Lehnhoff v. Theine

• Decision Date: 23 November 1904
• Parties: LEHNHOFF v. THEINE et al.
• Court: Missouri Supreme Court

83 S.W. 469

184 Mo. 346

LEHNHOFF v. THEINE et al.

Supreme Court of Missouri, Division No. 1.

November 23, 1904.

CONSTRUCTION OF WILL — FAILURE TO NAME LEGATEE — EXCLUSION OF EVIDENCE.

1. The evidence in an action for the construction of the residuary clause of a will written by testator in the German language held to direct payment of the residue of the estate to "those who shall have paid" for the maintenance of testator and his insane daughter, as contended by defendant, rather than to direct payment of the residue to "she who has" furnished maintenance to testator and his daughter, as contended by plaintiff.

2. The residuary clause of a will fails where no beneficiary is named therein, and there is no person competent to take as such beneficiary.

3. In an action for the construction of a will, evidence as to what testator told third persons after the will was executed as to his intentions with respect to his property is properly excluded.

Appeal from Circuit Court, St. Charles County; E. M. Hughes, Judge.

Bill for the construction of the will of William M. Lehnhoff, executor of the estate of Frederick Theine, deceased, against Caroline Theine and another. From the decree rendered, plaintiff appeals. Affirmed.

Theo. Bruere & Son, for appellant. T. F. McDearmon and W. F. Achelpohl, for respondents.

MARSHALL, J.

This is a bill in equity by the executor of Frederick Theine, deceased, who died on January 29, 1901, to obtain the advice and direction of the court as to the proper construction to be placed on the will of said Theine. The defendant, Caroline Theine, is the only daughter and sole heir of the deceased, and is an insane person, in the St. Charles Asylum. A summons to her was duly issued and served upon her. Thereafter the probate court of St. Charles county appointed the defendant W. F. Archelpohl the guardian of her person and the curator of her estate, and he appeared, filed an answer, and defended the suit.

In July, 1899, Frederick Theine wrote his own will, in the German language, and executed it. The will, in German, is as follows:

"Ich als Testator Bescheinige hiermit meinen Letzten Willen. Ich Vermache meiner Tochter Caroline die Haus Rent nach abzug der Takse und Rapraturen and Feur inschurens hier in St. Charles, so lange als sie am Leben ist, mein uheriger nachlass sol eine Erbschaft sein fur die Welche den Genisz fur mich und meine Tochter besahlt haben das mag sein das Er oder das sie oder die nach dem sie mich Begraben auf den Statischen Fried-hofe auf den Lehnhofschen familien Lot zu Salisbury Cariton Co., Mo.

Testaments Volstrecker sind Henry M. Lehnhoff William Lehnhoff Gus F. Lehnhoff

                                             Fred Theine."
                

In the petition the plaintiff claims that the proper translation of the will is as follows:

"I as testator herewith certify my last will and bequeath to my daughter Caroline the house rent after deducting taxes and repairs and fire insurance, here in St. Charles, so long as she is alive; my remaining estate shall be an inheritance for she who has paid (den genisz) for the maintenance of myself and my daughter, that may be that he or that she or they after they have buried me in the Lehnhoff family lot in the city graveyard at Salisbury, Chariton County, Mo.

"Executors are: Henry M. Lehnhoff, William Lehnhoff, Gus Lehnhoff.

                                       "Fred Theine."
                

The defendant, on the contrary, claims that the proper translation of the will is that given by Rev. Frederich, a witness for the plaintiff, and the pastor of the Lutheran Church at St. Charles, which is as follows:

"I as testator do hereby certify this to be my last will: I leave or bequeath unto my daughter Caroline the house rent after the taxes and repairs and fire insurance here in St. Charles have been deducted so long as she is alive, or lives, the remainder of my estate shall be an inheritance for those who shall have paid for me and my daughter's maintenance, enjoyment. [I want to say this word "genisz" is altogether misapplied here, and that's the way I would translate it — enjoyment or maintenance.] The things which I and my daughter need to sustain our bodily life; that may be that he or that she or that they after they shall have buried me in the City cemetery on the Lehnhoff lot at Salisbury, Chariton County, Missouri."

Substantially the same translation is given by Profs. Wagner and Mueller, teachers in the Lutheran School in St. Charles; by Prof. Dinkmeyer, a teacher in German; and by Father Wilmes, the priest in charge of the German Catholic Church in St. Charles. They are all experts, and were called as witnesses by the plaintiff. These witnesses all say that the word "die" must be read in connection with the verb "haben," and that, as the verb is plural, the pronoun must also be plural, and hence that the residuum clause of the will must be translated, "the remainder of my estate shall be an inheritance for those who shall have paid for me and my daughter's maintenance," and not, as the plaintiff claims, "my remaining estate shall be an inheritance for she who has paid for the maintenance of myself and my daughter." These witnesses agree that, to warrant the translation claimed by the plaintiff, the words would have to be "die hat" — that is, the verb would have to be in the singular number — but that the words in the will, being "die haben," mean "those who shall have." That is, the pronoun is both singular and plural, and takes its number from the verb with which it is connected.

Predicated upon his translation, and upon the theory of a latent ambiguity in the will, the plaintiff offered evidence to show that the testator had only one sister, Mrs. Charlotte Lehnhoff, wife of William H. Lehnhoff, who lived in Chariton county, and that she had furnished maintenance for the testator and his daughter. On the contrary, the defendants offered to prove that several persons had furnished maintenance for the testator and his daughter; but the defendants also contended that the ambiguity was patent, and not latent, and therefore extrinsic evidence was inadmissible to explain it, and hence the attempted devise of the residuum must fail for uncertainty, and the daughter would therefore inherit the property under the statute of descents. The court excluded all the testimony in this regard that was offered by both parties, and the plaintiff excepted. The plaintiff also showed that just prior to his death the testator told the plaintiff, who was his nephew, and the son of his sister Charlotte Lehnhoff, aforesaid, that he would find his will in his trunk, and that after his death the plaintiff there found the will here in question, and that inclosed in the same envelope with this will was a prior improperly executed and insufficient will, which, translated, was as follows: "I the undersigned, of sound mind, give three deeds of trust as an inheritance to my sister Charlotte Lehnhoff, residing at Salisbury, Chariton County, Mo., and desire to be buried by the family Lehnhoff in the city graveyard in our lot enclosed by a common fence; should Lena die after me, then she may also be buried there. Fred Theine. [Seal.]" The plaintiff also offered to prove that the inventory of the estate showed that, in addition to the house and lot in St. Charles, the rents of which the...