Smith v. Smith

• Decision Date: 09 May 1949
• Docket Number: 40993
• Parties: George Smith, Mary Wistrand, Louisa Horst, John Smith, George H. Smith, Fred Smith, Minnie Reck, Emma Johnson, Emma Smith, Harry Schuerman, Edmund Schuerman, Gertrude Schneider, Sophie Stuesse, Millie Franks, Edwin F. Huxhold, Dell Huxhold, John H. Smith, Emma Little, Anna Gaubatz, Minnie Johnson, Lillian Nighswander, Lloyd Smith, John W. Boyer, Elizabeth Lorenz Dreisch, Frederick Lorenz and Elroy C. Wood, (Plaintiffs) Appellants, v. Dora Smith, Individually and as Executrix of the Last Will and Testament of Fred Smith, Deceased, Amanda Schultz, Mary Sigler, George Huxhold, Anna Newman and Harry Boyer, (Defendants) Respondents
• Court: Missouri Supreme Court

220 S.W.2d 10

359 Mo. 44

George Smith, Mary Wistrand, Louisa Horst, John Smith, George H. Smith, Fred Smith, Minnie Reck, Emma Johnson, Emma Smith, Harry Schuerman, Edmund Schuerman, Gertrude Schneider, Sophie Stuesse, Millie Franks, Edwin F. Huxhold, Dell Huxhold, John H. Smith, Emma Little, Anna Gaubatz, Minnie Johnson, Lillian Nighswander, Lloyd Smith, John W. Boyer, Elizabeth Lorenz Dreisch, Frederick Lorenz and Elroy C. Wood, (Plaintiffs) Appellants, v. Dora Smith, Individually and as Executrix of the Last Will and Testament of Fred Smith, Deceased, Amanda Schultz, Mary Sigler, George Huxhold, Anna Newman and Harry Boyer, (Defendants) Respondents

No. 40993

Supreme Court of Missouri

May 9, 1949

Appeal from Franklin Circuit Court; Hon. R. A. Breuer Judge.

Affirmed.

SYLLABUS

In an action to construe a will the trial court properly held that the testator's widow, in addition to a life estate, has the right to consume the corpus of the residuary estate for her own use and support. She should not be required to give bond to protect the remaindermen.

Hay & Flanagan, E. D. Franey and Jesse M. Owen for appellants.

(1) The trial court erred in holding that Dora Smith could consume the corpus as well as the income of the property turned over to her as life tenant under the will of deceased. Ordinarily a life tenant is entitled to appropriate only the income and profits and cannot encroach upon the corpus of the estate, at least where the property is not consumed or worn out by use, unless authorized to do so by the instrument or agreement creating the life estate. 31 C.J.S. pp. 159, 160. (2) Thus, where money or its equivalent is bequeathed for life, only interest or income can be consumed unless there are words in the will authorizing a greater latitude of use. Chambers v. Williams, 132 S.W.2d 654, 199 Ark. 40; Dillen v. Fancher, 102 S.W.2d 87, 193 Ark. 715. (3) The word "them" in the clause "and use them unrestricted for her own use and support" in Pararaph 17 of the will of Fred Smith refers only to the real estate mentioned in the preceding clause granting power to sell the real estate, but even if it should be held to refer to the personal property as well as the real estate, Dora Smith is still only entitled to "use" the personal property and real estate "for her own use and support". To "use" such property means to enjoy the same consistent with the life estate expressly given, that is, to enjoy the income and profits therefrom and such "use" does not include the right to consume the corpus. Mace v. Hollenbeck, 175 S.W. 876; Masterson v. Masterson, 344 Mo. 1188, 137 S.W.2d 629; In re Moor's Estate, 163 Mich. 353, 128 N.W. 198; Johns' Adm. v. Johns' Adm., 86 Va. 333, 10 S.E. 2; Hurt v. Hurt, 121 Va. 413, 93 S.E. 672; Bristow v. Bristow, 138 Va. 67, 120 S.E. 859; Frye v. Community Chest, 4 So.2d 140, 241 Ala. 591; Dillen v. Fancher, 193 Ark. 715, 102 S.W.2d 87; Galloway v. Sewell, 162 Ark. 627, 258 S.W. 655; Shirley v. Graham, 201 Ky. 339, 256 S.W. 718; Strickland v. Strickland, 271 Ill. 614, 111 N.E. 592; Brunson v. Martin, 52 N.E. 599, 152 Ind. 111; Zimmerman's Estate, 23 Pa. S.Ct. 130. (4) The trial court erred in holding that Dora Smith as life tenant should not be required to give security for the protection of the remaindermen. Masterson v. Masterson, 344 Mo. 1188, 130 S.W.2d 629; Restatement of the Law of Property, sec. 202; Tapley v. Douglass, 133 Me. 392, 94 A. 486; Whitemore v. Russell, 80 Me. 291, 14 A. 197; Blakely's Estate, 224 P. 65, 115 Kan. 644; Lowery's Estate, 43 N.Y.S. 972; Tripp v. Krauth, 340 Ill. 11, 171 N.E. 919; Powell's Exr's. v. Cosby, 29 Ky. L.R. 46, 91 S.W. 1133; McKee v. McKee's Ex., 26 Ky. L.R. 736, 82 S.W. 451.

Theodore P. Hukriede and Carl V. Eimbeck for respondents.

(1) The scope and meaning of the verb "use" in the will under consideration gives the life tenant the power to employ, invest, expend and alienate both real and personal property. Atlantic Natl. Bank of Jacksonville Florida v. St. Louis Union Trust Co., 211 S.W.2d 2. (2) The word "them" as used clearly indicates the intention of the testator to refer to both real and personal property. Von Behrn v. Stoeppelmann, 286 Mo. 73. (3) "Them" is a plural pronoun of the third person used instead of repeating the names of the persons or classes of property spoken of. 63 C.J., 911. (4) Where the language used by the testator is plain and unequivocal the court cannot give a different meaning for the purpose of carrying into effect a conjecture or hypothesis of the testator's intention, by supplying, rejecting, or transposing words or phrases. Crowson v. Crowson, 19 S.W.2d 634. (5) Provisions in a will for the benefit of the testator's widow should be construed liberally in her favor. 69 C.J., 102. (6) The will does not place the life tenant in a position of being a trustee for the remaindermen, and they cannot call her to account or restrict her in the amount which she may expend, as long as good faith is preserved. Burford v. Aldridge, 165 Mo. 419; Woolley v. Dorl, 68 S.W.2d 869; Mauthe v. Breckenridge, 284 S.W. 145.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Action to construe the will of Fred Smith who died survived only by his wife and collateral kindred. By his will of October 31, 1941, testator made provision for the payment of debts; bequeathed general legacies aggregating $ 4950 to forty-seven legatees; devised forty acres of land to a sister; devised and bequeathed the residue consisting of real and personal property of alleged value about $ 62,000 to his wife, Dora, for life; and appointed his wife executrix, directing that she should not be required to give bond.

The trial chancellor found the testator intended to devise and bequeath a life estate in the property, real and personal, constituting the residue of his estate, to his wife, she "to have the power and authority to sell any part or all of any real estate and to have both the personal and real estate and the proceeds therefrom for her own use, support and maintenance."

The trial court entered a decree that, "all property remaining in the estate of Fred Smith, deceased, after the payment of his debts, the legacies provided in his will, and the costs of administration be given and delivered over to Dora Smith with power and authority to sell and execute deeds or deed to all or any part of the real estate; that Dora Smith can use the rents, profits or other income from such property and the corpus of such real and personal property for her support and maintenance during her natural lifetime; that at her death the remainder of the estate shall be vested in the heirs at law of Fred Smith; that Dora Smith shall not be required to give a bond to secure the corpus of the estate to the remaindermen." Plaintiffs, certain of testator's heirs at law, have appealed.

Plaintiffs-appellants say there are but two questions involved on this appeal, "first, whether Dora Smith, who admittedly has only a life estate in the residuary estate of Fred Smith, can consume the corpus for her use and support, and, second, whether she should be required to give security as life tenant for the protection of the remaindermen."

Paragraph 17, by which testator Smith treated with the residue of his estate is as follows,

"And lastly, all the rest, residue and remainder of my estate whatsoever, real, personal and mixed, and wherever situate, of which I may be possessed at my death, I give, devise and bequeath to my beloved wife, Dora Smith, to have and to hold the same during her natural life, with full power and authority to sell any part, or all of the real estate and execute a deed or deeds for same at any time during her life, if she thinks best to do so, and use them unrestricted for her own use and support."

We see from the briefs of the parties, appellants and respondents, that they are of the opinion much depends on the intended meaning of the words "use them" in the last clause of the Paragraph 17.

An estate expressly limited by the instrument creating it to an estate for life in the donee is not enlarged into a fee simple in the donee by a power given the donee to dispose of the property by sale. Hamner v. Edmonds, 327 Mo 281, 36 S.W. 2d 929; Masterson v. Masterson, 344 Mo. 1188, 130 S.W. 2d 629. But the giving of the use of the corpus to the donee for life, in itself, does not import a power to dispose of or consume the fee simple estate. Mace v. Hollenbeck, Mo. Sup., 175 S.W. 876. The noun "use" primarily means, "Act of employing anything, or state of being employed; application; employment; as, the use of a pen; his machines are in use." Webster's New International Dictionary, 2d Ed., p. 2806; Mace v. Hollenbeck, supra. As a general rule, the "use" of a thing does not mean the thing itself. Mace v. Hollenbeck, supra. So it has been said that the donation of the "use" of a thing, realty or personalty, for life, does not confer upon the life tenant the right to consume or expend the thing itself; or, as otherwise expressed, such a donation, in itself, does not import the intention of the donor that the donee life tenant may anticipate or encroach upon the corpus of the gift. Mace v. Hollenbeck, supra. (We are not here considering the gift of the "use" for life of personalty of a kind which would, in the nature of things, perish or wear out by use.) But the verb "use" is not always treated in apposition or in correlation of the noun "use" as the noun is used to express its primary meaning. (Compare Atlantic National Bank of Jacksonville, Fla. v. St. Louis Union Trust Co., 357 Mo. 770, 211 S.W. 2d 2; Kennedy v. Pittsburg & L.E.R. Co., 216 Pa. 575, 65 A. 1102; Mitchell v. Board of Curators of Morrisville College, 305 Mo. 466, 266 S.W. 481.) The verb "use" has...