Webb v. Archibald

• Decision Date: 30 April 1895
• Citation: 34 S.W. 54,128 Mo. 299
• Parties: Webb et al. v. Archibald et al., Appellants
• Court: Missouri Supreme Court

34 S.W. 54

128 Mo. 299

Webb et al. v. Archibald et al., Appellants

Supreme Court of Missouri

April 30, 1895

Appeal from Carroll Circuit Court. -- Hon. E. J. Broaddus, Judge.

Reversed and remanded.

Pattison & Sebree for appellants.

(1) William Winkler has a common law marital interest in the land affected by the decree and may, by possibility have a curtesy in it. His rights should have been affirmatively adjudicated by the court. Dyer v. Wittler, 89 Mo. 87; Flesh v. Lindsay, 115 Mo. 1. (2) The deed "offered" should have been put in evidence and incorporated in the bill of exceptions, showing that Margaret Lindsay had acquired the land affected by the decree since the execution of her will. Respondents do not contend that she thus acquired the land otherwise than by deed. (3) There being no latent ambiguity on the face of the will, except as to the forty acres added to the home farm before the execution of the will, parol testimony as to her declarations and the various amounts of personal property she possessed at the time of the execution of her will and that subsequently acquired, was inadmissible. Bradly v. Bradly, 24 Mo. 314; Hockensmith v Slusher, 26 Mo. 237. (4) It was inadmissible for another reason: By the common law, a will, as to personal property speaks from the death of the testatrix, and operates upon and affects all personal property owned at that time, unless by express provisions therein or by necessary intendment, some portion of it is excepted. 54 N.Y. 88. (5) The polar star of construction of a will is, if possible, to arrive at the intention of the testatrix. Hall v. Stephens, 65 Mo 673; Shumate v. Bailey, 110 Mo. 411. And this intention must be gathered from the "four corners" of the will, giving heed to general provisions, as manifested from the face of the will, rather than to particular clauses. 4 Kent [11 Ed.], pp. 545, 643; Ingles v. Trustees, 3 Pet. (U.S.) 117; Chase v. Lockerman, 1 Gill & Johns. 185. (6) By the common law, a testator had not the legal capacity to dispose of after acquired real estate, but that has been changed by the statutes of this state. Liggat v. Hart, 23 Mo. 127; Applegate v. Smith, 31 Mo. 169. This statute has been given the same construction as those from which it has been rescripted. 33 N.Y. 563. (7) Under the provisions of these statutes, all real estate prima facie passes unless there are express contrary provisions, or by necessary construction to the contrary, in order to make the provisions of the whole will consistent and to carry into effect the manifest intention of the testator. 23 Mo. supra. These statutes place the onus of construction and burden of proof upon those claiming in opposition to the will. Quinn v. Hardenbrook, 54 N. Y. (Sickles), 89. The natural and reasonable presumption is that when a will is executed the testator designed to dispose of his entire estate and does not intend to die intestate as to any of it. Leigh v. Savage, 1 N.J.Eq. (McArthur), 126. (8) Estate means both real and personal property. Shumate v. Bailey, 110 Mo. 411. "Property means both real and personal effects. 2 Redf. on Wills [3 Ed.], sec. 21, p. 127. Courts are inclined against a construction which will result in partial intestacy. 2 Redf. on Wills [3 Ed.], sec. 5, p. 116; Gaines v. Hindley, 57 Mo. 342; Leake v. Robinson, 2 Mer. 385; Carr v. Diggs, 58 Mo. 400.

Morton Jourdan for respondents.

(1) The single question for determination in this case is: Did Margaret Lindsay die intestate as to the one hundred and twenty acre tract known as the "Winfrey farm?" All other questions suggested by the brief of the appellant have been determined by the opinion filed upon the hearing of this case in division number one. The well settled and established rule in this state is, that in the construction of wills the intention of the testator must govern and control. R. S. 1889, sec. 8916; Smith v. Hutchinson, 61 Mo. 83; Nichols v. Boswell, 103 Mo. 157; Small v. Field, 102 Mo. 122; Redman v. Barger, 118 Mo. 568. (2) And that the intention of the testatrix must be gathered and ascertained from all four corners of the will. Allison v. Chaney, 63 Mo. 279; Jarman on Wills, p. 435; 1 Redfield, bottom p. 359; Ringquist v. Young, 112 Mo. 25; Shumate v. Bailey, 110 Mo. 415; Long v. Simms, 107 Mo. 519; Schorr v. Carter, 120 Mo. 413; Schouler on Wills, sec. 466, p. 500. (3) Hence, unless it was clearly the intention of the testatrix to devise the after-acquired real estate by the use of the word "property" in the third clause of her will, then she died intestate as to such after-acquired real estate. Applegate v. Smith, 31 Mo. 158. For the rule is, disinheritance will not be presumed. On the contrary, an heir can only be disinherited by an express devise or necessary implication. This rule is announced in 2 Powell on Devises, 199. And is quoted with approval, his honor, Judge Sherwood, speaking for this court in Eneberg v. Carter, 98 Mo. 651. (4) Her power to dispose of after-acquired property is the same as to dispose of that she possessed at the time of making the will. Hence, determining whether the after acquired real property passed by the will, the same agency of construction is to be applied as would determine whether the same land, if possessed at the time of making the will, had passed. Liggat v. Hart, 23 Mo. 127. (5) It is conceded that the word "property" is, when employed without limitation or restriction, sufficiently comprehensive to include both real and personal property. It has, however, been universally held that the meaning of this ("property,") or similar words, may be and is often restricted to include either the real or the personal property, first, by the other language used in the instrument. Smith v. Hutchinson, 61 Mo. 87; or, second, by the intention of the grantor in the division of property to make the heirs equal, as evidenced by the instrument itself. Wheeler v. Dunlap, 13 Mon. (Ky.) 298; Howland v. Howland, 100 Mass. 223; Hale v. Audsley, 26 S.W. 964; Von Puhl v. Hay, 26 S.W. 965. See, also, Jarman on Wills, p. 670; Schouler on Wills [2 Ed.], pp. 592, 593. (6) It has also been held that the word "property," associated with the preceding words of specific description, is to be construed as referring to property of the same general character. People v. Railroad, 84 N.Y. 565; Morgan v. Dodge, 44 N.H. 263; Woolaw v. Kenworth, 9 Ves. 141. (7) And that a clearly expressed intention (in this will to make all her heirs equal) is not to yield to a doubtful construction to be placed upon any other portion of the instrument. Monroe v. Jones, 8 R. I. 527; 1 Redfield on Wills, 433.

Brace C. J. Barclay, J. dissenting. Gantt, Macfarlane and Burgess, JJ., concurring; Barclay, Sherwood, and Robinson, JJ., dissenting. Barclay, J. dissenting. Judges Sherwood and Robinson concur in this dissent to the reversal of the circuit judgment.

OPINION

In Banc.

Brace, C. J.

This is a suit instituted by Mrs. Webb, one of the devisees and heirs at law of Mrs. Margaret Lindsay, deceased, and her husband, against the administrator and the other devisees and heirs at law of the said deceased, to obtain a construction of the last will and testament of said deceased, which, omitting the formal parts, is as follows:

"I give and bequeath to my beloved daughter, Kate Webb, the sum of thirty-seven hundred and fifty dollars to her sole and separate use, and in order to secure the same to her sole and separate use, from the control of her present or any future husband, I hereby appoint and constitute my friend, Repps B. Hudson, to receive and take possession of said thirty-seven hundred and fifty dollars, on my death, and invest the same in land -- the deed for said land to be made to her, the said Kate Webb, to her sole and separate use.

"2. I give and devise to Thomas Archibald, William Archibald and Margaret Winkler, my children, and Harry Archibald, my grandchild, their heirs and assigns, all my real estate, including the farm of four hundred acres on which I now live, and twenty acres of timber land about one mile south of said farm of four hundred acres, this being all of my real estate -- each of the four persons last above named to have one-fourth of said real estate or land; said land is situated in Carroll county, Missouri.

"3. I give and bequeath to my son, William Archibald, one thousand dollars, for the purpose of making him even with the other children, on account of which they have received heretofore. Out of the balance of my property I desire my debts to be paid, and should there be anything left, I desire it to be equally divided between Thomas Archibald, William Archibald and Margaret Winkler; above named are all of my children, as I have never had any children by my present beloved husband, Clark Lindsay."

The will was executed on the sixth of March, 1885. The testatrix died in the year 1891, the owner of the real estate mentioned in the will, and of a tract of one hundred and twenty acres in addition, called the "Winfrey Farm," acquired by her after the execution of the will; and of personal property of the value of several thousand dollars.

The trial court held that the said Margaret Lindsay died testate as to all her personal property, which is to be distributed according to the terms of the will; but that she died intestate as to the said real estate purchased after the date of the execution of the will, and that the same descends in equal parts to her heirs at law, the said Kate Webb, Thomas Archibald, Margaret Winkler and Harry Archibald, and decreed accordingly. From this decree, defendants appeal, contending that the court committed error in holding that the said Margaret died intestate as to the after acquired real estate aforesaid, and this is the main question to be...