Kern v. Stushel
| Decision Date | 21 March 1911 |
| Citation | 135 S.W. 1007,156 Mo.App. 13 |
| Parties | IDA HENRIETTA CHARLOTTE KERN, Appellant, v. EMMA MARIA CHARLOTTE OLGA STUSHEL et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. James E. Withrow Judge.
AFFIRMED.
STATEMENT.--This is a suit to construe the will of Anna Maria Charlotte Stushel, a widow, who died in the City of St. Louis, on April 7th, 1906, at the age of eighty-one years, having made her will only sixteen days before. The part of the will in controversy is paragraph four, as follows:
Plaintiff is the daughter mentioned in paragraph four. It appears from the evidence that all the money loaned to the plaintiff and her husband by Henry William Stushel, and the interest thereon, were represented by a principal note for two thousand dollars, dated October 1, 1897, and the semi-annual interest notes for the sum of fifty dollars each. These notes had been made by the plaintiff and her husband to Henry William Stushel and formed the sole asset of the latter's estate when he died in 1897. The loan they represented was very evidently the one contemplated by the provisions of paragraph four. But the testatrix, Anna Maria Charlotte Stushel, had no estate in said principal note or the loan represented thereby, which she might dispose of by will. Her husband had died testate and bequeathed her only a life estate therein; so that when she died, the remaindermen being three of her children, including the plaintiff, were entitled to said two thousand dollars and she, the testatrix was entitled to dispose of only the accrued and unpaid interest thereon. After the death of the testatrix the plaintiff was compelled to pay to her co-remaindermen their share, two-thirds, of said two thousand dollars, and interest since the death of the testatrix, and she claims that by the provisions of paragraph four she is entitled to be reimbursed the amount of said two-thirds out of the estate of the testatrix and that it is the duty of the executors to pay that amount to her. Defendants on the other hand claim that the testatrix by paragraph four did not intend to release plaintiff from the principal note to which the testatrix had no claim, but intended by said paragraph to release plaintiff merely from the payment of the accrued and unpaid interest to which testatrix was entitled.
We may add to the foregoing that the estate of the testatrix treating all assets as good, was worth $ 5331.93, while all the legacies, excluding whatever was given by paragraph four and by the residuary clause, aggregated in amount $ 4400.00. The decree of the trial court adopted the construction of the will insisted on by the defendant and the plaintiff has appealed.
Decree affirmed.
S. T. G. Smith for appellant.
(1) In the construction of testamentary dispositions where the language is unskilled or inaccurate, but the intent can be clearly gathered from the writing, it is the duty of the Court to give that intent effect. Masterson v. Townsend, 123 N.Y. 458; Metcalf v. Framingham, 128 Mass. 370; Ex parte Wynch, 5 De. G. & M. & G. 188. (2) The word cancel means pay. Bank v. Leonard, 40 Barber, 119. (3) Where words, although inaccurate or unskilled, are used in the will, if, after reading the will it is apparent the testator intended by those words that someone should be the beneficiary of the testator's bounty, it is the duty of the Court to carry out such intent and carry those words into effect. Burt v. Herron, 66 Pa. St. 400; Loring v. Summer, 23 Pick. 98.
Julius T. Muench for respondents.
(1) To constitute a devise by implication, the inference of an intention on the part of the testator to create such devise must be a necessary one, not merely a possible one. Hurlbut v. Hutton, 42 N.J.Eq. 28; Denise's Exrs. v. Denise, 37 N.J.Eq. 170; McCoury's Exrs. v. Leek, 14 N.J.Eq. 70; Bond v. Moore, 236 Ill. 576; Connor v. Gardner, 230 Ill. 258; Barlow v. Barnard, 59 N.J.Eq. 620; Rood on Wills, Sec. 495; Underhill on Wills, sec. 463, et seq. (2) A strained construction should not be adopted, but the language used should be read with a view to determining the testator's evident intention, considering all the surrounding circumstances. Adams v. Adams, 1 Hare 537; Circuit v. Perry, 23 Beav. 275; Clamorgan v. Lane, 9 Mo. 446; Pease v. Pilot Knob Iron Co., 49 Mo. 124; Cosgrove Exr. v. Cosgrove, 69 Conn. 416; Brown v. Gibson's Exr., 59 S.E. 384; Roth v. Rauschenbusch, 173 Mo. 582; Nichols v. Boswell, 103 Mo. 151. (3) The word "cancel" does not mean "pay" in the sense of creating a legacy in the sum of the obligation erroneously directed to be cancelled. Brown v. Gibson's Exr., 59 S.E. 384.
CAULFIELD, J. (after stating the facts).
We have no hesitation in affirming the decree of the trial court. While our conclusion as to the intent of the testatrix is different, ...
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