In re Estate of Riesenberg

• Decision Date: 12 December 1905
• Parties: In re Estate of RIESENBERG, Deceased; GEERDTS et al., Respondents, v. RIESENBERG, Appellant
• Court: Missouri Court of Appeals

90 S.W. 1170

116 Mo.App. 308

In re Estate of RIESENBERG, Deceased; GEERDTS et al., Respondents, v. RIESENBERG, Appellant

Court of Appeals of Missouri, St. Louis

December 12, 1905

Appeal from St. Louis City Circuit Court.--Hon. O'Neill Ryan Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Walter Diehm for appellant.

The descent and distribution of personal or movable property in all cases where its owner died intestate is governed exclusively by the law of the deceased owner's last domicile. Story on the Conflict of Laws (8 Ed.), p. 677; 2 Kent Comm., 429; 22 Am. and Eng. Ency. of Law, p. 1355, sec 10; Schouler on Ex. and Adm., sec. 16; Woerner on Adm., star page 360; Dicey on Conflict Laws (1896), page 677; Richardson v. Lewis, 21 Mo.App. 531-534; Ennis v. Smith, 55 U.S. (14 How. 400); Russell v Madden, 95 Ill. 485; Cooper v. Beers, 143 Ill. 25; Noonan v. Kemp, 34 Md. 73, 6 Am. Rep. 307; Towner v. Durbin, 60 Ky. 352; Apple's Estate, 66 Cal. 432; Sanford v. Thompson, 18 Ga. 554; Havery v. Richards, 1 Mason 381-402; Sell v. Worsmick, H. Blackstone's Reports 665; In Re Witter's Est., 15 N.Y.S. 133; R. S. 1899, sec. 268. In the construction and interpretation of a will, the law of the testator's last domicile will prevail. Story on Conflict of Laws, 479a; 1 Redf. Wills (3 Ed.), 383; Harrison v. Nixon, 9 Peters 483, 9 L.Ed. 201; Trotter v. Trotter, 4 Bligh (N. R.) 502; Austruther v. Chalmer, 2 Sim. 1, 4 L. J. Ch. 123; Dannelli v. Dannelli, 4 Bush. (Ky.), 51; Jones v. Habersham, 107 U.S. 179; Adams v. Farley (Miss.) 1895, N. 8 So. Rep. 390; Sale v. Saunders, 24 Miss. 24; 57 Am. Dec. 157; Despared v. Churchill, 53 N.Y. 192; Harrell v. Harrell, 39 N.J.Eq. 279; Harrell v. Wallace, 37 N.J.Eq. 458; In Re Rutherford's Estate, 1 Chester County Rep., 149. In the ascertainment of the persons who are to take under the general, usual and customary designations to a class, such as "heirs," "children," "next to kin" and the like, the laws of the testator's domicile govern. 22 Am. and Eng. Ency. of Law, p. 1368, sec. 4; 22 Greenleaf on Evidence, sec. 671; Lincoln v. Perry, 149 Mass. 368; Proctor v. Clark, 154 Mass. 45; In Re Devoe 72, N.Y.S. 962, 63 N.E. 1102; Keith v. Eaton, 58 Kan. 732; 1 Chauncy Law Reports, 483 (English); In Re Ferguson's Will (1901); Guerard v. Guerard, 73 Ga. 506.

Gustav Detjen and William H. Davies for respondent.

1. Testator's intention controls. Where there is a controversy as to the construction to be placed upon a certain clause in the will we are left solely to the intention of the testator as a guide to a proper interpretation. R. S. 1899, sec. 4650; 2 Wharton on Conflict of Laws (3 Ed.), sec. 599b; 2 Woerner on Am. Law of Adm. (1 Ed.), sec. 414; Redfield on Wills, ch. 9, sec. 30c, et seq. 2. The words used. The particular words used by the testator to designate the persons who are to take under the will must be considered not only as standing alone but as coupled and used in conjunction with each other and with all the other words of the clause. Turner v. Timberlake, 53 Mo. 371; Allison v. Chaney, 63 Mo. 279; Reinders v. Koppelman, 94 Mo. 338; Preston v. Brant, 96 Mo. 552; Chew v. Keller, 100 Mo. 362. 3. Testator's intention gathered therefrom. The intention of the testator must be gathered from these words in view of the testator's position and all the surrounding circumstances. Shumate v. Bailey, 110 Mo. 411; Nichols v. Boswell, 103 Mo. 151. 4. Legal conclusions resulting. When the intention of the testator is thus clearly shown, no technical rules of law, nor adjudicated cases in other jurisdictions, can be permitted to defeat that intention, as each will, to a great extent, is its own interpreter. Small v. Field, 102 Mo. 104; Murphy v. Carlin, 113 Mo. 112; Mersman v. Mersman, 136 Mo. 244; Cross v. Houch, 149 Mo. 325; Hurst v. Von De Vol, 158 Mo. 246. 5. Foreign law incorporated into will. In wills, as well as in contracts, the law which decides the construction of the disputed clause is that which is expressly or impliedly incorporated therein, and where this is the law of another country it will not be considered as foreign, but as incorporated into the instrument, and will govern. 22 A. & E. Enc. of Law (2 Ed.), 1368; Reyle's Estate, 18 Penn. Co. Ct. Rep. 336; Pritchard v. Miles, 106 U.S. 124, 136; Weyman v. Southard, 10 Wheaton 1, 48; Le Breton v. Miles, 8 Paige (N. Y.), 261.

OPINION

BLAND, P. J.

Harry Reisenberg, a resident of the city of St. Louis, died testate in said city, June 16, 1902. After making certain bequests to charitable institutions, his will provides as follows:

"3. I further give and bequeath the following named sums of money to the following named persons, to-wit:

The sum of two thousand dollars to my brother, Carl Riesenberg, of Aachen, Germany, and in the event that he should die before me and his wife, Auguste, should then be living, to his said wife Auguste, for and during her natural life, and after her death or, if she should also have died before my death, to the heirs and legal representatives of my said brother Carl Riesenberg.

"The sum of two thousand dollars to my brother, Wilhelm Risenberg, of Chicago, Ill., and in the event that he should die before me, to his heirs and legal representatives.

"The sum of two thousand dollars to my sister, Helene Lorenz, of Uelzen, Germany, and in the event that she should die before me, to my brother, Herman Riesenberg, hereinafter named, his heirs and assigns.

"The sum of two thousand dollars to my brother, Herman Riesenberg of Eichriede, near Wunstorf, Germany, and in the event that he should die before me to his heirs and legal representatives.

"The sum of two thousand dollars to my sister, Theresa Geerdts, at Flensberg, Germany, and in the event that she should die before me, to her heirs and legal representatives.

"4. The rest, residue and remainder of all the property, real, personal or mixed, that I die seized and possessed of, or which is coming, owing or belonging to me at the time of my death, and wheresoever it may be situated I give, devise and bequeath to my beloved wife, Adele Riesenberg, her heirs and assigns, provided she remains a widow; it being my will that if my said wife shall remarry, she shall receive and be endowed of such portion of my estate, real, personal or mixed, which she would be entitled to under the laws of the State of Missouri, in case that I had died intestate."

The following are the agreed facts:

"The legatee, Theresa Geerdts, died childless, a year or two before the testator, Harry Riesenberger, in Flensberg, Germany, where she had been domiciled. She was survived by her husband, Julius Geerdts, and the following brothers and sisters: Carl, Wilhelm, Herman and Adolph Riesenberg and Helene Lorenz.

"The testator was married at the time of his death and is survived by his widow, Adele Riesenberg, but no children had been born to him, and at the execution of the will and until his death, the testator was domiciled in Missouri.

"Under the laws of the domicile of Theresa Geerdts her husband, Julius Geerdts, is one of her heirs, and as such would be entitled to one-half of the legacy in question under the German law."

As Theresa Geerdts never came into possession of the legacy under the will, according to the Missouri law, her husband would take no part of the gift; the whole of it would go to her brothers and sisters. Under the German law, her husband would take one-half the gift. It will thus be seen that the matter in dispute is in regard to who are the heirs of Theresa Geerdts, within the meaning and intent of the testator, those who are her heirs under the laws of Germany, the country of her domicile, or those who are her heirs according to the laws of Missouri, the place of the testator's domicile. Both the probate and the circuit court adjudged that the gift to Theresa Geerdts should be distributed according to those who are heirs under the laws of Germany. One of the brothers of said Theresa Geerdts appealed from the judgment to this court.

1. The expression, "to her heirs and legal representatives," in the clause of the will making the gift to Theresa Geerdts must be interpreted in order to ascertain the class or classes of persons the testator had in mind. The term, "legal representatives," is equivocal and may refer either to executors or administrators, alienees or heirs. [Lessee of Duncan v. Walker, 1 Yeates 213; Lessee of Rice v. White, 8 Ohio 216; Chasy v. Gowdy, 43 N.J.Eq. 95; Ewing v. Jones, 15 L. R. A. (Ind.) 75; Merchants' National Bank v. Abernathy, 32 Mo.App. 211; Elstroth v. Young, 83 Mo.App. 253; Wells v. Bente, 86 Mo.App. 264.]

It is plain from the terms of the will that the testator intended that his sister and (in the event that she should die before him) her heirs--his kinsmen--should be the beneficiaries of his bounty, not that a stranger, who might be appointed as the executor or administrator of his sister's estate, should take any part of his estate, and, we think, the term, "legal representatives," should be construed as a repetition of the word "heirs." [Olney v. Lovering, 167 Mass. 446, 45 N.E. 766; Schultz v. Insurance Co., 59 Minn. 308, 61 N.W. 331; Greenwood v. Holbrook, 111 N.Y. 465, 18 N.E. 711; Greene v. Huntington, 73 Conn. 106, 46 A. 883; Allen v. Stovall, 63 S.W. 863.]

In Rivenett v. Bourquin, 53 Mich. 10, 18 N.W. 537, it was held that the term, "legal representatives," in a will leaving property to testator's children with a proviso, that if any of the children died before the testator, the estate should be divided among their survivors or "legal representatives," should be construed to mean "lawful heirs." To the same effect is Blakeman v. Sears, 74 Conn. 516, 51 A. 517.

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