Peters v. Carr

• Decision Date: 31 March 1852
• Citation: 16 Mo. 54
• Parties: PETERS et al., Plaintiffs in Error, v. CARR et al., Defendants in Error.
• Court: Missouri Supreme Court

16 Mo. 54

PETERS et al., Plaintiffs in Error,

v.CARR et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1852.

1. Particular words in a will, if possible, will be so construed as to harmonize with the general intent of the testator, as collected from the whole will.

Error to St. Louis Circuit Court.

This was a petition for partition. The rights of the parties depend upon the will of William C. Carr. The following is a copy of the clause affecting the questions decided:

“In making a will, I am influenced by the desire to effect two objects:

The first of which is, to provide a suitable support for my wife and minor children, during her widowhood and their minority.

Secondly. To make an equal division, at suitable periods, of the balance of my estate amongst all my children.

To effect the first, without doing injustice to any, is with me the main difficulty to overcome. With these objects in view, I make and publish the following, as my last will and testament, to-wit:

First. That there be annually set apart, in the first instance, a sufficient sum for the support of my wife, during her widowhood, and my minor children, including their schooling and education, out of the revenue from my estate; and should the income of my estate not be sufficient for that purpose, then out of any money on hand, or debts that may be due the estate; but, as before observed, what should be the amount of this sufficient sum, is a subject of much embarrassment to me. Confiding, however, greatly in the prudence and discretion of my wife, in the economical disbursement of this fund and judging from the average annual amount of my family expenses, I suppose two thousand dollars will be ample for this object.

Second. Should my wife not choose to remain in my present dwelling-house, my executors are directed to build her one, on any ground I may own (or rent her such an one as she may choose), with as much ground or land attached to it as she may wish.

Third. If she prefers remaining in my present dwelling, but not to occupy all the land attached to it, then my executors are directed to set apart so much thereof as she may choose to occupy, and lease the balance as my other real estate is leased, in the three additions made to the city by me.

Fifth. After the election of my wife, as hereinbefore provided for, is made, my executors are directed to make an inventory of every thing that may remain, and have it appraised, and the personal property sold, as the law directs, and out of the proceeds of such sales shall be set apart so much as to comply with the provisions in the first article of this will, for the immediate support of my wife during her widowhood and minority of my younger children, provided the interest of what money I may have out, and the general revenue of my estate, be not adequate to that object.

Sixth. Whatever amount may remain of the proceeds of my personal estate, interest of money, cash on hand, or general revenue of my estate, my executors will proceed to divide equally amongst all my children, paying to my three married daughters, Anne M. Peters, Virginia E. Cabanne, and Cornelia C. Dyer, immediately, whatever may be their shares, if anything; and the shares of the minor children to be put out at interest by my executors, under the direction of the Probate Court. Similar dividends and distributions they will continue to make annually, so far as assets may be received, until the accounts of the estate are closed.

Eighth. Having commenced the system of leasing, instead of selling lots, in my several additions to the city of St. Louis, my executors are directed to continue that system, in the three additions to the city made by me, until my youngest child, Eugenia, shall be of age or get married, at which time, if not sooner, my will is, that all my estate, of every description, be equally divided among all my children, deducting from the share of each such sums or advances as they may have had, either from me, in my life-time, or my executors, after my death; also a sufficiency to support my wife.

Eleventh. The balance of the land at Rock Point, that I own in my own right, derived from the children and heirs of Judge Bent, as well as the west end of the tract on which I live, being west of the last addition to the city made by me, and adjoining the Presbyterian burying-ground, my executors will proceed to sell on a credit of one, two and three years, with lawful interest, from date of sale, secured by deed of trust; or lease the same according to directions in a preceding article. To effect this they will, immediately after my death, if not done before, cause streets to be run through it, and lay it off into lots and alleys, in such a manner as they may deem best. The tract of land now enclosed with a high plank fence, and including my residence, servants' houses, coach houses and stables, and extending from Eighteenth street to Twenty-first street, as well as the piece next to the burying ground, has been regularly laid out into blocks, and the corner stones of the blocks and alleys all placed and set, except where prevented by buildings or ponds of water, and the plats duly recorded.

Sixteenth. If, at any time, it seems in the opinion of my executors to be necessary to sell any of my real estate that is directed by a former article to be leased, to meet the provisions of my will, they are directed to make sales of such portions of my real estate, from time to time, as to them shall seem to be necessary.”

The petition states, that said Wm. C. Carr left nine children, of whom Ann, wife of Ralph Peters, aged about thirty-nine years; Virginia, wife of John C. Cabanne, aged about thirty-four years, and Cornelia, wife of Thomas B. Dyer, aged about thirty-two years, and the plaintiffs, are the eldest, being children of a first marriage; the defendants are the widow and her children (all of whom are minors), and the executors of said Carr. The widow renounced, in due form, the provision made for her by the will, and all that portion, by far the greater part of the will, has failed.

The defendant, Barlow, and the defendant, Dorcas Carr, in their several answers, set up, in substance, that by the will no partition can be made of the real estate, until the youngest child, Eugenia, arrives at the age of twenty-one years, or is married, and refer to the eighth clause of the will, as authorizing that conclusion. The answers say that the intention of the testator, as apparent on the will, was, that there should not be any partition, unless in the event of the death of the said Eugenia, who is now between four and five years of age. The case must be determined upon a construction of the will, and any further statement is not deemed necessary.

R. M. Field, for plaintiffs in error.

I. The will, on its face, and supposing its provisions to be all now effectual, does not take away the right of partition.

1. The first clause has no such effect; for obviously partition may be had subject to the charge of $2000 thereby created.

It is a familiar practice in equity to make partition of land subject to incumbrance. Watton v. Copeland, 7 J. C. R. 140.

So where a widow is entitled to a “living” out of real estate, partition may be made subject to her rights. McClintick v. Mouns, 4 Munf. 328.

Nor is it any objection that the premises are under lease; the partition or sale must be had in subordination to the lease. Woodworth v. Campbell, 5 Paige, 518.

And it is no objection to partition that the estate may prove insolvent. This would be effectual only to prevent a sale. Matthews v. Matthews, 1 Edw. 565.

2. The eighth clause of the will does not stand in the way of partition, because,

a. The power of leasing there spoken of, is to continue only till partition is made.

b. And the power to lease, or leases subsisting in fact, cannot prevent partition. Woodworth v. Campbell, ubi supra.

3. The eleventh clause of the will cannot have the effect to bar partition; for it is the well-known rule of equity, that when land is directed to be sold, and the proceeds paid to a person, that person is always permitted to take the land without a sale, if he so elects. Craig v. Leslie, 2 Story's Eq. Jur., section 793. 3 Wheaton's Rep. 563.

In the present case, the will directs the land to be subdivided and sold in separate lots. If the defendants desire a sale, it obviously may be effected by the proceedings in partition, to the extent of their interest.

II. But the main object of the testator, as expressed in his will, has been frustrated by the renunciation of the widow;

and to carry out, literally, the provisions of the will, would be to apply the intention of the testator to circumstances not in his contemplation.

1. The first seven clauses have reference to the keeping up of his family establishment, in a particular manner. All this, by the widow's renunciation, has become impracticable.

2. The eighth and eleventh clauses have obviously reference to the making provision for the support of the family establishment, an object that has utterly failed by the widow's renunciation. So that the power to lease and to sell, conferred by those clauses, no longer exists.

Besides, the powers are wholly incompatible with the widow's dower that has been claimed since the testator's death.

Where the purpose for which land is to be converted into money fails, the conversion will not take place. See Ackoyd v. Smithson, 1 Bro. 503, particularly the argument of Scott, afterwards Lord Eldon.

F. M. Haight, for same.

The devisees are entitled to the immediate enjoyment of the real estate, unless that enjoyment has been postponed by clear and unequivocal language.

In the eighth clause of the will relied upon by the defendants, to establish such postponement, the words “if not sooner” cannot be rejected, and they must be held to qualify the otherwise general language of the section. It is a general rule in the construction of wills that words are, in all cases, to...