Husser v. Markham

• Decision Date: 05 April 1948
• Docket Number: No. 21048.,21048.
• Citation: 210 S.W.2d 405
• Parties: HUSSER v. MARKHAM.
• Court: Missouri Court of Appeals

210 S.W.2d 405

HUSSER v. MARKHAM.

No. 21048.

Kansas City Court of Appeals. Missouri.

April 5, 1948.

Appeal from Circuit Court, Division No. 9, Jackson County; Ben Terte, Judge.

Action by Belle Husser against Charles H. Markham, executor under the will of Blanche Markham, deceased, for construction of the will. From a judgment dismissing the petition and dismissing the cause of action, the plaintiff appeals, and the defendant moves to dismiss the appeal.

Motion to dismiss appeal denied, and judgment affirmed.

Robert M. Murray, of Kansas City, for appellant.

Carl E. Kimpton and Hogsett, Trippe, Depping & Houts, all of Kansas City, for respondent.

BOYER, Commissioner.

In the above entitled cause plaintiff sought judicial construction of the last will and testament of Blanche Markham, deceased. The will in its entirety is set forth in the petition and omitting the attesting clause, it reads as follows:

"I, Blanche Markham, of Jackson County, Missouri, being of sound mind and memory, do make this my last will and testament, hereby revoking any and all other wills by me heretofore made.

"1. I direct that all my just debts and the expense of my last illness be first paid.

"2. I give and bequeath to the heirs, if any, of my deceased brother, Richard Baldwin, the sum of Five Dollars.

"3. I give and bequeath to my husband, Charles H. Markham, an undivided one half of all my property, both real and personal, wheresoever located, as his absolute estate.

"In addition I give and bequeath to my said husband, Charles H. Markham, a life estate in the remaining undivided one half of all my property, both real and personal, wheresoever located, and I direct that he have full charge of the same, with power to sell, manage, care for, invest and reinvest the moneys coming into his hands from said undivided one half of my estate, and the income therefrom shall, during his life, be his absolute property.

"I am mindful of the economic changes that have come about within the past few years, and I am mindful that more drastic upheavals may occur in the future, such that the provisions herein set out for the benefit of my husband may be insufficient to provide him with the comforts of life to which he has been accustomed. In the event of such a contingency I direct that the clause giving a life estate in an undivided one half of all my property be construed to mean an absolute estate or such part of an absolute estate as is necessary to maintain my husband, Charles H. Markham, in a proper manner, and I desire that my said husband shall be the sole judge of the construction to be given the term life estate as used herein, and the sole judge of the amount of life estate required for his maintenance; it being my desire and intention to provide for my beloved husband in any event, and I have such confidence and trust in the judgment and integrity of my said husband that I know he will preserve such part of the undivided one half of my estate as is not necessary for his comfort, intact for the uses and purposes hereinafter set out:

"4. At the demise of my husband, Charles H. Markham, I direct that the remaining part of the life estate, if any, shall become the property of my sister, Belle Husser.

"In the event of the death of my said sister, Belle Husser, prior to the death of my said husband, Charles H. Markham, I direct that the remaining life estate, if any, shall, at the death of my said husband, Charles H. Markham, become the property of Mercy Hospital of Kansas City, Missouri.

"5. I appoint my husband, Charles H. Markham, executor of this, my last will and testament, and I direct that he be not required to give surety or sureties, on his official bond and I further direct that he be not required to file an inventory of my estate with the Probate Court.

"In Witness Whereof, I have hereunto subscribed my name to this, my last will and testament, this 2nd day of July, 1937.

                                    "Blanche Markham."
                

The petition states that Blanche Markham, a resident of Jackson County, Missouri, died in said county on or about the 8th day of August 1946; that she executed the foregoing will which was duly admitted to probate in said county, and that Charles H. Markham is the duly appointed, qualified and acting executor; that plaintiff is a sister of the deceased and one of the legatees. The petition charges that the provisions of the will are inconsistent, confusing, and misleading and make it impossible to ascertain the real intent of the testatrix; that unless the various provisions thereof are interpreted and construed separately and the meaning of the will as a whole properly determined the executor, plaintiff believes, will dissipate the whole of said estate to the irreparable injury and damage of the other named legatees. The alleged inconsistent and misleading provisions are said to inhere particularly in paragraph 3 of the will, and in reference to the life estate created by its provisions. Specific terms of said paragraph are quoted which are said to be inconsistent with each other and ambiguous, and require interpretation and limitation to effectuate the true intention of the testatrix and to preserve the assets of the estate. Plaintiff prayed the court to declare a specific meaning to be attached to certain words, terms, and phrases of the will and in effect to declare under what circumstances the defendant could use the corpus of the life estate.

Defendant presented and filed his written motion to dismiss the petition for various reasons, and in part because the petition on its face shows that no ambiguity or inconsistency exists in the will; that the intent of the testatrix is plain; that the will does not require construction, and that the petition fails to state a claim against defendant upon which relief can be granted. Upon consideration and decision of said motion on the 9th day of October, 1947, the court entered the following judgment:

"Now on this day defendant's motion to dismiss plaintiff's petition is by the court sustained.

"Wherefore, it is ordered and adjudged that said cause be and it is hereby dismissed; and that defendant have and recover of and from the plaintiff his costs and that execution issue therefor."

Plaintiff filed a motion for new trial and moved the court to set aside the judgment rendered, partly because the court erred in holding that plaintiff's petition did not state sufficient facts upon which to base a cause of action in favor of plaintiff and against defendant. This motion was overruled October 15, 1947, and plaintiff in time filed the following notice of appeal:

"Notice is hereby given that Belle Husser, the above named plaintiff, hereby appeals to the Kansas City Court of Appeals from the judgment overruling plaintiff's motion for a new trial, entered in this cause in Division No. 9 of the Circuit Court of Jackson County, Missouri, at Kansas City on October 15, 1947."

Respondent has moved for a dismissal of the appeal for the reason that the appeal is not taken from a final judgment or an appealable order. It is conceded that the notice of appeal is sufficient in form if there is in fact a final judgment, and such is the law as heretofore declared. Terry v. Metropolitan Life Ins. Co., Mo. App., 206 S.W.2d 724; Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657. Respondent insists that the judgment of dismissal was not a final judgment because it does not appear from the record that plaintiff was afforded an opportunity to amend her petition or that she refused to proceed further. It is suggested that the same ruling should be made here as that made by the Springfield Court of Appeals in Edwards v. Sittner, Mo.App., 206 S.W.2d 578, and by this court in Juvenal v. Heim et al., 238 Mo.App. 217, 177 S.W.2d 672. In both of these cases the appeals were dismissed in accordance with previous adjudications that the mere sustaining of a demurrer to the petition or motion to dismiss was not a final judgment.

We think these cases are distinguishable from the case in hand upon the records and rules of procedure in the respective cases. In the Edwards case, on page 580 of 206 S.W.2d of the opinion, is this statement: "The record does not show that plaintiff was given an opportunity to amend, neither does it show that he refused to proceed further and that a final judgment was rendered." It does not appear from the record in that case that the plaintiff filed any motion or took any action of any character except to appeal from a mere...