Lewis v. Pitman

• Citation: 14 S.W. 52,101 Mo. 281
• Parties: LEWIS v. PITMAN et al.
• Decision Date: 16 June 1890
• Court: United States State Supreme Court of Missouri

14 S.W. 52

101 Mo. 281

LEWIS v. PITMAN et al.

Supreme Court of Missouri.

June 16, 1890.

WILLS — CONSTRUCTION — LIFE-ESTATE.

1. Testator devised to his wife all household and kitchen furniture, and all other personal property. By the second clause of his will, he devised to her for life all his real estate, and provided that at her death the same should pass to his children. By the third clause, he expressed a desire that his manufacturing business should be continued after his death, and gave his wife the sole right to carry on the business, "she alone to derive all the income from the same," and gave her the right to sell the patent-rights and trade-marks of the business, "keeping the receipts of said sale for her sole use and benefit." By the fourth clause, he declared: "It is my desire that, after my wife's death, all of my children shall share and share alike in the estate left by her, whether the same be realty or personalty. Of course, I refer in this clause to whatever she has remaining of that she acquired from me by virtue of this will." The wife died, leaving all property to defendant in trust for her and testator's children. Held, that under the will the wife took a life-estate only in all her husband's property, and at her death the children took the property absolutely under their father's will, instead of under the will of their mother.

2. Since the will clearly creates a life-estate only, the power of disposition therein conferred upon the wife does not convert her estate into one of absolute ownership.

Appeal from circuit court, St. Louis county; W. W. EDWARDS, Judge.

W. F. Broadhead, for appellant. Taylor & Pollard, for respondents.

BLACK, J.

J. A. Pozzoni died testate on the 14th April, 1885; the will being dated 25th March, 1878. He left a widow, Annie, and two minor daughters, namely, Rosina M. and Josephine A. Pozzoni. The widow, who was the nominated executrix, declined to act; and M. D. Lewis was appointed administrator with the will annexed. He brought this suit to obtain a construction of the will of his testator. The defendants are Herman Heinze, administrator with the will annexed of Annie Pozzoni, John Pitman, trustee under her will, and the two daughters, who appear by their curator. The following are the material portions of the will of J. A. Pozzoni: "Second. I give and bequeath all of my household and kitchen furniture, silverware, &c., at my residence in Kirkwood, or at any other place I may be residing at the time of my demise, and all other personal property I may die possessed of, including money on hand, in bank, and all sums due to me, to my beloved wife, Annie; and I also give and devise and bequeath to my beloved wife, Annie, during her natural life, or so long as she remains my widow, all the real estate that I may die seised of, wherever the same may be lying or situate, and at her death the same to be equally divided between my children, named as follows: Lillie Rosina Mary, Anna Louisa, and Arthur Wellesly. And, should there be other children born to me by my said wife, Annie, after the date of this will, they are also to be equal heirs with those above named. Third. It being my desire that my business as proprietor and manufacturer of what is known as `Pozzoni's Complexion Powder,' `Hair Dye,' `Hair Restorative,' `Odeande Cologne,' `Perfumes,' and all other preparations manufactured or `put up' by me, shall be continued in my name after my demise, I give and bequeath unto my said wife, Annie, the sole right to continue said business in all its details, she alone to derive all the income from the same, free from the control or interference of any person or persons whatsoever. However, should my said wife, Annie, deem it best to sell the patent-rights and trade-marks for the articles hereinbefore mentioned, she shall have full power to do so, keeping the receipts of said sale for her sole use and benefit. Fourth. It is my desire that, after my wife's death, all of my children shall share and share alike in the estate left by her, whether the same be realty or personalty. Of course, I refer in this clause to whatever she has remaining of that she acquired from me by virtue of this will."

The estate of J. A. Pozzoni, at the time of his death, consisted of lands not valued, also of household furniture, notes, accounts, cash, stocks, and a stock in trade aggregating something over $29,000. This estimate does not include the goodwill of his business, trade-marks, or recipes. The administrator turned over to the widow, pursuant to an order of the probate court made on the 13th May, 1885, the household personal property, appraised at $1,639, and also the stock in trade, consisting of perfumery, fancy goods, and store furniture, appraised at $1,043, and accounts amounting to five or six thousand dollars. The widow, by virtue of the third clause of the will, took possession of the recipes and trade-marks, and with them, and the stock in trade and store furniture turned over to her by the administrator, continued the business of manufacturing toilet articles for a period of about one year. She then caused to be organized a corporation by the name of J. A. Pozzoni Medicated Complexion Powder Manufacturing Company. She transferred to the corporation the trade-marks, recipes, good-will of the house, and stock on hand, at the estimated value of $20,000, and received therefor 198 of the 200 shares of stock. The stock on hand was of no greater value than $2,000. In less than a month thereafter, she died testate. By her will, she first declares it to be her desire to secure to her two daughters, Rosina and Josephine, all of her property. She then provides that after her death all of her property shall pass to her said daughters; and to that end she devises and bequeaths her property, real, personal, and mixed, to John Pitman in trust for the sole use of the daughters, subject to the following directions as to the management of the property. The will then goes on to say that the executor, M. D. Lewis, shall have the management of the property, and directions are given as to when and how moneys shall be paid over to the daughters. M. D. Lewis declined to qualify as executor of this will, and Herman Heinze was appointed administrator with the will annexed. Heinze, as such administrator, took possession of and inventoried all of the property of the testatrix, including certain personal property which she received under her husband's will, and 180 shares in the above-named corporation, which she still held at the time of her death. The plaintiff states that he is advised that the widow acquired only a life-estate in the personal property devised to her by the will of J. A. Pozzoni, while her administrator is advised that she became the absolute owner of such property, and he prays the advice of the court as to the true...