Shackelford v. Fifer

• Decision Date: 14 June 1954
• Docket Number: No. 44073,No. 1,44073,1
• Citation: 269 S.W.2d 30
• Parties: SHACKELFORD et al. v. FIFER et al
• Court: Missouri Supreme Court

Page 30

269 S.W.2d 30

SHACKELFORD et al. v. FIFER et al.

No. 44073.

Supreme Court of Missouri, Division No. 1.

June 14, 1954.

Arthur N. Adams, Jr., John E. Honsinger, Kansas City, Wilson D. Hill, Richmond, for appellants.

Chas L. Graham, Christian F. Stipp, Carrollton, for respondents, Trustees and Stewards of Hardin M. E. Church.

HOLLINGSWORTH, Judge.

This is an action under the Declaratory Judgment Act to construe the will of Martha Shackelford, deceased.

Plaintiffs and two of the defendants, Rosie Fifer and Sam Reed, who apparently defaulted in the court below, are the heirs at law of testatrix. The several beneficiaries named in the will are made parties defendant, but only the Trustees (and Stewards, who were also juintly named as defendants with the Trustees) of the Hardin Methodist Episcopal Church, South, and the Executor, C. O. Mansur, Sr., pleaded to the petition. Their pleadings, insofar as pertinent here, sought dismissal of the petition on the ground it did not state a cause of action, which pleas the court sustained. Plaintiffs appealed.

The essential question is whether the will disposes of $30,735.31 inherited by testatrix from her brother, John J. Shackelford, subsequent to the execution of the will. The petition alleges that testatrix died intestate as to said money and that plaintiffs and defendants Rosie Fifer and Sam Reed take the same as the heirs at law of testatrix. The respondent Trustees (and Stewards) of Hardin Methodist Episcopal Church contend that the residuary clause of the will bequeaths said property to them. The trial court determined from the facts alleged in the petition, as hereinafter set forth, that the residuary clause of the will did bequeath said money to respondents.

Testatrix, at all the times herein mentioned a single woman, residing in Ray County, Missouri, died on January 27, 1952, survived by the appellants and defendants Rosie Fifer and Sam Reed, all of whom are cousins of testatrix.

The will, which was executed on the 11th day of January, 1938, was thereafter admitted to probate. It provides in the respective items thereof: (1) that all of testatrix's real estate, household goods and personal effects, except a 40 acre tract of real estate described in item 9 of the will, be sold; (2) payment of funeral and administration expenses; (3) purchase and erection of a grave marker; (4, 5, 6 and 7) 'personal' gifts of $100 to A. J. Shackelford, $300 to J. E. Shackelford, $50 to Bruna McGuire, and $50 to Grace Frazier; (8) $200 to the Trustees of Lavelock Cemetery; and

'Ninth: I will, devise, and bequeath the following described real estate to wit:

All the Northeast quarter of the Southeast quarter of Section Sixteen (16), Township Fifty-two (52), and Range twenty-six (26) containing forty acres, more or less, all in Ray County, Missouri,

to my brother John J. Shackelford in fee simple, provided, however, that the said John J. Shackelford appear in person before the Probate Court of Ray County, within ten months after my death and accept said devise by filing a written acceptance thereof with said Court within said time, and if said John J. Shackelford fails or refuses to appear and file the acceptance in writing within the time specified or if he should die before my death or if he should die after my death but before he has filed the written acceptance as provided for, I will and direct said real estate be sold, in the same manner as my other property as provided for in the First Paragraph of this Will, and the proceeds and money derived from said sale shall follow the remainder and residue of my estate and go to the Church as provided for in paragraph Ten of this Will.

'Tenth: I will, direct and bequeath to the Trustees of the Hardin Methoddist Episcopal Church, South, located at Hardin, Ray County, Missouri, and to their successors in office, the residue and remainder of my estate to be held by said Trustees in trust for said church. I direct that the money be invested by said Trustees in United States Liberty Bonds if they can be purchased at a reasonable price, and if not, then said money be invested in stocks and bonds which in the best judgment of said Trustees will yield the greatest yearly income. I direct that the income derived therefrom be used towards the payment of the salary of the pastor of the Hardin Methodist Episcopal Church, South, located at Hardin, Ray County, Missouri, and for no other purpose.'

In Item Eleven, the will nominated C. O. Mansur, Sr., as executor thereof. He was thereafter duly appointed and did qualify as such.

At the time of the execution of the will, testatrix's income was 'modest'; she was possessed of 'a few chattels' and the 40 acre tract of land described in the will, the total value of all of her property then being about $3000. Her brother, John J. Shackelford, to whom she devised the said real estate in Item 9, had long since removed from Ray County, Missouri, and his whereabouts and financial condition were unknown to testatrix. Testatrix had 'no expectancy of any inheritance or change of fortune, and * * * the bequests and devises set forth in said Last Will and Testament were made in view of her circumstances and estate, without any knowledge or expectancy on her part that she would ever acquire by gift, inheritance or otherwise any more or different property than that which was described therein and held by her at said date.'

In 1946, testatrix conveyed to a third person the 40 acres devised to her brother, John J. Shackelford, in Item 9 of the will. On April 24, 1950, testatrix was legally declared to be of unsound mind and incapable of managing her affairs, the probate court finding that such had been her condition 'for several years' prior to the hearing. (There is no suggestion that testatrix was not mentally sound when she executed the will.) A 'few months' prior to the date on which testatrix was adjudged insane, her said brother died in the State of Colorado, leaving testatrix as his sole heir at law and testatrix thereafter received from his estate by way of inheritance the sum of $30,753.31. Due, however, to her insanity, she never knew of nor could she have comprehended his death or her inheritance from his estate or that she had come into possession of any additional property.

The petition pleaded that the sale by testatrix in 1946 of the 40 acre tract devised to John J. Shackelford in item 9 of the will revoked in toto items 9 and 10 thereof; that the after-acquired property received by testatrix from her deceased brother's estate did not pass to the Trustees (and Stewards) of the Church; that testatrix died intestate as to said after-acquired money; that if the conveyance of the 40 acre tract did not revoke the bequest to the church as to the residue of the then known assets of her estate, then paragraph 10 is void as to the after-acquired property 'as being contrary to her intention as expressed therein, and that said testatrix intended by said will and paragraph aforesaid to restrict said bequest to the described real estate therein set forth and the rest and residue of her estate at the then existing state of things, and not to pass after-acquired property or additional money far out of proportion to the small and modest estate which testatrix had at the time she made the will aforesaid.' The prayer was for a finding that it was not the intention of testatrix to include the after-acquired property in item 10 of her will and for judgment declaring that testatrix died intestate as to said property and that upon her death title thereto vested in her heirs.

Appellants have cited numerous cases and texts holding that while a will speaks from the death of the testator, yet when it is to be construed for the purpose of ascertaining testator's intention, the...