Hannibal Trust Company v. Elzea

• Decision Date: 30 July 1926
• Docket Number: 25472
• Parties: Hannibal Trust Company, Executor of Will of Henry S. Elzea, v. Van B. Elzea et al.; Frances C. Dunn, appellant
• Court: Missouri Supreme Court

286 S.W. 371

315 Mo. 485

Hannibal Trust Company, Executor of Will of Henry S. Elzea, v. Van B. Elzea et al.; Frances C. Dunn, appellant

No. 25472

Supreme Court of Missouri

July 30, 1926

Appeal from Hannibal Court of Common Pleas; Hon. John L Plowman, Special Judge.

Affirmed.

Rendlen & White for appellant.

(1) The cardinal rule of construction and interpretation of wills is that the intention of the testator must be ascertained if possible, and not being in contravention of public policy or rule of law, must be given effect. This is the actual personal, individual intention of testator, and to this end the will should be construed liberally. 40 Cyc. 1386; Settle v. Shaffer, 229 Mo. 561; Cox v Jones, 229 Mo. 53; Briant v. Garrison, 150 Mo. 655; Cross v. Hoch, 149 Mo. 325; Jarboe v. Hey, 122 Mo. 341; Reinders v. Koppleman, 94 Mo. 338; Missouri Baptist Sanitarium v. McCune, 112 Mo.App. 332; Morris v. Hall, 102 Mo.App. 449; Smith v. Hutchinson, 61 Mo. 83. The statutes expressly provide that in the construction of a will, due regard must be paid to the true intent and meaning of testator. Sec. 583, R. S. 1919; White v. Crawford, 87 Mo.App. 262; Morris v. Hall, 102 Mo.App. 449. (a) The intention which controls in such construction is that which is manifest either expressly or by necessary implication, from the language of the will itself. The intention must be ascertained from the four corners of the will. 40 Cyc. 1388; Cox v. Jones, 229 Mo. 53; Meiners v. Meiners, 179 Mo. 614; Cross v. Hock, 149 Mo. 325; McMillan v. Farrow, 141 Mo. 55. (b) In case of doubt or ambiguity, the instrument must be viewed in the light of the situation of the testator and the circumstances surrounding him at the time the will was executed. There is no better way than to put one's self as nearly as possible in position of testator at time of the execution of his will. 40 Cyc. 1389; Worden v. Perry, 197 Mo. 569; Grace v. Perry, 197 Mo. 550, 7 Ann. Cases, 948; O'Day v. O'Day, 193 Mo. 62, 4 L. R. A. (N. S.) 922; Suydam v. Thayer, 94 Mo. 49; Mead v. Jennings, 46 Mo. 91; Metz v. Wright, 116 Mo.App. 631; Cross v. Hoch, 149 Mo. 325; Small v. Field, 102 Mo. 104; Clotilda v. Lutz, 157 Mo. 439; Simmons v. Cabanne, 177 Mo. 336. (c) Words used in the will must be given their plain and ordinary meaning, and if when given such meaning they show a clear intention on part of the testator, they must be given that meaning notwithstanding their effect. 40 Cyc. 1396; Cox v. Jones, 229 Mo. 53; Meiners v. Meiners, 179 Mo. 614; Missouri Baptist Sanitarium v. McCune, 112 Mo.App. 332. (d) General intention of will must prevail over particular intention. The general scheme and plan of the will must be carried out. 40 Cyc. 1393; Rose v. McHose, 26 Mo. 590; Peters v. Carr, 16 Mo. 54. (e) Conditions arising subsequent to the execution of the will and which were probably not foreseen or anticipated by testator at time of writing the will cannot alter the construction of the language of the will. 40 Cyc. 1426. (2) The testator directed that all his debts be paid and that the personal estate first be used to that purpose. This by Item 2 of the will. The residuary legatees were not to receive any part of the estate until "after the payment of my debts and providing for the bequests above." Item 7. There is some personal estate not used in hands of executor. The codicil states testator owed no debts and intended to leave none, clearly again showing unequivocal intention and purpose. The devise for Fannie Dunn's benefit was not intended by him to be burdened, diminished or wiped out, but that she was to have it for life, free from any debt and before the residuary legatees were to receive anything. If Fannie Dunn must take this life estate in the $ 3500 property producing $ 30 per month rent and pay the debt, the residuary legatees do not take "after the payment of the debt." Testator clearly designates the general estate shall pay his debts. A provision in a will directing the executor to pay all testator's just debts, includes debts secured by mortgage on land devised. Turner v. Laird, 68 Conn. 198. (3) An encumbrance on specifically devised realty made subsequent to the will does not revoke the will nor the specific devise, but where the intention of the testator does not otherwise provide the devise passes to take effect subject to such encumbrance. Sec. 512, R. S. 1919; Sec. 542, R. S. 1909; 2 Woerner on Admn. (2 Ed.) sec. 497, p. 1112; Peck v. Fillingham, 199 Mo.App. 277, 286. Where the will specifically provides otherwise, or the intent of the testator is manifest from the instrument itself, the real estate devised subject to encumbrance is to be relieved from the mortgage out of the general estate, notwithstanding the Sec. 512, R. S. 1919. Peck v. Fillingham, 199 Mo.App. 286; Knight v. Newkirk, 92 Mo.App. 258; In re Porter, 138 Cal. 618, 72 P. 173; Turner v. Laird, 68 Conn. 198; Bulkley v. Seymour, 74 Conn. 459; Towle v. Swasey, 106 Mass. 100; Brown v. Baron, 162 Mass. 56; In re Patricks' Estate, 72 Neb. 454; DeGraaf v. Cochrane, 47 Miss. 502; In re McKay's Estate, 68 N.Y.S. 925; Jacobs v. Button, 79 Conn. 360; Wilts v. Wilts, 151 Iowa 149; Hayward v. Hayward, 199 Mass. 340. Where after the execution of a will devising realty, testator subjected same to a mortgage, the mortgage must be paid from the personalty, leaving the devisee the land free from the lien. Jackson v. Bevins, 74 Conn. 96; Hennegar v. Deadrick, 54 S.W. 138. Where a will expressly directs the payment of debts from the personal property, a devisee of real property encumbered by testator, subsequent to the execution of the will, is entitled to have the encumbrance discharged from the personal estate, to the detriment of pecuniary and specific legatees. French v. Vradenburg's Exrs., 105 Va. 16, 115 Am. St. 838.

Berryman Henwood and Eby & Hulse for respondents.

(1) If the intention is violative of some established rule of law, it cannot be recognized or carried out. If it can be gathered from the whole instrument that it was the intention of the testator that Fannie Dunn should have the devise to her under Item 4 of the will, free and clear of the deed of trust placed thereon by the testator, such intention is violative of Sec. 512, R. S. 1919, and cannot be effectuated. Farrar v. Christy, 24 Mo. 468; Briant v. Garrison, 150 Mo. 655; Gannon v. Pauk, 200 Mo. 85; Miller v. Ensminger, 182 Mo. 209; Grace v. Perry, 197 Mo. 550; Wattenbarger v. Payne, 162 Mo.App. 434; Burnett v. Burnett, 244 Mo. 491. (2) There is no language in the will, nor evidence in the record, which shows a clear manifest intent on the part of the testator to give the devise to Fannie Dunn, free and clear of the encumbrance placed thereon by said testator and requiring such encumbrance to be paid out of the residuary assets of the estate. On the contrary it was the manifest intention of the testator that she should take her devise subject to the encumbrance placed thereon by him. (a) The will must be construed as of the date of the death of the testator, and at that time the real estate devised to her was impressed with the lien of the deed of trust, the testator then having only an equity in said real estate, which was the only interest he could or did pass to her by his will. Therefore, the entire interest in said real estate did not pass to or vest in her, but under the provisions of said Section 512, the same was devised to her subject to said deed of trust. (b) A will speaks as of the date of the death of the testator. If between the date of the execution of it and the date of such death conditions have changed, it must be presumed that the testator had such changes in mind when he died, and, in view of his having made no changes in the will, its terms must be interpreted in the light of the conditions existing at the latter date. Vitt v. Clark, 66 Mo.App. 214; Liggat v. Hart, 23 Mo. 127; Webb v. Archibald, 128 Mo. 299; Mueller v. Buenger, 184 Mo. 476; Williams v. Roberts, 187 S.W. 19; Doneghy v. Robinson, 210 S.W. 655; Peck v. Fillingham, 199 Mo.App. 277.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Action in equity involving title to real estate by respondent, Hannibal Trust Company, the duly appointed and qualified executor under and by virtue of the last will of Henry S. Elzea, deceased, to construe said will and for direction as to its duties thereunder. Defendants are the collateral heirs of the deceased testator and also the residuary legatees under his will. Defendant and appellant, Frances C. Dunn, is the beneficiary of a specific devise under the will and is also one of the residuary legatees. The will of Henry S. Elzea was executed and attested on May 15, 1911, and the parts thereof pertinent to this action are as follows:

"Item 1. I revoke all former wills by me made.

"Item 2. I direct that all of my just debts including funeral and cemetery expenses be first paid out of my personal estate . .

"Item 4. I give and bequeath to my niece, Fannie Belle Dunn, for her sole and separate use during the term of her natural life, to be hers separate and apart from the debts or control of her present or any future husband, she to have all the rents, income or profits arising from the property known as No. 1206 Broadway Street, Hannibal, Mo., if unsold at her death it shall revert to my estate. In the event that sickness or other emergency shall arise that she shall be in needy circumstances she is at liberty to dispose of the same. . . .

"Item 7. After the payment of my debts and providing for the above bequests, I direct that all of the rest and residue of my estate, both real, personal or mixed, and wheresoever located, be reduced to cash, which is to be divided share and share alike, that is, to my brothers and sisters...