. Plunkett, 105 S.W. 976; Barber v. Baldwin, 128 S.W. 1092. (5) It is fundamental that in order to make a valid disposition of either personalty or realty, two things must always be present: (1) a definite subject, and (2) a definite object, and uncertainty as to either is fatal. 1 Jarman on Wills (5 Ed.), 357. (6) All undisposed of property goes to the heirs at law. 40 Cyc. 1942, and note. And this is true even though the testator has expressed an intention that a certain person shall have only what he takes under the will. McQueen v. Lily, 131 Mo. 9.

A. G. Knight for respondents.

(1) A testator is presumed to have intended to dispose of all his property, and not to have died intestate as to part of it; and the presumption is against partial intestacy. Hurst v. Von De Veld, 158 Mo. 239; Tebow v. Dougherty, 205 Mo. 315; Simmons v. Cabanne, 177 Mo. 336; Meiners v. Meiners, 179 Mo. 614; Whitelaw v. Rodney, 212 Mo. 548; Willard v. Darrah, 168 Mo. 660. (2) The true intention of the testator is the cardinal rule to be observed in the construction of a will. R.S. 1899, sec. 4650; Smith v. Hutchison, 61 Mo. 83; Morris v. Hale, 102 Mo.App. 449; Reinders v. Koppleman, 94 Mo. 338; Jarboe v. Hey, 122 Mo. 341; Cross v. Hoch, 149 Mo. 325. And the true intention must be determined, not from any particular words, phrases or clauses, but from the will as a whole. Shumate v. Bailey, 110 Mo. 411; Walton v. Drumtra, 152 Mo. 489; Russell v. Eubanks, 84 Mo. 82; Brooks v. Brooks, 187 Mo. 476. And irrespective of any technical rules of construction which may stand in the way of the true intention. Dickerson v. Dickerson, 211 Mo. 483; O'Day v. O'Day, 193 Mo. 62; Grace v. Perry, 197 Mo. 550; Meade v. Jennings, 46 Mo. 49; Metz v. Wright, 116 Mo.App. 631. When the court has determined the true intention of the testator, it will, if necessary to effectuate the same, change, transpose, reject or supply the words necessary. RoBards v. Brown, 167 Mo. 457; Nichols v. Boswell, 103 Mo. 151; White v. McCracken, 87 Mo. 262; Briant v. Garrison, 150 Mo. 668. (3) Though there is no express direction in the will that the executor or anyone else shall sell the realty, still no express direction is necessary; an implied direction, when the language of the will shows an intention that the land is to be sold, is sufficient. Powell v. Woodcock, 62 S.E. 1071; Lavaggi v. Borilla, 67 A. 929; Flynn v. Frank, 68 A. 196. (4) If a will is susceptible, when fairly construed, of two constructions, one of which would render it inoperative, in whole or in part, and the other give effect to it, the duty of the court is to adopt the latter construction. 30 Am. & Eng. Ency. Law, 667. (5) The realty passes under the quasi-residuary clause. And under such a clause, realty as well as personalty will pass, even though the word "bequeath" and not "devise" is used. 2 Redfern on Wills, 448; Carr v. Dings, 58 Mo. 406; Forster v. Winfield, 37 N.E.(N.Y.) 111; Given v. Hilton, 95 U.S. 591. (6) If the land does not pass directly, and if the clause giving the "remaining sum" cannot be considered as passing the realty to the devisees directly as a part of the residue, still it is sufficient to cover the realty converted by the instructions of testator, in the view of a court of equity, from realty into money. If testator understood a direction of his will to impliedly impose on the executor the duty of converting his real estate into money, as a necessary step in dividing the property, etc., the order with the implied power of sale operated in equity to convert the realty into personalty. Harris v. Ingalls, 68 A. (N.H.) 34. And any direction in a will of a sale of realty and a division of the proceeds, works an equitable conversion. Lash v. Lash, 70 N.E. 1049; Starr v. Willoughby, 75 N.E. 1029, 2 L.R.A.(N.S.) 623; Duff v. Duff, 54 S.W. 711; Schlereth v. Dietrich, 66 N.E.(N.Y.) 130; Chick v. Ives, 90 N.W. 721; Becker v. Chester, 91 N.W. 87; Burr v. Sun, 29 Am. Dec. 48; King v. King, 13 R.I. 501; Becker v. Chester, 91 N.W. 87. For the purpose of carrying out the manifest purpose of the will, the realty will be considered converted into personalty. 3 Redfern on Wills, 139; Handley v. Palmer, 91 F. 948; Scott v. Douglass, 80 N.Y.S. 354; Shumate v. Bailey, 110 Mo. 411; Harris v. Ingalls, 68 A. (N.H.) 34. (7) Though there is no direct power of sale given the executor, or anyone else, still the same is not absolutely necessary; for there may be a power of sale implied. Powell v. Woodcock, 62 S.E. 1071; Lavaggi v. Borilla, 67 A. 929; Flynn v. Frank, 68 A. 196; Haggerty v. Lanterman, 30 N.J.Eq. 37; Van Winkle v. Fowler, 5 N.Y.S. 317; Blout v. Moore, 54 Ala. 360; Going v. Emery, 26 Am. Dec. (Mass.) 645; May v. Brewster, 73 N.E. 546. The realty need not be expressly devised to the executor to enable him to sell it, but a mere direction is sufficient to give him that power. Compton v. McMahon, 19 Mo.App. 494; Encherb v. Carter, 98 Mo. 647.

OPINION

GRAVES, J.

Richard G....