Koch v. Meacham

• Decision Date: 07 November 1938
• Citation: 121 S.W.2d 279,233 Mo.App. 453
• Parties: JOHN W. KOCH, EXECUTOR OF THE ESTATE OF SAMUEL H. TOWNSEND, DECEASED, APPELLANT, v. LORA MEACHAM, EXECUTRIX OF THE ESTATE OF SUSAN TOWNSEND, DECEASED, AND DELLA KOCH, RESPONDENTS
• Court: Kansas Court of Appeals

121 S.W.2d 279

233 Mo.App. 453

JOHN W. KOCH, EXECUTOR OF THE ESTATE OF SAMUEL H. TOWNSEND, DECEASED, APPELLANT, v. LORA MEACHAM, EXECUTRIX OF THE ESTATE OF SUSAN TOWNSEND, DECEASED, AND DELLA KOCH, RESPONDENTS

Court of Appeals of Missouri, Kansas City

November 7, 1938

Appeal from Nodaway Circuit Court.--Hon. Thomas A. Cummins, Judge.

Appeal dismissed.

A. F Harvey for appellant.

(1) The probate court does not have jurisdiction to construe a will or determine what interest a legatee takes thereunder, and this suit is properly brought in the circuit court. Bramell et al. v. Cole et al., 136 Mo. 201; First Baptist Church v. Robberson, 71 Mo. 326; Davidson v. Real Estate and Investment Co., 226 Mo 1, l. c. 23; Andre v. Andre, 232 S.W. 153, l. c 156; Peck v. Fillingham, 199 Mo.App. 277. (2) By the provisions of the second clause of the will, "cash and real estate notes of the value of Thirty-three Thousand Dollars ($ 33,000.00)" the testator did not intend that cash be valued or the real estate notes be valued, but merely designed to specify the amount of cash and real estate notes at their face which he intended to give by said bequest. In re Calnane's Estate, 28 S.W.2d 420; In re Estate of Largue, 267 Mo. 104, 183 S.W. 608; Fidelity National Bank and Trust Co. v. Hovey, 5 S.W.2d 437 (Mo.) ; In re Johnson's Estate (Pa.), 32 A. 636; Partner v. Citizens Loan and Trust Co. (Ind.), 71 N.E. 894. (3) In the construction of wills courts will place themselves in the position of the testator as near as possible in order to look upon the estate from his viewpoint, when the will will be construed from its four corners and the intention of the testator at the time determined. Allison's Executor v. Chaney, 63 Mo. 279, l. c. 282; In re Calnane's Estate, 28 S.W.2d 420, l. c. 421; Malone v. Moberly, 55 S.W.2d 1008-9; Lehmann v. Griffith, 31 S.W.2d l. c. 272. (4) In the absence of showing to the contrary, the value of a promissory note is presumed to be its face value. Menkens v. Menkens, 23 Mo. 252; State to the Use of Wolff v. Berning, 74 Mo. l. c. 98; Bank of Darlington v. Powers, 102 Mo.App. 415, l. c. 419. (5) The will takes effect as of the date of the death of the testator, and if between the time that the will is written and his death, conditions have changed, it is presumed that the testator had such changes in mind when he died. In view of having made no changes in the will, its terms must be interpreted in the light of conditions existing at the latter date. Vitt v. Clark, 66 Mo.App. 214; Henderson v. Calhoun, 183 S.W. 584; Willi'amson v. Roberts, 187 S.W. l. c. 20; Hannibal Trust Co. v. Elzea, 286 S.W. l. c. 379; Tompkins v. Lear, 146 Mo.App. l. c. 654.

Wright & Ford for respondent.

(1) The decree from which this appeal was taken is interlocutory and not final. 33 C. J. 1061; 3 C. J. 443; Dickhart v. Rutgers, 45 Mo. 132; Boden v. Johnson, 224 Mo.App. 216, 23 S.W.2d 187; Magee v. Bank, 339 Mo. 559, 98 S.W.2d 614. (2) The right of appeal is a statutory right and no appeal can be had unless allowed by statute. The statute does not allow an appeal from an interlocutory decree in an action to construe a will. Sec. 1018, R. S. 1929; Pence v. K. C. Laundry, 332 Mo. 930, 59 S.W.2d 633; Goldman v. Hoehn, 228 Mo.App. 202, 64 S.W.2d 733. (3) The controlling rule in the construction of wills is to give effect to the intention of the testator. Grace v. Perry, 197 Mo. 550. (4) But the intention of the testator must be gathered from the words used in the will. Crowson v. Crowson, 322 Mo. 633, 19 S.W.2d 634; Carter v. Boone County Trust Co., 338 Mo. 629, 92 S.W.2d 647. (5) The secret intention of the testator is of no importance. The intention as expressed by the language used in the will must control. Hurley v. Hurley (S. D.), 248 N.W. 194, 94 A. L. R. 13. (6) Evidence of the change in conditions subsequent to the making of the will are inadmissible. They cannot alter or change the terms of the will. Mersman v. Mersman, 136 Mo. 244, l. c. 258; In re Griffith's Will, 172 Wis. 630, 179 N.W. 768; In re Costellow's Estate, 265 N.Y.S. 905. (7) The will provides that Mrs. Susan Townsend should have either the home or forty-five hundred ($ 4500) dollars as she elects, and she elected to take cash. This cause is not open to construction. It is plain and unambiguous. Courts can construe wills but they cannot rewrite them. Burrier v. Jones, 338 Mo. 679, 92 S.W.2d 885. (8) The will gave to Susan Townsend "cash and real estate notes of the value of thirty-three thousand ($ 33,000) dollars." The legacy whatever its form, was to have the value of thirty-three thousand ($ 33,000) dollars. If in cash, of course, it would be of the value of thirty-three thousand ($ 33,000) dollars. If in notes, they must be of the value, cash value, of thirty-three thousand ($ 33,000) dollars, or in other words they must be the equivalent of cash. Sisk v. American Fire Ins. Co., 95 Mo.App. 695, l. c. 712; Hetland v. Bilstad, 140 Iowa 411, 118 N.W. 422; 66 C. J. 420. (9) The testator gave to his wife, Susan Townsend, "cash and real estate notes of the value of thirty-three thousand ($ 33,000) dollars." He did not specify what part should be paid in cash nor what part in notes. Nor did he empower the executor to determine that matter for him. Mrs. Townsend received about five thousand ($ 5000) dollars in cash, the evidence shows, and about twenty-two thousand ($ 22,000) dollars in notes and bonds, and she elected to take the balance still due, which amounts to thirty-three hundred eleven and 44/100 ($ 3311.44) dollars in cash. She had the right to make that election and to demand the payment of the balance due her under the will in cash. For the failure of the testator to make that election impliedly gave the legatee that authority. In re Truner, 206 N.Y. 93, 99 N.E. 187; Lore v. Stiles, 25 N.J.Eq. 381; Youmans v. Youmans, 26 N.J.Eq. 149; Moye v. Moye, 58 N.C. 359.

OPINION

BLAND, J.

This is an action to construe the will of Samuel H. Townsend, deceased, who died on or about October 7, 1930. The petition also prays that the court appoint commissioners to make a partition of certain personal property consisting of notes, secured by mortgages on real estate, belonging to the estate of the deceased. The court rendered a so-called judgment, which will hereinafter be described. Plaintiff appealed. The appeal was lodged in the Supreme Court but that court transferred the cause here. [See Koch v. Meacham et al., 116 S.W.2d 16.]

The suit was brought by the administrator of the estate of Samuel H. Townsend, deceased, against Susan Townsend and Della Koch, the widow and only child, respectively, of deceased. Susan Townsend died after the action was commenced and Lora Meacham was appointed executrix of her estate and was substituted as a party defendant.

The controversy between the parties in the trial court was largely over the proper construction of the following provision of the will of Samuel H. Townsend, deceased: "I give to my wife, Susan Townsend, cash and real estate notes of the value of Thirty-three Thousand Dollars ($ 33,000.00)." In addition to this bequest testator gave his wife the house in which they resided, located in the City of Maryville, together with its furnishings. The will provided that if the wife so elected, she might take $ 4500 in cash in lieu of the house. The widow elected to take $ 4500 in cash.

The answer of Susan Townsend admits that she had received from the executor of her husband's estate the sum of $ 29,688.56 in cash and real estate notes and alleged that a balance of $ 7811.44 remained due her. However, the trial court found that she had received only the sum of $ 24,650 in cash on the $ 33,000 bequest, leaving a balance due her of $ 8350.

It was the contention of the plaintiff in the trial court that he was empowered, under the terms of the will, to turn over to the widow, on the $ 33,000 bequest, first mortgage real estate notes at their face value and, it was the contention of Lora Meacham, executrix of the widow's estate that, inasmuch as the will failed to say whether the $ 33,000 should be paid in notes or cash, the widow could elect to be paid, either in notes or cash, and that she had elected to be paid in cash.

The evidence shows that what the widow had been paid by the plaintiff was paid in cash, bonds and real estate notes; that she had not been paid anything on her claim of $ 4500 cash in lieu of the house; that the plaintiff had attempted to have her accept notes at their face value in payment of the balance of her claim against the estate and that she had refused.

In addition to the findings mentioned supra the so-called judgment recites the following:

"The Court further finds that said Will provides that said sum of Thirty-three Thousand ($ 33,000.00) Dollars should be paid in cash and real estate notes, but does not designate the amount to be paid in cash nor the amount to be paid in real estate notes and the Court therefore, finds that due to the fact that it does not designate the amount that should be paid in cash and the amount that should be paid in real estate notes, that said balance of Eight Thousand Three Hundred Fifty ($ 8,350.00) Dollars should be paid one-half in cash and one-half in real estate notes.

"The Court further finds that said Will provides that said legacy shall be paid in real estate notes of the value of Thirty-three Thousand ($ 33,000.00) Dollars and, therefore, finds that said one-half of the balance due on said legacy, should be paid in real estate notes of that value.

"The Court further finds that since the death of the said Samuel H. Townsend, some of the real estate notes have been foreclosed and title to the land taken by the Executor and therefore, finds that said land, so taken by the...