Hurst v. Von De Veld

• Decision Date: 30 June 1900
• Citation: 158 Mo. 239,58 S.W. 1056
• Court: Missouri Supreme Court
• Parties: HURST et al. v. VON DE VELD et al.<SMALL><SUP>1</SUP></SMALL>

58 S.W. 1056

158 Mo. 239

HURST et al. v. VON DE VELD et al.¹

Supreme Court of Missouri, Division No. 1.

June 30, 1900.

WILLS — CONSTRUCTION — EVIDENCE — DECLARATIONS.

1. Where the meaning of a will which discriminates against a child can be gathered from the instrument itself, evidence of declarations made by the testator showing his feelings towards such child is properly excluded; but where its meaning is in doubt the state of his feelings is a legitimate fact to be considered in solving the doubt, and such testimony should be received.

2. Though the intention of the testator to disinherit his heir be clearly expressed, yet, unless the will makes other disposal of his property, it goes to the heir, not by force of the will, but by force of the law of inheritance.

3. The testator had had five children. His daughters C. and S. survived him, but his son, J., and his daughters A. and T. had died, leaving descendants, when the will was made. By the first and second clauses of the will he gave a specific legacy to his grandson O., the son of J., deceased, and a pecuniary legacy to O.'s wife. By the third clause he gave to the child of his deceased daughter A. "one-half interest in the real and personal property to which her mother would be entitled in my estate." By the fourth clause he devised to his daughter S. a tract of land described, which was as much land as would have descended to her, and "one-fifth of my personal estate, when divided." By the fifth clause he gave to his daughter C. a specific legacy, "and also the sum of $50 of my estate, and no more," thereby discriminating against her. By the sixth clause he gave to the children of his deceased son, J., "the interest of their father in my estate." By the seventh clause he gave to the children of his deceased daughter T. "the share which their mother would have in my estate." The eighth clause was as follows: "In speaking of the interest which my deceased daughters, A. and T., and my deceased son, J., would have in my estate, I mean their interest which they would inherit by law after taking out the specific bequests made herein." Held, that the will disposed of the testator's whole estate, giving to the children of his son, J., deceased, and of his daughter T., deceased, the entire estate, except the specific devises made by the first, second, third, fourth, and fifth clauses, leaving nothing to be inherited by the daughter C.

Appeal from circuit court, Cass county; W. W. Wood, Judge.

Action by H. V. Hurst and others against Catharine L. Von de Veld and others to construe a will. From a judgment for defendants, plaintiffs appeal. Reversed.

Jas. T. Burney and R. T. Railey, for appellants. N. B. Carskadon and Noah M. Givan, for respondents.

VALLIANT, J.

This is an application to a court of equity to construe the will of Resin S. Judy, deceased. The plaintiffs are the executors, and the defendants are the beneficiaries under the will and heirs at law, of the testator. The will is in these words: "I, Resin S. Judy, of Cass county, in the state of Missouri, being of sound mind, and revoking all other wills heretofore made by me, do make and publish this, my last will and testament: (1) I give and bequeath to my grandson Oscar M. Judy, son of my son, John J. Judy, the two notes given by him to me; one of said notes being for the sum of one hundred dollars, dated February 16th, 1886, and one for the sum of nine hundred dollars, dated January 1st, 1886. (2) I give and bequeath to Belle Judy, wife of my grandson Oscar M. Judy, the sum of one thousand dollars in trust, to be held by executors hereinafter named, said executors to place said sum of one thousand dollars at interest on good security, and said Belle Judy to enjoy the income of said sum during her natural life, and on her death the principal to be divided equally between her two children, her son, Wilbur H. Judy, and her daughter, ____ Judy (given name now unknown). (3) I give, devise, and bequeath to Annie Arnett, my granddaughter, the daughter of my daughter Araminta Daniel, now deceased, one-half interest in the real and personal property to which her mother would be entitled in my estate, her share to be held in trust by my executors herein named, and that they pay to her annually the interest and proceeds arising from the rents of her portion of said estate, to go to the heirs of her body, to be turned over to them by said executors at the time they become of age. I also will that the said Annie Arnett shall at my death have her notes which I hold surrendered to her, together with the deed of trust and notes on her real estate and lots in Freeman, Missouri. (4) I give, devise, and bequeath to my daughter Sallie A. Belcher the east half of the northeast quarter of section 30, and the west half of the northwest quarter of section 29, in township 46, range 31, to have and to hold unto her heirs and assigns forever, from and after my decease; and I also give, devise, and bequeath to her one-fifth of my personal estate, when divided. (5) I give and bequeath to my daughter Catharine Von de Veld a note for the sum of five hundred and eighty-one dollars, — said note given by her to me, — and also the sum of fifty dollars of my estate, and no more. (6) I give, devise, and bequeath to the children and heirs of my son, John Judy, deceased, to wit, Emma Carpenter (née Emma Judy), Mary Hurst (née Mary Judy), and Altia Judy, one-third to each of the interest of their father, John Judy, in my estate. (7) I give, devise, and bequeath to the children of my daughter Tarissa, now deceased, as follows: To Annie Wooldridge (née Annie Jones), one-third part of the share which my said daughter Tarissa would have in my estate at law; and to her two sons, Harlie Clark and Homer Clark, I give, devise, and bequeath to each the one-third interest which their said mother would have in law, to be held in trust by my executors for them until they become of age. (8) In speaking in this will of the interest which my daughter Araminta Daniel, deceased, and my son, John Judy, deceased, and my daughter Tarissa, deceased, would have in my estate, I mean their interest which they would inherit by law after taking out the specific bequests and devises made by me in this will to others named herein. I hereby appoint James T. Burney and H. V. Hurst as my executors of this, my last will, and hereby revoke all former wills by me made. In testimony whereof, I have hereunto subscribed my name and affixed my seal this 27th day of September, 1893. R. S. Judy. [Seal.]" The testator had had five children, two of whom (Mrs. Belcher and Mrs. Von de Veld) survived him; but three had died at the time the will was written, leaving descendants. At the hearing, testimony was offered on the part of the executors tending to show what the testator said after making the will as to its effect (that is, that he understood that it disposed of all his estate), and also to show the state of his feelings towards his daughter Mrs. Von de Veld (that is, that he said that her husband, Von de Veld, had been the worst enemy he ever had), and that she had taken her husband's part through it all. This testimony was received subject to the objection made by the defendants at the time, but was afterwards, by the court, before its decision, excluded. The effect of the decree was that the will disposed of only five-tenths of the real estate and seven-tenths of the personalty, leaving the balance to be disposed of under the law of descent and distribution.

There is really not much difference between the counsel as to the rules of law that should govern in the interpretation of the will, though they differ widely as to its meaning. This court has frequently declared the principles that should guide us in such investigation. In Murphy v. Carlin, 113 Mo. 112, 20 S. W. 786, after quoting the statute (section 8916, Rev. St. 1889) requiring the court to "have due regard to the directions of the will and the true intent and meaning of the testator in all matters brought before them," the court, per Brace, J., said: "The true intent and meaning of the testator can best be ascertained by the courts, and those concerned in the execution of wills, by putting themselves, so far as may be, in the place of the testator, and reading all his directions therein contained in the light of his environment at the time it was made. Hall v. Stephens, 65 Mo. 670; Noe v. Kern, 93 Mo. 373, 6 S. W. 239; Suydam v. Thayer, 94 Mo. 49, 6 S. W. 502; Munro v. Collins, 95 Mo. 33, 7 S. W. 461; Small v. Field, 102 Mo. 104, 14 S. W. 815; Long v. Timms, 107 Mo. 512, 17 S. W. 898. When that intent and meaning can be thus clearly ascertained, then all technical rules and adjudicated cases in other jurisdictions that would stand in the way of its execution must be disregarded." See, also, McQueen v. Lilly, 131 Mo. 9, 31 S. W. 1043; McMillan v. Farrow, 141 Mo. 62, 41 S. W. 890; Rothwell v. Jamison, 147 Mo. 613, 49 S. W. 503; Cross v. Hock, 149...