Holland v. Bogardushill Drug Company

• Citation: 284 S.W. 121,314 Mo. 214
• Decision Date: 21 May 1926
• Docket Number: 26397
• Parties: ALICE R. HOLLAND et al., Appellants, v. BOGARDUSHILL DRUG COMPANY et al
• Court: Missouri Supreme Court

284 S.W. 121

314 Mo. 214

ALICE R. HOLLAND et al., Appellants, v. BOGARDUSHILL DRUG COMPANY et al

No. 26397

Supreme Court of Missouri

May 21, 1926

Appeal from Greene Circuit Court; Hon. Orin Patterson Judge.

Affirmed.

Mann & Mann and V. O. Coltrane for appellants.

(1) A case almost identical with this is Price v Courtney, 87 Mo. 387. This court then held that the will gave the trustee no power to mortgage or encumber the property and hence that the deed of trust was void and that the words in the latter portion of the will, to-wit: "It is my desire that in and about the entire management of my said property, the said Courtney should have the full power to do with the same as I would, were I living," though very broad, are not to be construed as any additional grant of power, but as only referring to the power of sale previously granted. Price v. Courtney, 87 Mo. 387. The law is exceedingly strict in requiring a precise compliance with the direction of the donor in exercising the power to cut out remaindermen, that is to say, in exercising powers in gross which are such as the donee can create, but will not attach on the interest limited to the donee or take effect out of the donee's interest. General words, after specific powers granted, must be confined to things ejusdem generis with those preceding them. Where certain powers are clearly prescribed by the language of the will the donee or trustee is not at liberty to assume other powers, for by prescribing one the others are negatived. A general clause which is indefinite in its character will be restricted and limited to estates and things of the same nature and description as those previously mentioned. Garland v. Smith, 164 Mo. 1; Miller v Wagenhauser, 18 Mo.App. 11. It will also be noticed that the widow may do this "while she lives," implying a limitation of the power to her lifetime. (2) In some cases it has been held that a court of equity has the power to authorize the trustee to execute a lease for a period exceeding the limitation in the will. Such principle, however, has no bearing upon the facts in this case, as no authority of a court of equity was asked or obtained. In such cases courts of equity proceed upon the theory that it is necessary for the preservation of the property or for effectuating the intention of the testator to authorize the trustee to execute a lease extending beyond the probable duration of the trust. In this case there was no exigency rendering the execution of such lease necessary. Such lease, not being necessary for the preservation of the property or for the effectuation of the intention of the testator, cannot be sustained as a matter of necessity. St. Louis U. Tr. Co. v. Van Raalte, 259 S.W. 1067. (3) The words "after the death of my said wife I desire all the property remaining derived from me shall be divided equally among my children" show that the testator intended to give his wife only a life estate with remainder over absolutely to his children. Schorr v. Carter, 120 Mo. 409; Dunbar v. Sims, 283 Mo. 361. (4) The lease in controversy was executed on May 8, 1919, to begin in futuro, to-wit, on June 1, 1919, for a period of twelve years and seven months, ending on December 31, 1931. If Mrs. Robberson had the power to make this lease in futuro, she had the power to make other and additional leases to commence at fixed dates in the future without end, which would be, in effect, creating a perpetuity, something that is not favored by the law and in the absence of clear power to do so will not be upheld. A general power to lease only authorizes a lease in possession and not in futuro. A lease made to commence only one day after the date of the instrument creating it is as fatal a variance from the general power to make a lease as if it had been made to take effect at the expiration of one hundred years thereafter. Taussig v. Reel, 134 Mo. 530. (5) As Mrs Robberson only took a life estate, she could not defeat the remaindermen in any way except that expressly authorized. If we concede that the last sentence in the second clause of the will has operative words sufficient to create a power, yet this sentence only provides that she may use, dispose of and enjoy the property while she lives. This confers the largest liberty in the use of the property while she lives, but the opening sentence of the next clause provides that at her death the property remaining shall be equally divided among the children. She had only a life estate with the power to sell, and with that life estate and with the power to sell she could do as she pleased, but her life estate and her power to sell ceased at her death, and the remainder passed to the testator's children or their descendants, who were equally with herself the objects of the testator's bounty. Riggins v. McClellan, 28 Mo. 23. (6) The recital at the end of the second clause of the will does not contain operative words which are necessary to vest an estate or grant a power. The intention of the testator must be ascertained from the language used, what the testator actually said, and not from what one might conjecture that he meant to say. Ashbaugh v. Ashbaugh, 273 Mo. 353. Recitals of desire or intention may be useful in resolving doubts in other parts of the will, but they do not amount to a testamentary disposition. 40 Cyc. 1404; Clark v. Post, 113 N.Y. 17; 34 Cyc. 532. (7) Unless conferred expressly, or by necessary implication, the owner of a life or other limited estate has no power to grant leases binding upon the remainderman or reversioner; nor does a power to lease include a power to sell. 31 Cyc. 1085. Nor does a power to sell include the power to lease. 31 Cyc. 1081. (8) A life tenant without the consent of the remaindermen has no power to lease or encumber land beyond the period of his life, and any lease or incumbrance terminates ipso facto on his death. Matlack v. Kline, 190 S.W. 408; Matlack v. Kline, 280 Mo. 139. (9) Upon the death of the life tenant the lease terminates, although the term for which it was made has not expired unless made under a power, and the lease then becomes void, and is not even capable of confirmation by the remaindermen. Sutton v. Hiram Lodge, 6 L. R. A. 703; Hooglan v. Crum, 55 Am. Rep. 424; Avery v. Hoyencamp, 189 S.W. 917; Edgehill v. Mankey, 11 L. R. A. (N. S.) 688; Guthman v. Vallery, 66 Am. St. 475; Barson v. Mulligan, 90 N.E. 127; Hines v. McCombs, 58 S.E. 1124; Saunders v. Sutlire, 174 N.W. 267.

Alfred Page, W. P. Lyons and O. E. Gorman for respondents.

(1) The controlling rule in construing wills in this State, to which all technical rules of construction must give way, is to give effect to the true intent and meaning of the testator. R. S 1919, sec. 555; Gannon v. Pauk, 200 Mo. 75; Murphy v. Carlin, 113 Mo. 112; Tisdale v. Prather, 210 Mo. 402; Grace v. Perry, 197 Mo. 550. (2) In arriving at the true intent of the testator, his relation to the beneficiaries named in the will, the nature of the property disposed of, and circumstances surrounding him at the time are to be taken into consideration, and the will is to be read from the testator's standpoint, and effect given, if possible, to every clause and portion of it. Cases supra: In re Tinsley, 174 N.W. 4; Murphy v. Clancy, 177 Mo.App. 429. (3) To give the will the construction contended for by appellants, that is, that it gives to his widow a life estate only with power to sell and convey, would require that the true intent and meaning of the testator as shown by various parts of his will, and especially the last sentence in Paragraph 2, must be totally disregarded and ignored. Griffin v. Nicholas, 224 Mo. 275; Archer v. Palmer, 112 Ark. 527; Underwood v. Cave, 176 Mo. 17; Mitchell v. Morrisville College, 305 Mo. 474; Payne v. Reece, 297 Mo. 60. (4) By the use of the words "dispose of," "use," "empower," "enjoy" and "control" the testator gave to his widow much greater authority over his estate than the mere power to sell. The words "dispose of" are sufficiently comprehensive in their meaning to include every possible mode of alienation or disposition of property. Missionary Society v. Wadhams, 10 Barb. 597. They include the power to lease. Hill v. Summers, 132 U.S. 118; United States v. Gratiot, 39 U.S. 526; Gould v. Head, 41 F. 240; Benz v. Fabian, 35 A. 760. They also have been construed to confer the power to barter and exchange. Trust Co. v. McGovern, 297 Mo. 527; Phelps v. Harris, 101 U.S. 380. The word "use" is construed to confer the right to sell and use the proceeds for support and comfort. Board of Trustees v. Dimmitt, 113 Mo.App. 41; McGuire v. Gallager, 99 Me. 344; Trustees Presbyterian Church v. Mize, 181 Ky. 567. And the words "dispose of" have been construed to confer the right to make a lease terminating after the death of the life tenant. Wolf v. O'Brien, 121 N.E. 368; Hedges v. Riker, 5 John. Chan. (N. Y.) 163; In re Upham, 152 Wis. 270; Trigg v. Trigg, 192 S.W. 1014. (4) Price v. Courtney, 87 Mo. 387, is not in point, either in fact or in principle. The facts are different in that the will in the Price case creates a trust with the naked power to sell and convey. Dr. Robberson's will confers upon the widow not only the right to sell, but the right to "use, dispose of and enjoy." The Price will refers only to the management and control of the estate, which could not in any manner be construed to be a disposition of it. These words do not call into operation the statute (R. S. 1919, sec. 555), nor the many decisions of the courts of this State to the effect that the intent of the testator as gathered from the whole will must control. Trigg v. Trigg, 192 S.W. 1014; Andrews v. Auditor, 5 Ohio Dec. 242. (5) The contention of appellants that the lease in question is void because executed to...