Schneider v. Kloepple

• Decision Date: 16 March 1917
• Docket Number: No. 18221.,18221.
• Parties: SCHNEIDER et al. v. KLOEPPLE et al.
• Court: Missouri Supreme Court

193 S.W. 834

270 Mo. 389

SCHNEIDER et al. v. KLOEPPLE et al.

No. 18221.

Supreme Court of Missouri, Division No. 2.

March 16, 1917.

Appeal from Circuit Court, Maries County; J. G. Slate, Judge.

Suit by Charles Schneider and another against Ferdinand Kloepple and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

Holmes & Holmes and Lorts & Breuer, all of Rolla, for appellants. W. S. Pope, of Jefferson City, J. W. Terrill, of Vienna, and C. C. Bland, of Rolla, for respondents.

WALKER, P. J.

This is a suit to determine the interest of the parties hereto and quiet the title to certain land described in the petition in Maries county, Mo. A trial resulted in a judgment for the defendants, from which plaintiffs appeal.

The land described was a part of that of which William Brink died seised in October, 1883. He died testate, leaving no children or their descendants. The language of his will in regard to his real property is as follows:

"The real estate I bequeath to my wife Anna Maria Brink to use as she pleases, and at her death what remains is to go to the St. Joseph Catholic Orphan Asylum in St. Louis, Missouri."

William Brink died seised of 310 acres of land. His wife conveyed 160 acres of same to one Ben Smith to be held in trust for a boy named Hoffman, whom she was rearing, but had not adopted. At her death there remained undisposed of 150 acres of the land, the same being that now in controversy. In October, 1912, the wife died testate, leaving no children or their descendants. In her will appears the following:

"I wish that my husband's will should be executed according to his intention."

The parties to this suit entered into a stipulation for the purposes of the trial, embodying the following facts:

"That the fee to the land described in the petition was at the time of his death in William Brink; that he died in October, 1883, and left no children or their descendants surviving him; that Anna Maria Brink was his wife, who survived him and died in October, 1912, and left no children or their descendants surviving her; that Charles Schneider and Rosa Koerber, plaintiffs, and Anna Winkel are respectively her nephew and nieces, children of her deceased brother Henry Schneider, and that she left no other heirs; that William Brink and his wife were members of the Catholic Church and died in that faith; that at the time of William Brink's death he was seised and possessed of other real estate than that described in the petition; and that said other real estate was conveyed by his widow to one Ben Smith."

The plaintiffs claim title by descent as the heirs at law of Anna Maria Brink. The defendants claim title by purchase from the managers of the Roman Catholic Orphan Asylums of St. Louis, as the owner of the property of the St. Joseph Catholic Orphan Asylum of St. Louis.

I. Will in evidence. — It is contended that the will of William Brink was improperly admitted in evidence on the alleged ground it had not been shown that it was admitted to probate. This objection appears for the first time in appellants' brief. The only objections made to the will at the trial were: (1) That it did not bequeath any property to the managers of the Roman Catholic Orphan Asylums of St. Louis; and (2) that it shows on its face that it is a bequest in fee simple. No objection having been made and preserved as now contended, it cannot be effectively interposed at this time.

II. Intention of Testator — Nature of Devise. — Appellants contend that by the terms of the will the fee passed to Anna Maria Brink, and hence the lands remaining undisposed of descended at her death to her heirs.

A question determinative of this case, so far as the terms of the will are concerned, is: What was the intention of the testator? said by Chief Justice Marshall (Smith v. Bell, 6 Pet. 68, 8 L. Ed. 322) "to be the polestar in ascertaining the construction of wills." This maxim has been emphasized by our statute (section 583, R. S. 1909), which provides that:

"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."

The testator had no children or other heirs. He and his wife had lived together many years. They were devout Catholics. The terms of his will indicate that the disposition of his property was prompted by marital affection and benevolence. It was not only natural, but reasonable, measuring his conduct by that of other right-minded men under like circumstances, after having lived harmoniously and with mutual helpfulness with his wife for a long term of years, he should desire that after his death she should use the property as she pleased during her life, and at her death what remained undisposed of should be devoted to the assistance of a charitable institution conducted under the auspices of the church in the faith of which he had lived and comforted by the promises of which he had died. The words of this devise are plain and direct. If reasons be required to define the testator's purpose, these we have given are ample.

This having been the testator's intention, what estate is created by the terms "employed"? Supplementary to the recognized rules of construction, we are aided by the statute (section 579, R. S. 1909), which provides in effect that, although the words "heirs and assigns" are not used, the devise of lands and other estates will, in the absence of words of limitation, convey the fee or absolute title; but if the language employed shows that a lesser estate was intended, then the latter will be held to have been created.

The words employed by the testator here do not create an absolute estate such as is contemplated by the statute. On the contrary, there is an express limitation indicative of a purpose to create a remainder. After providing that the wife is to have the real estate "to use as she pleases," there follows the proviso that at her death what remains is to go to the orphan asylum named. This language is more direct in declaring the limitation upon the estate created than that found in Gibson v. Gibson, 239 Mo. 490, 144 S. W. 770, in which we held, after an exhaustive review of the cases on this subject, that the widow took a life estate by clear implication, with power of disposal. As in that case, it must not be understood from our ruling that the estate created is limited or cut down. The words of limitation here are as clear and unambiguous as the words of creation; and the one not only coexists but is a part of the other. In other words, there is created a life estate with power of disposal, remainder to vest as designated. There is nothing in Middleton v. Dudding, 183 S. W. 443, contravening the conclusion here reached. There the terms of the devise were such as to create an absolute estate; here they are not.

That the wife recognized and sought to effectuate her husband's purpose in the testamentary disposition of his real estate is evident from the desire expressed in her will that her husband's will should be executed according to his intention. The terms of the husband's will being, in our...