Magruder v. Magruder

• Decision Date: 24 June 1975
• Docket Number: No. 36061,36061
• Parties: Martha MAGRUDER, Plaintiff-Appellant, v. Ruth MAGRUDER and John Allen Magruder et al., Defendants-Respondents. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 400

525 S.W.2d 400

Martha MAGRUDER, Plaintiff-Appellant, v. Ruth MAGRUDER and John Allen Magruder et al., Defendants-Respondents.

No. 36061.

Missouri Court of Appeals, St. Louis District, Division Three.

June 24, 1975.

Rolin T. Boulware, Kenneth D. Schloman, Shelbina, for plaintiff-appellant.

Bollow, Crist, Bollow & Wallace, Shelbina, for defendants-respondents.

GUNN, Judge.

This appeal arises from a declaratory judgment action brought by plaintiff-appellant Martha Turney Magruder to construe the will of her testator-husband, Glenn P. Magruder, and to quiet title to 40 acres of land owned by the testator at the time of his death. In 1925, the testator moved into the Dan and Bessie Turney home located on 80 acres in Shelby County. He lived in the Turney home and farmed their 80 acres until his death in 1969. In 1941, the testator bought for himself 40 acres of land adjoining the Turner farm. After Dan Turney's death in 1958, the testator executed his will dated July 21, 1959 whereby he gave a life estate in his property with power of sale for support and maintenance to Bessie Turney and the Turneys' daughter, Martha Turney. Martha Turney was subsequently married to the testator and is now plaintiff-appellant, Martha Turney Magruder. By the terms of the testator's will, the remainder of his estate was to go to his brother and sister, John Allen Magruder and Ruth Magruder, defendants-respondents. Bessie Turney died in June, 1965. The testator and Martha Turney (now plaintiff-appellant, Martha Turney Magruder) were married on November 7, 1965 and continued to live on the Turney 80 acre farm. On October 10, 1969 the testator died survived by his wife, Martha Turney Magruder, and defendants-respondents, John Allen Magruder and Ruth Magruder, his brother and mentally retarded sister. ¹ The testator was possessed of the 40 acre tract of land and a one half interest in 9 sows at the time of his death.

The portion of the testator's will which is the subject of this litigation provides:

'THIRD: All the rest, residue and remainder of the property which I may own at the time of my death, both real and personal, and of every kind and description, wherever the same may be situated, I give, bequeath and devise to Martha Turney (now Martha Turney Magruder, testator's wife) and Bessie A. Turney (deceased) for and during the term of their natural life, and the natural life of the last survivor thereof, and in the event that it becomes necessary, in their opinion or in the opinion of the survivor thereof, for them or the survivor thereof to sell said property or any part thereof for their support and maintenance or the survivor of them, then I authorize, empower and direct them or either of them to sell such part or all of said property as may be necessary for their support or the support of the survivor thereof, and to make contracts and deeds as may be necessary to convey the same to the purchaser or purchasers thereof, and at the death of the last survivor thereof the remainder of said property shall go to and vest in fee in my sister and my brother, Ruth Magruder and John Allen Magruder, in equal parts, share and share alike.' (emphasis added)

On March 12, 1973, Martha Turney Magruder, believing it necessary to sell the testator's 40 acres for her support and maintenance, entered into a sales contract for the sale of the land for $22,000. To resolve any controversy as to claims of interest in the 40 acres and to construe her husband's will as to her rights thereunder, Martha Turney Magruder brought suit for declaratory judgment naming as defendants John Allen Magruder and Ruth Magruder, the testator's brother and sister, who were remaindermen under the will, Also named as defendants were numerous other persons and unknown persons who might possibly have some claim to the 40 acres. Inasmuch as the testator's sister, Ruth Magruder, was a mental incompetent, the trial court appointed a guardian ad litem to represent her interest in the litigation.

The trial court found that defendants, except for defendants-respondents Ruth and John Allen Magruder, had no right, title or interest in the 40 acres of the testator and divested them of any claim of title in and to the 40 acres. No appeal has been taken from the portion of the judgment divesting the other defendants from any interest in the 40 acres, and it stands.

The trial court also found that Martha Turney Magruder did have the right under the will to sell the 40 acres but imposed a trust on the assets from the sale of the land so as to preserve the assets for the remaindermen Ruth and John Allen Magruder. The trial court also ordered that the guardian ad litem for Ruth Magruder be paid his fee of $710 from the trust assets.

Martha Turney Magruder has appealed from the judgment imposing the trust and awarding the fee for Ruth Magruder's guardian ad litem. Martha Turney Magruder insists that she clearly has need for the assets from the sale of the 40 acres of land for her support and maintenance. In support of her position, she testified that since the testator's death she has been receiving the income from the 40 acre tract under a share crop arrangement; that while she owns an undivided five eighths interest in the 80 acres upon which she lives, she has only been receiving a one half interest in the income therefrom; that she possesses a life estate in the residence in which she lives and has a one third interest in nine hogs and 50 shoats. She receives as income $78.20 a month in social security, has a checking account of about $200 to $300 and United States Government bonds of approximately $4,000. While income figures were not precise, apparently in 1972, the year prior to trial and the only year for which figures were available, Martha Turney Magruder had income of about $1,800 on the 80 acres and $2,000 on the 40 acres. She had approximately $500 in crop expenses and $197 in taxes. She did not earn enough in 1972 to file a federal income tax return, and she knew of debts owed by her of approximately $400. Her home was in need of minor repairs. There were no exact figures as to how much net income she received from her farming operations, but from the evidence presented it would not exceed $3,100 a year.

Martha Turney Magruder testified that she believed it necessary to sell the 40 acres acquired from the testator for her support and maintenance, because 'I am 69 and I think I need the money to live on so I won't have to worry about bills and things . . .' It was her intention to use the proceeds only for her own needs; there was no plan on her part to change her pattern of spending: 'I have been very thrifty. I have never been a spendthrift and I don't intent to start now, but I do need a living.' It was also her testimony that she did not intend to use all the proceeds of the sale nor squander or waste the assets so that Ruth and John Allen Magruder would be left with nothing. Martha Turney Magruder has experienced two heart attacks and is afflicted with very high blood pressure requiring constant medical attention.

The trial court found that Martha Turney Magruder had the right and power to sell the land devised to her by her husband, but in order to protect the interests of the remaindermen, John Allen Magruder and Ruth Magruder, the trial court imposed a trust on the proceeds from the sale of the property, finding that Martha Turney Magruder was a proper person to act as trustee. Under the court's judgment, the proceeds of the sale of the 40 acres were to be invested by Martha Turney Magruder, as trustee, only in United States obligations, savings accounts and time deposits and savings and loan association accounts. The trial court found no present need to invade the corpus and ordered the trustee not to invade the corpus without prior court approval, with the trustee accounting to the court annually.

In her appeal, Martha Turney Magruder asserts that the trial court erred: 1) in imposing a trust on the proceeds of the sale; 2) in holding that there was no present need to invade the corpus of the trust; 3) in limiting the investments which could be made by her with the assets of the sale of the property; 4) in allowing a $710 fee to Ruth Magruder's guardian ad litem. The basic thrust of Martha Turney Magruder's challenge to the trial court's judgment is that the trial court substituted its judgment for the will of the testator.

Under the circumstances of this case, we believe that the imposition of a trust on the assets of the sale of the testator's 40 acres of land was unwarranted, and we reverse the judgment of the trial court. In reaching our decision, we are guided by certain maxims concerning will construction. A court may not make a new will, rewrite a will, attempt to make what may seem to be a more equitable distribution nor impart an intent to the testator that is not expressed in the will. Mercantile Trust Co. v. Muckerman, 377 S.W.2d 355 (Mo.1964); In re Estate of Wahlin, 505 S.W.2d 99 (Mo.App.1973); In re Howe's Estate, 379 S.W.2d 154 (Mo.App.1964). It is presumed that the testator knows the legal effect of the language he uses in a will. Neagle v. Hitt, 425 S.W.2d 102 (Mo.1968); Lehmann v. Janes, 409 S.W.2d 647 (Mo.1966). The guide for the court in the construction of a will is the intent of the testator as gathered from the language from the will read as a whole. St. Louis Union Trust Co. v. Morton, 468 S.W.2d 193 (Mo.1971). Thus, it is only if the language of the will is ambiguous or wanting in clarity that the court is authorized to look at surrounding facts, circumstances and conditions affecting the testator at the time the will was executed. In re Estate of Wahlin, supra; Seltzer v. Schroeder, 409 S.W.2d 777 (Mo.App.1966).

We find that a reading of the testator's will does not afford a basis for judicial interference by construction of its clear terms through the imposition of a trust. The situation before us is closely...