Roth v. Rauschenbusch

• Decision Date: 31 March 1903
• Citation: 73 S.W. 664,173 Mo. 582
• Parties: ROTH et al. v. RAUSCHENBUSCH et al.
• Court: Missouri Supreme Court

73 S.W. 664

173 Mo. 582

ROTH et al. v. RAUSCHENBUSCH et al.

Supreme Court of Missouri, Division No. 2.

March 31, 1903.

WILL — CONSTRUCTION — DEVISE OF FEE-SIMPLE ESTATE—SUBSEQUENT DISPOSITION OVER—EFFECT.

1. Testator, by the second paragraph of his will, gave his whole estate to his wife "absolutely and forever." In the following paragraph he provided that it was his will that, if any of the property remained undisposed of after her death, it should go to his blood relations. Held, that the wife took a fee simple, and that hence the attempted disposition over was void, and the blood relations took nothing thereby.

Appeal from Circuit Court, Ste. Genevieve County; Jas. D. Fox, Judge.

Suit by Wendell Roth, Jr., and others against August Rauschenbusch and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

Plaintiffs, who claim to be the nearest "blood relations" of Jacob Roth, deceased, bring this suit to set aside two deeds executed by Bridget Roth, his widow—one to defendant August Rauschenbusch, dated August 3, 1876, and a subsequent one to defendant Huck, dated April 10, 1894, conveying certain real estate, which belonged to said Jacob Roth, at the time of his death.

The rights of the parties litigant depend upon the construction of the will of the said Jacob Roth, deceased, which was executed on the 12th day of August, 1845, and probated on the 9th day of April, 1875. The second and third paragraphs of said will, which are set out in the petition, are as follows:

"Second. I give, devise and bequeath to my beloved wife Bridget Roth, formerly Bridget Hook, the whole of my estate, real, personal and mixed, absolutely and forever.

"Third. It is my will, however, that after the decease of my said wife, if any of said property shall remain undisposed of by her, then such property, that is to say, such of the property herein bequeathed to her as may not have been disposed of by her at the time of her death, shall go and descend to and be divided among my blood relations, according to the rules of descents and distributions in the state of Missouri now in force."

Jacob Roth left no descendants. His widow died on the 24th day of May, 1895. This suit was instituted in October, 1898.

The petition is divided into two counts, or, at least, there are two separate prayers for relief. It is charged in the first that Bridget Roth was induced by defendant Rauschenbusch, a prominent minister of the church to which she belonged, to convey to him the real estate described in the petition, for a nominal consideration of $1; that he represented to her that he desired said property to assist him in building up and fostering the interest of his and her church, and particularly for the purpose of building some kind of an asylum. Plaintiffs claim to be remaindermen, and charge that said defendant induced Bridget Roth to enter into a conspiracy to cheat and defraud them out of said real estate, and thereby procured from her a warranty deed conveying the said property to him without any consideration therefor. The second count alleges that defendant Huck subsequently obtained a deed from her conveying to him said real estate, and charges that said Bridget Roth was induced to execute the same by undue and improper influences, and without consideration.

Each of the defendants filed a separate demurrer to the petition, assigning: First. A misjoinder of parties and causes of action. Second. That the petition fails to state facts sufficient to constitute a cause of action, as it appears from the face of the petition that the parties plaintiff have no interest in the property sued for.

These demurrers were sustained, and, plaintiffs declining to plead further, final judgment was rendered in favor of the defendants, and the case has been brought to this court by appeal.

Wm. Carter, J. N. Burks, and Jerry B. Burks, for appellants. Peter H. Huck and W. M. Williams, for respondents.

GANTT, J. (after stating the facts).

1. This record presents the ever recurring difficulty of construing the language of a last will. The rules of construction are so well defined and so frequently invoked that they need only to be mentioned. Indeed, in this state they are largely statutory. Thus section 4650, Rev. St. 1899, requires "all courts and others concerned in the execution of last wills shall have due regard to the directions of the will and the true intent and meaning of the testator in all matters brought before them." Obeying this behest, this court on many occasions has announced that "the cardinal rule in the interpretation of a will is that the intention of the testator, as gathered from the whole instrument, shall control, and, in arriving at such intention, the relation of the testator to the beneficiaries named in the will, and the circumstances surrounding him at the time of its execution, may be taken into consideration." McMillan v. Farrow, 141 Mo. 62, 41 S. W. 890, and cases cited. Another canon for the construction of the words of a will is that, when the words of a will at the outset clearly indicate a disposition in the testator to give the entire interest, use, and benefit of the estate devised, absolutely, to the first donee, that estate will not be cut down to a less estate by subsequent or ambiguous words inferential in their intent. It is well settled that in wills the words "heirs and assigns" are not necessary to devise a fee simple. With these principles for our guides, we must inquire what was the intention of Jacob Roth in making his last will. In the second item he "gives, devises, and bequeaths to his beloved wife, Bridget Roth, formerly Bridget Hook, the whole of his estate, real, personal, and mixed, absolutely and forever." As was said in Yocum v. Siler, 160 Mo., loc. cit. 289, 61 S. W. 212: "By the words `bequeath absolutely' he unquestionably intended to devise to his son [in this case his wife] his whole estate in said lands. These words are ample for that purpose in a will, and it is unnecessary to cite precedents to establish that it has been often so held." In Yocum v. Siler, supra, the word "absolutely" was held to indicate the testator's purpose to give a fee simple, but in this will other words— "the whole of my estate, real, personal and mixed"—are added, and it would be difficult indeed to find language which would more clearly indicate an intention to give his wife an absolute fee simple in his lands and a perfect title to his personal estate. Had he stopped here, counsel for appellants frankly concede no doubt could be entertained that by his will he intended to, and did, give his wife the fee simple to the lands in suit. But their insistence is that by the third item or paragraph the intention of the testator is made apparent, notwithstanding the emphatic words of the second paragraph, to give his wife a life estate, with a remainder over to his blood relations. That paragraph, as already noted in the statement, is: "Third. It is my will, however, that after the decease of my said wife, if any of said property shall remain undisposed of by her, then such property, that is to say, such of the property herein bequeathed to her as may not have been disposed of by her at the time of her death, shall go and descend to and be divided among my blood relations, according to the rules of descents and distributions in the state of Missouri now in force."

Jacob Roth left no issue of his body or their descendants. Mrs. Roth died without issue. While plaintiffs allege they are the sole surviving blood relations, there is no allegation of what that particular relationship is, whether near or remote. It is plain that outside of his wife he had no particular person in his mind to whom he desired to give any portion of his property, or to whom he bore any special relation which would suggest him as a special object of his bounty. Reading the two paragraphs together, we think it is apparent that the one person for whom he was providing was his wife. Not only is the grant of his estate absolute in the second paragraph, but it is plain by the third paragraph he intended she should have an untrammeled power of alienation. There are no words of restraint upon her power of disposal. Nowhere in the four corners of this instrument are to be found any words limiting her right to sell or dispose of the property "for her necessary support" and maintenance. These words cannot by any fair inference be interpolated into the will. Atty. Gen. v. Hall, Fitz. 314; McClellan v. Larchar, 45 N. J. Eq., loc. cit. 23, 16 Atl. 269; Howard v. Carusi, 109 U. S. 725-730, 3 Sup. Ct. 575, 27 L. Ed. 1089.

The language of one will is rarely exactly like another, and frequently a very slight...