Snyder v. Toler
| Decision Date | 04 May 1914 |
| Citation | 166 S.W. 1059,179 Mo.App. 376 |
| Parties | GERTRUDE SNYDER, Appellant, v. URIAH T. TOLER, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Cooper Circuit Court.--Hon. J. G. Slate, Judge.
AFFIRMED.
Judgment affirmed.
John Cosgrove for appellant.
W. V Draffen and Jeffries & Corum for respondent.
This suit was begun in the circuit court of Cooper county, March 20, 1913. The petition was in two counts. In the first plaintiff alleged the invalidity of the last will of her grandfather William E. Toler (which had been duly probated) and prayed "that said pretended paper writing or will be declared void and of no effect." In the second, she claimed under the will on the theory that it created a precatory trust in her favor. A motion to elect was filed by defendant on the ground "that said counts are inconsistent with each other and the proof of one would disprove the other." This motion was sustained and plaintiff elected to stand upon the second count. Defendant then answered traversing the allegations of that count. The cause was tried without a jury and the court rendered judgment for defendant. Plaintiff appealed.
William E. Toler died in Cooper county June 18, 1911, possessed of a farm of 100 acres of the alleged value of $ 10,000. He was survived by his wife Ann C. Toler and his son Uriah, the defendant. Plaintiff was the daughter of another son (Columbus), who died before the death of his father. Columbus and Uriah were children of a former marriage. There were no children of the last marriage.
On May 5, 1911, Toler executed the following will: "I, William E. Toler, do make this my last will and testament; I give to my beloved wife, Ann C. Toler, all my property, real, personal and mixed, absolutely, knowing she will deal properly with my grandchild, Gertrude Snyder and my son, Uriah Toler." After the death of the testator, his widow was appointed administratrix of the estate with the will annexed. The personal estate being insufficient to pay the debts, the land was sold under order of the probate court and was purchased by defendant for $ 8,500. This sale was invalid on account of the insufficiency of the notice but the widow executed and delivered to defendant a quitclaim deed and gave him possession of the farm. Defendant claims title under that deed. He paid the widow $ 2500 on the purchase price and out of that money she paid all of the debts of the estate, gave $ 1550 to plaintiff and kept the remainder of about $ 400 for her own use. She died shortly before the commencement of this action. It appears that the land was of the reasonable value of $ 8500 and the real bone of contention is the proceeds of its sale to defendant which after deducting the sums expended by the widow in paying debts and for her own use amounted to $ 7500, of which she gave defendant $ 6000 and plaintiff $ 1550. Plaintiff contends that by the terms of the will she was entitled to receive one-half of the proceeds, to be put on an equal footing with her uncle, since she was the only child of his deceased brother and it was the obvious intention of her grandfather to create a trust for the equal benefit of her uncle and herself. The position of defendant is that the will clearly evinced an intention to vest the fee simple title to the land in the widow and that the words "Knowing she will deal properly with my grandchild, Gertrude Snyder and my son, Uriah Toler," cannot be construed as having created a precatory trust but gave the widow full power to exercise her own discretion in the disposition of the estate.
There is evidence, introduced by plaintiff, tending to show that the relationship between her father and grandfather always had been of the closest and most affectionate nature; that her father had worked with and for his father and had aided in the accumulation of the money invested in the farm; that her uncle had not been so self-sacrificing but had lived a more selfish life and that she had always been treated affectionately by her grandfather.
The evidence, as a whole, shows, we think, that the old man loved both sons and his granddaughter and that his wife shared his feelings and there is no suggestion in the evidence of any change in her feelings after her husband's death. She bore plaintiff no ill will and if it may be said that she discriminated against plaintiff in the distribution of the estate, the error was one of judgment rather than of a purpose to show partiality.
The will was made during the last illness of the testator. The lawyer who drew it testified (without objection) that the testator, in giving directions for the preparation of the document, said; The lawyer told him that it would be necessary to mention his son and granddaughter in the will and he inquired, "Is it necessary to give them a dollar?" Being answered in the negative and assured that it would be sufficient if they were mentioned, he said,
Counsel for plaintiff insist that the court erred in sustaining the motion to elect. Overlooking other considerations we hold the motion was properly sustained on its merits. It is true the causes alleged in the two counts purported to relate to the same transaction but they were so inconsistent and repugnant they could not stand together in the same action. The test in such instances is whether or not proof of one cause necessarily would disprove the other. If it would, the petition is bad, and the plaintiff should not be suffered to go on with the case unless he abandons one or the other of such mutually destructive causes. [Soap Works v. Sayers, 51 Mo.App. 310; Mirrieless v. Railway, 163 Mo. 470, 63 S.W. 718; Drolshagen v. Railway, 186 Mo. 258, 85 S.W. 344.]
In one breath plaintiff averred there was no will and in the next that the will created a trust in her favor. She could not prove either assertion without disproving the other. It would be hard to imagine a more striking example of inconsistent positions. The election of plaintiff to stand on the second count, i. e., on the will, reduced the practical issues of the case to the proposition of whether or not the will created a precatory trust. If it did, plaintiff is entitled to recover; if it did not, she has no case. The judgment was fully responsive to this issue and, we may observe in passing, covered the entire subject-matter before the court for adjudication.
Counsel for plaintiff argue that the court erred in excluding evidence of statements made by the widow relating to the meaning she understood the testator gave to the words "deal properly with my granddaughter, Gertrude Snyder and my son, Uriah Toler." The evidence was properly excluded. This is an action not to invalidate but to construe a will. In such cases oral declarations of the testator relating to the meaning of the instrument are not admissible. As is said in Webb v. Hayden, 166 Mo. 39, 65 S.W. 760:
In the construction of wills the prime object is to ascertain and enforce the true intent and meaning of the testator (Snorgrass v. Thomas, 166 Mo.App. 1. c. 609, and cases cited), and when the language of the will is of doubtful meaning "the true intent and meaning of the testator can be best ascertained by the courts and those concerned in the execution of the will by putting themselves, so far as may be, in the place of the testator and reading all his directions therein contained in the light of his environment at the time it was made." [Murphy v. Carlin, supra.]
If it may be said that the present will is of doubtful meaning, we think the explanatory evidence should be restricted to the portrayal of the environment of the testator and his feelings towards the persons affected, and should not include declarations he may have made concerning his interpretation of...
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