McQueen v. Lilly

• Decision Date: 26 November 1895
• Citation: 31 S.W. 1043,131 Mo. 9
• Parties: McQueen et al. v. Lilly et al., Appellants
• Court: Missouri Supreme Court

31 S.W. 1043

131 Mo. 9

McQueen et al. v. Lilly et al., Appellants

Supreme Court of Missouri, First Division

November 26, 1895

Appeal from Lincoln Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

Charles Martin for appellants.

(1) The legacy of $ 500 to Mrs. McQueen is merely pecuniary legacy and is not directed to be paid out of the proceeds of land nor is it to be paid by an heir to whom land has been devised. Real estate is never charged with the payment of legacies while there is personal property remaining, unless such an intention with a direction to exempt the personalty is given. Cooch v. Cooch, 1 Am. St. Rep. 161; Brill v. Wright. 112 N.Y. 129; Knotts v Bailey, 28 Am. Rep. 348. The personal estate is the primary fund for the payment of legacies, and the only fund unless the contrary appears from the will. Kelsey v Westom, 2 N.Y. 500; Hois v. Hoeson, 1 N.Y. 120; Bevan v. Cooper, 72 N.Y. 317. (2) The executor, by necessary implication, is empowered to sell the one hundred acres of land on Big Bill's creek. The direction not to sell for less than $ 4,500, short of six years from the time of his death, implies a power to sell, after six years, without limit as to price, or within six years for $ 4,500. Hollman v. Tiggers, 7 A. 347. (3) The general scheme of the will contemplates the division of the personal estate in connection with the real estate and the executor is appointed "for all the purposes of executing and carrying out the provisions of this will." In other words, the testator makes his executor the medium through whom the shares of each heir should be obtained. Reinders v. Koppelmann, 68 Mo. 489, 490; Turner v. Timberlake, 53 Mo. 371; Lindsay v. O'Reilly, 15 A. 379; Hollman v. Tiggers, 7 A. 347; Potter v. Adraince, 14 A. 16; Phelps v. Pond, 23 N.Y. 69; 3 Redfield, Wills, p. 138, sec. 4; Fisher v. Banta, 66 N.Y. 468; Lent v. Howard, 89 N.Y. 169. (4) The administrator with the will annexed is vested with the same powers under our statute. R. S. 1889, sec. 136; Delworth v. Rice, 48 Mo. 124; Evans v. Blackiston, 66 Mo. 437; Coil v. Pittman, 46 Mo. 53. (5) If the will shows a purpose and intent on the part of the testator to have the executor of his estate to settle and distribute the estate to the heirs, thus implying a power of sale, the court can not substitute some other mode of distribution, by partition or otherwise, for it would be in contravention to the terms and purpose of the will. R. S. 1889, sec. 7142; Cubbage v. Franklin, 62 Mo. 364. (6) The oral testimony offered by defendants showed very clearly that for years no very kindly feeling had existed between W. Lilly and Mrs. McQueen. Evidence of the condition and surroundings of the testator and his feeling toward the objects of his bounty may be shown in aid of the construction of his will. Long v. Timms, 107 Mo. 512; Nichols v. Boswell, 103 Mo. 151; Reinders v. Koppleman, 94 Mo. 338; Noe v. Kern, 93 Mo. 367; Hall v. Stephens, 65 Mo. 677; Reinders v. Koppelmann, 94 Mo. 343; Small v. Field, 102 Mo. 122; Monroe v. Collins, 95 Mo. 37; Shumate v. Bailey, 110 Mo. 415. (7) "The law prefers a construction of a will which will prevent a partial intestacy to one which will permit it." Vernon v. Vernon, 53 N.Y. 357. "In construing wills, courts should, if possible, avoid any construction which would result in partial intestacy." Peckham v. Lego, 14 Am. St. Rep. 130. "There is a presumption against the intention of a testator to leave a part of his estate intestate." Warner v. Willard, 54 Conn. 470; Sailor v. Blaine, 1 Am. St. Rep. 34.

Norton & Avery and Silver & Brown for respondents.

(1) First. The trial court did not err in ruling that the legacy of $ 500 specifically given by the will of Wm. Lilly to plaintiff Margaret McQueen was a special one and that it did not exclude her right to her proportionate share of the general estate of the testator. Smith v. Swearingen, 26 Mo. 551. Second. It is a familiar rule of construction that the entire will must be taken together and effect thereby be given to the intention of the testator; extrinsic evidence is not admissible in aid of its construction, except in a case of latent ambiguity or to rebut a resulting trust (which is not this case); nor is parol evidence competent to contradict, enlarge, or vary the words of a will. Bradley v. Bradley, 26 Mo. 315; Hockensmith v. Slusher, 24 Mo. 242; Goods v. Goods, 22 Mo. 518. Third. The reasonable construction of the will on its face is that the testator, while giving the plaintiff the $ 500 bequest, did not intend to exclude her from her share in his general estate undisposed of by the will. There is no express language so excluding her, nor does such exclusion arise by necessary implication from the language used in the will. Fourth. The will states that he bequeathes to Alfred Lilly and Ellen Rayburn an equal interest in the estate "after all the above bequests" are respectively paid. So also the bequest of the homestead of one hundred acres to Thomas is expressed to be "as his entire interest" in the estate. This language would indicate that the testator did not have it in his mind to exclude plaintiff from her share of the general residue of the estate. Fifth. The testator did not dispose of all of his property by the express terms of the will as claimed by appellants. "And even where the actual purpose to devise everything is indicated it can not prevail in the absence of language to carry everything." Farris v. Cook, 78 Mo. 221. To deprive an heir of the share the law gives him in the case of intestacy, the testator must make a valid disposition of it to some other person; it is not sufficient, even, that the testator signify his intention that such heir shall not inherit any part of his estate. Watson v. Watson, 110 Mo. 170; (2) The court did not err in holding that the partition prayed for and granted was not in contravention of the will. The direction by the testator to his executor not to sell the land lying "on Big Bill's creek for less than $ 4,500," short of six years from the time of his death was not a prohibition on an ordinary partition proceeding or sale thereby. Sikemeier v. Galvin, 27 S.W. 551. The will did not vest the land in the executor; it only provides that the executor (not the law by partition proceeding) should not sell for less that $ 4,500 within the designated time. (3) The exclusion of the evidence as to the value of decedent's land and personalty was proper. The will should be construed from its language and terms regardless of any question of the value of the estate devised or any part thereof. Such evidence was, therefore, irrelevant and improper. Besides, its exclusion was at most harmless error as its admission would not have affected the result of the trial. Williams v. Mitchell, 112 Mo. 301; Brownell v. Barnard, 116 Mo. 667; Brandon v. Carter, 119 Mo. 573.

OPINION

Macfarlane, J.

This is an action for the partition of the real estate of William Lilly, deceased, who died testate in Lincoln county, in December, 1888.

The matters in dispute arise over the construction of the will of the deceased, which is as follows:

"Know all men by these presents, that I, William Lilly, of the county of Lincoln and state of Missouri, of sound mind and memory, being desirous of disposing of the property that I may be possessed at the time of my death according to my will and pleasure, do make publish this my last will and testament:

"1st. I desire, after my death, that my body be buried by my son, George W. Lilly, in the same enclosure.

"2d. I will and bequeath to my wife, Elizabeth Lilly, all and every part of my lands, personal property of every kind and description that I may be owning at the time of my death, during the existence of her life or while she remain my widow.

"I will and bequeath to my daughter Lucy I. Holley's children the interest that she would have in my estate if living.

"I will and give my daughter Margaret McQueen five hundred dollars, to be paid her after my wife's death or my death.

"I will and bequeath to my son Thomas Lilly one hundred acres of land, being the same on which I now reside; this 100 acres of land with its improvements I intend as his entire interest in all of my estate.

"I will and bequeath to my son James Lilly's three children the interest in my estate that my son James would be entitled to if he was living.

"I will and bequeath to my son Joseph Lilly one thousand dollars, to be paid to him while I live; if not while I am living, to be paid to him by my wife in part of his entire interest in my estate.

"I will and bequeath to my son Alfred Lilly an equal interest in my estate after all the above bequests are fully paid off.

"I will and bequeath to my daughter Ellen Rayburn an equal interest in my estate after all the above bequests are fully paid to the respective parties as herein directed.

"I direct my executor hereinafter named not to sell my tract of land lying on Big Bill's Creek in Lincoln county for less money than four thousand, five hundred dollars, short of six years from the time of my death.

"I direct my executor to attend to the renting and the keeping of said farm in good repair; if he should rent said farm, the rents to become a part of my said estate.

"I do hereby appoint my son Thomas Lilly my executor for all the purposes of executing and carrying out the provisions of this will."

The widow of testator died in 1893, before the commencement of this suit. All the children of the testator living, and the children of those of them who were dead, were mentioned in the will and are parties to this suit. It was stated in the petition and found by the court that there was in the hands of the executor, sufficient personal estate to pay "all debts and...