Lawnick v. Schultz

• Citation: 28 S.W.2d 658,325 Mo. 294
• Decision Date: 03 June 1930
• Docket Number: 28409
• Parties: Regina Lawnick and Margaret Millsap, Appellants, v. Anna Schultz, Frank Schultz and Lydia Kinsall Bowman Heyde
• Court: United States State Supreme Court of Missouri

28 S.W.2d 658

325 Mo. 294

Regina Lawnick and Margaret Millsap, Appellants, v. Anna Schultz, Frank Schultz and Lydia Kinsall Bowman Heyde

No. 28409

Supreme Court of Missouri

June 3, 1930

Motion for Rehearing Overruled June 3, 1930.

Appeal from Gentry Circuit Court; Hon. John M. Dawson Judge.

Affirmed.

D D. Reeves and Randoph & Randolph for appellants.

(1) Under the provision of Section 514, R. S. 1919, and the decisions construing said section, the appellants are pretermitted heirs of testator, Frederick Schultz. They were not named in his will, neither were they provided for. Meyers v. Watson, 234 Mo. 286; Conrad v Conrad, 280 S.W. 710; Williams v. Roberts, 187 S.W. 19; McCoy v. Bradbury, 290 Mo. 650, 235 S.W. 1047; State ex rel. Bank v. Allen, 247 S.W. 414; Woods v. Drake, 135 Mo. 393; Thomas v. Black, 113 Mo. 66; Pounds v. Dale, 48 Mo. 270; Hargatine v. Pulte, 27 Mo. 423; Bradley v. Bradley, 24 Mo. 311. (2) A child, or the descendants of a deceased child, must be either actually named, or provided for in the will. Authorities supra; Bowman v. Bowman, 49 F. 332; Gage v. Gage, 29 N.H. 543; Grace v. Hildebrandt, 237 P. 101. (3) The terms "provided for," as used in the statute, mean a substantial provision, not a mere five or ten dollars, such a provision as to raise a necessary implication that the children were in the mind of the testator. Williams v. Roberts, 187 S.W. 19; Meyers v. Watson, 234 Mo. 286; Woods v. Drake, 135 Mo. 393. "A beneficial provision according to the testator's circumstances in life." Bradley v. Bradley, 24 Mo. 318; Purdy v. Davis, 13 Wash. 164, 42 P. 520. (4) Where the children of a deceased child of a testator are not named in his will, the law presumes that they were either unknown or unintentionally omitted. And this presumption can only be rebutted by something appearing on the face of the will itself, to show that they were not unknown or forgotten. Thomas v. Black, 113 Mo. 66, 69; Pounds v. Dale, 48 Mo. 272; Wetherall v. Harris, 61 Mo. 65; Meyers v. Watson, 234 Mo. 286, 290. (5) The naming of testator's daughter was not a naming of the daughter's children. Riley v. Collier, 238 P. 494; Ellison, J., in Fugate v. Allen, 119 Mo.App. 189.

John I. Williamson and Randolph & Randolph for appellants in Court en Banc.

(1) The appellants, as grandchildren of the testator, having been neither named nor provided for in his will, are pretermitted heirs of the testator, and as such are entitled to share in the distribution of his estate. Sec. 514, R. S. 1919; Guitar v. Gordon, 17 Mo. 412; Fugate v. Allen, 119 Mo.App. 188; Conrad v. Conrad, 280 S.W. 707; Hockensmith v. Slusher, 26 Mo. 237; Woods v. Drake, 135 Mo. 393; Meyers v. Watson, 234 Mo. 286; Bradley v. Bradley, 24 Mo. 311, 320; State v. Allen, 247 S.W. 414; McCoy v. Bradbury, 235 S.W. 1047; Williamson v. Roberts, 187 S.W. 19. (2) The judgment is based upon a presumption upon a presumption. This cannot be done. Guitar v. Gordon, 17 Mo. 412; Meyers v. Watson, 234 Mo. 290; Thomas v. Black, 113 Mo. 69. (3) The pending opinion erroneously holds that it is immaterial whether the testator, knew that his daughter was living or dead, or whether or not she left any descendants. Guitar v. Gordon, 17 Mo. 412; Hockensmith v. Slusher, 26 Mo. 237; Woods v. Drake, 135 Mo. 393; Pounds v. Dale, 48 Mo. 272; McCourtney v. Mathes, 47 Mo. 532; Conrad v. Conrad, 280 S.W. 710; Bradley v. Bradley, 24 Mo. 320.

F. P. Stapleton and Cook & Cummins for respondents.

(1) The naming of the mother of plaintiffs in the will was a naming of them within the meaning of Sec. 514, R. S. 1919. Guitar v. Gordon, 17 Mo. 408; Conrad v. Conrad, 280 S.W. 707; 18 C. J. Descent and Distribution, sec. 71; Hockensmith v. Slusher, 26 Mo. 237; Fugate v. Allen, 119 Mo.App. 183; Woods v. Drake, 195 Mo. 393; Meyers v. Watson, 234 Mo. 286. (2) The mother of plaintiffs being dead, plaintiffs take her bequest, and this is a provision for them within the meaning of the statute. Sec. 516, R. S. 1919; Guitar v. Gordon, 17 Mo. 408; Murphy v. Enright, 264 S.W. 811; Block v. Block, 3 Mo. 595; Lounden v. Bollam, 302 Mo. 490.

Davis, C. Henwood and Cooley, CC., concur.

OPINION

DAVIS

This is an action for the partition of real estate situate in Gentry and DeKalb counties. The plaintiffs aver that they are heirs of their maternal grandfather, Frederick Schultz, pretermitted because they were not named or provided for in his will. The cause was submitted to the trial court upon an agreed statement of facts and, from a judgment rendered by said court in favor of defendants, the plaintiffs appealed.

Omitting signatures and the description of the real property, the agreed statement of facts reads:

"The following facts are agreed to as being facts in this case Frederick Schultz, late of King City, Gentry County Missouri, died on the 12th day of April, 1924, seized and possessed of the lands described in the petition in this case, embracing six hundred and forty (640) acres and of the value of $ 47,600, and personal property that was inventoried in the probate court at $ 7709.04, said lands lying along the northern boundary of DeKalb County and southern boundary of Gentry County; the rental value of said land, it is agreed, is $ 2000 per year.

"The said Frederick Schultz left a will which was made and executed on the 11th day of July, 1918, and which will is correctly set forth in the answer of the defendants herein, which said will has been duly admitted to probate in the Probate Court of Gentry County, Missouri, on the 9th day of May, 1924, and is in words and figures as follows:

"'I, Frederick Schultz, of the City of King City, Gentry County, Missouri, being now in good health, strength of body and mind, but sensible to the uncertainty of life, and desiring to make disposition of my property and affairs while in health and strength, do hereby make, publish and declare the following to be my last will and testament, hereby revoking all other or former wills by me made at any time.

"'Article First: I direct the payment of all my just debts and funeral expenses.

"'Article Second: I give, devise and bequeath to my wife, Anna Schultz, all of my personal property and the following described real estate, to-wit: (Here follows description by parcels of 640 acres of land situated in Gentry and DeKalb counties, Missouri.)

"'Article Third: I give, devise and bequeath to my daughter, Lydia Schultz Kinsall, Lots 9 and 10, Block One (1), Jersey Heights Addition, Kansas City, Jackson County, Missouri.

"'Fourth: To my son Frank Schultz by my first wife, Mary Schultz, I give, devise and bequeath the sum of Five Dollars ($ 5.00).

"'Fifth: To my daughter, Mary Schultz, by my first wife, Mary Schultz, I give, devise and bequeath the sum of Five Dollars ($ 5.00).

"'Sixth: I do hereby constitute and appoint my wife, said Anna Schultz, the Executrix of this my last will and testament.

"'In witness whereof I, Frederick Schultz, have to this my last will and testament consisting of two sheets of paper, subscribed my name this 11th day of July, 1918.

"'Frederick Schultz.

"'The foregoing instrument, consisting of two (2) pages, was at the date thereof signed and declared by the said Frederick Schultz, to be his last will and testament, in the presence of us, who at his request and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto.

"'Wm. Millan of King City, Mo.

"'R. A. Winchester of King City, Mo.'

"Said will was also duly established by judgment of the Circuit Court of Gentry County, Missouri, on the 5th day of April, 1926; that said Frederick Schultz, the testator herein mentioned, at the time of his death was about eighty-three years of age; that he was twice married, his first wife being Mary Schultz, from whom he was divorced at some time prior to the year 1882 in Gentry County, Missouri; that while they were living together as husband and wife, and before the divorce was granted, there was born to them two children, Mary Schultz and Frank Schultz; that upon the separation Frank Schultz remained with his father, Frederick Schultz, and Mary Schultz remained in the custody of her mother, Mary Schultz.

"That Frederick Schultz remained on the farm in the southern part of Gentry County, Missouri, and afterward, on the 1st day of November, 1882, married the present defendant, Anna Schultz, who now survives him as his widow; that the wife, Mary Schultz, went to live at St. Joseph, Missouri, and continued to live there until she died on the 26th day of March, 1901; that the daughter, Mary Schultz, was married to Peter Ushler on the day of September, 1889.

"That there was born of the marriage between Peter Ushler and the daughter Mary Schultz, two children, the plaintiffs in this case, Regina Lawnick, now the wife of John Lawnick, and Margaret Millsap, now a widow, and who are the sole and only children and heirs at law of the said Mary Schultz; that no other childern were born to the wife Mary Schultz and Frederick Schultz except as hereinbefore stated.

"That after the marriage of Frederick Schultz with the defendant Anna Schultz, there was born the defendant Lydia Kinsall Bowman Heyde, who is the only child of said marriage of Frederick Schultz and Anna Schultz, and is the same person who is named in the will of Frederick Schultz as Lydia Schultz Kinsall;

"That the daughter Mary Schultz Ushler died at St. Joseph Missouri, on the 6th day of November, 1908; that the said wife, Mary Schultz, and daughter, Mary Schultz, from the time of the separation of Frederick Schultz and Mary Schultz, resided in St. Joseph, Buchanan County, Missouri, until their respective deaths; that the said divorced wife, Mary Schultz, was committed to the State...