In re McClelland's Estate
| Decision Date | 04 January 1924 |
| Docket Number | 23188 |
| Citation | 257 S.W. 808 |
| Parties | In re McCLELLAND'S ESTATE. McCLELLAND et al. v. MARTIN et al |
| Court | Missouri Supreme Court |
Meredith & Harwood, of Kansas City, for appellants.
Lamm & Lamm, of Sedalia, and Perry S. Rader, of Jefferson City, for respondents.
In Banc. WHITE, J., concurs.JAMES T. BLAIR, DAVID E. BLAIR, and GRAVES, JJ., concur in result.RAGLAND, J., and WOODSON, C J., dissent.
Statement
This is a suit brought originally in the probate court of Saline county under what is now section 62, R. S. 1919, to discover assets of the estate of Robert W. McClelland alleged to be withheld by Gervis P. Martin, administrator de bonis non of that estate. The probate court rendered judgment in favor of the administrator, and upon an appeal to the circuit court a like judgment was rendered therein. The plaintiffs against whom the judgment was rendered below appealed to the Kansas City Court of Appeals, which affirmed the judgment of the circuit court. While the motion for rehearing was pending, opinions were rendered by the Supreme Court in Tillerson v. Taylor, 282 Mo. 204, 220 S.W. 950, and Wetzel v. Hecht, 281 Mo. 610, 220 S.W. 888, which the Court of Appeals deemed in conflict with its ruling in the instant case, and the latter was certified to this court for final determination. Upon being assigned to and heard by division No. 1, the judgment of the circuit court was reversed and the cause remanded in an opinion by Woodson, Chief Justice. Two of the judges in that division dissented, and the case was transferred to the court en banc, where it was heard on the 30th day of October, 1923. Other incidents, including changes in the personnel of the parties, not material to the determination of the matter at issue have occurred during the toilsome journey of the case from the probate court to this tribunal, and are hence omitted.
The vexed question, the solution of which is necessary to the determination of this case, is the construction to be given to the will of Robert W. McClelland. He died childless in 1907, leaving a widow, Martha P. McClelland. The portions of the will requiring construction are as follows:
'I hereby appoint my wife Martha P. McClelland as executrix of this my last will and testament without bond, assisted by my brother T. A. McClelland and G. P. Martin and Arch Gregory.'
The estate consisted of 195 acres of farm land, 11 lots in Kansas City, $ 6,000 or $ 7,000 in money and notes.
Martha P. McClelland, upon qualifying as executrix, took charge of all of the property which she used as her own until her death in June, 1916, or about nine years subsequent to the death of her husband. Cash collected by her as payments on notes or money received by her from other sources, but payable to the estate, were deposited and commingled with her own personal funds. Portions thus received were placed in a bank subject to call, while other portions were deposited under time certificates. One of the latter was for the sum of $ 4,000. Gervis P. Martin, administrator as stated, at the time of the institution of this suit, but since deceased, was the cashier of the bank with which Mrs. McClelland did business. It appears that he assisted her materially in the various transactions which required her attention as executrix. About seven years after the rendering of this character of service and about two years before her death, she said to him one day at the bank: 'You have been attending to my business ever since the Doctor' (meaning her husband) He replied: 'I wasn't expecting anything like that, Mrs. McClelland,' to which she said, 'Well, I am going to do it,' and thereupon she gave him the certificate, which he accepted and placed to his own credit.
It is the contention of the respondents that the will gave Mrs. McClelland an absolute title or an estate in fee to all of the real and personal property of her husband, except that specifically devised or bequeathed to other parties named in the will as to which she took a life estate.
Appellants contend that her interest was limited to a life estate in the entire property, and that the specific bequests or devises of same were to go to those named in remainder upon the termination of the life estate. The opinion rendered by the Court of Appeals which was written by the lamented Judge Ellison correctly construed this will. Satisfied therewith, we have not hesitated, where it has suited our purpose in the discussion and determination of the matter at issue, to adopt the reasoning and at times the language employed by Judge Ellison. Here, as has been repeatedly said in construing a will, the touchstone of interpretation is the intention of the testator. That intention, deduced from an abstract consideration of the language employed, or concretely construed in connection with the entire instrument, sustains the conclusion that it was the testator's intention to dispose of his entire property by will. Tha purpose would be defeated if Mrs. McClelland took only a life estate, for upon her death all of the property not specifically bequeathed or devised would be left undisposed of. Furthermore, if her interest was limited to a life estate she had no right to give it away (Gibson v. Gibson, 239 Mo. 490, 144 S.W. 770; Burnet v. Burnet, 244 Mo. 491, 148 S.W. 872), for by such a disposition she would destroy the remainder, whether going to heirs or to devisees. These illustrations at least serve to show the incongruous conditions that would arise if, as appellants contend, it was not the purpose of the testator to dispose of his entire estate and thus authorize a part of its disposition by will, leaving the remainder to be disposed of by descent. To obviate such a result, the utmost liberality in the construction of the language employed is authorized. We said succinctly in McMahan v. Hubbard, 217 Mo. 624, 118 S.W. 481, to prevent the incongruous condition indicated, 'words may be supplied, transformed or changed'; or as supplemental to the rule thus announced we said in Watson v. Watson, 110 Mo. loc. cit. 171, 19 S.W. 545, that --
'Where there is a general intention appearing in the will to thereby make a complete disposition of all of the testator's property, such general intent is allowed weight in determining what was intended by a particular devise that may admit of enlargement or limitation.'
It is not intended by this, as the court adds in effect, that general intent will control specific directions plainly to the contrary or enlarge a disposition beyond its meaning. But, as we have stated the rule of testamentary construction, it gives preference to that which will prevent partial intestacy, rather than one which will permit it, if such a construction may be reasonably given. Given v. Hilton, 95 U. S. loc. cit. 594, 24 L.Ed. 458.
As a life estate may be enlarged under the rule above stated, an apparent devise of such an estate may be enlarged to an estate in remainder or in fee if that is the evident intention of the testator.
In the case at bar the testator had no children nor other heirs, except the appellants, who are his nephews and one other. To hold that it was his intention that they were to inherit the greater portion of his estate would involve a presumption unauthorized by any canon of interpretation, as the appellants are not mentioned in the will and could not have been within the purview of the testator's mind. His bequest of all of his property of whatever value to his wife to use as she saw fit during her life, and at her death certain specified portions of same to go to others named, indicates clearly that the appellants were not to share therein.
The absolute power of disposition of the property of the testator which the will gives to the wife, standing alone, vests a fee in her which cannot be cut down by subsequent ambiguous words or words not as clear and strong as those which would operate to devise a fee (Gibson v. Gibson, 239 Mo. loc. cit. 506 144 S.W. 770; Chew v. Keller, 100 Mo. loc. cit. 369, 13 S.W. 395); and the phrase following the declaration of her absolute power of disposal, viz. as 'long as she lives,' does not destroy the fee with which she is invested in the first clause (Middleton v. Dudding [Mo. Sup.] 183 S.W. 443; Welch v. Harvey, 281 Mo. 684, 219 S.W. 897). Reasonably interpreted, it can only be held to apply to the specific devises in remainder to the parties named, thus securing to her the use and control of that portion of the property which would otherwise upon the testator's death have become vested in fee in the...
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