Sorenson v. Booram

• Decision Date: 25 June 1927
• Docket Number: 25802
• Parties: Roxie Sorenson and Rebecca Larsen v. Truman Booram, Byron E. Dart, Ancil G. Dart, Hersel M. Dart, Roy A. Dart, Gus H. Dart and Tina Huntington; Truman Booram, Appellant
• Court: Missouri Supreme Court

297 S.W. 70

317 Mo. 516

Roxie Sorenson and Rebecca Larsen v. Truman Booram, Byron E. Dart, Ancil G. Dart, Hersel M. Dart, Roy A. Dart, Gus H. Dart and Tina Huntington; Truman Booram, Appellant

No. 25802

Supreme Court of Missouri

June 25, 1927

Motion for Rehearing Overruled July 30, 1927.

Appeal from Grundy Circuit Court; Hon. L. B. Woods, Judge.

Affirmed.

Lesley P. Robinson for appellant.

(1) By the will the testator devised a fee simple estate to his wife. Roth v. Rauschenbusch, 173 Mo. 582; Small v. Field, 102 Mo. 104; Cook v. Couch, 100 Mo 29; Cornwell v. Wulff, 148 Mo. 542; Thornbrough v. Craven, 284 Mo. 552; Roberts v. Crume, 173 Mo. 572; Yocum v. Siler, 160 Mo. 281; Middleton v. Dudding, 183 S.W. 443; Bowles v. Shocklee, 276 S.W. 17. (2) Where the words of a will at the outset clearly indicates a disposition by the testator to give the entire estate absolutely to the first donee, the estate will not be cut down to a less estate by a subsequent clause. Middleton v. Dudding, 183 S.W. 443; Yocum v Siler, 160 Mo. 281; Sevier v. Woodson, 205 Mo 214; Underwood v. Cave, 176 Mo. 13; Cornet v. Cornet, 248 Mo. 223; Lemp v. Lemp, 264 Mo. 548; Young v. Robinson, 122 Mo.App. 187; Jackson v. Littell, 112 S.W. 53; Gibson v. Gibson, 239 Mo. 490; Tisdale v. Prather, 210 Mo. 410; 40 Cyc. 1578. (3) The court admitted in evidence over objection of appellant certain conveyances offered presumably for the purpose of showing that Sarah S. Booram and Truman Booram claimed only an undivided interest in the lands. It is immaterial as to their interpretation of the will. The sole question is, did the testator convey by his will to his wife an absolute fee simple title. Extrinsic evidence is not admissible for the purpose of showing the testator's intention unless the provisions in the will be ambiguous. Roberts v. Crume, 173 Mo. 572.

R. E. Kavanaugh for respondents.

(1) The first and controlling rule in the construction of all wills, is the ascertainment of the testator's real intention, to be arrived at from the whole of the instrument itself, and in this inquiry, all of the provisions of the will are to be considered in their relation to each other, and to the whole, giving effect to every part of the will, if possible. Mitchell v. Board of Curators, 305 Mo. 466, 266 S.W. 481; In Re McClelland's Estate, 257 S.W. 808; Murphy v. Carlin, 113 Mo. 112; Bernero v. Trust Co., 287 Mo. 602, 230 S.W. 620; McAllister v. Pritchard, 287 Mo. 494, 230 S.W. 66; Lane v. Garrison, 293 Mo. 530, 239 S.W. 813; Crews v. Crews, 240 S.W. 149; Payne v. Reece, 297 Mo. 54, 247 S.W. 1006; Northcutt v. McAllister, 297 Mo. 475, 249 S.W. 398; Cook v. Higgins, 290 Mo. 402, 235 S.W. 807. (2) The highly technical rule of law invoked by appellant -- a survival of the old common law -- that a fee once given, cannot be cut down to a less estate by a subsequent clause, is not the present law in Missouri; if a subsequent clause or paragraph of the will, in unambiguous terms, shows a clear intention on the part of the testator to grant a life estate, even coupled with a full power of disposal, then the intention of the testator will be given effect, and the apparent fee interest will be cut to a life estate. Payne v. Reece, 297 Mo. 54, 247 S.W. 1006; Schneider v. Kloepple, 270 Mo. 389, 193 S.W. 834; Gibson v. Gibson, 238 Mo. 490; Middleton v. Dudding, 183 S.W. 443; Cook v. Higgins, 290 Mo. 402; Cox v. Jones, 229 Mo. 53; Cornet v. Cornet, 248 Mo. 184; Trigg v. Trigg, 192 S.W. 1011; Allison v. Hitchcock, 274 S.W. 798; Walton v. Drumtra, 152 Mo. 489; Fries v. Fries, 267 S.W. 116.

Lindsay, C. Seddon and Ellison, CC., concur.

OPINION

LINDSAY

The plaintiffs, each claiming to be the owner of an undivided one-tenth interest in 120 acres of land in Grundy County, brought their action in partition. They alleged that defendant Truman Booram owned an undivided three-fifths interest in said land, and that each of the six other defendants owned an undivided one-thirtieth interest. The trial court found their interests to be as alleged in the petition, and made its order of sale in partition.

Defendant Truman Booram, who claimed to be the sole owner of the land appealed. All of the parties are descendants of Aaron Booram, who died in 1892, testate, and owning the lands in suit and other lands, all of which were disposed of by his will, which was duly probated.

The controversy turns upon the construction to be given to the said will, and particularly the second clause thereof. Aaron Booram was married twice, and had children by both marriages. The second wife, Sarah E. Booram, died in 1922. The first clause of the will, after providing for the erection of a monument, and that the funeral expenses, and expenses of administering his estate and his just debts should be paid out of his personal estate, continued: "And I hereby expressly direct my executor hereinafter named, to sell at public or private sale, if the personal property is not sufficient, the whole or such part of my real estate as may be sufficient for that purpose, first selling the land in Section Eight (8) Sixty-one (61) of Range Twenty-five (25) in Grundy County, Missouri, or such part thereof as may be necessary." None of the land herein involved is in Section 8. All of the land in Section 8 was sold in settling the estate.

The second clause of the will describes all of his lands, first the land in controversy, then several other tracts situated in said Section 8, Township 61, Range 25. That clause is as follows: "II. I give and bequeath to my beloved wife, Sarah E. Booram, all of my real estate in Grundy County, Missouri, described as follows: to-wit: [here follows description of all of said land] it being my intention to give all my real estate whether the above description is correct or not to my beloved wife to hold and enjoy absolutely in fee simple and I give and bequeath to my beloved wife all my personal estate absolutely subject, of course, to the payment of all my just debts as hereinbefore provided, and it is my will that my wife shall be the head of the family, take charge of and direct the management of the property willed as herein set out both real and personal while she may live and at her death it is my will that the real and personal estate then on hand shall descend to and vest in all my children and grandchildren to-wit: Emily E. Dart, Olive Booram and Truman and Otto Booram my children, each one-fifth and Frank Brown and Julia Parker, my grandchildren, one-fifth and according to the law of descent and distribution."

By the third clause he appointed his wife, Sarah E. Booram, as executrix, without bond.

The six defendants, respondents above named, are the only descendants of said Emily E. Dart, who was the daughter of Aaron Booram by his first marriage. The plaintiffs, also respondents here, are the only descendants of said Julia Parker, mentioned in the will as one of the grandchildren of the testator. Julia Parker and Frank Brown were the only children of a deceased daughter of Aaron Booram by his first marriage. Frank Brown died many years before the death of Sarah E. Booram, leaving no children or other descendants. The three children of the second marriage of Aaron Booram, children also of Sarah E. Booram, were Olive Booram, defendant Truman Booram, and Otto Booram. Otto Booram died without children or descendants, many years before the death of Sarah E. Booram. Olive Booram also died many years before the death of Sarah E. Booram, leaving as her sole heir at law her daughter, Sadie Freeman. In 1915, Sadie Freeman, by quit-claim deed, conveyed all of her interest in said real estate to defendant Truman Booram. Sadie Freeman died in September, 1916.

In the separate answer filed by him, Truman Booram alleged that by the terms of his father's will, his mother, Sarah E. Booram, took a fee simple estate in and to said lands. He further alleged that he had acquired all the interest of Sadie Freeman in said lands, and was sole owner of the same. In his said answer he alleged the death of Sarah E. Booram in 1922, and further alleged that at her death she left as her only heirs, himself, her son, and said Sadie Freeman, the only child and heir of his sister Olive Booram, deceased. However, there has been filed here the stipulation of the parties stating that said Sadie Booram died in September, 1916.

The plaintiffs in their reply alleged that Truman Booram recognized at various times that plaintiffs had an interest in the said real estate under the will of Aaron Booram; that he at different times conveyed his interest therein in trust to secure indebtedness; and in other ways recognized, and offered to buy for a valuable consideration, the interest of the plaintiffs in said land; that by reason thereof, he was estopped from claiming the entire interest in said land, and from claiming that the plaintiffs have no interest therein.

Deeds of trust executed by Sarah E. Booram and Truman Booram conveying their "interest," or their "undivided interests," in the land in suit, to secure indebtedness, were introduced in evidence by plaintiffs over the objection of defendant Truman Booram, and testimony was also introduced of his efforts to purchase the interest of the plaintiffs in said land. These matters, pleaded and put in evidence as tending to show an estoppel, are not regarded as of importance, or the subject of necessary discussion here, in view of the conclusion reached as to the construction which must be given to the will of Aaron Booram.

The first consideration is to ascertain the intention of the testator, proceeding for that purpose in accordance with the rules applicable to that inquiry. Upon that question we have legislative admonition: "All courts and others concerned in the...