McElroy v. Fluker
Decision Date | 08 March 1954 |
Docket Number | No. 43741,No. 1,43741,1 |
Citation | 265 S.W.2d 361 |
Parties | McELROY v. FLUKER et al |
Court | Missouri Supreme Court |
K. U. Snyder, Kansas City, for appellant.
Sol M. Yarowsky, Kansas City, for respondent.
VAN OSDOL, Commissioner.
This action was instituted by plaintiff, administrator c. t. a., for the construction of the will of John W. Fluker who died October 19, 1949. Testator left an estate of approximately $65,000 comprised of cash, notes, stocks and bonds. By the residuary clause, Item 13, of his will, testator gave a residuum of approximately $60,000 in value to his sisters Jennie Fluker Madsen and defendant Florence Fluker, 'share and share alike.' The sister Jennie died prior to the death of the testator, and the question presented by the parties, in seeking an interpretation of the will, is the devolution of half of the residuary estate.
Testator was survived by his only daughter, defendant Gladys M. Williamson, who is named as a legatee in Item 3 of the will as 'Gladys Fluker Williamson.' A son, John J. Fluker, named as a legatee in Item 2 of the will, predeceased testator. The daughter Gladys asserted her claim in the trial court and contends herein that she is entitled to one-half of the property disposed of under Item 13 inasmuch as testator's sister Jennie predeceased testator. Defendant Gladys urges that the share of the 'balance of all personal property,' which the testator had intended for his sister Jennie, lapsed upon Jennie's death and that defendant Gladys, the next of kin of testator, is entitled, by virtue of the statute of descents and distributions, to the share intended for Jennie. The trial court ordered, adjudged and decreed that 'defendant Florence Fluker be construed to be and she is the sole residuary legatee of the estate of John W. Fluker, deceased, and that defendant Gladys Williamson take nothing by reason of her claim.' Defendant Gladys has appealed.
Testator by his will dated February 8, 1924, made disposition of his estate, consisting of personalty, as follows,
'I, John W. Fluker, of Kansas City * * * being desirous of making final disposition of all my property in the event of my death, do hereby make, publish and declare this to be my last will and testament, hereby revoking all other and former wills heretofore by me made.
The will was signed by the testator, and by two witnesses. There was no formal attestation clause.
Testator was a mail carrier in Kansas City until he retired in 1935 or 1936. In his young manhood he had married. Two children were born to the marriage, a son John J. Fluker who, as stated, died prior to the death of testator, and the daughter defendant Gladys. When the children were yet quite young, testator and his wife, Mary, were divorced. Apparently the children continued in the custody of their mother. Testator did not remarry. He sold his home on Forrest Avenue, Kansas City, to Clara Brown who thereafter conducted a rooming house at the address (see Item 10 of the will). Testator continued, until his death in 1949, to room at the Brown rooming house. The sister Florence was the youngest of testator's sisters--'the baby of the family.' The sister Jennie was widowed early in her married life. She became an experienced business woman and advised with testator about 'business affairs.'
At the present time First Trust Co. v. Myers, 351 Mo. 899, 174 S.W.2d 378, 380; Section 468.620 RSMo 1949, V.A.M.S. By reason of the infinite variety of expressions employed in wills, precedents are of less value in their construction than in many other fields of inquiry. Housman v. Lewellen, 362 Mo. 759, 244 S.W.2d 21; Shelton v. Shelton, 348 Mo. 820, 155 S.W.2d 187.
Directing our attention to the bequest in Item 13 of the balance of all personal property to the sisters Jennie and Florence 'share and share alike'--in considering this language apart from the other provisions of the will it would seem testator intended his sisters, Jennie and Florence, should be vested with an estate technically denominated 'tenancy in common' (Vol. 39, Words and Phrases, Share and Share Alike, pp. 216-219), although when applied to common ownership of personalty, the term 'owners in common' is said to be more appropriate. Schouler on Personal Property, 5th Ed., Sec. 154, p. 222. Where two or more are made tenants in common by deed or some general instrument well written, a difficulty in interpretation will seldom arise; but in wills there is greater indulgence given to informal expressions, in order to effect the testator's wishes, and it is the rule that any words which denote an intention to give to each of the legatees a distinct interest in the subject of the gift 'will create them owners in common, or in a contrary case joint tenants.' Schouler on Personal Property, supra, Sec. 161 at page 231.
A rule has been recognized by the courts of several jurisdictions that 'under a residuary gift to several persons nominatim, or in common, and not as a class, a lapsed portion of the residuary devise or legacy does not, in the absence of statute, inure to the benefit of the other residuary devisees or legatees, unless the intention of the testator to that effect clearly appears; instead, such lapsed portion of the residuary estate is removed from the operation of the residuary clause and becomes intestate estate, passing to the heirs or distributees.' 57 Am.Jur., Wills, Sec. 1453, p. 977; Annotations, 28 A.L.R. 1237, and 139 A.L.R 868. The rule above stated has invoked considerable dissatisfaction even among those courts which recognize and follow it. In a few jurisdictions the rule has been changed by statute; and, absent any statutory change, some courts have refused to accept the principle and have adopted the view that, in the circumstances outlined, the lapsed portion of the residuary gift must be held to pass to the surviving residuary donees. 57 Am.Jur., supra, at page 977; 28 A.L.R., supra, at page 1239; and 139 A.L.R., supra, at page 870; Corbett v. Skaggs, 111 Kan. 380, 207 P. 819, 28 A.L.R. 1230; 31 Yale L.J. 782. The rule is mentioned in Plummer v. Brown, 315 Mo. 627, 287 S.W. 316, and the statement of the 'grounds however uncertain' upon which the doctrine...
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