Maguire v. Moore

• Citation: 18 S.W. 897,108 Mo. 267
• Parties: Maguire v. Moore et al., Plaintiffs in Error
• Decision Date: 08 February 1892
• Court: United States State Supreme Court of Missouri

18 S.W. 897

108 Mo. 267

Maguire v. Moore et al., Plaintiffs in Error

Supreme Court of Missouri, First Division

February 8, 1892

Error to St. Louis City Circuit Court. -- Hon. Jacob Klein, Judge.

Reversed and remanded.

Jas. O Broadhead for plaintiffs in error.

(1) In no event can the heirs of the widow take any part of the estate of testator. The word heirs will be held to mean child or children when necessary to carry out the clear intention of the testator. Chew v. Keller, 100 Mo. 369; Haversteck's Appeal, 103 Pa. St. 394; Waddell v Waddell, 99 Mo. 345. (2) The grandchildren take per capita and not per stirpes. Morrill v. Phillips, 142 Mass. 240; Olney v. Hall, 21 Pick. 311.

C. P. & J. D. Johnson for defendant in error.

OPINION

Sherwood, P. J.

Maguire the executor of the last will of John S. Moore, deceased, instituted the present equitable proceeding for the construction of said will, which is as follows:

"I, John S. Moore, of the city of St. Louis, and state of Missouri, being of sound mind and body, do hereby make, declare and publish this as my last will and testament, hereby revoking any and all wills and testaments by me made.

"I desire to make the following disposition of my estate: Item 1st. I desire that whatever money I may have on hand or in bank, or that may be realized from outstanding accounts or notes, shall be divided equally between my wife, Ellen L. Moore, and Mrs. A. V. Long and the children of Mrs. M. M. Thornton (they receiving her fifth interest); when all of my children are dead, then my estate is to be equally divided between my wife and her heirs and assigns, and the heirs and assigns of my children, after paying my funeral expenses and all debts I may owe, except those secured by deeds of trust on my real estate.

"Item 2d. I direct that the first $ 500 realized from interest on sale of my stock in the building association of the Missouri Medical College be appropriated to placing a stone curbing around my lot in Bellefontaine Cemetery and the erection of a suitable monument to my memory, the balance realized from said stock to be divided as my cash above stated.

"Item 3d. I give and bequeath to my grandson, Willie Thornton, my medical library and surgical instruments, and to my grandson, John Thornton, my canes and jewelry, excepting my watch, which I bequeath to my grandson, Sidney Moore; my other personal property I wish divided equally between my wife, Ellen L. Moore, and my son, John C. Moore, or their heirs and the heirs of my daughter, Helen M. Barrett.

"Item 4th. I desire that my real estate in the city of St. Louis, Missouri, and in Cairo, Illinois, shall continue to carry the incumbrance which may be upon the same at my death during the lifetime of my children, and that my wife and my children, or their heirs, shall receive quarterly from my executors one-fifth each of the net income from the rental of my real estate (the. children of my daughter, Mrs. M. M. Thornton, deceased, receiving her fifth). After the death of the last of my children, I desire that my real estate shall be sold to the best advantage, and the proceeds equally divided among my wife or her heirs, and my grandchildren or their heirs living at the time.

"Item 5th. I give and bequeath to my faithful servant, Louisa Randolph, the sum of $ 50, payable to her one year after the date of my death.

"Item 6th. I hereby appoint John Maguire, real-estate agent, number 519, Walnut street, my executor of this my last will and testament, and, in the event of his death or resignation, then such person as the court may appoint.

"Item 7th. Having advanced my son, John C. Moore, twenty-two hundred dollars ($ 2,200), I desire that amount be deducted from the shares of his heirs in the final division of my estate.

"Item 8th. I hereby desire it to be distinctly understood, that wherever the words, my wife or her heirs, appear, that I mean the heirs of her present marriage to me or her former marriage.

"Witness my hand and seal this twenty-fifth day of July, 1882.

"John S. Moore. [Seal]

"Signed, sealed and declared by the aforesaid John S. Moore 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 of us, have subscribed our names as witnesses hereto this twenty-fifth day of July, 1882.

"Louis H. Lohmeyer,

"Wm. A. Maguire.

"Having forgotten to mention in item 3, that the heirs of my daughter, Mrs. M. M. Thornton, shall be entitled to an equal share in the stocks of the Missouri Medical College belonging to me, I hereby give and bequeath unto them, the said heirs, an equal share of said stock.

"Witness my hand and seal this twenty-fifth day of July, 1882.

"John S. Moore. [Seal]

"Signed, sealed and declared by the aforesaid John S. Moore to be an addition to his last will and testament in the presence of us, who at his request and in his presence, and in the presence of each of us, have subscribed our names as witnesses hereto this twenty-fifth day of July, 1882.

"Louis H. Lohmeyer,

"Wm. A. Maguire.

"Codicil Number 1.

"I hereby change the bequest in item 1 of the within will. Instead of giving my wife, E. L. Moore, one-fifth of my estate absolutely, I give her one-third of the income of my estate during her lifetime in lieu of dower.

"John S. Moore. [Seal]

"Signed, sealed and declared by the aforesaid John S. Moore to be an addition to his last will and testament, in the presence of us, who at his request and in his presence, and in the presence of each of us, have subscribed our names as witnesses hereto this fourteenth day of June, 1884. John H. Maguire,

"John Maguire."

The construction given by the lower court to this will was the following:

That the widow takes one-third of the personalty for life, and one-fifth of the real estate for life; that each of the children living, and the heirs of any deceased child taking per stirpes, are entitled to one-fourth of the remaining two-thirds of the personalty absolutely, with a vested remainder, dependent upon the life-estate in the widow, in one-fourth of the remaining one-third of the personal estate, and that the widow in addition takes a life-estate in one-fifth of the realty. That, upon the death of the last of the children, the realty is to be sold, and the proceeds divided between the heirs of the four children taking per stirpes, and the widow, or, in case of her death, her heirs, taking in the same manner.

That from the proportions going to the heirs of John C. Moore is to be deducted the sum of $ 2,200, and that the remainder of the estate be divided according to the foregoing finding, as follows:

That the legal title to one-third part of the personal estate shall pass to and vest in a trustee when appointed in trust to said Ellen L. Moore during her life, with remainder over to those and in the manner hereinafter specified.

That the legal title to the real estate should pass to and vest in a trustee when appointed in trust for the said Ellen L. Moore, John C. Moore, Amanda V. Long, Helen M. Robinson, J. M. Barrett, Ada Thornton, Anna S. Gale, William Thornton and John Thornton, or, in case of the death of either one of them during the continuation of the trust, then for the heirs of such, for and during the life of Jno. C. Moore and Amanda V. Long.

The court then goes on to declare what portions of the net income of the personal estate, and of the rents of the real estate, shall be paid to the parties respectively in accordance with the construction of the will as found by the court. And that, upon the death of John C. Moore and Amanda V. Long, the real estate shall be sold by the trustee to the best advantage, and the proceeds divided between Ellen L. Moore, if she then survives, and the grandchildren of the testator or their heirs then living, who shall take per stirpes; or, if said Ellen L. Moore does not survive, then said proceeds shall be distributed between her heirs, and the said grandchildren or their heirs per stirpes.

I. Is the construction thus given the will the correct one? is the question presented by the record. By the first item of the will it is provided that: "When all my children are dead, then my estate is to be equally divided between my wife and her heirs and assigns, and the heirs and assigns of my children."

The subject is next adverted to in the last clause of the fourth item of the will, where it is said: "After the death of the last of my children, I desire that my real estate shall be sold to the best advantage, and the proceeds equally divided among my wife or her heirs and my grandchildren, or their heirs living at the time."

An explanation of the testator's...