Wetzel v. Hecht

• Decision Date: 13 March 1920
• Docket Number: No. 20842.,20842.
• Citation: 220 S.W. 888,281 Mo. 610
• Parties: WETZEL et al. v. HECHT.
• Court: Missouri Supreme Court

220 S.W. 888

281 Mo. 610

WETZEL et al. v. HECHT.

No. 20842.

Supreme Court of Missouri, Division No. 2.

March 13, 1920.

Motion for Rehearing Denied and Opinion Modified March 26, 1920.

Appeal from Circuit Court, Morgan County; John G. Slate, Judge.

Suit by Lillie J. Wetzel and another against Mollie T. Hecht. Judgment for defendant, and plaintiffs appeal. Affirmed.

Capron, Butcher & Knoop, of Kansas City, and John J. Jones, of Versailles, for appellants.

R. M. Livesay, of Versailles, and A. T. Dumm, of Jefferson City, for respondent.

WHITE, C.

This suit, under section 2535, R. S. 1909, is to determine title to a tract of land in Versailles, Morgan county, Mo. M. Joachimi, owner of the land, died in January, 1911, leaving a will. The construction of this will presents the issue between the parties. The defendant is the widow of M. Joachimi; the plaintiffs are his daughters by a former marriage.

Joachimi had four children at the time of his death—two daughters, Lillie, now Lillie Wetzel, and Carrie Walter, plaintiffs; and two sons, E. A. Joachimi and M. L. Joachimi, Jr. The will of M. Joachimi, executed in May, 1910, after giving a nominal sum to each of his two sons, E. A. Joachimi and M. L. Joachimi, Jr., disposes of the balance of the property in this clause:

"To my daughter, Carrie Walter, and to Lillie Joachimi, and my dear wife, Mollie G. Joachimi, shall share alike in money and property left, after my debts are paid, except my homestead in Spurlock's addition, shall be left intact as long as my wife lives. After she leaves the homestead Lillie shall have this as a home, and at her death it shall go to Carrie Walter; if both survive and neither occupy the property, said property may be sold and proceeds divided among the two, and in case of Carrie Walter's death before Lillie Joachimi's death, said property shall go to Lillie Joachimi or her heirs."

This suit involves the property mentioned as the homestead in Spurlock addition. After her husband's death in 1911 Mrs. Joachimi continued to live on the place until March, 1916, when she went to live with her daughter by a former marriage, at Tipton, Mo. While there she married one Hecht in June, 1917, and had been living with him as his wife from that time up to the time of the trial, in December, 1917. While she lived at Tipton, and up to the time of the trial, the defendant continued in possession of the property; that is, she placed some one in charge who paid a small rent, and she retained charge of two rooms and kept a large part of her furniture in the house. She visited it occasionally from time to time during the two years she was absent, before and after her marriage, and sometimes stayed all night there. She paid the taxes for 1916 and some prior years. She made repairs, papered, painted, and put in sidewalks at different periods during the year 1917, both before and after her marriage to Hecht. She paid all the taxes that were paid on the property after her husband's death. She swore that neither of the plaintiffs had ever paid any taxes or made any repairs on the place; that no one lived with her, but that she lived alone on the homestead after her husband's death until she went to live with her daughter in Tipton. She said she had no intention of going away from this home permanently; that she always looked upon it as her home and treated it as a home. The trial court held that under the provisions of the will set out the defendant had a life estate in the property and rendered judgment in her favor. The plaintiffs appealed.

I. The rule of construction invoked by counsel for both parties is well established in this state—that in construing a will effect must be given to the intention of the testator, and, if necessary to carry out that intention, an estate, such as a life estate, may arise by implication from the terms of the will. Burnet v. Burnet, 244 Mo. 491, loc. cit. 498, 148 S. W. 872; Walton v. Drumtra, 152 Mo. 489, loc. cit. 507, 54 S. W. 233; Armor v. Frey, 226 Mo. 646, loc. cit. 669, 126 S. W. 483. To say that a life estate may be vested by implication is but another way of saying that the will must be construed from its four corners, the intention of the testator gathered from the entire instrument, and carried into effect, whether apt, operative terms are used or not. The will, it is stated, was written by the testator himself, without the advice of an attorney, and the lack of aptness in the use of words is due to that fact.

II. It is argued by appellant that the testator, in using the word "homestead" in the will, had in mind the statutory homestead provided by section 6708, R. S. 1909, whereby the widow, there being no minor children, is vested with an estate in the homestead during her life or widowhood. It is contended, therefore, that her rights ceased to exist by virtue of the statute when she remarried, and that no expression in the will prevented that result. If the testator had the law in mind, it might as well be said he had in mind section 366, R. S. 1909, which provides that a widow, until dower be assigned, may remain in and enjoy the mansion house.

Every one is presumed to know the law, and in writing a will a testator must be presumed to write it with understanding as to how the law would affect his estate in the absence of any modification of that effect by the will.

Under section 366 the widow's quarantine interest is not lost until dower is assigned, and by virtue of that interest she may maintain ejectment or defeat ejectment. She may convey it, and her grantee acquires the same right. Phillips v. Presson, 172 Mo. 24, loc. cit. 27, 72 S. W. 501; Thomas v. Black, 113 Mo. 66, loc. cit. 70, 20 S. W. 657; King v. King, 155 Mo. 406, 56 S. W. 534; Brown v. Moore, 74 Mo. 633; Smith v. Stephens, 164 Mo. loc. cit. 422, 64 S....