Thornbrough v. Craven

• Citation: 225 S.W. 445,284 Mo. 552
• Parties: HENRY LEE THORNBROUGH et al., Appellants, v. AZEL S. CRAVEN et al
• Decision Date: 20 November 1920
• Court: United States State Supreme Court of Missouri

225 S.W. 445

284 Mo. 552

HENRY LEE THORNBROUGH et al., Appellants, v. AZEL S. CRAVEN et al

Supreme Court of Missouri

November 20, 1920

Appeal from Ray Circuit Court. -- Hon. Arch B. Davis, Judge.

Reversed and remanded.

Crowley & Jacobs and Garner, Clark, Milligan & Garner for appellants.

(1) The second clause of the will is broad enough to vest the fee in Gabriella Craven. (2) Where the language of first clause is sufficient to grant the fee, this will not be cut down to a lesser estate, except by language as clear and unambiguous as that contained in the first clause. Middleton v Dudding, 183 S.W. 443; Cornet v. Cornet, 248 Mo. 184; Cornwell v. Waillf, 148 Mo. 542; Wead v. Gray, 78 Mo. 59; Green v. Sutton, 50 Mo 186; Cook v. Couch, 100 Mo. 29; Cornwell v Orton, 126 Mo. 355; Yocum v. Siler, 160 Mo. 281; Roth v. Rauschenbush, 173 Mo. 582.

Lavelock & Kirkpatrick for respondents.

(1) According to the evidence contained in the abstract of appellants, the instrument in writing purporting to be the last will and testament of Azel P. Craven, deceased, was never admitted to probate. The probating of a will is a judicial act. The unconfirmed proceedings of the judge or clerk, in vacation, are insufficient. Snuffer v. Howerton, 124 Mo. 639; Barnard v. Bateman, 76 Mo. 414. (2) If the testimony of appellants fails to show, as we think it does, that the instrument in writing purporting to be the last will and testament of Azel P. Craven, deceased, was legally probated, and there being nothing to indicate that the widow, Gabriella Craven, exercised the right of election accorded to her under the statute, her interest in the real estate owned by her husband, at the time of his death, under the present state of the evidence, was, under our statute, restricted to a life estate in one-third part thereof. Sec. 345, R. S. 1909. (3) The intention of the testator must be gathered from the whole will, and if possible, every clause in it should have some operation and be effective for some purpose; single clauses should never be considered singly, but the whole instrument should be taken into consideration. Eckle v. Ryland, 256 Mo. 441; Cornet v. Cornet, 248 Mo. 216; Cox v. Jones, 229 Mo. 63; Armor v. Frey, 226 Mo. 666; Grace v. Perry, 197 Mo. 559; Dozier v. Dozier, 183 Mo. 146; Underwood v. Cave, 176 Mo. 14; Walton v. Drumtra, 152 Mo. 489; Cross v. Hoch, 149 Mo. 336; Schorr v. Carter, 120 Mo. 413; Small v. Field, 102 Mo. 122; Russell v. Eubanks, 84 Mo. 86; Allison v. Chaney, 63 Mo. 282; State ex rel. v. McVeigh, 181 Mo.App. 566; La Vaulx v. McDonald, 190 S.W. 604; Orchard v. Smith, 193 S.W. 573. (4) Under the last will and testament of Azel P. Craven, deceased, his widow took a life estate, with a limited power of disposition, remainder to the brothers and sisters of the testator, bodily heirs of deceased brothers or sisters taking the part the parent would have taken, if living. Smith v. Bell, 6 Pet. 68, 8 L.Ed. 323; Chiles v. Bartleson, 21 Mo. 346; Carr v. Dings, 54 Mo. 95; Carr v. Dings, 58 Mo. 404; Straat v. Uhrig, 56 Mo. 484; Bean v. Kenmuir, 86 Mo. 668; Harbison v. James, 90 Mo. 417, 425; Munro v. Collins, 95 Mo. 41; Lewis v. Pitman, 101 Mo. 287, 293; Redman v. Barger, 118 Mo. 570, 575; McMillan v. Farrow, 141 Mo. 59, 63; Gibson v. Gibson, 239 Mo. 493, 507; Trigg v. Trigg, 192 S.W. 1014; Schneider v. Kloepple, 270 Mo. 396. (5) In the fourth clause of his will, testator speaks of the property given and devised to his wife as his property, the exact words used are: "my estate" thereby clearly indicative that he did not intend to devise to his wife a fee simple estate, but a life estate only. McMillan v. Farrow, 141 Mo. 63. (6) In the fifth clause of his will, testator makes it clear that the estate intended for his wife was for her use, support, protection, comfort and enjoyment during her natural life. In this clause, the testator, to make sure that there would be no misconstruction of the preceding clauses of his will, gives his own interpretation thereof, leaving no doubt as to the intended meaning. The rule is, when a testator interprets a particular clause in his will, the court, when called on to construe that clause, will follow the interpretation of the testator. Dugans v. Livingston, 15 Mo. 234; Reinders v. Koppelman, 94 Mo. 343; Small v. Field, 102 Mo. 129; State ex rel. v. McVeigh, 181 Mo.App. 581. (7) The devise to Gabriella Craven, in the second paragraph of testator's will, is in general terms, without qualifying words, denoting the extent of the estate devised, but the wording of the fifth paragraph, which is as follows: "for her support, protection, comfort and enjoment, during her natural life," makes it obvious that the estate granted in the second paragraph was intended to be for life only. Cross v. Hoch, 149 Mo. 343; Walton v. Drumtra, 152 Mo. 507; Gibson v. Gibson, 239 Mo. 506; Burnet v. Burnet, 244 Mo. 498. (8) In the seventh clause, testator refers to property remaining undisposed of. From this paragraph, it is apparent that it was the intention of the testator that all such remaining or undisposed of property was to be a part of his estate, and not a part of the estate of his wife. His exact words are: "That portion of my estate remaining undisposed of." McMillan v. Farrow, 141 Mo. 62. (9) The fact that other paragraphs in testator's will intervened between item two, in which the real estate is devised to Gabriella Craven, and items four, five, and seven, where it is made clear that the testator intended to devise to Gabriella Craven a life estate only, does not impair the legal effect of the three last mentioned items. Cox v. Jones, 229 Mo. 67. (10) The devisee in the second paragraph of testator's will, is Gabriella Craven. In this devise, neither the words "heirs and assigns," nor the words "heirs and assigns forever" are used. The further devise by the testator, in a subsequent clause of his will, of the real estate there devised, to take effect after the death of Gabriella Craven, makes definite and certain the fact that Gabriella Craven does not take a fee under said second clause. Sec. 579, R. S. 1909.

BROWN, C. Small, C., concurs; Ragland, C., not sitting. Williamson and Goode, JJ., dissent; Blair, J., not sitting.

OPINION

In Banc

BROWN C.

This is a contest between plaintiffs, who claim as collateral heirs of Gabriella Craven, deceased, and the defendants, who claim as collateral heirs and devisees of Azel P. Craven, deceased, over the title to certain lands in Ray County described as follows: The east half of the southwest quarter and about ten acres off of the east side of the west half of the southwest quarter of Section 31, Township 54, Range 27. Azel P. Craven, and Gabriella Craven were husband and wife. He died in 1913, leaving a holograph will, duly signed, witnessed and executed, as follows:

"I, Azel P. Craven, of the County of Ray and State of Missouri, being of sound mind and disposing memory considering the uncertainty of life and being desirous to make disposition of my property, do hereby in my own handwriting make, ordain, establish and publish and declare this to be my last will and testament hereby revoking any and all wills heretofore made by me.

"1st. It is my will that all my just debts be first paid by executor hereinafter named.

"2nd. It is my will and I hereby bequeath unto my beloved wife Gabriella Craven the following real estate situate, lying and being in the County of Ray and State of Missouri, to-wit: All of the northeast quarter of the northeast quarter of Section Thirty-six (36), and sixty acres off of the east side of the east half of the southwest quarter of Section Thirty-six (36), also all the west half of the southwest quarter of Section Thirty-six (36), all in Township Fifty-four (54), Range Twenty-eight (28), containing one hundred and eighty acres more or less, and all other realty that I may own at the time of my death.

"3rd. Also I will to my wife Gabriella Craven for her use and benefit all the rest and residue of my property of whatsoever kind that may remain after pay ment of my debts as hereinbefore requested.

"4th. It is my will, and to that end, I hereby authorize and empower my said wife Gabriella Craven to sell and dispose of any part, parcel or the whole of my estate at her own option or election, to make deed or deeds conveying all the right, title and interest to said realty for all purposes as if I was present and signed the deed or deeds.

"5th. It is my desire and I hereby will that after the payment of debts as hereinbefore directed that my wife Gabriella Craven shall have all the residue of whatever kind to use for her support, protection and comfort and enjoyment during her natural life and she is authorized to procure or cause to be erected lasting or permanent monument and inclosure to and around our graves.

"6th. It is my will and I hereby authorize my wife Gabriella Craven to dispose of any amount by will not to exceed one-half of all the estate remaining after all expenses have been paid for her last illness and burial.

"7th. It is my will that all that portion of my estate remaining undisposed of as hereinbefore authorized and directed be divided in eight equal shares and that one share go to each of my brothers and sisters and in case of their death or deaths then to the heirs of their respective bodies begotten.

"8th. It is my will and I hereby appoint my wife Gabriella Craven the executor of this my last will and testament, in witness whereof I have hereunto set my hand and affixed my seal this 5th day of February, A. D. 1890."

He afterwards added the following codicil:

"To all to whom this may come, know ye that on this the 18th day of April 1898, I make this the following change in the foregoing to-wit: That real estate...