Grundmann v. Wilde

• Decision Date: 28 June 1940
• Docket Number: 36273
• Citation: 141 S.W.2d 778,346 Mo. 327
• Parties: Sophie M. T. M. Grundmann, Appellant, v. Paul T. Wilde
• Court: Missouri Supreme Court

141 S.W.2d 778

346 Mo. 327

Sophie M. T. M. Grundmann, Appellant, v. Paul T. Wilde

No. 36273

Supreme Court of Missouri

June 28, 1940

Motion for Rehearing Overruled June 28, 1940.

Appeal from Circuit Court of City of St. Louis; Hon. William S Connor, Judge.

Reversed and remanded (with directions).

Edwin C. Luedde for appellant.

(1) A devise may be cut down by subsequent language in the will showing such intention. The rule is that the testator's intention must be ascertained from the whole instrument, and all clauses construed together. Blumer v. Gillespie, 338 Mo. 113, 93 S.W.2d 939; McClelland v. Martin, 257 S.W. 808; Payne v. Reece, 297 Mo. 54, 247 S.W 1006. (2) The intent of the testator to create a trust, if it can be fairly ascertained from the entire instrument, will be upheld. No particular phraseology is required to establish a trust. Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135; Davies v. Keiser, 297 Mo. 1, 246 S.W. 897; McDowell v. Brown, 21 Mo. 57. (3) An adopted child is not a child, nor it is an heir, as to any persons other than the immediate parties to the deed of adoption. A child adopted in a deed by a son of the testator does not become the grandchild of the heir of such testator. Hockaday v Lynn, 200 Mo. 456, 98 S.W. 585, 8 L. R. A. (N. S.) 707, 118 Am. St. Rep. 672, 9 Ann. Cas. 775; Reinder v. Koppelman, 94 Mo. 338, 7 S.W. 288; 8 L. R. A. (N. S.) 117; Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556; Melek v. Curators of Univ. of Mo., 213 Mo.App. 572, 250 S.W. 614; R. S. 1909, sec. 1673; Nickerson v. Hoover, 70 Ind.App. 343, 115 N.E. 588. (4) An adopted child is not included in a bequest or devise to the "heirs of the body" of the person adopting him; nor is it a "lineal descendant." R. S. 1929, sec. 14079; Clarkson v. Hatton, 143 Mo. 47, 44 S.W. 761; Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672; Rauch v. Metz, 212 S.W. 357; Hale v. Hale, 237 Ill.App. 410. (5) The terms "heirs of the body" and "issue" are equivalent. An adopted child does not come within either term. Rembert v. Vetoe, 85 S.C. 198, 71 S.E. 959; In re Russell's Estate, 284 Pa. 164, 130 A. 319; Wright v. Gaskill, 74 N.J.Eq. 742, 72 A. 108; Ballentine's Law Dictionary, p. 687; 2 Bouvier's Law Dictionary, p. 1686; Beckley v. Riegert, 212 Pa. 91, 61 A. 641; Stayman v. Paxson, 221 Pa. 446, 70 A. 803; Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672. (6) An adopted child is not "issue," nor "lawful issue," as those terms are used, either generally or in a bequest or devise to some one with a remainder over to his issue or lawful issue. Adopting a child does not prevent a failure of issue. Philip's Excr. v. McConnica, 59 Ohio St. 1, 51 N.E. 445, 69 Am. St. Rep. 153; Gallagher v. Sullivan, 251 Mass. 552, 146 N.E. 769; Davis v. Fogle, 124 Ind. 41, 23 N.E. 861, 7 L. R. A. 485; In re Book's Will, 89 N.J.Eq. 509, 105 A. 878; Munday v. Munday, 164 Va. 145, 178 S.E. 917; Morse v. Osborne, 75 N.H. 487, 77 A. 403, 30 L. R. A. (N. S.), 914, Ann. Cas. 1912A, 324; Bealor's Estate, 23 Pa. Dist. Rep. 1117; Middletown Trust Co. v. Gaffey, 96 Conn. 61, 112 A. 689; Stanley v. Chandler, 53 Vt. 619; Morton v. Amer. Sec. & Trust Co., 387 N.Y.S. 297, 159 Misc. 166; In re Cotheal's Estate, 202 N.Y.S. 268, 121 Misc. 665; In re Smith's Will, 95 Vt. 97, 112 A. 897; Miller v. Wick, 311 Ill. 269, 142 N.E. 490, 30 A. L. R. 1407.

Case, Voyles & Case for respondent.

(1) Such intention to create such further devise must be apparent, and cannot rest upon the basis of uncertain language or ambiguous terms and provisions. Therefore, the preceding clause or grant will not be limited or cut down when the provisions relied upon for such purpose are not as plaintiff, clear and unambiguous. In re McClelland's Estate, 257 S.W. 810; Sevier v. Woodson, 205 Mo. 214; Payne v. Reese, 297 Mo. 58; Ewart v. Dalby, 5 S.W.2d 432; Yocum v. Siler, 160 Mo. 289; Tindall v. Tindall, 167 Mo. 225. (2) Since enactment of Section 3993, Revised Statutes 1879 (R. S. 1929, sec. 3106), the word "heirs" is not required to vest a fee. Where a devise is made containing no expressions showing it was intended to be a mere life estate, no further devise over is made, and the words "heirs and assigns" are omitted, such grant must be construed to vest an absolute fee. R. S. 1929, sec. 563. Where there is a devise in fee at the death of the testator, and a devise over in case of death without issue, it will be presumed that such time of death refers to death of devisee, if occurring during the lifetime of the testator or of the life tenant; unless in the will a different intention is expressed. Ewart v. Dalby, 5 S.W.2d 432; Owens v. Men, 296 Mo. 118; Smith v. Smith, 157 Ala. 79, 25 L. R. A. (N. S.) 1045n; 2 Thompson on Real Property, sec. 2574. (3) In 1825 our Legislature abolished estates-tail in this State. And since the Revision of 1845, directing that "dying without issue" should be construed as meaning heirs or issue living at the time of the death of the ancestor named no implication of an estatetail can longer be raised from their use. Yocum v. Siler, 160 Mo. 296; Elsea v. Smith, 273 Mo. 412; Green v. Irvin, 309 Mo. 311; R. S. 1929, sec. 3110. (4) Intention to create a trust in a will must be found in language sufficient to sever the legal from the equitable estate, and to clearly identify the subject matter, beneficiaries, and object of the trust. 2 Thompson on Real Property, secs. 2273, 2578; Schmucker's Estate v. Reel, 61 Mo. 596; In re Johnson's Estate, 100 Ore. 389. (a) The doctrine of resulting trusts has no application to create trusts in land where, by statute, as in Missouri, such trusts are void unless manifested and proved by some writing. R. S. 1929, sec. 3104; Parker v. Blakely, 328 Mo. 1189. (b) To be valid, a trust must arise at the time of attempted creation. Trautz v. Lemp, 329 Mo. 580. (5) Conditions which are repugnant to the estate limited are void. A testator cannot create a fee with absolute right of disposal, and at the same time clog the power of alienation by limitations over to another, by provisions which are absolutely inconsistent. 2 Thompson on Real Property, sec. 2562; Reid v. Voorhees, 216 Ill. 236, 74 N.E. 804; Law v. Douglas, 107 Iowa 606, 78 N.W. 212. A restraint on alienation may be void because repugnant to the grant of a fee. Thompson on Real Property, sec. 2562; Millard v. Beaumont, 194 Mo.App. 73; Kessner v. Phillips, 189 Mo. 526. (6) Since abolition of entails and rule in Shelley's case, in case of limitations over to issue, or upon failure of issue, on death, the issue take as purchasers. Brock v. Dorman, 339 Mo. 615; Clarkson v. Clarkson, 125 Mo. 381; Hancock v. Butler, 21 Tex. 817; 2 Thompson on Real Estate, sec. 2565. In the ascertainment of these the statutes of Descent and Distributions and Adoption, control. St. Louis Union Trust Co. v. Hill, 336 Mo. 23; R. S. 1889, sec. 5246; R. S. 1929, secs. 306, 3110, 14079. (7) A testator is presumed to have known the adoption statutes enacted by the Legislature. St. Louis Union Trust Co. v. Hill, 336 Mo. 23; Hartwell v. Tefft, 19 R. I. 644, 35 A. 883; Munie v. Gruenewald, 289 Ill. 472. A child adopted under provision authorizing adoption existing prior to the Adoption Code of 1917 has been held to be a child within the meaning of Section 306, Revised Statutes 1929. "First, to his children, or their descendants." Fosburgh v. Rogers, 114 Mo. 123; Bernero v. Goodwin, 267 Mo. 435.

OPINION

Gantt, J.

Action to determine title to Lots 7, 8, 9, 10 and 11 of city block 587, St. Louis, Mo. The common source of title is Henry T. Wilde, who died July 12, 1900. The widow, Friedericke Wilde, son Claus and daughter Sophie survived him. The widow died May 10, 1909. Claus and Sophie survived her. The daughter Sophie is the plaintiff. Paul T. Wilde, the adopted son of Claus Wilde is the defendant. He was adopted by Claus and wife Aug. 15, 1916. Claus died testate May 27, 1937. He gave his estate to the adopted son.

Plaintiff contends that the will of her father Henry T. Wilde gave the lots to her brother Claus for life. Defendant, adopted son of Claus, contends that said will gave the lots in fee to his adoptive father Claus. The trial court found that said will gave the lots to Claus in fee. Plaintiff appealed.

In construing a will we stated a rule as follows:

"Those who deplore technical rules and precision of statement required by the courts in interpreting legal documents should consider the matter of wills. Of all written instruments, wills are the least formal. Anything written, in any form, goes for a will if it reveals the intention of the maker to dispose of his property at death. Yet wills cause more misunderstandings, more difficulties of interpretation, and more litigation than any other kind of writing; in discovering the intention of the maker, in reconciling his contradictions, in reducing to order his confused purposes. It is our task here to find the general purpose of the testator, to reconcile and coordinate provisions which may appear to be in conflict where such reconciliation and coordination can reasonably be made consistent with the general purpose, and, if the testator was confused in the expression of his desires, to pierce through such confusion and reduce to articulate terms the underlying intent. In doing so we must always keep in mind that the intention of the testator is the guiding principle; that his blood relatives, his heirs, are favorites of the law and entitled to first consideration in doubtful expressions; that a testator however clear of intellect cannot always foresee and provide for contingencies that may arise to hamper interpretation." [Coleman v. Haworth, 320 Mo. 852, 857, 8 S.W.2d 931; Gibson v. Gibson, 239 Mo. 490, 503, 506, 144 S.W. 770; Burnett v. Burnett, 244 Mo. 491, 148 S.W. 872; Payne v....