Philbert v. Campbell

• Decision Date: 25 June 1927
• Docket Number: 25629
• Parties: Lucy Philbert, Appellant, v. Hattie Campbell et al
• Court: Missouri Supreme Court

296 S.W. 1001

317 Mo. 556

Lucy Philbert, Appellant, v. Hattie Campbell et al

No. 25629

Supreme Court of Missouri

June 25, 1927

Appeal from Osage Circuit Court; Hon. R. A. Breuer, Judge.

Reversed and remanded (with directions).

E. M Zevely and John P. Peters for appellant.

(1) In view of the statute and in the absence of any express declaration of a joint tenancy in the will, the circuit court erred in not declaring a tenancy in common. Sec. 2273, R. S 1919; Rodney v. Landau, 104 Mo. 259; Lemmons v Reynolds, 170 Mo. 233; Johnston v. Johnston, 173 Mo. 113; Cohen v. Herbert, 205 Mo. 549; King v. Theis, 272 Mo. 422; Lounden v. Bollam, 258 S.W. 440. (2) The judgment of the lower court is contrary also to the holding of appellate courts of other States, whose statutory law on this subject is substantially the same as the Missouri statute. Cockrill v. Armstrong, 31 Ark. 586; Estate of Hittell, 141 Cal. 432; Slater v. Gruger, 165 Ill 329; Mustain v. Gardner, 203 Ill. 285; Kimberly Case, 150 N.Y. 90; Seely v. Seely, 44 Pa. St. 434; Sturne v. Sawyer, 2 Pa. S.Ct. 254. (3) It is the intention which the testator expresses in his will that controls, and not that which he may have had in his mind. 40 Cyc. 1386-1390. The plain and unambiguous words of the will must prevail and cannot be controlled or qualified by any conjectural or doubtful constructions growing out of the situation, circumstances or condition of the testator, his property or the natural objects of his bounty. 1 Schouler on Wills (5 Ed.) 586, sec. 466. The intention which is to be sought for in the construction of a will is not that which existed in the mind of the testator, but that which is expressed by the language of the will. Gee v. Gee, 107 Ill. 313. The true inquiry is not what the testator meant to express but what the words used by him do express. Stokes v. VanWyck, 83 Va. 724. If a testator use words which clearly create one estate, though he designed another, his intention must yield to the rules of law. Hertz v. Abrahams, 110 Ga. 707. In general it may be said that a testator is presumed to have known the legal consequences of his will. Couch v. Eastham, 69 W.Va. 70. (4) It is essentially true that the intention of the testator shall be sought and effectuated in construing and enforcing wills, but this rock-ribbed rule of construction, so strictly and faithfully followed in this State, is subject to this very vital qualification, to-wit: That it must not conflict with any inflexible rule or requirement of law. Such is the case here. The statute has declared the effect of a conveyance or devise of real estate in the event that the grant or devise does not expressly declare that a joint tenancy is intended. No such intention is expressly declared in this will. It is, therefore, not within the power or the province of the courts, under any rule of interpretation or to carry out an unexpressed intention of the grantor or testator to construe such a grant or devise to be a joint tenancy, for the statute says that it is a tenancy in common. Lemmons v. Reynolds, 170 Mo. 234. (5) Where the income of a single fund is bequeathed to two or more persons for life with remainder over "after their death" the courts construe these words to mean "after their respective deaths," and decree a present division of the fund and a distribution of the part thereof not required to produce income for the life tenants. Collins v. Wardell, 65 N.J.Eq. 370; Woolston v. Beck, 7 Stew. (N. J. Eq.) 74; Moore Case, 10 Stew. (N. J. Eq.) 63. (6) Where, in a legacy to more than one person, there is no definition of the proportions in which they are to take, they take equally. Thompson on Wills, sec. 194, p. 175.

Vosholl & Monroe and Gove & Davidson for respondents.

(1) The intention of the testator was that his estate be kept intact until the death of both life tenants, and partition was postponed by the will until such time. Gibson v. Gibson, 280 Mo. 529; Hill v. Hill, 261 Mo. 58; Crossan v. Crossan, 262 S.W. 701. (2) If the intention is not plainly expressed in said will then words may be used and read into the will necessary to make the intention of the testator clear, and words may be interpolated so as to arrive at the testator's intention and to correctly express his intention. Sec. 555, R. S. 1919; Schee v. Boone, 295 Mo. 222; Bernero v. Union Trust Co., 287 Mo. 602; Grace v. Perry, 197 Mo. 550; Gannon v. Pauk, 200 Mo. 85. (3) Lands cannot be partitioned against the intention of the testator. Sec. 2005, R. S. 1919; Cannon v. Heirs of Curtis, 175 Mo.App. 84; Bernard v. Keathley, 230 Mo. 224. (4) Where a will fixes the time for a division of property, partition cannot be had prior to the time fixed. Hill v. Hill, 261 Mo. 58. Partition will not be made where the will indicates testator's intention that the property should not be divided during the life of the life tenant. Shelton v. Brag, 189 S.W. 1174. (5) The intention of the testator controls in the construction of a will. The first and foremost rule is that the will shall be so construed as to give effect to the intention of the testator; all other rules of construction are subordinate to this rule. Gibson v. Gibson, 280 Mo. 529; Sec. 555, R. S. 1919; Sec. 508, R. S. 1909; Grace v. Perry, 197 Mo. 550. All technical rules for construing a will should be disregarded when they conflict with the manifest intention of testator. Drake v. Crane, 127 Mo. 85. (6) In determining the intent of the testator the court should place itself as nearly as may be in the position of the testator, so it may interpret words in the light he intended they should have. Cross v. Hoch, 149 Mo. 325; Grace v. Perry, 197 Mo. 550. (7) Although lands may be granted to others in common yet the partition, alienation or disposition thereof may be postponed. A reasonable restriction will be recognized whether this life estate be in common or in joint tenancy. The time of the division, partition and final disposition of the estate was fixed at the death of both life tenants. Stockwell v. Stockwell, 262 Mo. 671; Gibson v. Gibson, 280 Mo. 531.

Seddon, C. Lindsay, C., concurs; Ellison, C., not sitting.

OPINION

SEDDON

This is a statutory action in partition. The subject of the action is certain described lands, situate in Osage County, Missouri, which were owned at his death by one Thomas J. Robinson, who died testate, and whose will was made and executed on August 26, 1916, and was duly probated in the Probate Court of Osage County on March 3, 1919. Plaintiff is a half-sister of the testator. Defendant, Hattie Campbell, is a niece of testator, and is a devisee named and provided for in his will. The remaining defendants are a brother and a sister of testator, and the descendants of his deceased brothers and sisters.

The testator, Thomas J. Robinson, by his will in evidence, made certain bequests of personalty to certain named legatees, and then provided, in the fifth clause or paragraph of said will, as follows:

"I give and bequeath to my beloved wife, Iva Robinson, and my beloved niece, Hattie Campbell, nee Robinson, all of the balance of my property, both real and personal, to have and hold during their natural life, and at their death, the remaining property to be divided among my brothers and sisters, share and share alike. Should they be not living, then to their children."

Upon the construction of the foregoing paragraph or clause of the will, this action hinges. The cause was tried upon the following agreed statement of facts:

"Thomas J. Robinson, testator in this will, and Iva Robinson, his wife, and Hattie Campbell, devisees in said will, composed his family. Testator had no children born of the marriage. Hattie Campbell was testator's niece and lived with him and his wife practically all of her life, going there when a child, and was living with deceased at the time of his death. His wife died prior to death of T. J. Robinson. Testator's brothers and sisters did not visit with deceased, nor he with them, in his lifetime. The wife of said testator was, for many years prior and up to her death, in ill health and an invalid. Testator and his wife were very much attached to said Hattie Campbell. And said testator left about $ 20,000, consisting of real and personal property, now of the value of $ 15,000. Said Hattie Campbell kept house and waited upon testator and his wife until their death, for more than forty years. Said Hattie Campbell and said Iva Robinson never had any means of support of their own at the death of said testator, and, at the time of the making of said will, Hattie Campbell was about fifty years old. Said plaintiff is a half-sister of Thomas J. Robinson, the testator, who, at his death, owned the lands in question, and is an old woman 67 years old and without means of support. Said testator, his wife and niece were all kind and affectionate toward each other."

Testimony was adduced that the real estate in question is not susceptible of division in kind among the parties in interest.

The petition alleges, in substance, that plaintiff and the defendants are the owners in fee and tenants in common in and to the described lands, subject to an estate for life of said Hattie Campbell in and to an undivided one-half thereof; that said Thomas J. Robinson, deceased, is the common source of title and that, by his last will and testament, he made the residuary bequest and devise as set out in the fifth clause of his will aforesaid; that said Iva Robinson, wife of the testator, predeceased the testator, said Iva Robinson having died on January 5, 1919, and the said testator, Thomas J. Robinson, having died on February 25, 1919; that plaintiff is a sister of testator, and that defendants are respectively the brother, the sister, and the children of...