Wead v. Gray

• Decision Date: 30 April 1883
• Citation: 78 Mo. 59
• Parties: WEAD, Appellant, v. GRAY.
• Court: Missouri Supreme Court

78 Mo. 59

WEAD, Appellant,

v.GRAY.

Supreme Court of Missouri.

April Term, 1883.

Appeal from St. Louis Court of Appeals.

REVERSED.

W. B. Homer and Levi Davis for appellant.

M. L. Gray for respondents.

HENRY, J.

This is a suit in which plaintiff asks the cancellation of two deeds of trust on certain real estate in Kirkwood, St. Louis county, and the facts of the case are as follows:

Spencer Smith was seized of said real estate in fee, and, in July, 1861, he borrowed of Mrs. McLean $1,000, for which he executed his note and a deed of trust on said real estate to secure it. In 1866 he borrowed of M. L. Gray $2,482, for which he executed his note and a deed of trust on the same property. In 1870 Smith died leaving a will, by which he devised said real estate to his wife Rachel. The two notes above mentioned were at her death in March, 1874, owned by Mrs. Charlotte Wead, mother of Rachel Smith. She died testate, and the following is a copy of her last will and testament:

“I, Charlotte Wead, of St. Louis, State of Missouri, being, according to my own apprehension, of sound and disposing mind, do make, ordain and publish this, my last will and testament: I give and bequeath to my only child, Rachel E. Smith, wife of Spencer Smith, now of St. Louis, State of Missouri, all of my property, real, personal and mixed, and all moneys and rights of action of every kind which may belong to me, or to which I may be in any way entitled at my decease, wishing my said daughter to have, use and dispose of the same absolutely in any way that may seem to her best, and for her own sole and separate use and benefit, and entirely free and clear and exclusive of any and all right, interference or control of her husband, the said Spencer Smith; it being the intention and meaning of this, my last will and testament, that my said daughter, Rachel E. Smith, shall have and dispose of all my said property in her own right as absolute owner and as though she were a femme sole, and that the same, and its proceeds and increase, if not disposed of and expended by her in her lifetime, shall descend at her death to her children and exclusive of her said husband; but if the said Rachel E. should die leaving no children nor their descendants, and without having disposed of the said property, it is then my will that out of what may remain undisposed of by her the sum of $200 shall be paid to the Domestic Missionary Society of the Protestant Episcopal Church, in the United States of America, and that the remainder of what may be left undisposed of by my said daughter at her death, shall be put at interest on good security and the interest thereof annually shall be paid to my niece, Ann S. Beach, during her natural life for her own separate and exclusive benefit, and at her death the remainder shall be paid to the above named Domestic Missionary Society, to be applied to the use of said society. In witness,” etc.

In August, 1874, M. L. Gray, respondent, was appointed administrator with the will annexed of said estate, and took possession of and holds said notes. Mrs. Smith survived her mother, and died in January, 1875, leaving a will, of which the following is a copy:

“I, Rachel E. Smith, of Kirkwood, St. Louis county, Missouri, do make, publish and declare the following to be my last will and testament: I desire all my just debts to be paid, including the incumbrances on my residence property at Kirkwood, placed there by my late husband, Spencer Smith. I make the following bequests: To Mrs. Ann S. Lear I give my watch and $500. To Reginald Heber Lear, son of Ann S. Lear, I give, for his name, $500, to be paid him upon his arriving at the age of twenty-one years. All the rest of my property, real, personal and mixed, I give and bequeath to Charles Minor Wead, the son of D. D. Wead, now of Sheldon, Vermont, whom I hereby adopt as my son and heir, for I love him as such and believe him to be fully worthy of that love. In the event that my estate shall not be sufficient, after the payment of debts, fully to satisfy the bequests to Ann S. Lear and Reginald Heber Lear, I desire and direct in such case that the above bequests to Ann S. Lear and Reginald Heber Lear be paid pro rata so far as the property will go. I name and appoint my friend Melvin L. Gray, of St. Louis, executor of my last will and testament.”

At her death there were other deeds of trust upon said real estate, executed by her husband in his lifetime, in which Charlotte Wead never had any interest. M. L. Gray, as administrator of the estate of Charlotte Wead, inventoried the two notes held by Mrs. Wead as assets of her estate, and, contending that they are subsisting claims against the said real estate, refused to deliver them to appellant, and, on the same ground, the Domestic Missionary Society of the Protestant Episcopal Church, and Ann S. Lear claim an interest in said notes as legatees under Mrs. Wead's will. The circuit court rendered a decree in favor of plaintiff, which, on appeal to the St. Louis court of appeals, was reversed, and plaintiff has prosecuted his appeal to this court.

1. WILLS: absolute power of disposal conferred by will: executory devise.

The case turns upon the construction of Mrs. Wead's will, and the principal question is: What estate in the property mentioned in that will, did Mrs. Smith take? Respondents insist that, by the will only a life estate was given to her, and appellants, that she took an absolute unlimited estate. If the latter be the proper construction of the will, neither the Missionary Society nor Mrs. Lear has any interest in the estate, and the decree of the circuit court was right.

Respondents, for their construction of the will, rely upon a class of cases, in which express life estates were given by the wills with power of disposition over the property, in some instances as broad as that given by Mrs. Wead's will, in others more restricted; but generally, where no estate for life was created in express terms, the wills have been held to give the absolute property, notwithstanding a limitation over of what might remain undisposed of by the first taker. There are exceptional cases. Smith v. Bell, 6 Pet. 68, relied upon by respondents' counsel, is of that class. But that case has not been followed in this State. In Reinders v. Koppelmann, 68 No. 491, Judge Napton, delivering the opinion of this court, quotes what was said by Sir William Grant in Barford v. Street, 16 Ves. 135: “An estate for life with an unqualified power of appointing the inheritance, comprehends everything. By her interest she can convey her life estate. By the unlimited power she can appoint the inheritance. The whole fee is then subject to her disposition,” and Judge Napton adds: “A party cannot give an unlimited dominion of his property to one, and at the same time, a limited right in it to another; in other words, a remainder cannot be engrafted on a fee.”

In the construction of a will, it is a question of intention, to be ascertained by construing all parts of the will together, and the intention, if not in contravention of some inflexible rule of law, is to control. It would be difficult to find words more apt to convey an absolute and unlimited ownership of personal property than those employed in Mrs. Wead's will, and the...