Methodist Episcopal Church et al. v. Thomas et al.

• Decision Date: 02 December 1940
• Docket Number: No. 19772.,19772.
• Citation: 145 S.W.2d 157
• Parties: THE METHODIST EPISCOPAL CHURCH OF MARCELINE ET AL., RESPONDENTS, v. JUDITH THOMAS, EXECUTRIX, ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

145 S.W.2d 157

THE METHODIST EPISCOPAL CHURCH OF MARCELINE ET AL., RESPONDENTS, v. JUDITH THOMAS, EXECUTRIX, ET AL., APPELLANTS.

No. 19772.

Kansas City Court of Appeals, Missouri.

December 2, 1940.

Appeal from Chariton Circuit Court. — Hon. Paul Van Osdol, Judge.

AFFIRMED.

J.A. Collet for appellants.

(1) The bequest of the $2400 debt mentioned as a land loan, appearing in the fourth paragraph of the will, so distinguishes that item of property from all other of testator's property as to identify it and set it apart from the other property generally referred to in the will, makes that item a specific bequest. 69 C.J., par. 2085; Fidelity National Bank & Trust Co. v. Hoves, 5 S.W. (2d) 436; In re Calnane's Estate, 28 S.W. (2d) 430; Waters v. Hatch, 181 Mo. 262; In re Estate of Largue, 267 Mo. 104; Asbury v. Shain, 191 Mo. App. 267. (2) This particular item of property, though mentioned in the residuary clause of the will, being so described and particularized as to identify it from the other property found in this clause of the will, nevertheless, was a specific bequest and should be so construed. 69 C.J., par. 2110; Kemp v. Dandison, 169 Mich. 578, 135 N.W. 270, Ann. Cas. 1913D, 1042. (3) Although the bequest of this $2400 note is mentioned in the residuary clause of the will, which contains the general description of testator's property it is so distinguished from the balance of the personal property therein mentioned as to enable it to be identified from the residue of the personal property and makes this item a specific bequest. 4 Words & Phrases (2 Ed.), 652. (4) The $2400 note mentioned in the fourth paragraph of testator's will, so distinguishes and sets it apart from the balance of testator's property of the same general kind as to identify it from the balance of testator's estate, and being found as part of the testator's property at the time of his death meets all the requirements of the law to make it a specific bequest and entitles the legatees to the delivery of that specific piece of property. 7 Words & Phrases, 6600, 6601, 6602, 6603 and 6604; 4 Words & Phrases (2 Ed.), 651, 652, 653 and 654. (5) The ultimate test in construing the language of the will is the determination of the testator's intent and, "The court, in determining the testator's intent, to place itself as nearly as possible in his situation, will receive extrinsic evidence of facts and circumstances surrounding testator at the time he made his will, and known to him at that time, including evidence of his declarations, in order that the court may have sufficient background to apply the language of the will to existing conditions. This evidence may be admitted in all cases where the will is susceptible of, or in need of, construction, as where there is a dispute over the proper construction of its terms or where the language of the will is uncertain and doubtful or contains a latent ambiguity." 69 C.J., par. 1174.

G. Derk Green for respondent.

(1) The will must be construed in the light of the testator's intent, gathered from the entire will and, if necessary, aided by parol evidence. 69 C.J., Wills, sec. 2095; In re Calnane's Estate, 28 S.W. (2d) 420; Snow v. Perril, 8 S.W. (2d) 1008; In re Bjorkman's Estate, 38 S.W. (2d) 269; Fidelity National Bank & Trust Co. v. Hovey, 5 S.W. (2d) 437. (2) The will should be construed to give effect to each clause and it is presumed that the testator intended each legatee some benefit. Defendants' contention would leave the third clause of this will of no effect and nothing would pass to the legatee named under defendants' construction. Morton v. Murrell, 68 Ga. 141; 69 C.J., Wills, secs. 1172, 2096; Snow v. Perril, 8 S.W. (2d) 1008. (3) A legacy is presumed to be general rather than specific. The enumeration of certain articles the testator had in mind does not change a residuary clause to a specific bequest. 69 C.J., Wills, sec. 2096; Bothamley v. Sherson, L.R., 20 Eq. 304, 311; Kemp v. Davidson, 169 Mich. 578, 135 N.W. 270, Ann. Cas. 1913D, 1042; 69 C.J., Wills, sec. 1475, p. 418; In re Bjorkman's Estate, 38 S.W. (2d) 269.

CAVE, J.

This is a suit brought by the Methodist Episcopal Church of Marceline and the members of its Board, praying for a construction of the will of J.C. Bell, deceased. The defendants, appellants, by a proper pleading, joined in the request for the construction of such will. Eliminating the formal parts, the contents of the will are as follows:

"First: I order and direct that my Executrix hereinafter named pay all my just debts and funeral expenses as soon after my decease as conveniently may be.

"Second: After the payment of such funeral expenses and debts, I give, and bequeath to my Executrix, as Trustee of the Bell Cemetery on my home farm, the sum of One hundred ($100.00) dollars for the upkeep of the cemetery.

"Third: I give and bequeath to the Methodist Episcopal Church of Marceline, Mo., the sum of One thousand ($1000.00) dollars, to be used or invested by the Board of Trustees where it will do the church the most good.

"Fourth: I give and bequeath to Mr. W.A. Thomas and his wife, Mrs. Judith Thomas, all of the remainder of my personal property of every kind. I intend this bequest to include all of my livestock and farming implements, all money, notes and mortgages, including the $2400.00 loan I hold on their farm, and all of my life insurance money which is payable to my estate, and any other personal property that I may own at the time of my death.

"Fifth: I give, bequeath and devise to Mrs. Bernice Elizabeth Mobley of Marceline, Mo., the North half of the Southeast quarter of Section fifteen, in Township Fifty-six, Range eighteen, containing eighty acres, in Chariton County, Missouri.

"Sixth: I give, bequeath and devise to Vern Henry Thomas, son of W.A. Thomas of Chariton County, Mo., the Southwest quarter of the southeast quarter, and the South-east quarter of the Southwest, all in Section fifteen, Township Fifty-six, Range eighteen, containing eighty acres, in Chariton County, Missouri.

"Seventh: I give, bequeath and devise to my sister-in-law, Miss Verlie Redding, the West half of the North-west quarter and the West half of the Southeast quarter of the Northwest quarter, all in Section fifteen, Township Fifty-six, Range eighteen, containing one hundred acres, in Chariton County, Missouri.

"Eighth: I give, bequeath and devise to Mr. W.A. Thomas and his wife, Mrs. Judith Thomas, of Chariton County, Missouri, the West half of the Northeast quarter of Section twenty-eight, Township Fifty-six, Range eighteen, containing eighty acres, in Chariton County, Missouri.

"I have made the foregoing gifts to Mr. and Mrs. W.A. Thomas and their son and daughter on account of the many kindnesses shown to me and to my mother who was sick and in poor health for so many months."

The will was written and signed on February 22, 1933. The testator died on April 2, 1937. In due time the will was admitted to probate in the Probate Court of Chariton County, and Mrs. Judith Thomas, one of the defendants (appellants), was appointed executrix. Thereafter, this suit was brought. The parties joined as defendants were Judith Thomas, as, Executrix of the will, and Judith Thomas and W.A. Thomas, as legatees under the Fourth and Eighth Items of the will. The cause was tried in the Circuit Court of Chariton County, and the court rendered judgment for the plaintiffs and against the defendants; holding in effect that the sum of $1000 should be paid to the Methodist Episcopal Church prior to the receipt by defendants W.A. Thomas and Judith Thomas of any articles or sums of money under and by virtue of the provisions of the Fourth Article of said will, and that the second sentence of the Fourth Article of said will was not intended by the testator to be a specific bequest of the items of personal property therein mentioned, but was intended by him to be a general description of the personal property of his estate. An appeal was perfected to this court.

The trial court considered there was sufficient ambiguity and uncertainty in the language of the will as to justify the hearing of oral testimony in aid of a proper construction of the will.

It appears from such oral testimony that testator, J.O. Bell, was a farmer living in Chariton County, and had been reasonably successful in a business way. He had no children. His wife and his mother and father had predeceased him, leaving only distant relatives. For a number of years testator's mother was an invalid, and his wife in poor health. During this period of time, the appellants Judith Thomas and her husband, were close neighbors and for a number of years were of great assistance to the testator in the care and attention which his mother and wife required. After the death of the wife and mother, he lived in the home of appellants Judith Thomas and W.A. Thomas for some time before his death. They gave him every care and attention, apparently treating him as though he were a member of their own family.

It further appears from this oral testimony that a short time before the signing of the will, the deceased visited the office of J.A. Collet, an attorney at Salisbury, who had been a life-long friend and attorney for the deceased and his father. At the time of that visit, testator told Mr. Collet that he wanted him to prepare his will, but Mr. Collet was busy at that particular time and the testator was in a hurry to go home, and promised to return at a later date. However, during that short conference, the testator told Mr. Collet that he, the testator, had a note signed by the Thomases, and secured by deed of trust on their land, and he wanted to make sure that that note would not have to be paid by them. That he wanted to make some other bequests that he felt obliged to make and that he was going to undertake to substantially reward the Thomases for their kindnesses. Testator did not return to Collet's office, but some time...