Obetz v. Boatmen's Nat. Bank of St. Louis

• Decision Date: 08 December 1950
• Docket Number: No. 3,No. 41723,41723,3
• Citation: 234 S.W.2d 618,361 Mo. 221
• Parties: OBETZ v. BOATMEN'S NAT. BANK OF ST. LOUIS et al
• Court: Missouri Supreme Court

Page 618

234 S.W.2d 618

361 Mo. 221

OBETZ v. BOATMEN'S NAT. BANK OF ST. LOUIS et al.

No. 41723.

Supreme Court of Missouri, Special Division No. 3.

Dec. 8, 1950.

Errol Joyce, Brookfield, Edwin J. Bean, St. Louis, Walter A. Raymond, Kansas City, for appellant.

W. A. Franken, D. D. Thomas, Jr., Carrollton, O'Bryen, Schlafly & Griesedieck, St. Louis, for respondents.

VANDEVENTER, Judge.

This is a declaratory judgment action to construe a will and, from a decree construing it, plaintiff has appealed. For a proper understanding of the case, the will is set forth in full:

'I, May Hammons, of St. Louis, Missouri, being of sound and disposing mind and memory, do hereby make and declare this to be my last will and testament, hereby revoking any (and) all other wills heretofore made by me.

'First: I direct that all my just debts and funeral expenses be paid.

'Second: I will and bequeath my Solitaire Diamond with two side diamonds set in platinum to Lela Loew, of Hale, Missouri.

'Third: I will and bequeath my Solitaire Diamond, with four side diamonds, set in gold to Mrs. Harry Obetz of Mendon, Missouri.

'Four: 1 large diamond, set in platinum, surrounded by twelve smaller diamonds, I will and bequeath to Fay B. Cox.

'Five: I will and bequeath to Carol Susan Cox, a small diamond ring with two side diamonds, set in gold.

'Six: I will and bequeath to Phyllis Borges, a small Solitaire Diamond (Maude Sheldon's engagement ring).

'Seven: I will and bequeath my Dinner Ring with eleven diamonds set in white gold to Bessie Burnsides.

'Eight: I will and bequeath all of my clothing, jewelry and personal property not otherwise disposed of herein, remaining at the time of my death, to Lela Loew and Mrs. Harry Obetz, share and share alike.

'Nine: In appreciation of the many kindnesses shown to me in the past, I will and bequeath to Aubrey R. Hammett, the sum of Ten Thousand ($10,000) Dollars. If he shall predecease me, this shall be divided among his lineal descendants living at the time of my death.

'Ten: I will, devise and bequeath all the rest and residue of my estate, real, personal or mixed, and wherever situate, to the following persons in the following manner:

'(a) Lela Loew, Mrs. Coleman Hubbard, Mrs. Harry Obetz, one-half of said residue to be divided between them, share and share alike.

'(b) Phyllis Borges, Bessie Burnsides, and Fay B. Cox, one-fourth of said residue, to be divided share and share alike.

'(c) Orville Billow, John Robert Hubbard, Rector Hubbard, Thomas Hubbard, Lonnie Hubbard, and Hervey Hubbard, one-fourth of said residue to be divided between them, share and share alike.

'Eleven: If any legatee mentioned in this will shall predecease me, his or her legacy shall go to his or her lineal descendants. If said legatee leave no lineal descendants said legacy shall lapse and be distributed in accordance with the residuary clause. If any residuary legatee predecease me, leaving no lineal descendants, his share shall go to the remaining members of the class or group in which he is placed.

'Twelve: If any legatee named herein or any of my legal heirs, shall institute, maintain or assist in the prosecution of any suit or other legal action to contest this will, then I will and direct that said legatee or heir shall receive nothing from my estate, and that his or her share or legacy shall immediately lapse.

'I nominate and appoint Aubrey R. Hammett, Jr., Lawrence Holman and the Boatmen's National Bank of St. Louis to be executors of this will.

'In testimony whereof, I have hereunto set my hand this 10th day of March, 1947.

'/s/ May Hammons.'

Plaintiff is one of the beneficiaries in the will and a cousin of the deceased, by the half-blood. Defendants, Boatmen's National Bank of St. Louis, a corporation, Aubrey R. Hammett, Jr., and Lawrence Holman are executors of the will. The other defendants are relatives. Mrs. Coleman Hubbard was an aunt, by the half-blood, the remainder were cousins once or more removed, all by the half-blood. The issues were appropriately presented by the pleadings.

Plaintiff contends that by Paragraph 8 of the will, she is entitled to one-half of the remaining personal property, after specific bequests have been deducted. All of the assets of the deceased was personalty.

The defendants contend that plaintiff does not take one-half of the residue of the estate by Paragraph 8, but takes only one-half of the personal effects of the deceased, or in other words, property of a personal nature, and that the residue of the estate should be distributed according to the provisions of Paragraph 10.

Plaintiff offered a certified copy of the inventory of the estate which was summarized in plaintiff's petition to show there were bonds of the value of $272,325.00; stocks of the value of $4,010.00; cash in the amount of $14,385.53, and other personal property of the value of $8,853.94, or a total inventoried value of $299,596.47. Also a genealogical chart, showing the relationship of the deceased to the legatees was introduced by agreement. There was also some oral testimony as to this relationship and as to the feelings of the deceased toward some of the beneficiaries of her will.

The court, in its decree, held that plaintiff, under Paragraph 8, took one-half of deceased's 'clothing, jewelry, and personal effects (being property of a personal nature) not otherwise disposed of' in the will. It is from this construction that plaintiff has appealed.

In construing this will, it is the paramount duty of this court to consider every provision thereof in order to give effect to testatrix's true intent and meaning, Sec. 568, Mo.R.S.A., unless contrary to public policy or established rules of law. We cannot write a new will under the guise of construction or make what we might deem a more equitable distribution of the estate. If the language of the will is ambiguous, we may consider the surrounding facts and circumstances. Peters v. Briska, Mo.App., 191 S.W.2d 993. Mississippi Valley Trust Co. v. Palms, Mo.Sup., 229 S.W.2d 675. Legg v. Wagner, Mo.Sup., 155 S.W.2d 146. Lyter v. Vestal, 355 Mo. 457, 196 S.W.2d 769, 2 A.L.R.2d 1375. Adams v. Conqueror Trust Co., 358 Mo. 763, 217 S.W.2d 476, 7 A.L.R.2d 268. Gannett v. Shepley, 351 Mo. 286, 172 S.W.2d 857. Bond v. Riley, 317 Mo. 594, 296 S.W. 401.

In ascertaining testatrix's intent, this court may, as far as possible, put itself in the testatrix's position and view the situation from her standpoint. St. Louis Union Trust Co. v. Kern, 346 Mo. 643, 142 S.W.2d 493. Broaddus v. Park College, 238 Mo.App. 304, 180 S.W.2d 268. Lynn v. Stricker, Mo.App., 213 S.W.2d 672.

In doing this, it may consider the amount and nature of her property and her relationship to and feelings toward the objects of her bounty. No provision should be allowed to perish by construction. Adams v. Conqueror Trust Co., supra.

Bearing these rules in mind, let us examine the will. Testatrix (1) directs that all her debts and funeral expenses be paid. She then (2) bequeaths to Lela Loew a Solitaire Diamond set in platinum with two side diamonds; (3) she bequeaths to Mrs. Harry Obetz a Solitaire Diamond with four side diamonds, set in gold; (4) to Fay B. Cox a large diamond set in platinum, surrounded by 12 smaller ones (5) to Carol Susan Cox, a small diamond with two small side diamonds, set in gold (6) to Phyllis Borges, a small Solitaire Diamond ring; and (7) her dinner ring with 11 diamonds set in white gold to Bessie Burnsides.

All of the foregoing were articles of personal adornment and down to this point, at least, it is clearly apparent that she was giving to her relatives those things that were in their nature personal to her. But an examination of the inventory of her estate indicates that there were many other articles of the same nature and character undisposed of. For instance, a crystal necklace, a diamond bar pin, a pair of diamond earrings, a diamond lavalier, a plastic comb and brush, a leather handbag, 3 cigarette cases, silverware, dressing table, vases, figurines, etc. Some of these articles were not as valuable as those designated in Paragraphs 2 to 7, inclusive, but were as personal in their nature as the articles designated in the specific bequests.

By Paragraph 8, she gave to the plaintiff and Lela Loew all her clothing, jewelry 'and personal property, not otherwise disposed of here, * * *.' If this had been the final bequest, it could well be contended that she intended plaintiff and Lela Loew to have the residue of her estate because at the time of making of the will and at the time of her death, she had nothing but personal property. However, the next provision (9) contains a bequest to Mr. Hammett of $10,000.00. Until Provision 9 was written into the will, it is clearly apparent that the testatrix had in mind only those articles that she owned of a personal nature, her personal effects, such as jewelry, clothing and articles of personal adornment and comfort. Otherwise, why should she have gone to the trouble to insert Paragraph 10, which is a residuum clause disposing of the remainder of her estate, real, personal and mixed, wherever situate, and dividing the recipients of her bounty in three classifications. In class A each was to receive one-sixth of the remainder of her estate. In class B, each was to receive one-twelfth of the remainder of her estate and in class C, each was to receive one-twenty-fourth.

If it had been the intention of testatrix to give to Lela Loew and plaintiff, by Section 8, all her personal property not specifically bequeathed to others, there would have been no need of a residuum clause in which she again, in sub-division (a) thereof, named these identical legatees. She would hardly have there given each of them one-sixth of that which they had already been given the whole. Such a construction would create an inconsistency. But if she meant by the words 'personal property', her personal effects that were of a...