Mort v. Trustees of Baker University

• Court: Kansas Court of Appeals
• Writing for the Court: BLAND, J.
• Citation: Mort v. Trustees of Baker University, 78 S.W.2d 498, 229 Mo.App. 632 (Kan. App. 1935)
• Decision Date: 07 January 1935
• Parties: RANALD W. MORT ET AL., RESPONDENTS, v. TRUSTEES OF BAKER UNIVERSITY ET AL., APPELLANTS

78 S.W.2d 498

229 Mo.App. 632

RANALD W. MORT ET AL., RESPONDENTS, v. TRUSTEES OF BAKER UNIVERSITY ET AL., APPELLANTS

Court of Appeals of Missouri, Kansas City

January 7, 1935

Appeal from Circuit Court of Caldwell County.--Hon. Ira D. Beals Judge.

AFFIRMED.

Judgment affirmed.

Rieger & Rieger and Dudley & Brandom for respondents.

D. E Adams for appellants.

OPINION

BLAND, J.

This is a proceeding to contest a will. The case was tried before the court without the aid of a jury, resulting in a judgment in favor of plaintiffs. Defendants have appealed.

Plaintiffs who reside in the State of Washington, are the heirs at law of one Arthur F. Brown, who died in Caldwell County on March 31, 1932, leaving real and personal property in this State. Two wills duly executed by the deceased were probated in the Probate Court of Caldwell County. The will first executed by him (hereinafter referred to as the first will) reads as follows:

"I, Arthur F. Brown, of Hamilton Township, in Caldwell County and State of Missouri, do hereby make, publish and declare the following to be my last will and testament, hereby revoking all former wills by me made.

"First, I direct that all my just debts be paid, including the expenses of my last illness and funeral expenses and making the final lettering on the monument in our cemetery, and also including the expenses of administering of my estate in the Probate Court.

"Second. All the remainder of my estate, I hereby devise and bequeath to the Trustees of Baker University, Baldwin, Kansas, to be placed in Trust in the Cameron Trust Company of Cameron, Missouri, as provided by Trust Agreement to be made by and between said Trust Company and said University and myself, which trust agreement shall be executed in triplicate, one copy filed with said Trust Company, and with said University and the other retained by me.

"Third. I hereby nominate, constitute and appoint my friend, True D. Parr, of Hamilton, Missouri, as executor of this my last Will and Testament.

"In witness Whereof, I have hereunto signed my name this eighth day of September, 1930.

"ARTHUR F. BROWN."

It does not appear whether the trust agreement mentioned in paragraph 2 of the will was ever executed.

The other will (hereinafter referred to as the second will) which was executed on March 30, 1932, reads as follows:

"I, Arthur F. Brown, of Caldwell County, Missouri, being of sound and disposing mind and memory, do hereby make this my last will and testament.

"I hereby appoint True D. Parr as executor of this my last will and testament and in the event of his inability to serve as said executor, then I appoint Frank L. Bowman, to serve in his stead.

"I desire all my debts to be paid as soon as convenient, including the expenses of administering my estate.

"It is my wish that the remainder of my personal estate and all my real estate be given to the Rural Schools of Caldwell County, Missouri, to be loaned and the interest used for school purposes.

"ARTHUR F. BROWN."

The second will was probated on April 4, 1933, and, at the March term of the Circuit Court of Caldwell County, a petition was filed by the executor appointed under that will for the purpose of having construed the last paragraph thereof. Plaintiffs in the present proceeding, together with the Attorney-General of the State of Missouri, were made defendants in that action. The court rendered judgment holding that the clause in the will reading: "It is my wish that the remainder of my personal estate and all of my real estate be given to the Rural Schools of Caldwell County, Missouri, to be loaned and the interest used for school purposes," to be "void and inoperative because of the uncertainty and indefiniteness of the taker and beneficiary named therein, to-wit: the 'Rural Schools of Caldwell County, Missouri,' there being no such schools known or described in the laws of Missouri. Said will is further construed that, so far as the will in question is concerned, the testator died intestate, except as to the appointment of an executor and the directions in said will for the executor to pay the debts and expenses of the testator."

After this decree was rendered and, on April 4, 1933, the first will, dated September 8, 1930, was probated in the Probate Court of Caldwell County. Thereafter, this suit was brought to have the said first will declared not to be the last will and testament, or any part thereof, of said deceased, for the reason that it was revoked by the second will. Of the parties joined as defendants, the executor and the trustees of the Baker University, only, filed an answer. This was a joint answer and alleged that the two wills with the clause, declared inoperative for lack of certainty, eliminated, constituted the last will and testament of the deceased. The reply consisted of a general denial. The court rendered judgment that the first will was not the last will and testament, or any part of the last will and testament, of the deceased, for the reason that the same was revoked by the second will and that the second will, as interpreted by the judgment and decision of the circuit court at the March, 1933, term, was and is the last will and testament of deceased. The trustees of Baker University and the executor have appealed.

It is insisted by the appellants that the two instruments, with the clause in the second will leaving the estate, after the payment of deceased's debts, to the Rural Schools of Caldwell County, etc., eliminated, should be declared the last will and testament of the deceased. Appellants rely on the well settled principle that where two or more wills executed at different times are found in the possessions of the testator at his death, the provisions of the later will will prevail over those of the first only so far as they are inconsistent and irreconcilable therewith; that every effort should be made to reconcile the several parts of the wills; that the disposition of the later will should only be permitted to overcome that in the first so far as seems consistent with the whole intention of the testator; that a revocation by implication is not favored. [See Neibling v. Methodist O. H. Assn., 315 Mo. 578; 1 Underwood on Wills, sec. 251.]

Section 520, Revised Statutes 1929, reads as follows:

"No will in writing, except in the cases herein mentioned, nor any part thereof, shall be revoked, except by a subsequent will, in writing, or by burning, canceling, tearing or obliterating the same, by the testator, or in his presence, and by his consent and direction."

It is well settled that a will may be revoked by a later will, not only by express terms but by implication; that the first will is revoked by implication if the later instrument makes disposition of the property inconsistent with the terms of the former will or uses language from which it is clear that the intention of the testator was that such will should no longer continue to be a valid one; that a second will inconsistent with the first, perfect in...