Shumate v. Bailey

• Decision Date: 06 June 1892
• Citation: 20 S.W. 178,110 Mo. 411
• Parties: Shumate v. Bailey et al., Appellants
• Court: Missouri Supreme Court

20 S.W. 178

110 Mo. 411

Shumate v. Bailey et al., Appellants

Supreme Court of Missouri, First Division

June 6, 1892

Appeal from New Madrid Circuit Court. -- Hon. H. C. O'Bryan Judge.

This is an action for the partition of land in New Madrid county Missouri. After a judgment, ascertaining the interests of the several parties and directing a sale, the land was sold and the proceeds await the disposition of this appeal.

The will mentioned in the opinion reads as follows:

"I John Thomas Miller, of Big Prairie, New Madrid county Missouri, being of sound mind and judgment, do hereby execute this, my last will and testament, and for the purpose of carrying out the provisions herein contained do hereby appoint Alfred Sikes, Esq., of Big Prairie, to be my executor and administrator, with full power to him to act in the premises.

"First, I desire that my wife, Mary Ann Miller, shall have her life-rent interest in all my heritable property.

"Second, that she shall receive, and I hereby bequeath to her, the following personal effects belonging to me, viz.: All my household furniture, kitchen utensils, mule, buggy and harness, cow and calf, corn, oats and fodder, at my house and farm in Big Prairie.

"Third, that out of the readiest funds of my estate she shall be paid $ 700 (seven hundred dollars), $ 500 of which shall be applied to building her a house on whatever location she shall choose, the remaining $ 200 being for her immediate necessities.

"Fourth, that, when the balance (after deducting said payments to my wife) of my estate shall be realized, it shall be divided in three equal parts, one part whereof I bequeath to my said wife, and the remaining two parts to the said Alfred Sikes, as curator for my two children, Lelia F. Miller and Cora Ellen Miller; and I direct the said Alfred Sikes to invest said two shares to the best advantage he can for the benefit of my said two children, he paying it over to them, with the accumulations thereon, on their attaining majority, or at their marriage, if that shall sooner happen; and in the event of said children, or either of them, dying without lawful issue then said shares, or share, shall revert to my heirs-at-law.

"Fifth, that my said wife shall be guardian for my two said children, and shall have the exclusive control of them, boarding and providing for them, free of all expense to them, except for clothing and education, which shall be paid out of their own share of my estate.

"Witness my hand, this twenty-fifth day of January, eighteen hundred and seventy.

"John T. Miller."

It was duly attested and probated. Its proper construction is the only issue on this appeal.

The other facts are mentioned in the opinion of the court.

Reversed and remanded.

R. B. Oliver and Wilson Cramer for appellants.

(1) The title to the real estate in question passed, by the provisions of the fourth clause of the will, to the widow and her two daughters, each taking an undivided one-third. (2) For the purpose of carrying out the manifest intent of the will the real estate will be considered as having been converted into personal property. 3 Redfield on Wills, p. 139, et seq. (3) Under the will the heirs-at-law of John T. Miller had a contingent remainder in the interests devised to Lelia F. and Cora Ellen Miller, and upon the death of Cora Ellen without lawful issue her sister, who was the sole heir-at-law of her father, became the owner of the one-third devised to Cora Ellen. (4) The court should not have permitted Mary A. Randol and her two children, Ada and Lowndes Randol, to be made parties. If, in fact, they had any title the judgment in the cause then pending would not have affected them in the least. They were not necessary parties. (5) The partition, as adjudged by the court, is in direct contravention of the will, and, therefore, against the statute.

J. J. Russell for respondent.

(1) This will did not convey the lands for the following reasons: First. Lands are nowhere in the will expressly conveyed. Second. Lands are nowhere mentioned in the will. Third. The word "bequeath," the appropriate word for personalty, was used instead of the word "devise." Fourth. In the fourth clause of the will the words "share" and "shares" are used instead of "interest" -- the word usual in designating lands. Fifth. From the whole will it is manifest that the deceased did not intend to devise his lands. (2) In construing wills the courts attempt in all cases to ascertain from the whole instrument the intention of the testator. Chew v. Kellar, 100 Mo. 362; Reinders v. Koppelman, 94 Mo. 338; Suydam v. Thayer, 94 Mo. 49.

Barclay, J. Chief Justice Sherwood and Black and Brace, JJ., concur.

OPINION

Barclay, J.

In this proceeding for partition the trial court adjudged the respective interests of the...