Underwood v. Cave

• Decision Date: 09 June 1903
• Citation: 75 S.W. 451,176 Mo. 1
• Parties: UNDERWOOD et al., Appellants, v. CAVE
• Court: Missouri Supreme Court

75 S.W. 451

176 Mo. 1

UNDERWOOD et al., Appellants, v. CAVE

Supreme Court of Missouri, Second Division

June 9, 1903

Appeal from Jackson Circuit Court. -- Hon. E. P. Gates, Judge.

Affirmed in part and reversed and remanded in part.

John N Southern and John A. Sea for appellants.

(1) The entire will must be read in order to get the meaning of the testator and all of its provisions must be taken together. Sec. 4650, R. S. 1899; Schorr v. Carter, 120 Mo 409; Morrison v. Thistle, 67 Mo. 598; Brian v Garrison, 150 Mo. 655. (2) The second and fourth clauses of the will, read together, as they must be, no right or power to sell the real estate is given Malinda Underwood to convey any title greater than a life estate in said land. Schorr v. Carter, supra; Evans v. Folkes, 135 Mo. 397; Bromwell v. Cole, 136 Mo. 201; Pease v. Pilot Knob Co., 49 Mo. 124; Martindale on Conveyances, p. 139. (3) No right to sell by reason of a power to sell is claimed for Malinda Underwood by defendant, anywhere in the case. No power to sell is given by the will of Malinda Underwood. The words "shall be hers absolutely during her natural life, to use and enjoy as she may see proper, and at her death, if there be anything left, it shall be vested in the Baptist Church," do not contain a power to sell the real estate, especially when it is shown that $ 1,040.28 of personal property remained hers after administration. Bromwell v. Cole, 136 Mo. 201; Bremell v. Adams, 146 Mo. 70; Scheidt v. Crecelius, 94 Mo. 324; Lewis v. Pitman, 101 Mo. 381; Evans v. Folkes, 135 Mo. 408. (4) The term "absolutely" does not imply the power of disposal in connection with the other words relied on by defendant for that power. 1 Am. and Eng. Ency. of Law (2 Ed.), p. 208; McMillan v. Farrow, 141 Mo. 63; Biggins v. McClelland, 28 Mo. 29; Smith v. Bell, 6 Pet. 63. (5) "To use and enjoy as she may see proper" do not confer a power of sale, but negative such power. Owen v. Ellis, 64 Mo. 77; Owen v. Sentger, 51 Mo. 322; Biggins v. McClelland, 28 Mo. 20; Turner v. Timberlake, 53 Mo. 371; Pease v. Pilot Knob Co., supra. (6) The specific execution of a power to sell land can not be ordered and adjudged on parol testimony. Owen v. Ellis, supra; Sugden on Powers, sec. 88.

Johnson & Lucas for respondent.

(1) Let us notice the condition of the testator at the time of the execution of the will and of his death: He had no children, and the absence of any reference to brothers and sisters, or their descendants, indicates that the sole object of his bounty was his wife, with the desire that if at her death any part of the estate, "real" or "personal," remained, then it might be given to the church of which he was a member. Effect must be given to the intention of the testator. He seemed to have in mind and at heart two objects of bounty: first, and over and above all, his aged wife, and, second, after her death, as to anything that she may not have used in her lifetime, the residue of the estate, whether great or small. The gift was, take it absolutely as yours; use it as you will and if at your death any part thereof remains, the church shall have the same. Chew v. Keller, 100 Mo. 362; Small v. Field, 102 Mo. 127; Balliett v. Veal, 140 Mo. 189; Rothwell v. Jamison, 147 Mo. 613; Cross v. Hoch, 149 Mo. 335; Burford v. Aldridge, 165 Mo. 423. The last case cited in the language used in the will more nearly parallels the case at bar than others. Under the statute she was entitled by virtue of her homestead rights to 160 acres in fee, and the husband out of his affection gave to her all the land, with a direction that if anything remained at her death it should go to the Baptist church. There were no children, and the plaintiffs do not seem to have been in the affection of the testator. The testator was a farmer; the will was drawn by one unversed in legal knowledge, and when in the subsequent part of the will, he directed that the property "shall be hers absolutely during her natural life to use and enjoy as she may see proper, and at her death if there should be anything left my will is that it be vested and applied to the use of the Lone Jack Baptist Church," it must be clearly understood that no intention existed on his part to limit the estate or restrict the use and disposition thereof. And this appears equally clear in its relation to real as well as personal property. (2) Conceding for the sake of argument that some doubt might exist as to the giving of a fee, then there can be no serious question that an estate with the power of disposal was given to Malinda Underwood. Always remembering that the intention of the testator is to govern and control the construction of the instrument, we should keep in mind the fact that the gift in the second clause is unlimited, and, unless qualified by language of an affirmative character, creates a fee, and not a life estate. If the power of disposal be not necessarily implied, then why should the term "absolutely" be used therein, and the doubt implied if anything should be left? Unlike other cases that may be cited, the clause of the will now under consideration does not treat the property as that of the testator, but as that of the wife, and this clause is at the most only the expression of a wish on the part of the testator that if there should be anything left it should go to the Baptist church. Green v. Sutton, 50 Mo. 186; Evans v. Folkes, 135 Mo. 403; Davis v. Kirksey, 37 S.W. 994; Burford v. Aldridge, 165 Mo. 425. The case of McMillan v. Farrow, 141 Mo. 63, is of the class of cases where the remainder is spoken of as the property of the testator. The case of Brammell v. Cole, 136 Mo. 210, and Brammell v. Adams, 146 Mo. 70, and other cases cited by appellants, in nowise militate against the position of respondent, but on the contrary affirm the position of respondent herein. And the cases cited, Scheidt v. Crecelius, 94 Mo. 324; Lewis v. Pitman, 101 Mo. 281; and Evans v. Folkes, 135 Mo. 408, clearly show the distinction between the case at bar and those cited. We unhesitatingly aver that every question presented by this record was fully considered and determined in favor of this respondent, in Burford v. Aldridge, 165 Mo. 425; Hurst v. Von De Veld, 158 Mo. 246; Clotilde v. Lutz, 157 Mo. 445. (3) An estate in fee can not be impaired, cut down or limited by a subsequent clause, unless the testator has declared such to be his intention. Chew v. Keller, 100 Mo. 362; Small v. Field, 102 Mo. 104; Jones v. Brown, 68 Me. 34; Barth v. Barth, 38 S.W. 511. (4) The estate was a homestead, and under the law the title thereto vested in the widow, on the death of her husband, who died in August, 1871. Sec. 5, p. 450, G. S. 1865; Brown v. Brown, 68 Mo. 390; Case v. Mitzenberg, 109 Mo. 311; Goode v. Lewis, 118 Mo. 365; Linville v. Hartley, 130 Mo. 256.

OPINION

FOX, J.

This is an action in ejectment for the recovery of certain lands in Jackson county. The answer tenders the general issue, invokes the statute of limitations, prays for a reformation of the description as to a part of the land and a decree in accordance therewith. The reply denies the new matter in the answer. On the issues thus joined, trial was had, and the finding and decree were for defendant as prayed in the answer. In due time motion for new trial was filed, overruled and the case brought here by appeal. The whole issue is embraced in the construction of the will of James F. Underwood, deceased, the common source of title.

The following stipulation was introduced in evidence on the part of the plaintiff:

"Come the parties hereto and file stipulations as follows:

"1. That the plaintiffs are heirs of James F. Underwood.

"2. That James F. Underwood is the common source of title to the property in controversy.

"3. That the said James F. Underwood died testate in the year 1871, and Noah Hunt and his widow, Malinda Underwood, qualified and were duly appointed executors of his last will and testament.

"4. That said last will and testament was admitted to probate in the probate court of Jackson county, at Independence, on the -- -- day of July, 1871, and was re-probated on the -- -- day of -- --, 1899, in same court.

"5. That said last will and testament may be admitted as testimony in this cause.

"6. That Malinda Underwood lived in and occupied the residence where her husband died, until her decease in 1897.

"7. That Malinda Underwood received from herself and her co-executor Noah Hunt, the balance found to be due the estate at the final settlement thereof, to-wit, the sum of $ 1,040.28.

"8. That said Malinda Underwood claimed the real estate in controversy, under and by virtue of the said last will and testament of the said James F. Underwood. But if she had any other title thereto defendants are not debarred by this stipulation from asserting the same."

Following this, there was testimony introduced by plaintiffs as to the rental value. This was all the testimony on the part of the plaintiff.

Defendant introduced certified copy of the will of James F. Underwood, deceased. As the vital questions involved in this controversy are in respect to the proper construction of this will, we here quote it:

"Know all men by these presents, that I, James F. Underwood, of the county of Jackson, and State of Missouri, being in feeble health but of a sound and disposing mind, and not knowing the day of my death, do make and publish this, my last will and testament, in manner and form following, to-wit:

"First. I give and bequeath and donate to the Underwood family one acre of ground as a cemetery or burying ground, the said one acre being what is now known and which I wish to be known as the Underwood Cemetery or Burying Ground, to hold and belong to the said family forever, with this...