Settle v. Shafer

• Decision Date: 30 June 1910
• Citation: 129 S.W. 897,229 Mo. 561
• Parties: MARTHA SETTLE et al. v. MARY KATHERINE SHAFER et al., Appellants
• Court: Missouri Supreme Court

129 S.W. 897

229 Mo. 561

MARTHA SETTLE et al. v. MARY KATHERINE SHAFER et al., Appellants

Supreme Court of Missouri, Second Division

June 30, 1910

Appeal from Randolph Circuit Court. -- Hon. E. W. Hinton, Special Judge.

Reversed and remanded (with directions).

Willard P. Cave for appellant.

(1) The passing of an absolute interest in personalty is favored. "Although a life estate may be lawfully created in personal property, it is clear that the rule which favors the vesting of absolute estates in real property under a general devise, applies with additional force to bequests, and that where a reasonable construction of all the terms of a will discloses no contrary intention, an absolute interest passes to the legatee." Page on Wills, par. 597, p. 687; Gardner on Wills, sec. 127, p. 482; 30 Am. and Eng. Ency. Law (2 Ed.), p. 757. (2) Testator first gives the personal property in separate paragraphs, without qualification, to the widow; this, standing alone, vests an absolute estate. The next paragraph gives her the real estate for life only this fact is very significant; if the intention of the testator had been to give a life estate only in all the property, real and personal, would he not have said, "I give, devise and bequeath to my wife all my estate, real personal and mixed, to have and hold for and during her natural life," etc.? (3) "It has become a settled rule of construction that when the words of the will in the first instance distinctly indicate an intent to make a clear gift, such gift is not to be cut down by any subsequent provision which is ambiguous or inferential and which is not equally as distinct as the former; or, the rule may be stated that a clear gift is not to be cut down by anything which does not, with reasonable certainty, indicate an intention to cut it down." 30 Am. and Eng. Ency. Law (2 Ed.), p. 687; Balliett v. Veal, 140 Mo. 187; Roberts v Crume, 173 Mo. 572; Roth v. Rauschenbusch, 173 Mo. 582; Underwood v. Cave, 176 Mo. 1. (4) The clause defining the powers of the executor are general expressions only, and are only given to enable the estate to be administered properly.

Fry & Rodgers for respondents.

The rule in the construction of a will is to ascertain the true intent and meaning of the testator in framing his will. The courts have no right to make a new will for the testator, nor to say what he meant to do, nor what words the testator meant to use, but the true province of the court is to ascertain from the will what the testator meant by the words he actually used, and this intent must be gathered from the entire instrument. R. S. 1899, sec. 4650; Sanitarium v. McCune, 112 Mo.App. 337. The will before us does not give the widow the right to sell or dispose of any of the property absolutely, but it specifically provides that at the death of the widow a new executor shall be appointed, which said executor shall have power to collect all notes and settle the entire estate after the death of the widow. Louis v. Pittman, 101 Mo. 281; Bramell v. Cole, 136 Mo. 201; R. S. 1899, sec. 4592; Walton v. Drumtra, 152 Mo. 489; Roth v. Rauschenbusch, 173 Mo. 582. Taking the will all together there can be but one construction, and that is that both the real and personal property was given to the widow only for her natural life.

GANTT, P. J. Burgess and Fox, JJ., concur.

OPINION

GANTT, P. J.

This is a suit brought in the circuit court of Randolph county by three daughters of Philip Shafer, deceased, against the widow and two other children of said Shafer, for a construction of his last will and testament.

Philip Shafer was married three times; the defendant Mary Wise was the only child of his first marriage; plaintiffs and the defendant Sarah Davis were children by the second marriage, and there were no children by the last marriage.

In 1869 Shafer was divorced in Iowa from his second wife and after the divorce she resided with her daughters until her death in 1905. After his divorce from his wife, Shafer conveyed to his four daughters of that marriage all the lands he then possessed, amounting to some three or four hundred acres and he gave them all of his money. He lived with these daughters, or some of them, for a short time, and then started in life anew by making rails and posts for his old neighbors. He afterwards married the present widow, Mary Katherine Shafer, and at the time of his death he had accumulated an estate consisting of 220 acres of land in Randolph county and some six or seven thousand dollars' worth of personal property, principally in notes. He left the following will, which was duly admitted to probate by the probate court of Randolph county:

"I, Philip Shafer, of Randolph county and State of Missouri, this the 30th day of August, 1887, being in good health and of sound and disposing mind, and being aware of the uncertainty of human life and being desirous of settling my worldly affairs and directing how the estates with which it has pleased God to bless me shall be disposed of after my decease, while I have strength and capacity to do so, I make, publish and declare this my last will and testament, revoking and making null and void all other wills and testaments by me heretofore made.

"I give and bequeath to each of my five daughters in current funds to be paid to each of them twelve months after my decease as follows, to-wit:

"To my daughter Mary Wise now residing at Fannin county, Texas, five hundred dollars.

"To my daughter Elizabeth Everhartt now residing in Monroe county, Missouri, twenty-five dollars.

"To my daughter Magdaline Mitchell now residing in Monroe county, Missouri, twenty-five dollars.

"To my daughter Martha Settle now residing in Moberly, Randolph county, Missouri, twenty-five dollars.

"To my daughter Sarah Davis now residing in Monroe county, Missouri, twenty-five dollars.

"I give, devise and bequeath unto my beloved wife, Mary Katherine Shafer, all my personal property consisting of all household goods and kitchen furniture, all stock of every description consisting of horses, cattle, hogs, sheep and fowls of every description upon my farms or premises at my decease.

"I also give and bequeath unto my beloved wife Mary Katherine Shafer all notes, mortgages, moneys or other effects due me after the provisions or bequests herein before named have been complied with concerning my legal heirs named in this will.

"I also give, devise and bequeath unto my beloved wife, Mary Katherine Shafer, all lands, houses, tenements and hereditaments hereto belonging or otherwise appertaining, to have and to hold during her natural life, and after the death of my beloved wife, said lands, houses or all real estate, personal property shall be sold and the proceeds of such sale or sales be divided equally between my blood relatives or legal heirs, the probate court having the sole right to appoint an executor or executrix to take charge of said estate after the death of my beloved wife Mary Katherine Shafer.

"Said executor shall have power to collect all notes, settle all mortgages, sell all lands and settle the entire estate according to the laws of the State of Missouri, and my legal heirs then living to share and share alike.

"And I do hereby constitute and appoint my said wife, Mary Katherine Shafer, sole executrix of this my last will and testament. In witness whereof I have hereunto set my hand and seal the day and year above written, with request that no security shall be required of my wife."

The extrinsic facts shown in evidence throw little or no light upon the meaning which should be ascribed to the...