Schorr v. Carter

• Decision Date: 27 February 1894
• Citation: 120 Mo. 409,25 S.W. 538
• Parties: SCHORR v. CARTER et al.
• Court: Missouri Supreme Court

25 S.W. 538

120 Mo. 409

SCHORR v. CARTER et al.

Supreme Court of Missouri, Division No. 2.

February 27, 1894.

WILLS — CONSTRUCTION — LIFE ESTATE.

1. Testator gave his wife all his interest in land described, certain stocks, and all mixed property he might own at the time of his death, "and, after her death, all real, personal, and mixed property of whatever she may be possessed of at the time shall be equally divided between

my next relations and hers." Held, that she took only a life estate in the realty.

2. Purchasers from a life tenant, when ejected by the remainder-man, cannot prove their outlay in preserving the property, to reduce damages.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Ejectment by Henry Schorr against Richard W. Carter and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Rassieur & Schnurmacher, for appellants. J. E. & J. F. Merryman, for respondent.

BURGESS, J.

Action of ejectment against defendant Amelia C. Kennel and her tenants for the possession of a lot in the city of St. Louis. Both parties claim title under Adam Schorr, who died in July, 1872, childless, seised in fee of the lot sued for. In 1861 he made his will. After providing for the payment of his debts and funeral expenses, the will proceeds as follows: "I give and bequeath to my beloved wife, Regina Schorr, (maiden name, Regina Schlienger,) all my right, title, claim, and interest in three certain tracts or parcels of land, [which are thereupon specifically described, and include the premises in dispute,] * * * four shares of the Domicile Saving and Loan Association, Nos. 1813, 1814, 1815, and 1816, dated January 15th, 1858, and all mixed property whatever I may be possessed of at the time of my death; and, after her death, all real, personal, and mixed property of whatever she, the said Regina Schorr, may be possessed of at the time, shall be equally divided between my next relations and her next relations or heirs, — that is to say, after the payment of all just debts and funeral expenses." On the 22d day of October, 1881, Regina Schorr conveyed by warranty deed the lot in controversy to the defendant Kennel. She (Regina) died childless in 1885. So far as the record discloses, she left no heirs, of any kind or description, while the plaintiff was the nearest of kin to the testator, of any of his relations, being a nephew. The answer was a general denial, although it was admitted on the trial that the defendants were in possession of the property at the time of the commencement of the suit. The trial resulted in a judgment for the plaintiff for possession of the premises sued for, and $98.50 damages, from which judgment defendants appealed to this court.

The trial court held that Regina Schorr took only a life estate by the will; that nothing except that passed by her deed to the defendant Kennel; and that, after the death of the former, the title, by virtue of the provisions of the will, vested in the plaintiff, he being next of kin to the testator.

In construing a will, all of its provisions should be taken together, and effect given to every clause of it, and the words used so construed as to meet, as near as possible, the intention of the testator. Our statute provides that, in the construction of wills, courts "shall have due regard to the intent and meaning of the testator." Shumate v. Bailey, 110 Mo. 411, 20. S. W. 178. In Morrison v. Thistle, 67 Mo. 598, Sherwood, C. J., says: "The court looks to the intention, and will glean it, if possible, from the four corners of the instrument, and will not allow such intention to fail by reason, merely, of the accidental mislocation of the words designed. But the rule is to give, if it may be, to every word in the writing, its appropriate meaning, and not to suffer the very intention to be defeated, although it is unequivocal and manifest, by a hairspun, technical construction of the instrument." In Chiles v. Bartleson, 21 Mo. 344, the will that was before the court for construction contained the following provisions: "Section 3. I will and bequeath unto my beloved wife, Frances Bartleson, my negro man Charles, his wife Clara, and their four children, and all of my lands, with the appurtenances thereunto belonging, with a sufficiency of stock to support the farm. * * * Section 8. And, further, after the above and foregoing...