Waters v. Hatch

• Decision Date: 29 March 1904
• Citation: 181 Mo. 262,79 S.W. 916
• Parties: WATERS v. HATCH et al.
• Court: Missouri Supreme Court

79 S.W. 916

181 Mo. 262

WATERS v. HATCH et al.

Supreme Court of Missouri, Division No. 1.

March 29, 1904.

WILLS—BEQUESTS—CONSTRUCTION — SPECIFIC LEGACIES—ADEMPTION—CLERICAL ERRORS.

1. Where in a suit to construe a will two of the defendants and beneficiaries thereunder made common cause in the trial court, and filed a joint answer, the cause on appeal by one of them would not be reversed for an error only affecting their rights as between themselves, and which error had been obviated by the filing of a disclaimer on appeal.

2. Where a clause of a will created an annuity in favor of a certain person, and charged it on a store building, after the death of testator's widow, and a subsequent clause made the same provision, there was plainly a repetition, and it was error for the court, in a suit for the construction of the will, to declare two such annuities chargeable on the store.

3. Where a will gave testator's wife a certain note, and the note was found among his papers, indorsed by him to his wife, but it had never been delivered to her, a finding that the bequest of the note had not been adeemed was proper.

4. Where one clause of a will, standing by itself, bequeathed certain shares of stock, the legacy was a specific one.

5. A clause of testator's will bequeathed 60 shares of Carthage National Bank stock, which was all the stock he owned in that corporation, and in the next clause he bequeathed 20 shares of Carthage National Bank stock. Testator owned 20 shares of Central National Bank stock. The whole will showed that there was no intention of intestacy as to property, and the residuum of the estate was left to testator's wife, for whom he provided specifically. Held, that the latter bequest should be construed to refer to the Central National Bank stock.

6. Testator's will provided that from the proceeds of a certain insurance policy certain bequests should be paid, the total of which amounted to within $100 of the face of the policy, and that his son should then be paid the "balance, $100." By reason of a payment on the policy after the will was made, and by reason of earnings of the company, the policy yielded a sum over its face value. Held, that the son was not entitled to the excess, the same not being a specific, or even a general, legacy.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Suit by W. H. Waters, as executor of the will of W. H. Hatch, deceased, for a construction of the will. From the decree the defendant Frank B. Hatch appeals. Affirmed.

Howard Gray, for W. H. Waters. Shannon & Shannon, for Hatch. E. O. Brown and G. W. Crowder, for Vernon. Thomas & Hackney, for Flower.

MARSHALL, J.

This is an application in equity, by the executor of the last will and testament of W. H. Hatch, deceased, for a construction of the will. The widow and children of the deceased, who are also the legatees under the will, are the parties defendant. The will made no specific provision for the payment of debts, and the principal question involved is whether the demonstrative, the specific, or the general legacies, one or all, should contribute ratably to the payment of the debts and the expenses of administration. There are other questions of construction of the will which affect certain legacies and provisions of the will which will be noted in the course of the opinion.

The case made is this: W. H. Hatch lived in Carthage, Mo. His family consisted of his wife, who was over 70 years of age; his son, Frank B. Hatch, who was of age; and his two married daughters, Sarah M. Vernon, and Mary E. Flower. He owned a homestead, known as "Lot 26 of Lamb's Addition," worth $7,000, and of a rental value of $40 per month; and also a brick store building, located on a portion of lot 24, in Carthage, worth $10,000, on the north side of the square, wherein he carried on a clothing business under the name of the Boston Clothing Store. He also owned another business, which he carried on under the name of Economy Clothing Store, worth some $3,500. He owned 60 shares of the capital stock of the Carthage National Bank, and 20 shares of the capital stock of the Central National Bank. Besides this, he had insurance policies aggregating some $8,000. He employed his means separately in his several business ventures, and when he used money for any business that had not been set apart thereto he executed notes in the name under which he carried on the business to himself therefor. When he died he had on hand about $316.50 in cash, and when the business of the Boston Clothing Store was wound up by the executor it left $2,651.10 in the executor's hands, and these sums, together with $190 excess resulting from a policy of insurance for $4,000 in the Banker's Life Insurance Company, after paying $2,400 to the bank, which he owed as the Boston Clothing Store, and after paying $1,600 specific legacies, directed to be paid out of that fund, seems to have constituted the assets available to the payment of the debts and expenses of administration, without any deduction from the legacies for that purpose. The record does not show how much the debts of the estate amounted to, but all parties assume that said available fund is not sufficient to pay the debts, and that some or all of the legacies will have to contribute thereto, and the case will be so treated here.

For several months prior to April 13, 1898, W. H. Hatch was engaged in preparing his own will. The evidence is that he wrote and rewrote it very often. Finally, on the day aforesaid, he completed and executed his will, which is as follows:

"Know all Men by These Presents, That I, William H. Hatch, of the City of Carthage, and State of Missouri, do make this my last will and testament, revoking all others.

"1. I give my beloved wife, Cordelia Hatch, our house and lot, it being known as Lot (26) twenty-six, in Lamb's Addition to the town, now city of Carthage, except five feet off the north side of said lot, during her natural life, also the furniture, carpets, books, beds and bedding and everything to them belonging during her natural life. Our Daughter, Mrs. Sarah M. Vernon, of Des Moines, Iowa, is to have the use of one bed room furnished, with the choice of selection and use of the house for herself only, as long as she shall wish it for herself but not rent or lease it to others.

"I also give and bequeath to my widow, Cordelia Hatch, a life dower of Thirty ($30.00) Dollars per month on the brick store building where the Boston Clothing Store now is, it being known and described as the undivided west half (½) of the south half (½) of lot (24) twenty-four in the City of Carthage, on the north side of the square, during her natural life. My widow, Cordelia Hatch, shall pay the taxes and insurance on the house and lot, and my son, Frank B. Hatch, shall pay the taxes and insurance on the store building and lot, and all repairs that are necessary shall be paid equally by both parties, each paying one-half the expenses of repairs. I also give and bequeath to my widow Fifty ($50.00) Dollars per month from the sales of the Boston Clothing Store from the date of my death until the Boston Store is sold, to be paid to her at the end of each month. The insurance must be kept up both on house and store buildings.

"2. I give and bequeath to my daughter, Mrs. Sarah M. Vernon, of Des Moines, Iowa, sixty (60) shares of stock of the Carthage National Bank of Carthage, Missouri.

"3. I give and bequeath to my daughter Mrs. Mary E. Flower, twenty (20) shares of the stock of the Carthage National Bank, of Carthage, Missouri. I also give and bequeath to my daughter, Mrs. Mary E. Flower a life endowment or dower of two hundred ($200.00) dollars each year during the rest of her natural life to be paid to her by her brother Frank B. Hatch, to be paid to her quarterly on the first of each quarter on the brick store building where the Boston Clothing Store now is, it being known and described as the undivided south half (½) of the west half of lot (24) Twenty-four in Carthage, Missouri, on the north side of the Square. This endowment or dower is not to be paid to my daughter Mary, until after the death of her mother, Cordelia Hatch, as there will be repairs to be made and some improvements from year to year. I will that each party shall pay one half of the expenses of repairs, my son, Frank B. Hatch is to pay the taxes and insurance on the property. If it should ever be necessary to sell the property and both parties are agreed to it and it will seem best to do so, it may be sold and the proceeds of the sale shall be equally divided among them, my daughter and son.

"4. I give and bequeath to my son, Frank B. Hatch, our house and lot, it being known and described as lot (26) twenty-six in Lamb's Addition to the town now City of Carthage, Missouri. Be it known and understood that my widow, Mrs. Cordelia Hatch, has a life dower in this property during her natural life, and it is her property to occupy or to rent and control as she thinks best during her natural life. She is to pay all taxes and keep it insured in good and reliable insurance companies, all necessary repairs to be paid by her and son Frank, each one their one-half of the expense.

"I give and bequeath to my son, Frank B. Hatch, my share of the lot building where the Boston Clothing Store now is, it being known and described as the undivided south half (½) of the west half (½) of lot 24 in Carthage, Missouri.

                --------------------------------------------------------
                         |   I wish to add that my daughter
                NOTE—   | Mrs. Sarah M. Vernon, is to have one
                  Our    | bed room in our house of her own selection
                Dwelling | furnished, and the privilege
                 House   | of house as long as she lives, but she
                         | is not to lease or sell it to anyone
                --------------------------------------------------------
                

"My son Frank is to pay all taxes and keep the property insured in good and reliable insurance companies. Be...