Northcutt v. McAllister

• Decision Date: 05 March 1923
• Citation: 249 S.W. 398,297 Mo. 475
• Parties: NANNIE J. NORTHCUTT and EVA L. EAGER v. WILLIE MAE McALLISTER, ELIZABETH L. PROCTOR, FRANCES D. PATTERSON, W. C. SUTTON, T. F. SUTTON and VIRGIE SUTTON, Appellants
• Court: Missouri Supreme Court

249 S.W. 398

297 Mo. 475

NANNIE J. NORTHCUTT and EVA L. EAGER v. WILLIE MAE McALLISTER, ELIZABETH L. PROCTOR, FRANCES D. PATTERSON, W. C. SUTTON, T. F. SUTTON and VIRGIE SUTTON, Appellants

Supreme Court of Missouri, First Division

March 5, 1923

Appeal from Boone Circuit Court. -- Hon. David H. Harris, Judge.

Reversed and remanded (with directions).

McBaine & Clark for appellants.

(1) Death is not a contingency, but, on the contrary, it is a certainty. So a gift by will to A and a disposition to others "if" the first devisee die, refers not to an event which is certain to occur but to a contingent or uncertain event. No time being fixed the gift over will take effect only if A shall die before the testator dies. 40 Cyc. 1401-2; 28 Ruling Case Law, p. 225; Real Estate Co. v Megaree, 280 Mo. 41; Howard v. Howard, 148 S.W 993; Henderson v. Calhoun, 183 S.W. 584; Dameron v. Lanyon, 234 Mo. 641; Travers v. Reinhardt, 205 U.S. 423; Nations v. Colonial Co., 76 So. (Miss.), 642; Fifer v. Allen, 228 Ill. 509; Karsten v. Karsten, 254 Ill. 480; 30 Am. & Eng Ency. Law (2 Ed.) 708; 1 Underhill on Wills, 342, sec. 457; Britton v. Thompson, 112 U.S. 532; McClellan v. MacKenzie, 126 F. 705; Vanderzee v. Slingerland, 103 N.Y. 47; Mitchell v. Pittsburgh Co., 165 Pa. St. 645; Crossman v. Field, 119 Mass. 170; Briggs v. Shaw, 9 Allen (Mass.) 516; 2 Jarman on Wills (6 Ed.) p. 2144; 2 Woerner on Administration (2 Ed.) p. 905. (2) Substitution of words not used for words used in a will upon a conjecture or hypothesis is never permitted unless the will as written is ambiguous or there exists a necessity in order to make the writing rational. Plain language cannot be varied by extrinsic circumstances. Roberts v. Crain, 173 Mo. 572; Graham v. Graham, 23 W.Va. 36, 48 Am. Rep. 364; 2 Woerner's Adm. (2 Ed.) p. 892; 40 Cyc. 1427-28; 28 Ruling Case Law, 269-70; Callaway v. Callaway, 171 Ky. 366; Wright v. Deem, 10 Wheat. 204, 6 L.Ed. 303; Schapiro v. Howard, 113 Md. 78, 140 Am. St. 414; Jackson v. Alsop, 67 Conn. 249; Gilmore v. Jenkins, 127 Ia. 686; 1 Underhill on Wills, p. 498. (3) The meaning of this will has formerly been determined in the case of Conley v. Northcutt, Eager and Mary Sutton, an action to try title. The parties and the will were before the court in that suit in which the court held plaintiffs here took no interest by virtue of item 4 of the Pettus will, but that the words "if either of these children die," etc., meant to dispose of the property in the event of their death before the death of the testator. 2 Black on Judgments (2 Ed.) pp. 764-65; 23 Cyc. 1215; Choteau v. Gibson, 76 Mo. 38; Summit v. Real Estate Co., 208 Mo. 501; Hutchinson v. Patterson, 226 Mo. 174; Cantwell v. Johnson, 236 Mo. 575; Carthage ex rel. v. Weisner, 116 Mo.App. 119; Feine v. Kirchoff, 176 Mo. 516; Fischer v. Dent, 259 Mo. 86; Nave v. Adams, 107 Mo. 419; 15 Ruling Case Law, 1014; Louis v. Brown Township, 109 U.S. 162; Leavitt v. Wolcott, 95 N.Y. 219; Devin v. City of Ottumwa, 53 Iowa 461; Bangert v. Blades, 117 N.C. 221; Oklahoma v. Texas (U.S.), 65 Law. Ed. 475; Buckner v. Buckner, 210 S.W. 887.

Harris & Price, Jas. C. Gillespy and Jas. E. Boggs for respondent.

(1) The findings of the trial court sitting as a jury are binding on appeal and will not be disturbed on appeal unless there is no substantial evidence to support them. De Lassus v. Faherty, 164 Mo. 361; First Natl. Bk. v. Wilson, 222 S.W. 381; Mooneyham v. Mynatt, 222 S.W. 451. (2) Appellants submitted the issue as to testator's intention to the court for determination without demurrer to the evidence, without asking for any declarations of law, and without objection to the introduction of extraneous evidence; they are bound by this theory on appeal and cannot complain that the findings are unsupported by the evidence, or that the evidence was inadmissible, or that any particular declaration of law should have been given. Kenefick-Hammond Co. v. Norwick Ins. Soc., 205 Mo. 312; Jennings v. Cooper, 230 S.W. 325; Boone Co. Lbr. Co. v. Niedermeyer, 187 Mo.App. 180; Felty v. Dunlap, 203 S.W. 651. (3) The use of the conditional "if" in connection with death, a certain event bound to happen sometime as in the expression "if all die," implies an unexpressed condition or contingency upon which the death is contemplated to happen or means "when all die;" the expression is therefor ambiguous and indefinite on its face and when occurring in a will must be interpreted so as to effectuate the true intention of the testator, and the intention of the testator is to be ascertained from the whole will and the circumstances attending its execution. In other words the construing court must put itself in the testator's shoes and look with his eyes. Stewart v. Jones, 219 Mo. 639; Simmons v. Cabanne, 177 Mo. 351. (4) In the light of the testator's true intention all presumptions take flight and technical rules give way for the testator's intention is the controlling factor. Underhill on Wills, sec. 348; Simmons v. Cabanne, 177 Mo. 353. (5) Words used in a will are to be construed in the sense which will effectuate the testator's intention and therefore they may mean one thing in one will and have a different meaning in another whence it follows that every will is a law unto itself and precedent is of scant value in interpreting ambiguous provisions. Watson v. Watson, 110 Mo. 164; Brown v. Tuschoff, 235 Mo. 456; Meiners v. Meiners, 179 Mo. 614; Willard v. Darrah, 168 Mo. 660; Nichols v. Boswell, 103 Mo. 151. (6) Estoppel may be raised only between those who were adverse parties in the former suit, so that the judgment in such former suit settles nothing as to the relative rights or liabilities of the coplaintiff or co-defendant inter sese. 23 Cyc. 1279; City of Springfield v. Woodruff Realty Co., 175 Mo.App. 246; Nevins v. Coleman, 200 S.W. 445. (7) The judgment in the case of Conley v. Northcutt et al., rendered in the Circuit Court of Cooper County, January 26, 1905, is not available to appellants as a defense, for the reason it is not res adjudicata; the defendants therein, Eager and Northcutt, not having at the time said judgment was rendered, any right which could have been enforced at that time. 23 Cyc. 1173; Scott v. Black, 96 Mo.App. 472.

OPINION

JAMES T. BLAIR, J.

-- This is an appeal from the Boone Circuit Court, on change of venue, in a suit to quiet title and for partition of eighty acres of land in Cooper County. The construction of the will of Stephen D. Pettus, who is the common source of title, and a plea of res adjudicata give rise to the questions in the case. Respondents Nannie J. Northcutt and Eva L. Eager are, respectively, daughter and grand-daughter of Stephen D. Pettus. Appellants Willie Mae McAllister, Elizabeth L. Proctor and Frances D. Patterson are sisters and great grand-daughters of Stephens D. Pettus. The appellants Sutton are half-brothers and half-sister of the first named appellants.

On the trial it was stipulated that in 1874 Stephen D. Pettus owned 200 acres of Cooper County land, which included the tract in suit; that in 1874 and a short time before his death, Stephen D. Pettus, then very old but of sound mind, executed his will which, so far as is now material, is as follows:

"Second. I give unto my daughter, Nannie J. McBaine, my bottom farm, that lays in Boone County [describing it particularly], she to have the said farm during her natural life, and then said farm to her daughter, Fannie B. Connelly, and if she should die without children then to my other heirs.

"Third. I give unto my two grandchildren, Ebbe and Ida Pettus, one note I hold on Wm. H. Belcher for $ 5,000; if either of these children die, then the surviving to have all, and if both die to my other heirs. I also give these two children last named, all my money and other property that is left, after my grandson, George Sutton, gets one thousand dollars; also my bed and bureau.

"Fourth. I give unto my grandson, George Sutton (named above) one thousand dollars, and I give unto my grandchildren, George, Burilla and Mary Sutton, the following described tract of land [here follows description]. being 200 acres in sections 4 and 9, township 48, range 15, and a part of Survey No. 2870, if either of these children die, the surviving ones to have it, and if all die, then my other heirs to have it.

"Fifth. I give unto Jim Saunders, Bob, Rachel, Francis and Laura Belle Williams, colored children, sons and daughters of Julia Williams, colored, the following tract of land lying in Cooper County, all my tract of land not given to Mary Sutton's children above named, being a part of sections 4 and 9, township 48, range 15, supposed to contain 115 acres, be the same more or less, said tract is a part of Survey No. 2870."

Nannie J. McBaine, named in the will, is the respondent Nannie J Northcutt. Eva Pettus is the respondent Eva L. Eager. Fannie (or Frances) B. Connelly was the daughter of Nannie J. Northcutt by a former marriage. She died in childhood very soon after the death of the testator. Ida Pettus died without issue after the death of the testator. George, Burilla and Mary Sutton, named in the fourth paragraph of the will, were the only children of testator's deceased daughter Mary. Eight years after the death of the testator, George Sutton died without issue. Burilla Sutton married Wat Hickam and became the mother of appellants Willie Mae McAllister, Elizabeth L. Proctor and Frances D. Patterson (or Cochran). Burilla (Sutton) Hickam is now dead and died prior to the death of her sister Mary Sutton. Mary Sutton was of unsound mind at the time of the testator's death and was later placed under the guardianship of John L. Ballenger and died without issue about 1918. After the death of testator, William T. Sutton, the father of ...