Mockbee v. Grooms
| Decision Date | 15 August 1923 |
| Citation | 254 S.W. 170,300 Mo. 446 |
| Parties | CUTHBERT MOCKBEE et al. v. TARVIN C. GROOMS et al.; ALICE STOUT and WILLIAM CHRISTOPHER REYNOLDS, Appellants |
| Court | Missouri Supreme Court |
Rehearing Denied 300 Mo. 446 at 476.
Appeal from Jackson Circuit Court. -- Hon. Willard P. Hall, Judge.
Affirmed.
A. F Evans and Moore, Smith, Aughinbaugh & Ault for appellants.
(1) The cardinal rule for the construction of wills, to which all other rules must bend, is that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law. Griffith v Witten, 252 Mo. 641; Hardenbergh v. Ray, 151 U.S. 112. (2) The intention of the testatrix must be gathered from what she said in her will, giving effect, so far as possible, to each word she has used therein. It is the duty of the court to construe the will which the testatrix has made, not to speculate upon, or guess at, her intentions, and make a will for her. Wells v. Fuchs, 226 Mo. 97; Board of Trustees v. May, 201 Mo. 360; In re Stephenson, 1 Ch. (Eng.) 75; 66 L. J. Ch. 93; Boston Trust Co. v. Buffum, 186 Mass. 242; Den v Baskerville, 11 How. 358; 1 Greenleaf on Evidence (16 Ed.) sec. 277. (3) Courts have no power to reform the testatrix's will or to add words to it, or rewrite it, or make a will for her. Wells v. Fuchs, 226 Mo. 97; Board of Trustees v. May, 201 Mo. 360. (4) The ambiguity in the will of the testatrix is patent. It appears on the face of the will itself. In such cases, the rule is inflexible that parol evidence cannot be admitted to supply or contradict, enlarge or vary, the words of the will, nor to explain the intention of the testatrix. The will must be its own expositor. Davis v. Davis, 8 Mo. 56; Hockensmith v. Slusher, 26 Mo. 242; Campbell v. Johnson, 44 Mo. 247; Willard v. Darrah, 168 Mo. 660; Pate v. Bushong, 161 Ind. 533; Whitcomb v. Dedmon, 156 Ill. 116; Den v. Baskerville, 11 How. 358; Wilkins v. Allen, 18 How. 393; 30 Am. & Eng. Ency. Law (2 Ed.) 675; Robinson v. Allen, 11 Grat. (Va.) 785; Wright v. Denn, 10 Wheat. 245; Hardenbergh v. Ray, 151 U.S. 112; Boston Trust Co. v. Buffum, 86 Mass. 242. (5) In this case, the court must look "at the legitimate evidence, and at that alone." If, after having given full consideration to such evidence, the ambiguity remains, intestacy as to the real estate referred to in the ninth paragraph of the testatrix's will is inevitable. Wells v. Fuchs, 226 Mo. 106; Drake v. Drake, 8 H. L. Cas. 172. (6) Where there is a latent ambiguity with reference to the beneficiary of a devise or bequest, other than charitable, the rule of law generally recognized is that extrinsic evidence of the facts showing the situation and circumstances of the testator, at the time he made his will, such as the amount and character of his property, his relations to his relatives who were the natural objects of his bounty, and their situation and circumstances, is admissible to explain the ambiguity, in order to enable the court to put itself as near as may be in his place and ascertain what he intended to express by the language used. Wooley v. Hays, 285 Mo. 577; Hall v. Stephens, 65 Mo. 670; Morris v. Sickley, 133 N.Y. 456. The cases in which the rule last above stated has been considered and applied may be grouped into six classes as follows: (a) Where the language of the will describing the beneficiary of a devise or bequest applies equally and with legal certainty to two or more persons or sets of persons. Charter v. Charter, L. R. 7 H. L. (Eq.) 364; Estep v. Mackey, 52 Md. 592; Atterbury v. Stafford, 58 N.J.Eq. 186. (b) Where one or more persons answer precisely the name, but do not answer the description, of the beneficiary of a devise or bequest as given in the will. Willard v. Darrah, 168 Mo. 660. (c) Where one or more persons answer the name imperfectly but answer precisely the description of the beneficiary. Gordon v. Burris, 141 Mo. 602; Pemberton v. Perrin, 94 Neb. 718; Morse v. Stearns, 131 Mass. 389; Seigley v. Simpson, 73 Wash. 69. (d) Where no person answers precisely either the name or description of the beneficiary, but the name and description together are fairly applicable to a certain person, or persons. Stringer v. Gardiner, 4 DeG. & J. (Eng.) 468, 28 L. J. Ch. 758. (e) Where no person answers precisely the name and description of the beneficiary, as given in the will, but one person answers the name and a different person answers the description. (f) Where the beneficiary in a will is designated by a nickname. (7) The law of this State gives the land in controversy to the children of the testatrix or their descendants, unless she, by her will, gave it, in the maner and form required by the rules of law, to some other person. The heirs at law are favored by the policy of the law. Sec. 303, R. S. 1919; Watson v. Watson, 110 Mo. 170; Wright v. Denn, 10 Wheat. 245; Wilkins v. Allen, 18 How. 385; Thorn v. Hall, 41 N.Y.S. 1054, 160 N.Y. 661; Early v. Arnold, 119 Va. 500; Society of Most Precious Blood v. Moll, 51 Minn. 277; 44 Cyc. 1445. (8) A tenant in common may establish title by adverse possession against common tenants. Whittaker v. Whittaker, 157 Mo. 342; Chapman v. Kullman, 191 Mo. 237; Armor v. Frey, 253 Mo. 480. (9) Even if the testatrix had named devisees in certain and unequivocal language in paragraph "Ninth" of her will, this paragraph would nevertheless be inoperative and void for the reason that it is a part of a general plan of disposition which failed because all the other provisions which sought to accomplish such plan are invalid and void. (a) The provisions of the will wherein the testatrix undertook to make certain devises and to create certain trusts for her children, grandchildren and great grandchildren were invalid, because they violate the rule against perpetuities. Lockridge v. Mace, 109 Mo. 162; Sheppard v. Fisher, 206 Mo. 208; Riley v. Jaeger, 189 S.W. 1168; Buxton v. Kroeger, 219 Mo. 224. And because the property sought to be conveyed and limited in paragraphs third, fourth and fifth thereof did not belong to testatrix when she died, but did belong to her daughters and grandson, as adjudged by decree of the circuit court at their suit. (b) The will of testatrix constituted one general plan of disposition of her entire estate. Those parts of the will which are thus invalid constitute essential parts of this general plan. On account of their invalidity the general plan failed. Paragraph "ninth" of the will, which is in question, was a part of the general plan, and with the failure of this plan, it must fail. Lockridge v. Mace, 109 Mo. 162; Shepperd v. Fisher, 206 Mo. 208. (10) The court erred in overruling the motion of appellants to require plaintiffs to elect whether they would prosecute their claim to the land as heirs of Reuben Mockbee, or as devisees of Sarah J. Searcy. Jordan v. Transit Co., 202 Mo. 426; Doan v. Holly, 25 Mo. 355; Scott v. Taylor, 231 Mo. 665; State ex rel. v. Railroad, 240 Mo. 50; Newham v. Kenton, 79 Mo. 382; Sidway v. Missouri Land Co., 163 Mo. 373.
Wilkinson, Wilkinson & Dabbs for respondents.
(1) Respondents agree with appellants that the cardinal principle of will construction is to get the real intent and purpose of the testator. Griffith v. Witten, 252 Mo. 627; Small v. Field, 102 Mo. 122. (2) To determine the object of testator's bounty or the subject of disposition or the quantity of interest intended to be given, the court may inquire into every material fact relating to the person's interest in the will and the property which is the subject of disposition, and to the circumstances of testator and his family. McMahan v. Hubbard, 217 Mo 624; Riggs v. Myers, 20 Mo. 239. (3) Whatever may be the rule elsewhere, it is well established in this State that in pursuing the general presumption words may be supplied, transformed or changed in a will so that the instrument may not perish and the manifest intent of the parties be not defeated by the palpable error of the scrivener. McMahan v. Hubbard, 217 Mo. 624; Thompson v. Thompson, 115 Mo. 67; RoBards v. Brown, 167 Mo. 447; Connoley v. Pardan, 1 Paige, 291. (4) The devise to the "Mockbee heirs" does not present a case of "patent ambiguity." It is a devise to a class and parole evidence is permissible to explain to whom the testator intended the bequest to be applied and to identify the Mockbee whose heirs are intended to take. Price v. Page, 4 Ves. Jr. 679; McMahan v. Hubbard, 217 Mo. 624; Evans v. Hayes, 3 N.J.Eq. 204; Marsker v. Williams, 169 Ill. 276; McKee v. Spiro, 107 Mo. 457; Burnett v. Burnett, 244 Mo. 491. (5) When Sarah J. Searcy elected to take one-half of her husband's estate, her homestead could not be considered part of her dower, but she was entitled to her homestead (a life estate) and to one-half of the land in fee in addition thereto by virtue of her election. Adams v. Adams, 183 Mo. 395. The Statute of Limitations could not run against the heirs of Reuben Mockbee as long as his widow had the right to the possession of the land of which her husband died seized. Mrs. Searcy could not, as the owner in fee of one-half of her husband's land and as a tenant for life of the other one-half, start the Statute of Limitations running against the heirs of Reuben Mockbee by any acts or declarations. Schoults v. Lee, 260 Mo. 719; Meddes v. Kenney, 176 Mo. 206; Armour v. Frey, 253 Mo. 337. (6) The devise to the Mockbee heirs in paragraph 9 is a valid provision distinct and independent from the other provisions of testatrix's will and should be upheld. Goldsborough v. Martin, 41 Md. 488; Wheeler v. Fellows, 52 Conn. 247; Lovering v. Worthington, 106 Mass. 86. (7) The court did not err in overruling appellant's motion to require plaintiffs to elect whether they would prosecute their claim to...
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