Murph v. Enright

• Decision Date: 05 June 1924
• Docket Number: 24079
• Citation: 264 S.W. 811
• Parties: MURPH et al. v. ENRIGHT et al
• Court: Missouri Supreme Court

264 S.W. 811

MURPH et al. v. ENRIGHT et al

No. 24079

Supreme Court of Missouri, Second Division

June 5, 1924

Motion for Rehearing Denied July 29, 1924.

George F. Longan and Paul Barnett, both of Sedalia, for appellant.

W. D Steele, and A. L. Shortridge, both of Sedalia, and John P Leahy, of St. Louis, for respondents.

John P Leahy, of St. Louis, for P. H. Murphy, Adm'r.

OPINION

HIGBEE, C.

This is an action to construe the will of John W. Murphy, who died without issue April 27, 1919. The will was executed May 3, 1918, and admitted to probate April 30, 1919.

The testator had six brothers and sisters, one of whom, Thomas, was named as a beneficiary. He predeceased the testator. The others died prior to the making of the will. Nephews and nieces, grandnephews and grandnieces, and unknown heirs of the testator were made defendants.

Michael Murphy, testator's brother, had six children, one of whom, John D. Murphy, who predeceased the testator, left one child surviving him, a minor, who is joined as a defendant. The executors alleged in the petition there were conflicting claims arising under the will, one of which was: Were Paul Murphy and other grandnephews and grandnieces, whose parents predeceased the testator, entitled to distribution under the residuary clause of the will? The will reads:

'1. I, John W. Murphy, of the city of Sedalia, county of Pettis and state of Missouri, being of sound mind and understanding, do make my last will and testament in manner and form following: After all my just debts and one lot in the Catholic Cemetery and a tombstone thereon, to cost not more than five hundred dollars ($ 500.00), and funeral expenses paid and bequests provided for:

'2. I bequeath to Brother Thomas Murphy and wife the farm he now lives on in Pendleton county, Kentucky; to have and to hold during their lifetime, and after their death to go to James Edward Murphy and after his death to go to his nearest heirs; and to Mary Ann Friday and Katherine Friday I bequeath their deceased mother's part, share and share alike.

'3. I bequeath to Paul Murphy fifty (50) shares of stock in the Sedalia Trust Company, to be held in trust for him until he is thirty (30) years old, and he to get the dividends as they fall due, and my watch and diamond stud.

'4. [This clause bequeathes $ 500.00 to each of five charitable institutions.]

'5. To Belle Murphy, I bequeath my books and five hundred dollars ($ 500.00). To Mrs. M. E. McDonald, five hundred dollars ($ 500.00) and my room furniture, bed and bedding; to Henry Murphy, my trunk and clothes; to Kate A. Jones, of St. Louis, Missouri, I give the sum of five hundred dollars ($ 500.00).

'6. I hereby direct and empower my executors to sell and dispose of all my property, both real and personal, wherever found, for the best interests of all the heirs, and the money from same to be equally divided among all my nephews and nieces, share and share alike.

'7. I hereby appoint the Sedalia Trust Company of Sedalia, Missouri, and Richard Murphy, of St. Louis, Missouri, my executors of this my last will and testament.

'In witness whereof, I, John W. Murphy, the testator, have to this, my last will and testament, set my hand and my seal, this 3d day of May, 1918, A. D.

'[Signed] John W. Murphy.'

For convenience, I have numbered the clauses of the will.

Paul Murphy, by his guardian ad litem, filed an answer, averring in substance that he is the son of John D. Murphy, deceased, who was a nephew of the deceased, John W. Murphy, and much beloved by him, closely associated with him in his business and a special favorite of said John W. Murphy, who often expressed the intent to give a greater portion of his estate to said John D. Murphy than to his other relatives, and since the death of said John D. Murphy, often expressed his intention to specially provide for the defendant in the same manner he intended to provide for this defendant's father; that many of the relatives of the testator provided for in his will were unknown to and unacquainted with testator; that many of them lived at great distances and seldom or never had seen him, but this defendant was well known to and beloved by the testator, and is his nephew within the meaning of the residuary clause of his will; that said John D. Murphy died before the execution of said will and this defendant is his sole heir and descendant; that testator always referred to this defendant as his nephew and always so considered him; that the word 'nephew,' as used in the residuary clause of said will, was not used in a technical sense; that testator was not a lawyer or professional man, nor a man of education, wrote the will himself, without professional aid or advice, and intended that this defendant be included as his nephew in said residuary clause. Wherefore he prays, etc.

At the trial Paul Murphy offered evidence tending to prove the averments in his answer in support of his claim that the word 'nephew,' as used in the residuary clause of the will, was intended...