State ex rel. Ashauer v. Hostetter

• Citation: 127 S.W.2d 697,344 Mo. 665
• Decision Date: 02 May 1939
• Docket Number: 35441
• Parties: State of Missouri at the relation of Mathilda S. Ashauer, and Mathilda S. Ashauer, as Executrix of the Estate of Charles Ashauer, Relator, v. Jefferson D. Hostetter, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals
• Court: United States State Supreme Court of Missouri

127 S.W.2d 697

344 Mo. 665

State of Missouri at the relation of Mathilda S. Ashauer, and Mathilda S. Ashauer, as Executrix of the Estate of Charles Ashauer, Relator, v. Jefferson D. Hostetter, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals

No. 35441

Supreme Court of Missouri

May 2, 1939

Writ quashed.

George W. Wellman and Charles A. Lich for relators.

(1) The opinion of the St. Louis Court of Appeals in holding that the term "tenancy by the entirety" would defeat an expressed intention of the testator by the use of other appropriate language to create a joint tenancy directly conflicts with the controlling decisions and opinions of this court in the following cases: Grace v. Perry, 197 Mo. 559; Gardner v. Vanlandingham, 334 Mo. 1061, 69 S.W.2d 950; Nichols v. Boswell, 103 Mo. 160; Garth v. Garth, 139 Mo. 465. (2) The Court of Appeals erred in failing to construe will in accord with intention of testator. Metz v. Wright, 116 Mo.App 631; Suydam v. Thayer, 94 Mo. 49; O'Day v O'Day, 193 Mo. 89; Ewart v. Dalby, 5 S.W.2d 436; Snow v. Ferril, 8 S.W.2d 1016. (3) The opinion of the St. Louis Court of Appeals in holding that the language used in the will was insufficient to create a life estate in the relators conflicts with the controlling opinion of this court in the case of: Barkhoefer v Barkhoefer, 204 S.W. 906. (4) Estates may be cut down by subsequent provisions. Sorenson v. Boorman, 297 S.W 70; Payne v. Reece, 247 S.W. 1007; Barkhoefer v. Barkhoefer, 204 S.W. 906; Scott v. Fulkerson, 60 S.W.2d 36. (5) The will showed an intention on the part of the testator that the real estate should not be partitioned and, therefore, partition will not lie. R. S. 1929, sec. 1557; Faudi v. Dobler, 59 S.W.2d 798; Shelton v. Bragg, 189 S.W. 1174; Cannon v. Cannon, 175 Mo.App. 88; Barnard v. Keathley, 230 Mo. 224; Hood v. Shively, 31 S.W.2d 284.

John E. Corvey for respondents.

(1) The sole question for consideration is whether the Court of Appeals announced a rule of law contrary to an opinion of this court. State ex rel. Continental Ins. Co. v. Becker, 336 Mo. 59, 77 S.W.2d 100. (2) Upon certiorari this court will not construe a contract (or will) independently and differently from the construction placed upon it by the Court of Appeals, where this court has not passed upon a similar instrument. State ex rel. Amer. Surety Co. v. Haid, 325 Mo. 960, 30 S.W.2d 100. (3) In determining the nature of an estate devised to two daughters "as tenants by the entirety," the Court of Appeals must construe it to be the estate actually named by testator, or, if that is impossible, the estate designated by the statute. Sec. 3314, R. S. 1929; Lemmons v. Reynolds, 170 Mo. 227, 71 S.W. 135. Relatrix, in her first assignment of error, suggests that the Court of Appeals should have followed neither the express declaration of the testator, nor the mandate of the statute, in determining the tenancy of the estate devised. (4) Provisions couched in language which are ambiguous and uncertain are insufficient to limit or qualify an absolute estate previously devised. Palmer v. French, 326 Mo. 710, 32 S.W.2d 591; Estill v. Ballew, 26 S.W.2d 778; In re McClelland Estate, 257 S.W. 808. (5) In certiorari to the Court of Appeals relatrix assumes the burden to point out conflicts in decisions: State ex rel. Gatewood v. Trimble, 333 Mo. 207, 62 S.W.2d 756. In relatrix's assignment of errors she charges the Court of Appeals with error in its ruling on the demurrer to the first count of the petition, and on page 14 of her brief she charges error in that she alleges the intent of the testator was that the land should not be partitioned. On neither proposition does she point out or suggest any conflict between the ruling of the Court of Appeals and a decision of this court. (6) A tenancy by the entirety cannot exist between sisters. Stifel's Union Brewing Co. v. Saxy, 201 S.W. 68.

En Banc.

OPINION

PER CURIAM

This case is in certiorari to quash the record and opinion by the St. Louis Court of Appeals in Peer v. Ashauer, 102 S.W.2d 764. The term relator, instead of relatrix, is used for the most part in the pleadings and briefs and we use it here. The Peer case was to construe the will of Charles Ashauer, deceased, and to partition. It is claimed by relator that respondents' opinion, construing said will, is in conflict with the latest controlling decisions of this court in two respects. First, it is contended that the ruling that clause 4 of the will should be construed to devise to relator and her sister, Adelia Ashauer Peer, as tenants in common, conflicts with the rulings of this court in Grace v. Perry et al., 197 Mo. 550, 95 S.W. 875; Gardner v. Vanlandingham et al., 334 Mo. 1054, 69 S.W.2d 947; Nichols v. Boswell, 103 Mo. 151, 15 S.W. 343; Garth v. Garth, 139 Mo. 456, 41 S.W. 238. Second, it is contended that the ruling that the will did not create a life estate in relator in the real property at 2733 Chippewa Street, St. Louis, conflicts with the ruling by this court in Barkhoefer v. Barkhoefer et al. (Mo.), 204 S.W. 906.

The cases cited on the first alleged ground of conflict all hold to the effect that in construing a will the intention of the testator controls if such does not violate some rule of law. The Barkhoefer case, cited on the second alleged ground of conflict, concerns the question of whether or not a life estate was devised.

For the facts we look to the opinion, and from the opinion it appears that Adelia Ashauer Peer and Mathilda S. Ashauer, relator, are daughters of the testator. Mrs. Peer filed the suit against Mathilda, and Mathilda filed demurrer to the petition, alleging that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and the petition was dismissed. The plaintiff, Mrs. Peer, appealed to this court, but the cause, for lack of jurisdiction here, was transferred to the St. Louis Court of Appeals. [Peer v. Ashauer, 92 S.W.2d 154.]

The first count of the petition alleges that the testator died in St. Louis, August 16, 1932, seized in fee of certain real property in St. Louis, including the real property known as 2733 Chippewa Street, with the improvements thereon consisting of a house, garage, and other buildings; that his sole heirs at law were his two daughters, Adelia and Mathilda; that the will was ambiguous, uncertain, and indefinite; that the plaintiff, Adelia, was "unable to determine her interests in testator's real estate without the construction of said will by the court."

The fourth clause of the will reads as follows: "Fourth: I give, bequeath and devise all my real estate to my two beloved daughters, Mathilda S. Ashauer and Adelia Peer, as tenants by the entirety; with proviso that if my daughter, Adelia Peer, survive my daughter, Mathilda S. Ashauer, then she shall hold the same for her sole and separate use and benefit and free and clear of any and all marital rights of her present husband, Joseph Peer; and with the further proviso that my beloved daughter, Mathilda S. Ashauer, shall have the sole right to occupy the house on lot one in city block No. 1640 of the City of St. Louis, State of Missouri, being now known as 2733 Chippewa Street, so long as she shall live." (Italics ours.)

The fifth clause was: "Fifth: I hereby direct that all rents and income from all my other real estate shall be collected by my daughter, Mathilda S. Ashauer, and applied by her toward the payment of the costs of administering my estate, taxes, insurance, and all obligations necessarily incurred for the upkeep of said real estate, except the real estate located at 2733 Chippewa Street, unless my said daughter, Mathilda S. Ashauer, shall choose to live elsewhere and rent out the same. The balance of said rents and income shall be equally divided between my said daughters, Mathilda S. Ashauer and Adelia Peer, once each year, commencing one year after my death, if there is sufficient cash on hand at that time from such rents and income. For the service rendered by my said daughter, Mathilda S. Ashauer, in collecting the rents and income from the aforesaid real estate, she may retain 5 per cent of the gross receipts therefrom."

The opinion as to the second count of the petition states: "The second count (partition) of plaintiff's petition adopts by reference the allegations of the first count, and alleges in addition thereto that the administration of the estate has not been completed; that the personal property in the estate is not sufficient to pay the debts proven against the estate; and that the real estate therein described 'will be required to settle said obligations, and that, therefore, plaintiff makes Mathilda S. Ashauer, in her capacity of executrix of Charles Ashauer, a party defendant;' that 'plaintiff is informed and believes, and therefore alleges, that by virtue of the will of said Charles Ashauer, deceased, duly probated, she and defendant Mathilda S. Ashauer are each seized of an undivided one-half interest in the real estate hereinbefore described as tenants in common; that the location, condition and improvements of said real estate are such that partition thereof in kind cannot be made without great injury to same and damage to the owners thereof . . .'"

The grounds of the demurrer to the second count were that the petition "on its face shows that the property described therein is not subject to partition, and that it does not state facts sufficient to constitute any cause of action against defendant, and that the court is without jurisdiction to order the sale of the real estate described in the petition to satisfy the debts of said estate."

As to clause 4 of the will respondents ruled: "By paragraph 4 of the will the testator gives his...