Meiners v. Meiners

• Decision Date: 10 February 1904
• Citation: 78 S.W. 795,179 Mo. 614
• Parties: MEINERS et al. v. MEINERS et al.
• Court: Missouri Supreme Court

78 S.W. 795

179 Mo. 614

MEINERS et al. v. MEINERS et al.

Supreme Court of Missouri. Division No. 1.

February 10, 1904.

WILLS — CONSTRUCTION — "UNDIVIDED ONE-THIRD" OF PROPERTY.

1. A will, after making provision for payment for the services of a daughter-in-law of the testator, bequeathed stipulated sums to each of three adult sons who resided away from home. Testator then devised to three other sons "the undivided one-third in all my real estate," etc. Thereafter all the residue of the personal property was bequeathed to the same three sons. Held, that the devise of realty was of an undivided one-third to each of the three sons, and not an undivided one-third to the three jointly.

Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.

Action by August Meiners and another against John Meiners and others. From a judgment for plaintiffs, defendants appeal. Reversed.

Stewart, Cunningham & Eliot, for appellants.

Seneca N. & S. C. Taylor and Chas. Erd, for respondents, cited the following cases: Hall v. Stephens, 65 Mo., loc. cit. 673, 27 Am. Rep. 302; Farish v. Cook, 78 Mo., loc. cit. 218, 47 Am. Rep. 107; Nichols v. Boswell, 103 Mo., loc. cit. 151, 15 S. W. 343; Watson v. Watson, 110 Mo., loc. cit. 171, 19 S. W. 543; Elliott v. Topp, 63 Miss., loc. cit. 142; Burke v. Lee, 76 Va. 386; Couch v. Eastham, 29 W. Va. 784, 3 S. E. 23; Gray v. Pearson, 6 H. L. C. 61; Edgerly v. Barker (N. H.) 31 Atl. 900, 28 L. R. A. 328; Young v. Robertson, 2 Scotch App. 1108; 2 Story, Eq. Juris. § 1047b; 2 Jarman on Wills, 726; 4 Kent, Comm. 537; White v. Crawford, 87 Mo. App. 262, loc. cit. 268; Given v. Hilton, 95 U. S. 591, 24 L. Ed. 458; Hancock's Appeal, 112 Pa. 532, 5 Atl. 56; Seibert v. Wise, 70 Pa. 147; Cody v. Bunn's Ex'r, 46 N. J. Eq. 131, 18 Atl. 857; Bonnell v. Bonnell, 47 N. J. Eq. 540, 20 Atl. 895; Perkins v. Mathes, 49 N. H., loc. cit. 110; Barrus v. Kirkland, 8 Gray, 513; In re Woodward, 117 N. Y., loc. cit. 525, 23 N. E. 120, 7 L. R. A. 367.

VALLIANT, J.

This is a suit for the partition of real estate. The property was owned in his lifetime by Herman Meiners, who died January 16, 1900, leaving five sons, who are the parties here, plaintiffs and defendants. The controversy arises out of the different construction the parties have placed on the will of their father. The testator was 73 years of age, of German nationality, but could read and write and speak English. The inventory of his personal property showed it to be worth $36,205.60. The value of the real estate in question was about $25,000. At the date of the will he had six sons, viz., William, Henry, August, John, Herman, Jr., and Aloysius. These were his only children. The last two were twins, and were minors at the death of their father, but became of age before the trial of the case. Henry died before his father. The five others survived, and they are the parties to this suit; William and August being plaintiffs, and the three others defendants. The will is as follows:

"In the name of God, Amen. I, the undersigned, Herman Meiners, of the City of St. Louis and State of Missouri, of sound and disposing mind, do make, publish and declare this my last will and testament.

"Item 1. I will, and direct that my funeral expenses and just debts be paid with convenient speed.

"Item 2. I will, give and bequeath to my daughter-in-law, Kate Meiners, the sum of $7 per month from now on for her services as housekeeper, or so long as she acts in that capacity, as per our verbal agreement.

"Item 3. I will, give and bequeath to William Meiners the sum of $4,000.00; and to my son, Henry Meiners, the sum of $50.00. To my son, August Meiners, the sum of $4,000. To Rev. William Reichenbach, now in Mendota, Illinois, the sum of $500. To the Upper Council of the St. Vincent de Paul Society, St. Louis, Missouri, for the use of St. Josephs, $200. To the German St. Vincent Orphan Association, St. Louis, Missouri, the sum of $200. To the pastor of St. Joseph's Catholic Church, St. Louis, Missouri, German congregation, the sum of $300.00 for holding masses for the repose of the immortal souls of my deceased wife and myself. To the Little Sisters of the Poor, St. Louis, Missouri, the sum of $200.00. All of the above bequests mentioned in this clause shall be paid within two years after my demise and bear no interest, except the bequest for holding masses, which shall be paid sooner.

"Item. 4. I will, give, bequeath and devise to my sons, John, Herman, Jr., and Aloysius, the undivided one-third in all my real estate, houses numbered 1438, 1440 and 1442 on the east side of N. Tenth street; also houses numbered 1322 and 1324 on the east side of N. Tenth street, St. Louis, Missouri, with all improvements thereon.

"Item 5. All the balance and residue of my personal property I will and bequeath to my sons, John, Herman, Jr., and Aloysius.

"Item 6. I appoint my son, John Meiners, trustee for my minor children, Herman, Jr., and Aloysius, during their minority. He shall file no bond as such trustee.

"Item 7. I will and ordain that in the event that any of the various legatees contest this will, or any legacy therein mentioned, the party so contesting shall be barred and receive no benefit from the estate.

"Item 8. I nominate, constitute and appoint my son, John Meiners, executor of this will. He shall file no bond as such executor.

"Witness my hand and will this 24th day

                of January, 1896.      Herman Meiners."
                

The controversy is over the meaning of item 4; the plaintiffs contending that thereby only an undivided one-third of the real estate is devised to the three sons therein named, leaving two-thirds undisposed of, to descend to the five sons as heirs; the defendants contending that it is a devise of an undivided one-third to each of them, and consequently a devise of the whole. The trial court took the plaintiffs' view of the subject, and rendered judgment accordingly. The defendants appeal.

There is not much, if any, difference of opinion between the learned counsel regarding the principles of law discussed in their brief. To find the intention of the testator must be the main purpose of our search, and that intention we must find from the will itself. We may resort to outside evidence to learn the conditions under which the will was made, for the purpose of placing us in the position of the testator, that we may view the subject from the standpoint from which he viewed it; but, viewing the subject from that standpoint, we must find from the will alone the testator's meaning. McMillen v. Farrow, 141 Mo. 55, 41 S. W. 890; Clotilde v. Lutz, 157 Mo. 439, 57 S. W. 1018, 50 L. R. A. 847.

It is also the law that words in a will must be given their ordinary meaning and grammatical construction, unless it is manifest from the whole instrument that they were used in a different sense; and this leads to the further proposition that the intent is to be gathered from the whole instrument, so that, if a literal construction of a particular clause would render it a discord in the whole will, we should not give it that construction if it is reasonably susceptible of another that would bring it into harmony. For authorities to sustain these propositions of law, we refer to the briefs of the learned counsel, which will appear in the report of this case.

If we conclude that the plaintiffs' interpretation of the clause in question is correct, then we must say that it was the testator's intention to leave two-thirds of his real estate undisposed of, to descend to his heirs as the law might direct. When a man makes a will that is fairly susceptible of being construed into a testamentary disposal of his whole estate, it will be so construed, in preference to construing it to be a case of partial intestacy. Watson v. Watson, 110 Mo. 164, 19 S. W. 543; Hurst v. Von De Veld, 158 Mo. 239, 58 S. W. 1056; Willard v. Darrah, 168 Mo. 660, 68 S. W. 1023, 90 Am. St. Rep. 468; RoBards v. Brown, 167 Mo. 447, 67 S. W. 245.

This will was written at the dictation of the...