Mitchell v. Board of Curators of Morrisville College

• Decision Date: 25 November 1924
• Docket Number: 28599
• Citation: 266 S.W. 481,305 Mo. 466
• Parties: HANNAH L. MITCHELL v. BOARD OF CURATORS OF MORRISVILLE COLLEGE et al., Appellants
• Court: Missouri Supreme Court

266 S.W. 481

305 Mo. 466

HANNAH L. MITCHELL v. BOARD OF CURATORS OF MORRISVILLE COLLEGE et al., Appellants

No. 28599

Supreme Court of Missouri

November 25, 1924

Appeal from Polk Circuit Court; Hon. C. H. Skinker, Judge.

Affirmed.

Arch A. Johnson for appellants.

Under the will of A. E. Mitchell, deceased, plaintiff was not clothed with power to sell and convey the title of real estate devised to her for her use during her natural life. Mace v. Hollenbeck, 175 S.W. 876; Bramell v. Cole 136 Mo. 201.

Herman Pufahl for respondent.

Under the will the plaintiff, had power to sell and convey the fee-simple title in the real estate devised to her. Gardner on Wills (1903 Ed.) pp. 478, 479, 480 and 553; Rubey v Barnett, 12 Mo. 3; Reinders v. Koppelman, 68 Mo. 482; Russell v. Eubanks, 84 Mo. 82; Burford v. Aldridge, 165 Mo. 419; Underwood v. Cave, 176 Mo. 1; St. L. Bldg. & Loan Assn. v. Fueller, 182 Mo. 93; Grave v. Perry, 197 Mo. 550; Romjue v Randolph, 166 Mo.App. 87; Steiff v. Seibert, 6 L. R. A. (N. S.) 1186; Meyer v. Barnett, 6 L. R. A. (N. S.) 1191; In re Will of Lars Weien, 18 L. R. A. (N. S.) 463; Chewning v. Eason, 39 L. R. A. (N. S.) 805.

Lindsay, C. Small, C., concurs.

OPINION

The plaintiff brought this suit to construe the will of her deceased husband, Arthur E. Mitchell, and to determine the rights thereunder of plaintiff, and of the defendants, in and to the real estate devised. It is the contention of the plaintiff that the will gave to her a life estate, with the power to sell and dispose of the fee, and it is the contention of appellants, the remaindermen, that she took only a life estate and could not dispose of the fee. Prior to the time of filing the suit she had sold and conveyed to the purchasers, two small tracts of land. The sole issue was and is whether she had this power under the will. The trial court held that she had the power so to do, and the remaindermen have appealed.

The testator had no children, and after leaving legacies of five dollars each to a brother and a sister, his will continues as follows:

"Second. -- I give and bequeath to my beloved wife, Hannah L. Mitchell, all my property, real personal and mixed, for her use during her natural life, without any restrictions, and she is hereby appointed executrix of this will, and I request that she be not required to give bond.

"Third. -- After the death of my wife, Hannah L. Mitchell, I hereby dispose of the property, real, personal, and mixed, that may be remaining as follows:

"I give and bequeath to the Parsonage Aid Society of Morrisville Station, Springfield District, Southwest Missouri Conference of the Methodist Episcopal Church, South, located at Morrisville, Polk County, Missouri, the sum of one hundred dollars.

" I give and bequeath to the Woman's Foreign Missionary Society of said Morrisville Station, the sum of two hundred dollars.

"I give and bequeath to the Methodist Benevolent Association of the Southwest Missouri Conference of the Methodist Episcopal Church, South, the sum of five hundred dollars, for the use and benefit of the superannuated preachers and the widows and orphans of deceased preachers of said Conference.

"The rest, residue, and remainder of my property, real, personal, and mixed, which may remain after the above directions have been complied with, I hereby give and bequeath to the Board of Curators of Morrisville College, an institution of learning under the control of the Southwest Missouri Annual Conference of the Methodist Episcopal Church, South, to establish a memorial fund for preacher-students in said college in memory of my beloved father, Morris Mitchell, my dear mother, Rebecca Mitchell, and my brother, Thomas Clarke Mitchell; the same to be known as Mitchell Memorial Fund; and I hereby direct said board of curators, and their successors in office, to preserve intact the principal of said fund, and to use only the interest that shall accrue from year to year, to help and assist such licensed preacher or preachers who shall be enrolled as students in said Morrisville College, as in their judgment is most needy and deserving, in pursuing his studies in said college. The Board of Curators are hereby authorized to convert any or all property, given to them under this will into cash, if in their judgment it is best, and to invest the proceeds in interest bearing securities. In case said Morrisville College shall at any future time be abandoned as an educational institution, then this bequest shall revert to the Southwest Missouri Annual Conference of the Methodist Episcopal Church, South; to be used for education purposes, for superannuated preachers, the widows and orphans of deceased preachers of said conference, and for Missions in said conference, as the Conference shall direct."

The will was made February 22, 1910, and the testator died in August, 1911. The inventory, appraisement of personal property and the annual and final settlements filed in the probate court, were introduced in evidence by the plaintiff. The personal estate was small. After the payment of expenses and indebtedness, and the statutory allowance to the widow of $ 400 and the allowance of the further sum of $ 500 for her support, there remained a balance upon the final settlement of $ 631. The real estate consisted of the residence of the deceased and seven and one-half acres therewith, and about eighty-seven acres of other land in several small tracts situated near the town of Morrisville. These appear to have been unimproved or pasture lands. Their rental value was not shown. The plaintiff offered in evidence a warranty deed made by her to a purchaser in 1910 of a four-acre tract, and also a deed made in 1920 of a tract of fifteen acres, and offered to show that $ 1200, the consideration paid for the fifteen acres, was a full and fair price. Upon objection of defendants this evidence was excluded.

In this, as in every case involving rights asserted to exist by virtue of the will of a person deceased, the primary purpose is to ascertain the meaning of the will. In these cases all courts are expressly admonished to "have due regard to the directions of the will, and the true intent and meaning of the testator." [Sec. 555, R. S. 1919.] In this inquiry all of the provisions of the will are to be considered in their relation to each other, and to the whole. [Turner v. Timberlake, 53 Mo. 371; Allison v. Chaney, 63 Mo. 279; Chew v. Kellar, 100 Mo. 362; Tisdale v. Prather, 210 Mo. 402.] It has also been said, "The true intent and meaning of the testator can be best ascertained by the courts and those concerned in the execution of wills by putting themselves; so far as may be, in the place of the testator and reading all his directions therein contained in the light of his environment at the time it was made." [Murphy v. Carlin, 113 Mo. l. c. 117, and cases there cited.] In 1910, when this will was made, the plaintiff was sixty-two years of age. She and her husband were childless. The amount and character of the estate left by the testator as shown by the proceedings in the probate court, begun in 1911, have been referred to. The plaintiff was not shown to have been possessed of any other property than that left to her under the will. In ascertaining now what was the intent of the testator, the provisions of the will are to be considered in the light of the conditions shown to exist at the time the will was made.

Counsel for appellants, in support of their claim that the plaintiff was without power to dispose of the real estate, cites two decisions only, the decisions of this court in Bramell v. Cole, 136 Mo. 201, and Mace v Hollenbeck, 175 S.W. 876. In Bramell v. Cole, the testator devised his estate to his wife "during her natural lifetime; she to have the entire control of the same." Then after describing his real estate and referring to his moneys, notes or bonds and other personal property it was further directed that all "go to her, for her to have full control of the same as long as she lives and that after her death, what is left to go to" the certain persons named. The court in that case said, l. c. 213: "The ordinary meaning of the word 'control,' when asserted of a person in charge of an estate, is that he has its management. It might imply a power to invest and re-invest, but does not imply a power to dispose of the estate itself so as to defeat the rights of those entitled to its future use." Discussing the force of the expression, "what is left," Judge Macfarlane said, l. c. 212: " I take the rule in this State to be well settled that, in case a life estate is expressly given, a power of absolute disposition will not be implied from the fact that the devise or bequest over is of what remains, or what is left of the property, at the death of the first taker, wherever it appears also that the property may be diminished in the hands of the life tenant by the uses to which it may properly be applied." In that case it may be observed there was in addition to the real estate devised by the will, personal property to an amount in excess of fifty thousand dollars, of which about forty thousand dollars remained upon final settlement, and the life tenant, in the subsequent management of this, had converted much of it into real estate. Preliminary to the foregoing...