Stolle v. Stolle

• Decision Date: 19 October 1933
• Docket Number: No. 31163.,31163.
• Citation: 66 S.W.2d 912
• Parties: STOLLE v. STOLLE et al.
• Court: Missouri Supreme Court

66 S.W.2d 912

STOLLE v. STOLLE et al.

No. 31163.

Supreme Court of Missouri, Division No. 1.

October 19, 1933.

Rehearing Overruled December 6, 1933.

Motion to Transfer to Banc Overruled December 22, 1933.

Appeal from St. Louis, Circuit Court; Harry E. Sprague, Judge.

Suit by Henry Stolle against William Stolle, executor of the estate of Casper Stolle, deceased, and others. Judgment for plaintiff, and defendants appeal.

Reversed.

Lubke & Lubke and James D. Dockery, all of St. Louis, for appellants.

Hall & Dame, of St. Louis, for respondent.

STURGIS, Commissioner.

This suit calls on us to construe the will of Casper Stolle, who died in St. Louis on March 9, 1906. The plaintiff is a grandson of the testator, Casper Stolle, being the only child and descendant of Henry Stolle, Sr., a son of testator, and claims a one-eighth interest in the residuary estate of testator under the fifth clause of his will, being a share equal to that of a child of testator. The real defendants are the seven living children of testator and they claim and have received the entire residuary estate. At the time this suit was brought, the estate of Casper Stolle had been settled in the probate court, distribution of same made, and the executors discharged; also the testator's wife, Josephine Stolle, to whom a life estate in the residuary estate in controversy was given by the fifth clause of the will in question, died November 26, 1923, and her estate had been settled in the probate court.

This suit was commenced September 15, 1926, and its object is to have the court construe the will of Casper Stolle and adjudge that plaintiff is under said will entitled to one-eighth of the residuary estate, and to compel defendants to refund and make contribution to plaintiff as provided by section 566, R. S. 1929 (Mo. St. Ann. § 566, p. 343), which provides in substance for a proceeding in the circuit court compelling devisees, legatees, and heirs who have received more than their share of an estate to refund a part of the estate received by them for the purpose of making up the share, devise, or legacy of any other devisee, legatee, or heir. The trial court granted plaintiff the relief prayed, and defendants have appealed.

The will of Casper Stolle was executed February 10, 1904, two years before his death, and, after providing that his debts be paid and giving to his wife, Josephine Stolle, certain specific personal property, reads as follows:

"Third: I give, bequeath and devise to each of my beloved children, Conrad Stolle, Algane, wife of John Druke, William Stolle, Josephine, wife of Dr. O. Guhman, Henrietta Stolle, Bertha, wife of Charles Von Brecht, Francis Stolle and Charles Stolle, and to my child or children that may hereafter be born unto me the sum of Five Dollars each.

"Fourth: I give, bequeath and devise to my grandchild, Henry Stolle, the son of my deceased son, Henry Stolle, the sum of Five Hundred Dollars, to be paid him within two years after my death and after he shall have attained his majority, if he be not of age at said time, said sum of Five Hundred Dollars is to be paid to his mother, she to have the usufruct thereof only during his minority, providing she remain a widow, in the event of her death or remarriage during his minority, said five hundred dollars shall be paid to my esteemed friend, August Gehner of St. Louis, Mo., to be held by him in trust for the use and benefit of my said grandson, Henry Stolle, during his minority; the sum to be paid to him together with all accretions and interest thereto and thereon, when he shall attain 21 years of age.

"Fifth: All the rest, residue and remainder of my estate, real, personal and mixed, I give, bequeath and devise to my wife, Josephine Stolle, nee Kulage and my two sons, William and Conrad Stolle, to have and to hold the same unto them, or the survivor of them in Trust to pay the income of my Estate (remaining) to my widow during her life, with full power to sell and dispose of any and all of my Personal or Real Estate for the payment of debts or reinvestment, no such sale or sales shall be made without the written consent of August Gehner and Charles E. Kircher. After the death of my said wife, the remaining part of my estate shall then be divided between my said children above named in equal parts share and share alike, to have and to hold the same unto them and their heirs and assigns forever.

"Sixth: I hereby nominate, constitute and appoint my wife, Josephine Stolle, Executrix and my sons, William and Conrad Stolle, Executors of this my last Will and Testament without giving any bond or security as such whatever."

This plaintiff is the Henry Stolle named and provided for, at least to the extent of $500, in the fourth clause of the will, and is there named and described as "my grandchild, the son of my deceased son, Henry Stolle." We will refer to this deceased son as Henry Stolle, Sr. The conceded fact is that testator's son, Henry Stolle, Sr., died July 11, 1884, twenty years before this will was executed, and at his death left plaintiff, grandson of testator, then only five months old, as his only child and descendant. Plaintiff, therefore, was about twenty years old when his grandfather, Casper Stolle, made the will now in question. It will be noticed by reading the will that plaintiff, testator's grandchild, is nowhere named in the will except in the fourth clause, where he is described as testator's grandson and given $500, and testator's deceased son, Henry Stolle, Sr., plaintiff's father, is nowhere mentioned, by name at least, except as being plaintiff's father. This fourth clause of the will, a separate and distinct clause, deals solely with plaintiff, testator's grandchild, whose father was dead, and makes a substantial bequest to him with elaborate provisions for its protection.

In the preceding clause 3 of the will the testator names his eight then living children, designating them as "my beloved children" and giving the names of the married daughters, and gives and devises to each the nominal sum of $5. The purpose of this is reflected in clause or paragraph 5 of the will, whereby he gives and devises "the rest, residue and remainder of my estate, real, personal and mixed" to three named trustees, one of them being his wife and the other two his sons, "in trust to pay the income" to his widow during her life, with power to sell, reinvest, etc. With this background and surroundings, testator then disposed of the residuary estate to take effect on the termination of this life estate by the following provision of his will, part of clause 5, under which plaintiff claims to be a beneficiary, and which claim is the crucial question here, to wit: "After the death of my said wife, the remaining part of my estate shall then be divided between my said children above named in equal parts share and share alike, to have and to hold the same unto them and their heirs and assigns forever."

Notwithstanding that this will by its language just quoted divides the estate after the widow's death between "my said children," this plaintiff, a grandchild whose father, a son of testator, died long before the will was executed, claims an equal share with the children of testator living at the time the will was made and who are specifically designated therein as devisees. It should be said that no child was born to testator after the will was made, and that Conrad Stolle, the first child named in the will, clause 3, died before testator without leaving lineal descendants. There is no doubt but that, had he left descendants, then such descendants would, under section 527, R. S. 1929 (Mo. St. Ann. § 527, p. 321), have taken the estate which Conrad Stolle would have taken had he survived the testator. As it is, he drops out of the picture and his share swells the residuary estate.

Plaintiff argues that, being a lineal descendant of Henry Stolle, Sr., who was a child of the testator and died before he did, he comes within the provisions of said section 527, R. S. 1929, which provides: "When any estate shall be devised to any child, grandchild or other relative of the testator, and such devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate, real or personal, as such devisee would have done in case he had survived the testator."

A reading of this statute shows that it only provides that, when or if an estate is devised to a child, grandchild, or other relative, and such devisee shall die before the testator, then the lineal descendants, if any, of such devisee, shall take the same estate as such devisee would have taken if he had survived the testator. In other words, it only determines what shall become of an estate devised by testator to a child or relative if or when such devisee dies before the will takes effect by reason of the testator's death. It does not undertake to determine whether or not the will in question does or does not in fact devise an estate to a particular child or relative. It operates only on a devise which is in fact made to a child or relative. Pimel v. Betjemann, 183 N. Y. 194, 76 N. E. 157, 2 L. R. A. (N. S.) 580, 584, 5 Ann. Cas. 239. Applying that statute to the facts here, if this will does in fact devise an estate to testator's son, Henry Stolle, Sr., then as he died before the testator, leaving this plaintiff as his lineal descendant, by force of this statute such descendant took the estate devised to Henry Stolle, Sr., or, more accurately, the estate which Henry Stolle, Sr., would have taken had he survived the testator. We say this is more accurate because a will takes effect and transfers title only at and because of the death of the testator; so that, if the devisee in a will dies before the testator, no title or interest in the property does or can vest in the devisee — otherwise it would vest in a dead man, an impossibility both in law and in fact. And so it is said that a...