In re Largue's Estate

• Decision Date: 29 February 1916
• Docket Number: No. 17846.,17846.
• Citation: 267 Mo. 104,183 S.W. 608
• Parties: In re LARGUE'S ESTATE. MARTIN et al. v. THOMPSON et al.
• Court: Missouri Supreme Court

183 S.W. 608

267 Mo. 104

In re LARGUE'S ESTATE MARTIN et al. v. THOMPSON et al.

No. 17846.

Supreme Court of Missouri, Division No. 1.

February 29, 1916.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

In the matter of the estate of Mathilda A. Largue, deceased. Petition by Martha N. Martin and others against W. B. Thompson and others, as executors. The probate court found against petitioners, and on appeal to the circuit court judgment was again rendered against them, and they appeal. Reversed and remanded, with directions.

On January 11, 1912, appellants Martha Norris Martin, Elizabeth Norris Nelson, Jennie Norris Angloch, Mary M. Norris, Mary M. May, and Albert W. Wallace filed in the probate court of the city of St. Louis, aforesaid, their petition, against respondents, as executors of the estate of Mathilda A. Largue, deceased, reciting therein that they were the respective owners of the shares of stock mentioned in paragraphs 3, 4, and 7 of the will of Mrs. Largue, hereafter set out in full (318 shares), and alleging that since her death on October 12, 1909, all dividends declared by the National Bank of Commerce in St. Louis, Mo., on said 318 shares of stock have been paid to respondents as executors aforesaid, and that no part of same has been distributed to appellants; that said dividends amount to $27 on each and every share of said stock.

It is further alleged that said executors have an hand sufficient sums to pay all debts, legacies, and expenses of administration, and the aggregate amount of dividends herein prayed for; that appellants have paid their collateral inheritance taxes and are entitled to the dividends aforesaid.

The petition asked the court to make an order on said executors, requiring them to pay over to appellants the dividends aforesaid.

Upon a hearing in the probate court, the latter found against appellants, and held that the bequests of the 318 shares of stock aforesaid were general and not specific bequests. Appellants appealed to the circuit court aforesaid, where the cause was tried anew. The will of Mathilda A. Largue was read in evidence, and is in words and figures following, to wit:

"Know all men by these presents, that I, Mathilda A. Largue, of the city of Saint Louis, Missouri, being of sound and disposing mind, do hereby make, declare and publish this to be my last will and testament, hereby revoking all former wills.

"First. I direct my executors to pay all just debts against my estate.

"Second. I give and bequeath to my brother, William R. Anderson, of Denver, Colorado, 100 shares of stock of the National Bank of Commerce in Saint Louis.

"Third. I give and bequeath to my sister, Mary M. May, of Beaver Falls, Pa., 137 shares of stock of the National Bank of Commerce in Saint Louis.

"Fourth. I give and bequeath 136 shares of stock of the National Bank of Commerce in Saint Louis to Martha Norris Martin, Elizabeth Norris Nelson, Mary M. Norris, and Jennie Norris Angloch, daughters of my late sister, Katherine Norris, share and share alike.

"Fifth. I give and bequeath to William A. Brandenburger, trustee, 46 shares of stock of the National Bank of Commerce in Saint Louis, in trust, however, for the following uses and purposes: The said trustee or his executor in this trust shall keep said shares of stock and collect such dividends as may be paid thereon and pay the same as they are collected to Melinda Wallace during the term of her natural life, and at the death of Melinda Wallace I give and bequeath said 46 shares of stock to Linnie Brandenburger, Jessie Verdier, Edith Taylor, Blanch Taylor and Grace Mortland, share and share alike.

"Sixth. I give and bequeath 46 shares of stock of the National Bank of Commerce in Saint Louis to William Ramsey, Harry Ramsey, Sadie Ferree, Hallie Ramsey, Lynn Ramsey and George Ramsey of Pittsburgh, Pa., share and share alike.

"Seventh. I give and bequeath to Albert W. Wallace of Allegheny, Pa., 45 shares of stock of the National Bank of Commerce in Saint Louis.

"Eighth. I give and bequeath to Mrs. Sarah A. Walker of Philadelphia, Pa., one bond of the Merchants Bridge Company of Saint Louis of the face value of $1,000.00.

"Ninth. I give and bequeath to Mrs. Alma E. Armstrong of Atlanta, Ga., one bond of the Merchants Bridge Company of Saint Louis of the face value of $1,000.00.

"Tenth. All the rest and residue of my estate, real, personal and mixed, of whatever kind and wheresoever situate, including my residence, known as 3840 Lindell boulevard, and contents, I give, devise and bequeath to my beloved niece, Mathilda A. Puller.

"Eleventh. I nominate and appoint Edwin S. Puller and William B. Thompson or survivor executor of this will and request that they give bond equal to the value of my estate, excluding realty.

"Twelfth. In the event that any legatee, devisee or executor contests the validity of this will, either directly or indirectly, I do hereby revoke the legation, devise or appointment as executor of said legatee, devisee or executor so contesting this will.

"In testimony whereof, I, the said Mathilda A. Largue, have hereunto set my hand and seal this 6th day of July, 1909.

                              "Mathilda L. Largue. [Seal.]"
                

A written stipulation was entered into in the court below, which, without signatures, reads as follows:

"It is hereby stipulated by and between Martha Norris Martin, Elizabeth Norris Nelson, Jennie Norris Angloch, Mary M. Norris, Mary M. May and Albert W. Wallace, legatees under the will of Mathilda A. Largue, by their attorney, J. Lionberger Davis, William B. Thompson and Edwin S. Puller, executors of the estate of Mathilda A. Largue, and Mathilda A. Puller, by her attorneys, Schnurmacher & Rassieur, that the said Mathilda A. Largue, at the time of the execution of her said will, to wit, on July 6, 1909, and at the time of her death, was the owner of five hundred and ten (510) shares of the capital stock of the National Bank of Commerce in St. Louis."

It was further stipulated by counsel that the National Bank of Commerce of St. Louis, declared a dividend of $27 per share, on each of the 318 shares aforesaid, that the same was received by said executors, and that the aggregate amount of dividends so declared on the shares belonging to plaintiffs was, and is, $8,586.

After argument, the case was taken under advisement, and on March 17, 1913, the circuit court found the issues in favor of defendants, and entered judgment generally against the plaintiffs.

Appellants in due time filed a motion for a new trial, which was overruled, and the cause duly appealed to this court.

J. Lionberger Davis, of St. Louis, for appellants. Schnurmacher & Rassieur, of St. Louis, for respondent Puller.

RAILEY, C. (after stating the facts as above).

I. The question at issue involves the construction of Mrs. Largue's will heretofore set out. It is dated July 6, 1909, and executed in St. Louis, Mo. It is conceded that at the date of its execution, the above testatrix was the owner and in possession of 510 shares of the capital stock of the National Bank of Commerce, St. Louis, Mo. It is conceded, that testatrix was the owner and in possession of 510 shares of said stock at the time of her death, on October 9, 1909. By the provisions of said will, testatrix bequeathed to the Jegatees named therein, 510 shares of stock in the National Bank of Commerce aforesaid. She bequeathed to appellants 318 shares of stock in said bank, as shown in paragraphs 3, 4, and 7 of the will aforesaid. It does not appear from either the will, or the record herein, that testatrix owned any more than 510 shares of stock in said bank.

It appears by stipulation:

"That the amount of dividends declared by the National Bank of Commerce in St. Louis on each and every share of the capital stock of said bank, which was bequeathed by the will of Mathilda A. Largue, was $27 per share, and that that amount was received by the defendants as executors of said will, and was and is retained by said executors and defendants; and that the aggregate amount of dividends so declared on the shares belonging to plaintiffs was and is $8,586."

Counsel for respondents in their brief, with commendable frankness, state the issues involved as follows:

"The testatrix did intend to dispose of the 510 shares of stock she owned; but the true question is, did she, by the language she used in expressing her last wishes, dispose of them in such a way that, as a matter of law, they amount to specific legacies or general legacies?"

As said by the New York Court of Appeals, in Cammann. v. Bailey, 210 N. Y. loc. cit. 30, 103 N. E. 824:

"Rules for the construction of wills are for the sole purpose of ascertaining the intention of the testator, and if the intention is clear and manifest it must control, regardless of all rules that have been formed for the purpose of determining their construction."

In Roper on Legacies (4th Ed.) c. 3, § 1, p. 190, a specific bequest is defined as follows:

"`The bequest of a particular thing or money specified and distinguished from all others of the same kind, as of a horse, a piece of plate, money in a purse, stock in the public funds, a security for money, which would immediately vest with the assent of the executor.'"

The same author, on page 203 of the same volume, says:

"From the definition of a regular specific legacy in the beginning of the chapter, it is obvious that stock or government annuities or shares in public companies may be specifically bequeathed; but in order to make the bequests specific, the intention that they should be so, must be clear, otherwise the bequests will be general."

It is insisted by respondents that the legacies to appellants called for no particular shares or particular certificates of stock; that each legacy could have been satisfied by the delivery of any shares or certificates of the requisite number; that they were in no wise identified or distinguished from the other...