Wells v. Fuchs

• Decision Date: 01 March 1910
• Parties: WELLS et al. v. FUCHS et al.
• Court: Missouri Supreme Court

125 S.W. 1137

226 Mo. 97

WELLS et al. v. FUCHS et al.

Supreme Court of Missouri, Division No. 1.

March 1, 1910.

1. WILLS (§ 184) — CODICIL.

Where there has been a clear devise in a will, the terms of a codicil must be equally clear to change such devise.

2. WILLS (§ 476) — CODICIL — CONSTRUCTION.

A codicil is to be treated as part of the will, and the two construed together.

3. WILLS (§ 184) — CODICIL — INDEFINITENESS.

Where a will clearly devised a life estate to A., testatrix's son, with remainder to his children, a codicil declaring that if A., "being my heir in my will," die before his son F., "he to be sole heir of * * * A.," is too indefinite and uncertain to constitute F. the devisee of the remainder.

Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.

Action by Alma Fuchs Wells and another against Friedrich Wilhelm Fuchs and others. From an adverse judgment, plaintiffs appeal. Reversed and remanded.

Frank H. Haskins, for appellants. Wm. E. Fisse, for respondents.

GRAVES, J.

This is an action to quiet title to certain real estate in the city of St. Louis. All parties claim under a will made by Helene Fuchs, executed April 24, 1897, and a codicil thereto, executed July 29, 1897. The plaintiffs and the two defendants Friedrich Wilhelm Fuchs and Columbia Fuchs were children of Dr. A. J. Fuchs, a son of the testatrix. Alma Fuchs Wells and Augusta Fuchs Jones and Friedrich Wilhelm Fuchs are children by his first wife, and Columbia Fuchs, a child by his second wife. Defendant Lina Vogeler was a daughter of testatrix, and Julius Vogeler was her husband. The testatrix died October 14, 1897. Dr. Fuchs died in March, 1904.

Plaintiffs claim an undivided one-fourth each in the property under the sixth clause of the will, which reads: "(6) I give, bequeath and devise to my son Dr. August J. Fuchs (a widower), residing in Mascoutah, St. Clair county, Illinois, the following described real estate, situated in block No. 1354 of the city of St. Louis, state of Missouri, to wit: Lots number thirty-nine (39) and forty (40) of block No. 2 of Thomas Allen's Western addition to said city of St. Louis, Missouri; said lots having an aggregate front of fifty (50) feet on the south line of Russell avenue by a depth of 125 feet, to an alley, inclusive the two story stone front building No. 2738 Russell avenue and other improvements thereon, to have and to hold the same with all the appurtenances thereto belonging, for and during his natural life, he, my said son, August J. Fuchs, to have and enjoy the usufruct, income, rents and revenue of said property for his sole use and benefit during his natural life, he, my said son, to keep the premises in good repair and tenable condition, pay taxes, insurance and etc.; and from and after the date of the death of my said son, August J. Fuchs, I give, bequeath and devise all of said real estate, including the buildings and improvements thereon, to his children, Alma Fuchs, aged about twenty years, Augusta Fuchs, aged about 18 years, Friedrich Wilhelm Fuchs, aged about 6 years, and to the child or children that may be born to him hereafter. To have and to hold the same from and after the date of the death of my son August J. Fuchs, unto them, my said grandchildren in equal shares, and unto their heirs and assigns forever."

Defendants Friedrich Wilhelm and Julius and Lina Vogeler claim by reason of the codicil of the will, which reads: "I, the undersigned, Helene Fuchs, widow of Frederick Wilhelm Fuchs, deceased, hereby declare that after my death Dr. A. J. Fuchs, residing in Mascoutah, St. Clair county, state of Illinois, being my heir in my last will and testament, now in possession of Richard F. Koster in St. Louis, state of Missouri, if my son Dr. A. J. Fuchs, of Mascoutah, county of St. Clair, state of Illinois, die before his son Fred Wm. August Fuchs (now age 6 years) also residing in Mascoutah, county of St. Clair, state of Illinois, he to be sole heir of the above named Dr. A. J. Fuchs of Mascoutah, St. Clair county, state of Illinois, if he dies, such inheritance (providing he dies without heirs, that is, his sisters, Alma Fuchs and Gussie Fuchs only to receive from such one hundred dollars each), but the residue to revert to my son-in-law Julius Vogeler, Sr., and his wife Lina Vogeler, née Fuchs."

There was oral evidence tending to show that the plaintiffs had trouble with their father, Dr. Fuchs, and that the testatrix took the side of the father. The codicil was shown to be in the handwriting of Dr. Fuchs. It appears that one of the plaintiffs had procured the arrest of the father, and the testatrix had requested that the suit be withdrawn, and that afterward she said, in speaking of this matter, that she had changed her will. The important portion of the decree of the trial court reads: "And the court doth find, adjudge, and decree that under the will of the late Helene Fuchs, as set out in the petition in this cause, the fee-simple title to the premises described in the petition became vested, upon the death of August J. Fuchs, to wit, on or about the 14th day of March, 1904, in the defendant Wilhelm Fuchs, and is now vested in him, the said Friedrich Wilhelm Fuchs, subject, however, to be determined in the death of him, the said Friedrich Wilhelm Fuchs, without leaving him surviving any lawful child or children, in which event said legal title shall become vested in the defendants Julius Vogeler and Lina Vogeler as joint tenants, subject, however, to the payment by them of the sum of $100 to each of the plaintiffs herein, to wit, Alma Fuchs Wells and Augusta Fuchs Jones, which respective sums constitute a charge upon the contingent interest of said Julius Vogeler and Lina Vogeler in and to the premises aforesaid. And the court doth further adjudge and decree that the proper construction of the will of said Helene Fuchs aforesaid vests the title to the premises described in the petition herein according to the previous finding of this decree."

Plaintiffs bring the case here by appeal taken in due order and within proper time. It will be observed that the real issue is as to the effect that the codicil to the will has upon the sixth clause thereof. Points urged will be noted in the course of the opinion.

Proceeding now to the questions of law, from the entire will it is evident that there was an attempted disposition of all of the property of the testatrix. This intent is clearly apparent. The question therefore is whether or not the testatrix by the codicil has so clearly indicated her purpose of changing clause 6 of her original will as to change the character of the bequests therein contained and the beneficiaries therein named. By clause 6 of the original will, Dr. Fuchs took a life estate in the property in question, and his heirs born, or thereafter to be born, an estate in remainder in fee. The codicil attempts to change the bequest in said sixth clause made. In this codicil Dr. Fuchs is designated as the heir of the testatrix. In other words, she says that he has theretofore been designated as the heir of...