In re Estate of Temple

• Decision Date: 05 December 1922
• Citation: 245 S.W. 633,211 Mo.App. 71
• Parties: In the Matter of THE ESTATE OF THEODORE H. TEMPLE, Deceased
• Court: Missouri Court of Appeals

245 S.W. 633

211 Mo.App. 71

In the Matter of THE ESTATE OF THEODORE H. TEMPLE, Deceased

Court of Appeals of Missouri, St. Louis

December 5, 1922

Appeal from the Circuit Court of St. Louis County.--Hon. John W McElhinney, Judge.

AFFIRMED.

Judgment affirmed.

Daniel J. O'Keefe and Henry E. Haas, for Wm. E. Diederich and Gustav A. Temple, Trustees under the will of Theodore H Tempel, deceased for Jeanette Tempel, Gertrude Tempel Thelma, Tempel and Marion Tempel, minors, Appellants.

(1) The rule that the intention of the testator shall be sought and effectuated, in construing and enforcing wills, is subject to the very vital qualification that such intention must not contravene a well-established principle of law. Borland on Wills (En. Ed.), p. 296 and cases cited; Lemmons v. Reynolds, 170 Mo. 227; Peugnet v. Berthold, 183 Mo. 61; Miller v. Ensminger, 182 Mo. 195; Briant v. Garrison, 150 Mo. 655; Griffin v. McIntosh, 176 Mo. 392; Russell v. Eubanks, 84 Mo. 82; Farrar v. Christy, 24 Mo. 453; Brown v. Rogers, 125 Mo. 392; Reinders v. Koppelman, 94 Mo. 338. (2) The law is well settled in Missouri and elsewhere that when the words of a will at the outset clearly indicate a disposition in the testator to give absolutely to the first donee the entire interest, use and benefit of the estate devised, that estate will not be limited, cut down or diminished by subsequent or ambiguous words, inferential in their intent. Jackson v. Littell, 213 Mo. 589; Settle v. Shafer, 229 Mo. 561; Cornet v. Cornet, 248 Mo. 184; Thornbrough v. Craven, 225 S.W. 445; Lane v. Garrison, 239 S.W. 813; Gannon v. Pauk, 200 Mo. 75; Sevier v. Woodson, 205 Mo. 202; Underwood v. Cave, 176 Mo. 1; Roth v. Rauschenbusch, 173 Mo. 582; Lemp v. Lemp, 264 Mo. 533; Newell v. Kern, 218 S.W. 443; Wead v. Gray, 78 Mo. 59, 11 Ann. Cases, 343; Underhill on Wills, secs. 358; Borland on Wills (En. Ed.), sec. 151; 40 Cyc., 1586, 1587; 30 Amer. & Eng. Ency. of Law (2 Ed.), 748. (3) Legacies are primarily payable from the personalty only, and in the event of its insufficiency, they must abate, unless either expressly or by necessary implication, the land of the testator is charged with their payment, and this must clearly appear from the will itself. Gardner on Wills, sec. 158; Borland on Wills (En. Ed.), sec. 219; 9 L.R.A., p. 584; 19 Am. & Eng. Ency. of Law (2 Ed.), pp. 1349, 1350; McQueen v. Lilly, 131 Mo. 9; Reynolds v. Reynolds, 16 N.Y. 257; Lupton v. Lupton, 2 Johnson's Chancery Rep., star page 614. (4) The fund of one thousand dollars bequeathed to Esther R. M. McCleary, described and particularized in the fifth clause of the will, has all the earmarks of a specific legacy, and when a specific legacy is not found among the assets of the testator, the legacy is said to be adeemed or lost. Asbury v. Shain, 177 S.W. 666; In re Largue's Estate, 183 S.W. 608; 11 L.R.A. (N. S.) 55; 40 L.R.A. (N. S.) 542; Rood on Wills, sec. 711; 18 Amer. & Eng. Ency. of Law (2 Ed.), 714; Gelbach v. Shively, 67 Md. 498; In re Smith's Appeal, 103 Pa. 559; Towle v. Swasey, 106 Mass. 100; Bullard v. Leach, 213 Mass. 177; Tennille v. Phelps, 49 Ga. 532; Hart v. Brown, 145 Ga. 140; Borland on Wills, (En. Ed.), sec. 119. (5) Where the provisions of a will are conflicting, it is the duty of courts to give effect to the testator's paramount intention as against a secondary intention. That is to say, the general intent is to be preferred over a particular one. All subordinate provisions in a will bend in construction to the testator's main purpose. 1 Schouler on Wills (5 Ed.), sec. 476; 1 Redfield on Wills, star page 433; 40 Cyc. 1393; Garth v. Garth, 139 Mo. 456; Young v. Robinson, 122 Mo.App. 187; Thomas v. Thomas, 149 Mo. 426; And in case of an ambiguity in the will that construction is to be adopted which favors the next of kin, since it is presumed that the testator intended his property to go in the legal channel of descent. Hence the statute of descents and distribution will be consulted as an aid in construing the will. 40 Cyc. 1412; 28 R. C. L. 229; 1 Schouler on Wills, (5 Ed.), Sec. 479, Sec. 303, R. S. 1919.

W. J. Blesse and William Kohn, for Esther R. Cleary legatee under the Will of Theodore H. Tempel, deceased, and for Daisy F. Cleary, her curatrix, respondents.

(1) It is an universal rule for the construction of wills to give full force and effect to every word and sentence in the will, if possible to do so, and then construe it as a whole so as to meet the intention of the testator. Clotilde v. Lutz, 157 Mo. 439; Cornet v. Cornet, 248 Mo. 184. (2) When the testator, in a residuary clause (and the third clause of the will in question is a residuary clause) treats the real and personal property as forming one whole, without distinguishing the one from the other, he is presumed thereby to manifest an intention to charge the real estate with the payment of legacies. Woerner's Law of Administration, sec. 452, p. 999; O'Day v. O'Day, 193 Mo. 62; Lewis v. Darling, 14 U.S. (Law Ed.) 819; McQueen v. Lilly, 131 Mo. 1; (3) Where the personalty is insufficient to pay legacies and where at the time the will was made it was insufficient to pay the same, or where the testator so disposes of his personal property that it cannot be made available to pay legacies, it is presumed that the testator intended to charge his land with the payment of the legacies. Clotilde v. Lutz, 157 Mo. 439; Brant's Will, 40 Mo. 266; 2 Woerner's Am. Law of Adminis. (2 Ed.), sec. 491; Hoyt v. Hoyt, 85 N.Y. 147; McCorn v. McCorn, 100 N.Y. 511; Duncan v. Wallace, 114 Ind. 171; Davison v. Coon, 125 Ind. 497, 9 L.R.A. 584 and Note.

ALLEN, P. J. Becker and Daues, JJ., concur.

OPINION

ALLEN, P. J.

This appeal involves the construction of the last will and testament of Theodore H. Temple, deceased. The precise question presented is whether real estate devised by the testator is charged with the payment of a legacy of $ 1000 made to Esther Cleary by clause five of the will. The will, omitting formal parts, is as follows:

"First. I direct that all my just debts and funeral expenses be promptly paid.

"Second. I give, devise and bequeath to my beloved wife, Annie M. Temple, all the rents, revenue and income from all my estate, real, personal and mixed, of which I may be possessed; to have and to hold the same unto her, my said wife, for and during her natural life, or for so long as she may remain unmarried and my widow. These provisions for my widow are given in lieu of, and in extinguishment of, her right and title of dower.

"Third. Upon and after the decease or second marriage of my said wife, Annie M. Temple, I give, devise and bequeath my estate or its remainder unto the children then living of my brother, Gustav A. Temple, to be divided among said children in equal parts, each nephew to receive his part when he attains the age of twenty-one (21) years, and each niece to receive her part when she attains the age of eighteen (18) years.

"Fourth. I hereby give and bequeath to my wife, Annie M. Temple, to be her own absolute property, all my household furniture, jewelry, books, paintings, horses and buggies of which I may be possessed.

"Fifth. I hereby set apart the sum of one thousand dollars ($ 1000), the same to be held in trust for the benefit and use of my beloved niece Esther R. M. McCleary, until she shall have attained the age of eighteen years, when the said sum of one thousand dollars ($ 1,000) shall be paid to her, my said niece Esther, by the trustees, hereinafter to be named, of this fund. I direct the said trustees to invest said one thousand dollars ($ 1,000) in safe security at the rate of six (6) per cent annual interest, and pay said interest to my said niece towards her maintenance and education. I hereby nominate and appoint my wife, Annie M. Temple, and my brother, Gustav A. Temple, as trustees of said trust, without bond.

"Sixth. Should any portion of my real estate materially increase in value, I hereby authorize and direct my executors and trustees hereinafter named to sell such real estate and invest the proceeds of such sale in other real estate enhancing in value.

"Seventh. I nominate and appoint my said wife, Annie M. Temple, executrix and trustee, and my said brother, Gustav A. Temple, executor and trustee of this, my last will, without bond; and I hereby give to my said executors and trustees all the power, authority and discretion of this, my last will."

The will was executed on February 15, 1912. The testator died on September 20, 1914, and shortly thereafter the will was admitted to probate and letters testamentary were issued to the executor and executrix named therein. Within six months thereafter the widow renounced the provision made for her in the will and elected to take dower in lieu thereof. She also declined to act as one of the trustees under the will, and one Diederich was appointed in her stead. The inventory showed that the testator's personal estate amounted to $ 558.29, of which $ 319.79 was cash in bank. Seventeen different parcels of real estate were inventoried.

It appears that in a partition suit, instituted in 1916, the real estate was partitioned in kind, the widow receiving certain parcels thereof and the remainder being set apart to the trustees under the will for the minor children of Gustav A. Temple; the court proceeding therein upon the theory that there was sufficient personalty in the estate to pay all debts, legacies and expense of administration. In November 1919, but $ 28.47 then remaining in the hands of the executor and executrix, the Probate Court entered an order wherein, after finding that there were not sufficient personal assets on hand to pay the legacy to Esther Cleary and that the legacy constituted a charge against the real estate...