West v. Bailey

• Decision Date: 30 May 1906
• Citation: 94 S.W. 273,196 Mo. 517
• Parties: WEST, Administrator, Appellant, v. BAILEY, Administrator, et al
• Court: Missouri Supreme Court

94 S.W. 273

196 Mo. 517

WEST, Administrator, Appellant, v. BAILEY, Administrator, et al

Supreme Court of Missouri, Division One

May 30, 1906

Appeal from Linn Circuit Court. -- Hon. Jno. P. Butler, Judge.

Reversed and remanded (with directions).

H. J West and T. M. Bresnehen for appellant.

(1) The court erred in its construction of the eighth clause of the will. This bequest creates a trust fund to be invested in a homestead for Mrs. Graves, with title in her for life and remainder to her children and their descendants; and the judgment of the trial court directing the plaintiff to pay this trust fund to her is contrary to the plain terms of the will. The court does not direct that any part of this legacy be paid to her at this time, but reserves to itself the right hereafter to direct the payment of the whole or any part of it to her, thus not only defeating the intention of the testator that the legacy should be invested in a homestead but depriving the children of any interest in the legacy. To so divert this fund not only violates the plain terms of the will as to how the legacy should be invested and preserved for Mrs. Graves, but actually takes from her children and gives to her the bounty that was intended and provided by the testator for them. In order to do this the court must disregard the will of the testator and substitute in its place one made by the court. The court cannot make a will for the testator; its only power is to construe and carry into effect, as nearly as possible, the will made by him. Drake v. Crane, 127 Mo. 85; Garth v. Garth, 139 Mo. 456; Women's Christian Association v. Kansas City, 147 Mo. 103; Clotilde v. Leitz, 157 Mo 439; RoBards v. Brown, 167 Mo. 447. (2) The court erred in undertaking to reserve to itself the right to make other and further orders, judgments and decrees in the cause with reference to the payment of the Graves legacy and the legacy to the children of Thomas E. Newkirk. The judgment ought to be final, disposing of all the matters in controversy, with nothing left for the future determination of the court. There can be but one final judgment in a cause, and that must dispose of all the matters in issue. Deickhart v. Rutgers, 45 Mo. 132; Caulfield v. Farish, 24 Mo.App. 110; Russell v. Railroad, 154 Mo. 428; Seay v. Sanders, 88 Mo.App. 478.

VALLIANT, J. Graves, J., not sitting.

OPINION

VALLIANT, J.

Plaintiff, as administrator de bonis non with the will annexed, of the estate of Cyrus Newkirk, deceased, brings this suit in equity against the widow, children and grandchildren of the testator, praying the court to construe the will. There was a decree of the court construing the will and from that decree the plaintiff has appealed. Since the rendition of the decree the widow of the testator has died, and her administrator has been made a party to the suit. The testator left surviving him his widow, two sons, three daughters, the children of one deceased son and the children of one deceased daughter. He left an estate consisting of real and personal property. It is not necessary to copy the will here in full as it is long and as there are only two clauses of it which appellant contends were not correctly construed by the decree in the circuit court. We will therefore give our attention particularly to those two clauses.

"Clause 8. To my son, Joseph G. Newkirk and my friend, Jonathan Knight, of Linn county Missouri, I give and bequeath the sum of twenty-five hundred dollars in trust and by them to be held in trust and for the use and benefit of my daughter, Mary J. Graves, said funds to be derived from the sale of the land herein bequeathed to my beloved wife, Mary F. Newkirk, for her life, after the death of my said wife, unless my said wife and my children who by the terms of this, my will are given an interest in said lands, deem it advisable to sell said land before the death of my said wife, in which event I direct that the above legacy left in trust for my said daughter, shall be a special charge upon the money received from the sale of said lands, which said sum of twenty-five hundred dollars shall be paid to said trustees, who I direct shall invest the same in real estate as a homestead for my said daughter, Mary J. Graves, taking the title to her for and during her natural life, and at her death to the children of her body or their descendants, share and share alike." There was no sale of the land mentioned in this clause during the life of the widow, and since her life estate has expired the land is now on hand free to be disposed of under the terms of the will. The decree appealed from directs the plaintiff, the administrator de bonis non with the will annexed, to sell this land in such manner as he may deem best and to the best interest of the estate "and from the amount derived from this sale he shall set aside the sum of twenty-five hundred dollars, which is to be held by him as a trust fund to be paid to Mrs. Graves in whole or in part as this court may in the future direct, and whatever surplus may remain over and above said twenty-five hundred dollars shall be applied to the payment of the debts and costs of administration as far as may be necessary."

The decree in that particular is erroneous, it is in violation of...