Lomax v. Cramer
| Decision Date | 01 December 1919 |
| Citation | 216 S.W. 575,202 Mo.App. 365 |
| Parties | E. M. LOMAX, Executor, Estate of SAMUEL M. ROBINSON, Deceased, Respondent, v. OLIVER CRAMER, et al., Defendants, MINNIE STAMBACH, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Linn County Circuit Court.--Hon. Fred Lamb, Judge.
AFFIRMED.
Judgment affirmed.
Bresnehen & Burns for appellant.
Bailey & Hart, and D. A. Robinson for respondent.
This is an action brought to obtain the proper construction of the 4th clause of the will of Samuel M. Robinson, deceased. Said clause reads as follows:
The will was executed December 22, 1914, and testator died April 4, 1918. He died without issue owning a large amount of property and leaving a widow, Alice E. Robinson, who had two children by a former husband, one of whom is the appellant Minnie Stambach. The will made about seventeen devises and bequests all of which have been paid or turned over to the beneficiaries therein except the bequest mentioned in clause 4. It is this bequest that is the sole matter in controversy here.
After making the various bequests mentioned, the will gave one-half of the residue of his estate to his wife Alice E. Robinson and the other half in equal amounts to his brothers, naming them. Each one of said brothers received a specific bequest among the seventeen hereinabove mentioned.
The wife of D. A. Robinson mentioned in the 4th clause of said testator's will was named Sarah J. Robinson. She died some time after the will was executed but several years before testator died. Testator knew of her death but never changed the 4th clause of his will. After testator died in April, 1918, his widow, Alice E. Robinson, died in August of that year, leaving a will in which she made appellant Minnie Stambach residuary legatee of her estate. In other words Minnie Stambach takes whatever Alice E. Robinson would have taken under the residuary clause of Samuel M. Robinson's will had she continued to live.
The 4th clause of testator's will having given five thousand dollars to "D. A. Robinson and wife," and said wife having died prior to the death of testator, appellant contends that the legacy provided for in said 4th clause lapsed or at least that one-half thereof did so. This is the only question in the case.
There is no question but that in this State when a husband and wife take an estate by the entirety they hold not as separate individuals and by moieties but as one person each holding the whole of it. For this purpose they are a unit and upon the death of either the entire estate belongs to the survivor. [Stifel's, etc., Brewing Co. v. Saxy, 273 Mo. 159; Ashbaugh v. Ashbaugh, 273 Mo. 353 357.] It is also well established that there can be an estate by the entirety in personal as well as in real property. [Ryan v. Ford, 151 Mo.App. 689; Johnston v Johnston, 173 Mo. 91.] In...
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