Mueller v. Buenger

• Decision Date: 23 November 1904
• Citation: 83 S.W. 458,184 Mo. 458
• Court: Missouri Supreme Court
• Parties: MUELLER v. BUENGER.

83 S.W. 458

184 Mo. 458

MUELLER v. BUENGER.

Supreme Court of Missouri, Division No. 1.

November 23, 1904.

WILLS — CONSTRUCTION — PROPERTY DEVISED — AFTER-ACQUIRED INTEREST.

1. The intention of the testator is the controlling guide in the construction of wills, and that intention must be gathered from the four corners of the will, in the light of the circumstances under which it was written.

2. A will devised to testator's niece a certain described farm, and also his interest in a tract of land owned by himself jointly with another. Particular devises were then made to brothers and sisters and a nephew, and a concluding clause gave testator's wife all the remainder of his property, both real and personal, which he might possess at his death, except the property mentioned in the first part of the will, for her natural life, with remainder to designated persons. After the making of the will the testator acquired the interest of his co-owner in the land, his interest in which he had devised to his niece. Held, that the subsequently acquired interest did not pass under the particular devise to the niece, but passed under the residuary clause to testator's widow and the remaindermen therein mentioned.

3. Where a will, after containing certain legacies, devised to testator's wife the residue of all the real and personal property that he owned at the date of the will, and also the residue of all "I may possess at my death," it gave to the wife any property he might acquire between the date of the execution of the will and the date of his death.

Appeal from Circuit Court, St. Louis County; Jno. W. McElhinney, Judge.

Action by Sophia B. Mueller against Mina Buenger. From a judgment for defendant, plaintiff appeals. Affirmed.

Geo. W. Lubke, Jr., for appellant. Geo. W. Wolff, for respondent.

MARSHALL, J.

This is an action under section 650, Rev. St. 1899, to determine the interests of the parties, under the will of William Buenger, to 53 arpens of land in St. Louis county. The plaintiff claims title to the whole of the land, except an undivided one twenty-fourth thereof, which is vested in the heirs of Ann T. Hume; and the defendant claims that the plaintiff is only entitled to an undivided one-half of the land, and that she is entitled to a life estate in the other half thereof, with remainder to Annie Holtman, her child by her first marriage, and, in the event of her death without issue, then the remainder to go to certain persons named in the will. The plaintiff is a niece of the testator, and the defendant is his widow.

At the trial the plaintiff showed that at the date of the will William Buenger owned a certain farm in St. Louis county, containing 50 arpens, and known as the Franklin farm, and that at the date of the will he also owned an undivided one-half interest in the 53 arpens; the other half interest being at that time (less the one twenty-fourth of said other half, which was vested in the heirs of Ann T. Hume) vested in Joseph L. Hyatt. He also owned other real and personal property, which is not in controversy here. Being so possessed, said William Buenger made his will on January 29, 1889. That will was as follows:

"I, William Buenger, of the County of St. Louis, in the State of Missouri, do make and publish this my last will and testament. I am weak in body but sound in mind, and know what I am doing. After the payment of all my just debts, I give and devise unto my niece, Sophia Buenger, daughter of Henry Buenger, the farm known as the Franklin farm, situate lying and being in the County of St. Louis, and the State of Missouri, containing fifty (50) arpens, bounded as follows, to wit: East by lands owned by Gustavus Wittich, South by Aubuchon and Maher, West by my own and North by the Missouri river. Also my interest in the tract of land owned by Joseph L. Hyatt and William Buenger, containing fifty (50) arpens, to have when she attains the age of twenty-one (21) years, to have and to hold the same forever. But if my widow should die or marry before Sophia attained the age of twenty-one (21) years, then she is to come into immediate possession of the above described land.

"I give and bequeath unto my two brothers and two sisters, Henry Buenger, Casper H. Buenger, Riker Klostermeyer and Louisa Branderler, or their heirs, two thousand dollars ($2,000), to be divided equally between them share and share alike, but my brother Henry is now dead, and I wish that the five hundred dollars that was for him to go to his three sons, William, Henry and Harmon Buenger, share and share alike, to be paid within two years after this will is probated; I except Harmon Buenger's share; I wish his share of the five hundred dollars to remain in my estate until he is of age and to bear six per cent. per annum until paid. Interest commencing two years after this will is probated.

"I also give and bequeath unto Charles Meyer, my nephew, the following parcels of land, now belonging to me in the Monroe tract: Nos. seven (7) and eight (8) containing fifty-five acres more or less, to have and to hold forever, provided, that he pays William Buenger and Conrad Buenger (sons of Casper H. Buenger) each one hundred ($100) dollars, and one hundred ($100) dollars to William Klostermeyer, also fifty ($50) dollars each to William and Henry Buenger, sons of Henry Buenger. This must be paid within two years after this will is probated.

"I give and devise unto my beloved wife, Mena Buenger, all of the remainder of my property, both real and personal I may possess at my death during her natural life, excepting however, that property which I have mentioned in the first part of this will, and if my wife should marry then I give and devise unto Annie Holtman, daughter of my wife by her first husband, the following parcels of land, Nos. twenty-three (23), twenty-four (24) and twenty-five (25), and if my wife die before Annie Holtman then Annie Holtman shall have the whole of this property, and if Annie Holtman should die without living children of her body, then this estate, except as already provided shall be divided equally between the following named persons or their heirs (and Annie's husband if she has any): My brother Henry and Casper H. Buenger, Riker Klostermeyer, Louisa Branderler, Theodore Wolff, Annie Kamper (the wife of August Kamper) and the heirs of Fritz Wolff (the heirs shall inherit only the parents part).

"I hereby appoint my wife, Mena Buenger, (without being required to give security) my sole executrix of this, my last will and testament, hereby revoking all former wills by me made.

"In witness whereof, I have hereunto set my hand this twenty-ninth day of January, A. D. 1889. William Buenger."

The plaintiff also showed that, after the execution of his will, William Buenger, to wit, on April 25, 1895, acquired the other half of the 53 arpens (less the one twenty-fourth thereof aforesaid) that had been owned by Joseph L. Hyatt.

This was all the evidence offered by the plaintiff, and was all the evidence adduced in the case, for the court excluded the evidence offered to be introduced by the defendant "tending to prove the circumstances, surroundings, situation, and family relations of William Buenger, the objects of his bounty, and extent and value of his estate, and also the statements of the testator, made before and after the execution of the will, as to his intentions." The court then rendered judgment in favor of the defendant, and adjudged the plaintiff to be entitled to an undivided one-half interest in the 53 arpens, and the defendant entitled to a life estate in the other part acquired from Hyatt, and her daughter and the persons named in the residuum clause of the will entitled to the remainder in that part. From that judgment the plaintiff appealed.

The only question presented by this record is whether the plaintiff is entitled to the whole of the 53 arpens (less the one twenty-fourth aforesaid), or whether she is entitled to only an undivided one-half of the whole. The law upon this subject has been so thoroughly and ably discussed in the prior adjudications in this state that a review of these cases will easily solve the case at bar. One of the best-considered, learned, and satisfactory discussions of the subject is contained in the opinion of Leonard, J., in Liggat v. Hart, 23 Mo. 127; and, because of its force and clearness, the following extensive excerpt therefrom is both justified and appropriate. The learned judge said:

"Mr. Butler, in a very able note to Coke's first Institutes (191a) after specifically pointing out the difference between the Roman and the feudal law upon the subject of succession to the estates of deceased persons, thus forcibly sums up the contrast: `By the Roman law the heir was a person appointed indiscriminately by the law or the deceased to represent him, and, in consequence of that representation, was entitled to his property and bound by his obligations. In the feudal law the heir was a person of the blood of the ancestor, appointed by the original contract to the succession, and, in consequence of that succession, was supposed, more by the general notions of mankind than by the notions of the feudal polity, to represent the ancestor. By the Roman law the heir succeeded to the property of the ancestor in consequence of his civil representation of him, and supposed continuation of his personal estate. In the feudal law he acquired a national representation to the ancestor in consequence of the feudal succession. In the Roman law real and personal property was equally the subject of inheritance. In the feudal law inheritance was confined to real property. The Roman heir claims as such from the person last possessed, and nothing from the original donor. The feudal heir claims as such all from the donor, and nothing from the person last possessed.' The power of an owner to appoint a successor to his property, both real and personal, after his death, which seems...