Irvine v. Ross

• Citation: 98 S.W.2d 763,339 Mo. 692
• Parties: Ollie Irvine, Appellant, v. Armisted Ross et al
• Decision Date: 12 November 1936
• Court: Missouri Supreme Court

98 S.W.2d 763

339 Mo. 692

Ollie Irvine, Appellant, v. Armisted Ross et al

Supreme Court of Missouri

November 12, 1936

Appeal from Saline Circuit Court; Hon. Robert M. Reynolds Judge.

Affirmed.

James & James, Ford R. Nelson and Bowersock, Fizzell & Rhodes for appellant.

(1) Hallie Irvine was designated by the will of her father, C. C Ross, to take an interest in remainder in the property devised. Evans v. Rankin, 329 Mo. 411, 44 S.W.2d 644; Lee v. Lee, 1 Drewry & Smole, 85, 29 L. J. Ch 788, 6 Jur. (N. S.) 621; Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947; Ernshaw v. Smith, 2 S.W.2d 803; Gilman v. Congregational Home Missionary Society, 276 Mass. 580, 177 N.E. 621; Brown v. Spring, 241 Mass. 565, 135 N.E. 701; Tate v. Tate, 160 Ga. 449, 128 S.E. 393; In re Fitzpatrick's Estate, 233 Pa. 33, 81 A. 815; Stokes v. Van Wyck, 83 Va. 724, 3 S.E. 387; Himmel v. Himmel, 294 Ill. 557, 128 N.E. 641. (2) Appellant acquired the fee to the property in question by virtue of being the sole devisee under the will of Hallie Irvine. Evans v. Rankin, 329 Mo. 411, 44 S.W.2d 644; Gilman v. Congregational Home Missionary Society, 276 Mass. 580, 177 N.E. 621; Brown v. Spring, 241 Mass. 565, 135 N.E. 701; In re Fitzpatrick's Estate, 223 Pa. 33, 81 A. 815; Himmel v. Himmel, 294 Ill. 557, 128 N.E. 641.

Harvey & Bellamy, Lashly, Lashly & Miller and George F. Wise for respondents.

(1) "All Courts and others concerned in the execution of last wills shall have due regard to the directions of the will and the true intent and meaning of the testator, in all matters brought before them." Sec. 567, R. S. 1929. (2) In determining the intention of testator, the whole will should be taken together and each part construed with relation to the language used in other parts and effect given to the general intention therby ascertained. 40 Cyc., pp. 1413-1415; Register v. Elder, 231 Mo. 321; O'Day v. O'Day, 193 Mo. 62; Eckle v. Ryland, 256 Mo. 424; Snow v. Ferril, 8 S.W.2d 1008, 320 Mo. 569; Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947; Donaldson v. Donaldson, 278 S.W. 686, 311 Mo. 208; Evans v. Rankin, 329 Mo. 411, 44 S.W.2d 644; Long v. St. Louis Union Trust Co., 57 S.W.2d 1071, 332 Mo. 288; First Pres. Church v. Lynott, 78 S.W.2d 396. (3) Hallie Ross Irvine, by the will of her father, C. C. Ross, acquired a life estate only in his property. Authorities above cited.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

This is a suit to determine title to certain land in Saline County. The land was owned in fee, by C. C. Ross who died, testate, in 1895. Some two or three weeks prior to his death Ross executed his last will and testament. At the time he executed this will he was past the age of seventy years, a widower, and had but one child, a daughter, Hallie R. L. Ross. There were no other descendants. The daughter Hallie had never married. Ross had brothers and sisters who were, or had been, married and had children. The age of the daughter, Hallie, at the time her father executed the will, and at the time of his death within some two or three weeks thereafter, does not appear; the inference however is that she was of full age at the time. In 1911, sixteen years after her father's death, Hallie married the plaintiff herein, Ollie Irvine. This was her only marriage. No child was born of the marriage and she died, in 1930, nineteen years thereafter, testate, without ever having had issue. By her last will she devised and bequeathed all her "property and estate of every kind and character" to her husband, the plaintiff herein. He now claims title, in fee, to the land described in the petition through, and by virtue of, the will of his deceased wife, who it is claimed derived title thereto through and under the will of her father. The defendants are the descendants of the brothers and sisters of the testator C. C. Ross and claim that under the will of Ross the title to the land vested in them in fee, upon the death of Hallie R. L. (Ross) Irvine "without leaving issue of her body living." The cause was tried in the Circuit Court of Saline County and the decree and judgment of the trial court was; that plaintiff was "not the owner of, nor has he any right, title or interest in and to the real estate described in his petition . . . but that the defendants are the owners in fee of said real estate." Plaintiff has appealed therefrom.

It is apparent that a construction of the will of C. C. Ross is involved, which necessitates the setting out of the will in such way that the full scope, tenor and objectives thereof may be considered. Paragraph 1 contains the conventional preliminary statements. By paragraph 2, the testator appoints his "brother-in-law, B. F. McDaniel . . . sole executor." Paragraph 3, is as follows: "I further give, bequeath and devise unto my said Executor, B. F. McDaniel, all and singular my money, goods and chattels, and property, real, personal and mixed of whatever character and wheresoever situate, in trust however for the several uses and purposes hereinafter set out and for no other." Paragraph 4, directs the executor; "to sell all . . . my personal property of every character . . . as soon as reasonably convenient after my death and from the proceeds pay all of my just and lawful debts and the expense of administration and lend out the remainder of the money upon such loans as he may deem safest . . . and keep it so loaned out until my daughter, Hallie R. L. Ross, shall marry upon which event the principal and interest shall be paid over to her and thereupon become her own absolutely; and in case of her death without having married then the principal and interest shall by my Executor be distributed among those who would, had I died intestate, have been my heirs at law, the same as is provided hereinafter (see paragraph 6, infra) for the distribution of the proceeds arising from the sale of my real estate." By the fifth paragraph the testator observes and directs: "Realizing that my daughter cannot with prudence, safety and propriety, either live upon or operate my real estate so long as she shall remain unmarried and that she ought not to undertake it, and in order to set my mind completely at rest upon this subject, and to settle it definitely and permanently, I hereby direct my said Executor, that so long as my said daughter shall remain single and unmarried he shall rent, or lease all of my real estate from year to year." This is followed by directions concerning the leasing of the real estate. The fifth paragraph then specifies: "from the rentals of my real estate my Executor shall pay: (1) all taxes upon my estate;" (2) insurance upon "the dwelling houses and such other buildings as he may think proper to insure;" (3) "repairs . . . upon the premises;" (4) "to himself for his services herein and in aid of my said daughter in whatever he may be able to do for her and her interest, the sum of $ 350 a year;" (5) "to my sister Mrs. Nancy Blunt . . . and my sister Mrs. Ellen Bobbitt, . . . each during her natural life, the sum of $ 75 a year whenever the net rents from my real estate shall amount to $ 1750; but if the net rents should be less than $ 1750 and more than $ 1600 for any year then the excess over $ 1600 shall be equally divided between my said two sisters; and for any years the rents shall be only $ 1600 or less, then my said sisters shall take nothing for such years;" the annuities to "terminate upon the death of my said sisters respectively;" and (6) "to my daughter, Hallie R. L. Ross whatever balance shall remain of said rentals after satisfying clauses 1, 2, 3, 4 and 5 as above set out, to whom I hereby give and bequeath the same absolutely." We quote paragraph 6, the hub of this controversy, in full: "I further direct my said Executor that upon the marriage of my said daughter he shall convey all of my real estate, by good and sufficient deeds of conveyance, unto my said daughter, Hallie R. L. Ross, for and during the period of her natural lifetime and after her death to the heirs that is the issue of her body, or their descendants, in equal parts, but should she die without leaving such issue of her body, or their descendants, living, then to the heirs of this testator; subject however, to the payment of the annuities to my said two sisters the same as if said real estate still remained vested in my said Executor. But should my said daughter die without having married, then my Executor shall sell all of my real estate and distribute the proceeds among those, who had I died intestate would have been my heirs at law under the statutes of the State of Missouri concerning Descents and Distributions of the Estate of intestate deceased persons and in the manner and proportion designated by such statute, meaning and intending hereby such statute as may be in force at the death of my said daughter." By the seventh, and last, paragraph, testator expresses an "earnest desire and wish that my said daughter shall, so long as she remain unmarried, find a home for herself in some good and highly respected family;" that "her associations and social surroundings be of the best character;" and requests his executor "to aid and advise her" in doing so and to "counsel her concerning her personal welfare and business interests."

Having set out the provisions of the will at some length, and portions thereof verbatim, we now undertake to abstract the dispositive clauses. All the property is devised and bequeathed to the executor, as a trustee, in trust for the purposes stated. Upon the death of the testator title vested in the executor as such trustee. He was to convert all the personal property into money, pay testator's debts and keep the remainder loaned at interest until such time as the daughter Hallie...