Smoot v. Harbur

• Decision Date: 17 June 1947
• Docket Number: 27256
• Citation: 203 S.W.2d 890
• Parties: SMOOT v. HARBUR et al
• Court: Missouri Court of Appeals

203 S.W.2d 890

SMOOT v. HARBUR et al

No. 27256

Court of Appeals of Missouri, St. Louis

June 17, 1947

'Not to be reported in State Reports.'

Hudson V. Smoot, of Memphis, for appellant.

G. R Breidenstein, of Kahoka, for defendants.

J. E Luther, of Memphis, for respondent, J. B. Smoot, Executor.

OPINION

McCULLEN

This is a suit to construe a will. It was instituted by J. B. Smoot executor of the estate of Elizabeth M. Anderson, deceased, as plaintiff. In his petition plaintiff alleged, and the evidence shows, that Elizabeth M. Anderson, a resident of Scotland County, Missouri, died on March 28, 1946; that before her death, and on October 11, 1944, she made her last will and testament; that on April 10, 1946, said last will and testament was duly proved and admitted to probate by the Probate Court of Scotland County, and that plaintiff was by said court appointed executor and is the duly qualified and acting executor of said estate; that the said Elizabeth M. Anderson left surviving as her sole and only heirs at law the following named brothers and sisters: W. A. Harbur, P. A. Harbur, J. E. Harbur, C. R. Harbur, E. E. Harbur, W. E. Harbur, Ellis Harbur, Ada Dean, and Elsie Welburn; a niece -- Burla Booker, and a nephew -- Ellis Harbur.

Plaintiff's petition further alleged that the terms and provisions of said last will and testament, and more particularly Article 3 thereof, are ambiguous, indefinite and uncertain; that in the administration of said estate controversies have arisen as to the true meaning, interpretation and construction of said will, and said Article 3 thereof, which can only be properly determined by a decree of the court; that it is necessary to the proper execution of his duties in administering said estate that he be instructed by the court, and that said will be construed, and more particularly as to the meaning, interpretation and construction of Article 3 thereof.

Article 3 of said will, as it appears in the transcript, is as follows: 'I give, devise and bequeth all of the rest and residue of my property real personel and mixed, in the following shares and to the following named persons. to-wit; One fourth thereof, individually, one-eighth thereof to my niece, Burla Booker of Galesburg Illinois. 2/8 two-eighth Mr and Mrs William T. Hunter Ann Arbor Michigan two eighth to Mr and Mrs C. Vance Bradley of Keokuk Iowa. two-eighth to my Niece Mildred Rhodes of Ottumwa Iowa. In the event that any of the above named legatees should predecease me, then it is my will, and I hereby devise and bequeth the interestor interests, of such diseased person, or persons, to the remaining legatees, enumerated above in this article, who survive me, in the respective shares or in the articles, who survive me in the respective shares or interests hereinabove stated.'

Plaintiff's petition then requests the court to instruct him as to whether, under said will, and Article 3 thereof, said Elizabeth M. Anderson intended to and did dispose of her whole estate, and did devise and bequeath to her niece, Burla Booker, onefourth of her residuary estate or one-eighth thereof, or whether said Elizabeth M. Anderson died intestate as to one-eighth of her residuary estate, and by reason thereof one-eighth of her said estate passed by law of descent and distribution to her heirs at law enumerated and set forth in paragraph five of plaintiff's petition.

The defendants W. A. Harbur, P. A. Harbur, C. R. Harbur, E. E. Harbur, W. E. Harbur, J. E. Harbur, Ellis Harbur, and Elsie Welburn, brothers and sister of the deceased, filed an answer, but inasmuch as no issue concerning said answer is involved in this appeal, it is unnecessary to set it forth here.

The defendant Burla Booker, a niece of the deceased testatrix and one of the residuary legatees named in said Article 3 of the will, filed her separate answer in which, after admitting certain allegations of plaintiff's petition, she alleged that said last will and testament of Elizabeth M. Anderson, as a whole instrument, showed the general intent of the testatrix to dispose of the whole of her estate and not to die intestate as to any part or portion thereof. Said defendant further alleged in her answer that it appears from said will to have been the purpose and intent of the testatrix to give, devise and bequeath to said Burla Booker 'a share of her residuary estate equal to and with the other residuary legatees or devisees named therein, and that the words 'one-eighth thereof' immediately following the sentence, or devise to this defendant in paragraph three (3), or the residuary cause, of said will and testament was by the said testatrix inadvertently and mistakenly inserted therein.'

Said defendant Burla Booker prayed the court to declare and determine the share and portion of said residuary estate to be distributed and paid to the residuary legatees, and that she be adjudged and decreed to be entitled to an equal share in the residuary estate of said Elizabeth M. Anderson.

After a trial the court found and decreed that by Article 3 of the last will and testament of Elizabeth M. Anderson, deceased, said testatrix did devise and bequeath a one-eighth share of the residue of said estate to Burla Booker; two-eighths thereof to each of the three remaining residuary legatees; and further found and decreed that said Elizabeth M. Anderson died intestate as to a one-eighth part of the residue of her said estate.

Defendant Burla Booker in due time filed a motion for a new trial, which was overruled by the court, and thereafter said defendant duly appealed to this court.

We have heretofore set forth in full Article 3 of the will, but we must look not only to said article. We must look to all the other articles and provisions of the will to see if they throw any light upon the intention of the testatrix with respect to the distribution which she provided for in Article 3, the article in dispute in this case.

By Article 1 the testatrix directed the payment of all her just debts and funeral expenses. By Article 2 she gave to her friend, Dr. W. S. Petty of Lincoln, Nebraska, 'My entire interest in the Anderson Cabinet and Register Co. Patent on Cabinet and Business.' Article 3 is the residuary article heretofore set forth. There is no Article 4. Article 5 of the will provides: 'It is my will that my Brothers and Sisters, W. A. Harbur, P. A. Harbur, J. E. Harbur, C. R. Harbur, E. E. Harbur, W. E. Harbur, Ellis Harbur, Ada Dean, and Elsie Welburn, Receive nothing from my Estate. I mention the names of my Brothers and Sisters to show that I have not forgotten them, and I purposely exclude them from my interest in my estate.' In Article 6 the testatrix appointed J. B. Smoot of Memphis, Missouri (plaintiff herein) as executor, giving him full power as such to sell and convey any and all of her real estate at such times and for such reasonable prices as he shall deem best without order of the Probate Court. Said Article 6 then concludes as follows: 'and after one year from the date of my death, if any property remains disposed of, I direct my said executor to sell all of my property remaining and undisposed of at that time, real, personal, and mixed, according to his best judgment and for the prices which he shall determine to be reasonable; my said Executor shall collect the proceeds of all such sales and shall divide the same according to the interests above enumerated and to the above named persons in article 4 of this will.'

Appellant contends that the court erred in adjudging that the testatrix died intestate as to a one-eighth share of the residue of her estate. In support of this contention counsel for appellant argues in his brief that Article 3 of the residuary clause of the will shows that it was the general and specific intent of the testatrix to bequeath the whole of the residue of her estate to the four legatees or devisees named therein and that they should share equally; that this general and specific intent of the testatrix is shown from the whole will; that the judgment of the court is contrary to the law and creates the incongruous condition of the estate of the deceased passing partly by will and partly by descent, and is in conflict with the testamentary scheme as ascertained from the provisions of the will; that the court should have found and decreed that the deceased testatrix inadvertently and mistakenly inserted the words 'one-eighth' immediately following the words 'One-fourth thereof individually.' in...