Haugh v. Bokern

• Citation: 30 S.W.2d 47,325 Mo. 1143
• Decision Date: 09 July 1930
• Docket Number: 28837
• Parties: Charles Haugh, Appellant, v. Edward A. Bokern, Administrator; Peter A. Requena, Manuel G. Requena, Jose Luis Requena, Frederick J. Bokern, Jr., Hilda Hamilton and Unknown Holders of Promissory Notes made by Emilia Kirns
• Court: United States State Supreme Court of Missouri

30 S.W.2d 47

325 Mo. 1143

Charles Haugh, Appellant, v. Edward A. Bokern, Administrator; Peter A. Requena, Manuel G. Requena, Jose Luis Requena, Frederick J. Bokern, Jr., Hilda Hamilton and Unknown Holders of Promissory Notes made by Emilia Kirns

No. 28837

Supreme Court of Missouri

July 9, 1930

Appeal from Circuit Court of City of St. Louis; Hon. Moses Hartmann, Judge.

Affirmed.

Igoe Carroll, Higgs & Keefe for appellant.

(1) Circuit courts of Missouri, applying their equitable jurisdiction, have jurisdiction to construe wills in an action instituted for that purpose. First Baptist Church v. Robberson, 71 Mo. 326; Hamer v. Cook, 118 Mo. 489; Davidson v. Investment Co., 226 Mo. 23; Andre v. Andre (Mo.), 232 S.W. 156; Graham v Allison, 24 Mo.App. 516; Lich v. Lich, 158 Mo.App. 400. (2) The amended petition stated a cause of action. A petition averring and setting out a will; that said will was admitted to probate; that certain land, therein described, was owned by the testator at the time of his death; that defendants claim said described land by virtue of their being the beneficiaries of a will of the alleged beneficiary of the land under the testator's will, and that plaintiff, in fact, is entitled to and claims said real estate, setting out the basis of his claim; that both claims depend upon the construction of uncertain provisions in said will and pointing out said uncertain provisions, followed by a prayer asking the court to construe said provisions and determine the questions involved, states a good cause of action. First Baptist Church v. Robberson, 71 Mo 326; Andre v. Andre (Mo.), 232 S.W. 156.

Rassieur, Long & Yawitz for respondents.

(1) A devise of an estate without limitation or remainder over, and though containing an express desire that the devisee do not sell the same so long as she lives, with a cautious provision set out thereafter that such is only a wish and not imperative, but that the devisee is at liberty to use her own judgment and discretion, gives, unquestionably, a fee-simple estate -- and is unambiguous. Secs. 551, 555, R. S. 1919; Fries v. Fries, 267 S.W. 118; Small v. Field, 102 Mo. 127; Cook v. Couch, 100 Mo. 29; Dunlap v. Hart, 274 Mo. 600; Willard v. Darrah, 168 Mo. 660; Webb v. Archibald, 128 Mo. 299. (2) Where a petition alleges an ambiguity in a will, but such will as set out is in reality clear and unambiguous, then such petition fails to state a cause of action for the construction of a will. Warren v. Warren, 279 Ill. 217; Greenough v. Greenough, 284 Ill. 416; First Baptist Church v. Robberson, 71 Mo. 333; Hamer v. Cook, 118 Mo. 476; Baxter v. Baxter, 43 N.J.Eq. 82; 40 Cyc. 1845; Lich v. Lich, 158 Mo.App. 400; Andre v. Andre, 232 S.W. 153. (3) A person who takes nothing by reason of a will, but could inherit only against the will, has not such an interest under the will as to entitle him to the right of an action to construe the will. Chipman v. Montgomery, 63 N.Y. 221; Duncan v. Duncan, 4 Abb. N. C. 275 (N. Y.); 40 Cyc. 1848; First Baptist Church v. Robberson, 71 Mo. 326; Hamer v. Cook, 118 Mo. 476; Lich v. Lich, 158 Mo.App. 400; Andre v. Andre, 232 S.W. 153; Davidson v. Investment Co., 226 Mo. 1; Graham v. Allison, 24 Mo.App. 516.

OPINION

Gantt, J.

Plaintiff seeks construction of the will of Peter Kirns who died in the city of St. Louis on May 31, 1916. Defendants presented a demurrer on the grounds that a court of equity had no jurisdiction of the action and that the petition did not state a cause of action. The demurrer was sustained. On plaintiff's refusal to further plead, final judgment was rendered and plaintiff appealed. A copy of the will as set forth in the petition follows:

"I, Peter Kirns, of the City of St. Louis, State of Missouri, do make and publish this my last will and testament, hereby revoking all former wills made by me.

"First, I desire and direct that my funeral expenses, and all just and legal debts that I may owe at the time of my death be paid in full.

"Second, I will and bequeath to my sister Mary Haugh of Barrie, Ontario, Canada, the sum of Twenty-five dollars a month during her lifetime, to be paid to her out of my estate.

"Third, I will and devise to my dearly beloved wife, Emilia Kirns, all the rest and residue of my estate, real and personal, of all kinds whatsoever and wherever found. I earnestly desire and request my wife to keep the real estate situated at 7th and Walnut Streets, and known as numbers 101 and 103 South Seventh Street, being in Block number 186 in the City of St. Louis, Missouri, so that she may have a sure income for her support as long as she lives, this, however, is not imperative; she is at liberty to use her own judgment and discretion in this matter.

"Fourth, I hereby nominate and appoint my said wife executrix, without bond, of this my last will and testament."

It is then alleged that the will was admitted to probate in the city of St. Louis on June 5, 1916; that Emilia Kirns qualified as executrix and administered upon the estate; that no children were born of the marriage of Peter Kirns and Emilia Kirns; that Peter left surviving him a sister, Mary Haugh, who died on the day of 19 ; that plaintiff is the son of Mary Haugh and a nephew of Peter; that Peter at the time of his death was the owner of real estate in the City of St. Louis of the value of $ 30,000; that under the provisions of the will there are conflicting claims to said real estate between plaintiff and defendants; that Emilia Kirns was given, by the terms of the will, only a life estate with a power of disposition only in the event that during her life a disposition of the real estate was necessary for her support; that at no time during her life did her financial condition become such that it was necessary for her to make a disposition of said real estate for that purpose; that under the will, plaintiff is entitled to the real estate therein mentioned and particularly the real estate described therein; that Emilia Kirns, without necessity therefor and without authority so to do, executed a deed of trust to Frederick J. Bokern, Jr., trustee for Hilda B. Hamilton, on the real estate described in the will to secure the payment of certain notes; that at that time, the income from said real estate was more than sufficient for the support of Emilia Kirns, and the contingencies upon which she might exercise her discretion given in the will had not arisen; that Hilda B. Hamilton, defendant herein, endorsed said notes and same are now in the hands of persons whose names plaintiff cannot insert herein because they are unknown to him, and he verily believes that said unknown holders of said notes are interested in the subject-matter of this controversy; that said Emilia Kirns died testate on March 24, 1926; that her will was admitted to probate in the city of St. Louis on March 31, 1926; that defendant Edward A. Bokern was appointed administrator with the will annexed and is now acting as such; that by authority of the probate court said administrator is in possession of said real estate and collecting the rents therefrom; that Emilia Kirns in her will attempted to make disposition of the real estate to the defendants, Peter Abreu Requena, Manuel G. Requena and Jose Luis Requena as her sole beneficiaries; that said defendants are claiming title to said real estate, and plaintiff having secured advice of counsel is unable to determine under the terms of the will of said Peter Kirns whether those claiming under the will of Emilia Kirns, or this plaintiff is entitled to the fee of said real estate, and plaintiff therefore requests the court to determine, adjudge and decree whether or not Peter Kirns intended by his said will to leave his wife a life estate only, with a power of disposition in the event only that such disposition becomes necessary in her lifetime for her support, or whether he intended to devise to his said wife a fee.

Wherefore, plaintiff prays judgment of the court, determining and interpreting said will of Peter Kirns and for such other orders in the premises as may be fit and proper.

The demurrer presents two questions: (a) Has plaintiff, as next of kin and heir of Peter Kirns, the right to maintain an action to construe his will? (b) Is the will or any paragraph thereof ambiguous and of doubtful meaning?

I. The general rule is that a court of equity will not entertain jurisdiction of a suit brought for the sole purpose...