Lansdale v. Dearing

• Decision Date: 06 July 1943
• Docket Number: 38431
• Parties: Martha Lansdale, Appellant, v. A. C. Dearing and Howell Gaines, as Individuals and as Executors of the Will and Estate of William J. Dearing, Deceased, and Paul Jones
• Court: Missouri Supreme Court

173 S.W.2d 25

351 Mo. 356

Martha Lansdale, Appellant, v. A. C. Dearing and Howell Gaines, as Individuals and as Executors of the Will and Estate of William J. Dearing, Deceased, and Paul Jones

No. 38431

Supreme Court of Missouri

July 6, 1943

Appeal from Macon Circuit Court; Hon. Harry J. Libby Judge.

Affirmed.

M D. Campbell and A. D. Campbell for appellant.

(1) The respondents elected to take under the will, and it became their duty to return to the estate the property given to them in March, 1940. They could not avail themselves of a part of the will and defeat its provisions in any other part. In re Bernay's Estate, 126 S.W.2d 209, 216; Fox v Windes, 30 S.W. 323, 127 Mo. 502; Colvin v. Hutchison, 92 S.W.2d 667; Paulus v. Beach, 104 S.W. 1149; Wood v. Conqueror Trust Company, 178 S.W. 201. (2) When respondent chose to take under the will they elected to abide by the terms of the will -- the whole will -- and must conform to the conditions of the will by returning the gifts to the estate. Having failed to conform to the terms of the will, equity will compel them to conform. 69 C. J. 967 and cases cited therein. (3) Respondent Dearing is claiming inconsistent rights and this equity will not permit him to do. Since a person cannot hold under a will and against it, one who accepts a beneficial interest thereunder bars himself from setting up a claim which will prevent its full operation at law or in equity. Hobbs v. Henley, 186 S.W. 981; 69 C. J. 969. (4) The codicil caused the will to speak with respect to the persons and things named in it just as though it had been made for the first time. 68 C. J. 868; Harvey v. Chouteau, 14 Mo. 588. (5) Thus the will attempted to dispose of property -- the gifts -- which respondents claim they owned prior to the making of the codicil and as they also claim the will gave them property which deceased owned at the time of his death their claims are inconsistent and equity will compel them to return the gifts to the estate because they have elected to take under the will. Arrington v. McCluer, 34 S.W.2d 67; Woods case, supra; Austin v. Collins, 297 S.W. 36. (6) The respondents have attempted to subvert the purposes of the will and the court erred in not adjudging they had only one dollar under the will. Subvert means to overthrow; to destroy. 60 C. J. 983.

D. R. Hughes, John R. Hughes, Waldo Edwards and D. L. Dempsey for respondents.

(1) William J. Dearing, the testator, was the absolute owner of the property of which he disposed during his lifetime. Being the absolute owner, he had the right to make arbitrary disposition of it. He might give it to whomsoever he pleased. Walker v. Ins. Co., 141 S.W.2d 785; Hayes v. Hayes, 242 Mo. 155; Bennett v. Ward, 199 S.W. 944; Hannibal Trust Co. v. Elsea, 286 S.W. 371; Weston v. Hanson, 212 Mo. 270. (2) A will is effectual as an instrument of conveyance only upon the death of the testator. No title or rights in property passed or were created by the will of William J. Dearing, prior to his death. Legg v. Wagner, 155 S.W. 146; Palmer v. French, 32 S.W.2d 591; Stolle v. Stolle, 66 S.W.2d 912; Humphreys v. Welling, 341 Mo. 1198, 111 S.W.2d 123. (3) In cases where there are only collateral heirs, there is no inclination on the part of the courts to look sourly on the preference or exclusion of one collateral relative over the other, as the testator is under no legal or moral obligation to divide his property equally among his relatives. Roethmeier v. Veith, 334 Mo. 1030-1038, 69 S.W.2d 930; Curtis v. Alexander, 257 S.W. 432. (4) The codicil is regarded as a subsequent clause of the will. Wells v. Fuchs, 226 Mo. 97; Malone v. Moberly, 55 S.W.2d 1008; Kent v. Hutchison, 110 S.W.2d 1126; Hourigan v. McBee, 130 S.W.2d 661. (5) The execution of the will of September 3, 1938, imposed no restriction on the testator in regard to his right to dispose of his property as he saw fit during his lifetime. He is presumed to have known his rights under the law and to have known that he was as much at liberty to deal with his property after the execution of his will as he was before he executed it. Graham v. Karr, 55 S.W.2d 995. (6) The will in this case is dated September 3, 1938. The conveyances in question are dated March 26, 27 and 28, 1940. The codicil revoking the bequest to Della Shain in Item 4 of the will is dated April 20, 1940. The conveyance of the property here in question between the date of the will and the date of the codicil operated to remove it from his ownership and, consequently, it was not and could not constitute any part of his estate after his death. Robertson v. Jones, 136 S.W.2d 278. (7) The alienation of the property by the testator merely operated as a revocation of the devises and cannot be regarded as an exception to the statutory mode of revocation but as a failure of the subject of the devises. Robertson v. Jones, 136 S.W.2d 278; Graham v. Karr, 331 Mo. 1157, 55 S.W.2d 995; Natl. Board of Christian Women's Board of Missions v. Fry, 293 Mo. 399, 239 S.W. 519; Dunlap v. Hart, 274 Mo. 600, 204 S.W. 525; Fisher v. Keithley, 142 Mo. 244; Cozzens v. Jamison, 12 Mo.App. 452. (8) The rule that a codicil republishing or confirming a will makes it speak from the date of the codicil is not applicable for all purposes and will not operate to revive legacies which have lapsed or been revoked, adeemed or satisfied in the interval between the will and the codicil, and it has been held that the same rule applies where there is an actual re-execution of the will and codicil. Under statutes providing that a lineal descendant of the deceased legatee may take, it has been held that a codicil reaffirming a will containing a legacy to one dying intermediate the will and the codicil does not republish the will so as to make the child of such deceased legatee take under the will. 68 C. J., sec. 587, p. 870. (9) The facts in this record do not give rise to the application of the doctrine of election. This doctrine becomes applicable where a beneficiary under a will has a claim adverse to the testator to property which the testator attempts to dispose of by will, he must elect between his rights under the will and his adverse claim. But the rule thus stated rests upon the obligation imposed on a party to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he shall not enjoy both. Prouse v. Schmidt, 156 S.W.2d 919; Graham v. Roseburgh, 47 Mo. 111; Moseley v. Bogy, 272 Mo. 319, 198 S.W. 847. (10) There was no attempt on his part to dispose by his will of any property which belonged to a legatee or devisee in their own right, but there is here merely the act of the owner of the property disposing by deed and assignment of a portion of his property after the date of the execution of the will. He did not, by deed or otherwise, attempt to dispose of anything that belonged to anyone else. See authorities cited under Point (9), supra; Hattersley v. Bissett, 51 N.J.Eq. 597, 29 A. 187.

OPINION

Douglas, P. J.

This is an action under a will to force defendants to turn over to testator's estate properties given them by testator during his lifetime on the ground defendants Dearing and Gaines were put to an election between retaining the properties or taking under the will and have elected to take under the will.

On September 3, 1938 testator made his will which, after making a number of cash bequests continued as follows:

"Item 25. I give and bequeath all of my shares of the capital stock of the Macon-Atlanta State Bank of Macon, Missouri consisting of Two hundred thirteen (213) shares, to Howell Gaines and Paul L. Jones, as Trustees, to be held in trust by them for a period of five (5) years from the date that they are legally authorized to receive it, to be managed as follows:

"That the said Trustees are hereby authorized and empowered to collect all the earnings, profits, income and dividends on said stock that may arise during said period, and pay the same to my brother Alvin C. Dearing and my sister Martha Lansdale, in equal shares as they accrue, but should either of them be dead when the payments are to be made, the survivor is to receive all of said payments. If both of them are dead said payments are to be made to Howell Gaines. . . . Said stock shall not be sold, encumbered, pledged or transferred for five (5) years by said Trustees.

"It is my intention to preserve said stock intact for the protection and continuation of the interest of said bank.

"At the expiration of said five (5) years, I hereby give and bequeath that said stock shall be divided as follows: --

"Twenty-five (25) shares to Paul L. Jones.

"One hundred seventy five (175) shares to Howell Gaines.

"Said Trustees shall have certificates of stock issued to said persons as herein provided.

"Item 26. I have made no disposition of the remaining thirteen (13) shares of the capital stock of the Macon-Atlanta State Bank, of Macon, Missouri, and if said shares are owned by me at the time of my death, the same shall revert to and become a part of the residue of my estate.

"Item 27. I hereby authorize and empower my Executors to convert all of the rest, residue and remainder of my property, real, personal or mixed, of whatsoever kind and wheresoever situate, into money, . . . .

"My Executors are also empowered to rent my real estate until it is sold. After said property has been converted as herein provided, I hereby give and bequeath one-half of the proceeds to my brother Alvin C. Dearing and one-half to my sister Martha Lansdale, and should either my brother or sister not be living at the time of said distribution, his or her share shall be paid to their heirs.

"Item 28. I hereby appoint Alvin...