St. Louis Union Trust Co. v. Little

• Decision Date: 30 July 1928
• Docket Number: No. 26742.,No. 26741.,26741.,26742.
• Citation: 10 S.W.2d 47
• Parties: ST. LOUIS UNION TRUST COMPANY, as Executor of Will of BLANCHE L. McCHESNEY, v. HERBERT DILS LITTLE, SALLIE HAMILTON McCORMICK, ST. LOUIS CHILDREN'S HOSPITAL, ANNA CHANDLER, MARIE CHANDLER, HARRY MOFFETT McCHESNEY, ELIZABETH McCHESNEY BRADFORD, RUTH LITTLE PALMER, HOME OF FRIENDLESS, TRUSTEES OF FIRST CHURCH OF CHRIST SCIENTIST IN ST. LOUIS, WALTER F. COLE, MATTIE CARUTH McMILLAN, FRANCES COLLINS, NANCE BRENGLE and FIRST CHURCH OF CHRIST SCIENTIST; HERBERT DILS LITTLE, Appellant. and ST. LOUIS UNION TRUST COMPANY, as Executor of Will of BLANCHE L. McCHESNEY, v. ANNA CHANDLER, MARIE CHANDLER, SALLIE HAMILTON McCORMICK. HERBERT DILS LITTLE, ST. LOUIS CHILDREN'S HOSPITAL, HARRY MOFFETT McCHESNEY, ELIZABETH McCHESNEY BRADFORD, RUTH LITTLE PALMER, HOME OF FRIENDLESS. TRUSTEES OF FIRST CHURCH OF CHRIST SCIENTIST IN ST. LOUIS, WALTER F. COLE, MATTIE CARUTH McMILLAN, FRANCES COLLINS, NANCE BRENGLE AND FIRST CHURCH OF CHRIST SCIENTIST; ANNA CHANDLER and MARIE CHANDLER, Appellants.
• Court: Missouri Supreme Court

10 S.W.2d 47

ST. LOUIS UNION TRUST COMPANY, as Executor of Will of BLANCHE L. McCHESNEY, v. HERBERT DILS LITTLE, SALLIE HAMILTON McCORMICK, ST. LOUIS CHILDREN'S HOSPITAL, ANNA CHANDLER, MARIE CHANDLER, HARRY MOFFETT McCHESNEY, ELIZABETH McCHESNEY BRADFORD, RUTH LITTLE PALMER, HOME OF FRIENDLESS, TRUSTEES OF FIRST CHURCH OF CHRIST SCIENTIST IN ST. LOUIS, WALTER F. COLE, MATTIE CARUTH McMILLAN, FRANCES COLLINS, NANCE BRENGLE and FIRST CHURCH OF CHRIST SCIENTIST; HERBERT DILS LITTLE, Appellant. and ST. LOUIS UNION TRUST COMPANY, as Executor of Will of BLANCHE L. McCHESNEY, v. ANNA CHANDLER, MARIE CHANDLER, SALLIE HAMILTON McCORMICK. HERBERT DILS LITTLE, ST. LOUIS CHILDREN'S HOSPITAL, HARRY MOFFETT McCHESNEY, ELIZABETH McCHESNEY BRADFORD, RUTH LITTLE PALMER, HOME OF FRIENDLESS. TRUSTEES OF FIRST CHURCH OF CHRIST SCIENTIST IN ST. LOUIS, WALTER F. COLE, MATTIE CARUTH McMILLAN, FRANCES COLLINS, NANCE BRENGLE AND FIRST CHURCH OF CHRIST SCIENTIST; ANNA CHANDLER and MARIE CHANDLER, Appellants.

No. 26741.

No. 26742.

Supreme Court of Missouri, Division One.

July 30, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. A.B. Frey, Judge.

AFFIRMED.

Nagel & Kirby and E.P. Griffin for Herbert Dils Little, appellant.

(1) Where the meaning of any portion of a testator's will is uncertain or ambiguous, then that portion of the will is void by reason of such uncertainty or ambiguity. 2 Jarman on Wills (6 Ed.) 453; 3 Werner, Am. Law of Administration, p. 1423; 28 R.C.L. 209; Dreyer v. Reisman, 202 N.Y. 476; Cross v. Cross, 23 Wash. 673; Murphy v. Carlin, 113 Mo. 112; In re Willson, 191 Pac. 615; Summers v. Summers, 73 So. 401; Trust Company v. Langan, 192 N.W. 274; Hall v. Hall, 123 Mass. 120; Society v. Moll, 51 Minn. 277; Casey v. Brabee, 111 Minn. 43; Kepley v. Caldwell, 96 Neb. 748; Early v. Arnold, 119 Va. 500; Hughes v. Daly, 49 Conn. 34; La Paige v. McNamara, 5 Iowa. 124; Prettyman v. Baker, 91 Md. 539; Children's Aid Society v. Johnston, 58 Md. 139. (2) A fundamental rule in determining the intent of the testator is to look to the general scheme of the will as shown "within its four corners" and the light of the surrounding circumstances. Sevier v. Woodson, 205 Mo. 217. (a) When any ambiguity exists in a will, unless there is a strong intention to the contrary, the presumption that the testator intended that his property should go in accordance with the laws of descent and distribution, that is, to his own kin, will be applied as an aid in construing the will. 40 Cyc. 1412; 20 R.C.L. sec. 190; 2 Schuler on Wills (6 Ed.) sec. 480; Pendleton v. Larabee, 62 Conn. 395. (b) Corporations are not heirs. Graham v. De Yampert, 106 Ala. 279. (3) The testimony of Mrs. Kaime, excluded by the court, is both admissible and relevant, and also the letter written by the testatrix during her life to the wife of Herbert Dils Little, because when a will on its face is ambiguous, parol evidence is admissible to explain the ambiguity. Willard v. Darrah, 168 Mo. 667; Griffith v. Witten, 252 Mo. 641; Murphy v. Clancy, 177 Mo. App. 442; Reinders v. Koppelman. 94 Mo. 343; Davis v. Davis, 8 Mo. 58. (a) Even the Missouri cases holding that in a suit to set aside a will for undue influence, declarations of the testator made subsequent to the will are incompetent to prove the truth of the facts pleaded, expressly recognize as proper the rule here being urged that such declarations of the testator (whether a part of the res gestae or not) are admissible to prove the state of mind and feelings toward the persons who claim under the will. Gibson v. Gibson, 24 Mo. 234; Tingley v. Cowgill, 48 Mo. 298; Thompson v. Ish. 99 Mo. 170; Walton v. Kendrick, 122 Mo. 518; Doherty v. Gilmore, 136 Mo. 421; Gordon v. Burris, 141 Mo. 613; Seibert v. Hatcher, 205 Mo. 101; Teckenbrock v. McLaughlin, 209 Mo. 550. (b) Testimony to the effect that a testator intends to dispose of his estate in a particular manner is relevant in cases of ambiguity to show what he did was pursuant to such intent and should be so construed. Wigmore on Evidence, par. 1735. (c) The skeleton form of will found in papers of testatrix was admissible. (4) The word "among" is frequently used in the sense of between. In re Estate of Mays, 197 Mo. App. 555; Wooley v. Hays, 285 Mo. 579; In re Ianson, 14 Ont. L. Rep. 82; Hermeisen v. Blake, 1 Phila. (Pa.) 131; Hicks Estate, 134 Pa. 507.

Leahy, Saunders & Walther for Anna Chandler and Marie Chandler, appellants.

(1) The legacy of $5000 bequeathed by clause thirteenth of the will of Blanche L. McChesney to Mattie Caruth McMillan, "to be spent on the welfare of poor, homeless children," is too vague and uncertain to constitute a valid gift for a charitable use. 11 C.J. 227; Jones v. Patterson, 271 Mo. 1; Board of Trustees v. May, 201 Mo. 360; Hadley v. Forsee, 203 Mo. 418; Schumucker's Estate, 61 Mo. 592; Le Page v. McNamara, 5 Iowa, 124; Yingling v. Miller, 77 Md. 104; Fountain v. Ravenel, 17 How. 369; Wheeler v. Smith, 9 How. 55; Hughes v. Daley, 49 Conn. 34; Coleman v. O'Leary, 114 Ky. 388; In re Compton, 72 Misc. (N.Y.) 289; Holland v. Peck, 37 N.C. 255; In re Bubb. 166 Cal. 286; National Bd. v. Fry, 293 Mo. 399. (2) The word "heirs" in the residuary clause of the will was not used in its technical sense. By the language, "among the above heirs," the testatrix meant the natural persons to whom by preceding clauses in the will she had made pecuniary gifts. 40 Cyc. 1461; Hoke v. Jackman, 182 Ind. 536; In re Hull's Estate, 63 N.Y. Supp. 725; Collier v. Collier's Executors, 3 Ohio St. 369; Smith v. Haynes, 202 Mass. 531; McCabe v. Spruil, 16 N.C. 189; Cross v. Hoch, 149 Mo. 325; Records v. Fields, 155 Mo. 314; Shapleigh v. Shapleigh, 69 N.H. 157; Smith v. Haynes, 202 Mass. 531; Eisman v. Poindexter, 52 Ind. 401. (3) The word "heirs" was used by the testatrix in its popular sense, but such popular meaning does not extend beyond the natural persons named as legatees, and include the corporations to which money was bequeathed. Graham v. De Yampert, 106 Ala. 279; Corbley v. Patterson, 3 Ohio N.P. 315. (4) The fact that the testatrix bequeathed to certain of the defendants only specific pieces of jewelry or other personal property clearly establishes that by the language used in the residuary clause she intended only the beneficiaries of pecuniary legacies to share in the residue. Kenan v. Graham, 135 Ala. 585. (5) By giving in clause eighth the sum of one dollar to Elizabeth McChesney Bradford, the testatrix manifested a clear intention to exclude the said Elizabeth McChesney Bradford from participation in the estate, and the court erred in holding that the said one dollar legatee should share in the residue of the estate. Sullivan v. Straus, 161 Pa. 145; Griffin v. Ulen, 139 Ind. 565; Dickison v. Dickison, 138 Ill. 541; Ober v. Hickox, 10 Ohio C.D. 128; Nickoll v. Irby, 83 Conn. 530; Miller's Estate, 275 Pa. St. 30; Page on Wills (2 Ed.) sec. 923.

Taylor, Chasnoff & Wilson for respondents, Frances Collins and Harry Moffett McChesney.

(1) A will should not be held void for uncertainty unless it is absolutely impossible for the court to put a meaning upon it. Sheldon v. King, 229 U.S. 90; 2 Jarman on Wills (6 Eng. Ed.) pp. 453, 454n; 3 Woerner, Am. Law of Administration (3 Ed.) p. 1369; 28 R.C.L. 227, 228; Records v. Fields, 155 Mo. 314. (2) "The above heirs," as used in this will, refers to all persons named in the will as beneficiaries. Clark v. Scott, 57 Pa. 446; 29 C.J. 292; 40 Cyc. 1459; Century Dictionary: "Heir;" Webster's International Dictionary 1910, p. 999; Eisman v. Poindexter, 52 Ind. 401; Graham v. De Yampert, 106 Ala. 279; Roland v. Miller, 100 Pa. 87; Moon v. Stewart, 87 Ohio St. 349; Estate of Peter H. Petterson, 195 Pa. 78; Union Trust Co. v. Shoemaker, 172 Ill. App. 365. (3) In the case at bar the word "heirs" is not used as meaning only blood relatives. Greever & Jones, "The Century Handbook of Writing," New York, 1922, p. 140; Webster's New Internat. Dict., "Between"; Records v. Fields, 155 Mo. 314; Graham v. De Yampert, 106 Ala. 279; Cook v. First Universalist Church, 49 Atl. (R.I.) 389; Hull's Will, 63 N.Y. 325. (4) The heirs, i.e., beneficiaries, take the residue equally per capita. 3 Woerner, Am. Law of Administration (3 Ed.) p. 1415, note p. 1418.

Charles P. Williams for respondent, Nance Brengle.

(1) After execution of will, subsequent oral statements of testator not generally admissible as evincing its intention. Lehnhoff v. Theine, 184 Mo. 357; In re McVeigh, 181 Mo. App. 582. A slight alteration of the codicil does not affect the rule. 2 Schouler on Wills (6 Ed.) 1044; 1 Page on Wills (2 Ed.) 1376; 1 Jarman on Wills (6 Eng. Ed.) 177. This State is cautions as a matter of policy in such matters. Neibling v. Orphans Home, 286 S.W. 58. In any event improper exclusion may be remedied here. Lehnhoff v. Theine, 184 Mo. 346. (2) The natural and proper leaning should be in favor of every part of the will and against enforced partial intestacy. Cox v. Jones, 229 Mo. 62; Booth v. Booth, 4 Vesey Jr. 407; Robards v. Brown, 167 Mo. 457; Tebow v. Daugherty, 205 Mo. 321; Griffith v. Witten, 252 Mo. 641. (3) The intention of the testator is the pole star of construction. Sec. 555, R.S. 1919; Grace v. Perry, 197 Mo. 559; Gannon v. Pauk, 200 Mo. 85; Cross v. Hoch, 149 Mo. 325. (4) There is no difficulty as to the meaning of the word "heirs" in the sense of legatees. Century Dictionary; Webster's Internat. Dictionary; Hoke v. Jackman, 182 Ind. 536; In re Hull's Will, 63 N.Y. Supp. 725; Cook v. 1st Church, 23 R.I. 62; Graham v. De Yampert, 106 Ala. 279; In re Stocker's Estate, 26 Pa. Dist. 825. (5) The division of the residue should be equal among the legatees. Everett School Dist. v. Pearson, 261 Fed. 634; Re Title Guaranty Co., 144 N.Y. Supp. 889; Rollins v. Rice, 59 N.H. 493; Harris v. Keasbey, 53 Atl. 555; Appeal of Lewis, 89 Pa. 509; 3 Woerner on Administration (3 Ed.) p. 1418.

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