Hendrix v. Marks
| Decision Date | 07 December 1923 |
| Parties | SAMUEL D. HENDRIX, et al., Appellants, v. HERMAN MARKS, Executor, Respondent. * |
| Court | Missouri Court of Appeals |
Appeal from Greene County Circuit Court.--Hon. Guy D. Kirby, Judge.
AFFIRMED.
Judgment affirmed.
L. C Mayfield and Hamlin & Hamlin for appellants.
--This proceeding was instituted to construe the last will and testament of Charles C. Hendrix, deceased. The parties designated as plaintiffs are Samuel D. Hendrix, grandfather William Jasper Hendrix, uncle, and Mrs. Samuel Richardson, paternal aunt, of the deceased testator, and defendant Herman Marks is a maternal uncle of the testator. Marks is named as executor in the will, and claims the entire estate except as to payment of debts, and the upkeep of cemetery lot as specified in the will. Marks was made a defendant as executor, and also individually. Below the court denied plaintiffs any relief and they appealed.
The controversy concerns the disposition of the proceeds of a life insurance policy. December 18, 1913, the International Life Insurance Company issued a policy upon the life of Charles C. Hendrix, the testator, for $ 2500, and testator's mother was named therein as beneficiary. The policy provided for change of beneficiary if the insured desired. February 9, 1918, testator's mother died, and he died thereafter on October 8, 1918, without making or causing to be made any change of beneficiary in the policy. The policy provided that in the event the beneficiary died prior to the death of the insured, and no other beneficiary was named by the insured, then the proceeds of the policy should be paid to the executor, administrator or assigns of the insured.
September 17, 1913, Charles C. Hendrix made and executed his will. The will is brief, and, so far as concerns this controversy, is as follows:
"First: All my just debts (mainly consisting of a two-hundred-and-fifty-dollar note to Charles Bagert and a mortgage to the Union National Bank of Springfield, Mo., and funeral expenses) shall be first duly paid; also necessary amount shall be taken from the estate to provide for perpetual care of the cemetery lot upon which my parents are buried.
Second: I give, bequeath and devise all the rest, residue and remainder of my estate, both real and personal (except life insurance, whose beneficiaries are named on the policies) to my uncle, Herman Marks, to have and to hold the same to him, my said uncle and to his heirs and assigns forever."
Defendant as executor, collected the life insurance and out of the proceeds, for the most part, paid the debts of the estate, and held the balance as legatee under the will. Plaintiffs contend that the testator, as appears by the terms of the will, did not intend thereby to dispose of money derived from the insurance policy, and that the proceeds of the policy should have gone to the heirs at law of deceased. The intention of the testator governs in the construction of a will. [Sec. 555, R. S. 1919; Lomax v. Cramer, 202 Mo.App. 365, 216 S.W. 575; Wetzel v. Hecht, 281 Mo. 610, 220 S.W. 888.] This rule, of course, needs no citation of authority to support it, and is not questioned. The difficulty lies in the question: What was the intention of the testator? That intention is to be arrived at from the four corners of the will, if possible, but where there is ambiguity the conditions surrounding the testator when the will...
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