Zombro v. Moffett

• Decision Date: 05 November 1931
• Docket Number: 29359
• Citation: 44 S.W.2d 149,329 Mo. 137
• Parties: Ethel Mott Zombro v. Thomas S. Moffett, Executor of Estate of John Moffett, et al., Appellants
• Court: Missouri Supreme Court

44 S.W.2d 149

329 Mo. 137

Ethel Mott Zombro v. Thomas S. Moffett, Executor of Estate of John Moffett, et al., Appellants

No. 29359

Supreme Court of Missouri

November 5, 1931

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

Beardsley & Beardsley for appellants.

(1) The will speaks for itself. It is not the purpose of Sec. 516, R S. 1919, to modify or defeat in any part the testator's intention as expressed. Guitar v. Gordon, 17 Mo 408; Jamison v. Hay, 46 Mo. 546; Louden v. Bollam, 302 Mo. 490, 40 Cyc. 1939; In re Neydorff, 184 N.Y.S. 553, 3 A. L. R. 1682; Schouler on Wills (6 Ed.) sec. 844; In re Solms Estate (Pa.), 98 A. 596; Matter of DeRycke, 99 A.D. 596. (2) It cannot be held that the words "brothers and sisters" refer to a class, and that taking the statute into consideration they include both living and dead. The answer is that in view of the language of the will, it cannot be held that a class is here referred to. 2 Page on Wills, sec. 918; Page on Wills, sec. 1263; Delafield v. Shipman, 103 N.Y. 463; Rudolph v. Rudolph, 207 Ill. 266; In re Turner's Will, 208 N.Y. 261; State v. Railroad Co., 6 Me. 488; Bishop v. Executor of Mary A. McClelland, 44 N.J.Eq. 450; 40 Cyc. 1473, 1475; Downing v. Nicholson, 115 Iowa 493; Barnhill v. Sharon, 135 Ky. 70. (3) The trial court erred in striking out that part of defendants' answer which contained as part of it, proper affirmative matter. This is matter "asserting that said Ethel Mott Zombro, plaintiff herein, is entitled under said will of John Moffet, deceased, only to the sum of $ 5,000 bequeathed to her in said paragraph 3 thereof." (4) The court further erred in striking out part of these defendants' answer because it properly pleaded the want of jurisdiction in the court to determine the application of the construction of the will insofar as it affected lands in other states. That right remains alone in the several states where the lands lie. Richardson v. DeGiverville, 107 Mo. 422; Hughes v. Winkleman, 243 Mo. 81; Keith v. Keith, 97 Mo. 223; Dobschutz v. Dobschutz, 279 Mo. 120; White v. Greenway, 303 Mo. 691; Jackman v. Herrick (Ia.), 161 N.W. 97; Peet v. Peet, 239 Ill. 341; 1 Redfield on Wills, 398; Thompson v. Penn, 149 Ky. 158.

Glen A. Wisdom for respondent.

(1) The testator is presumed, not only to know the statute, but to have written his will with the statute in view. It is written as if the statute were incorporated in it as a part of it. Lounden v. Bollam, 302 Mo. 490, 258 S.W. 440; Murphy v. Enright (Mo. Sup.), 264 S.W. 811; 40 Cyc. 1939. (2) A gift to a class has been defined as a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are to take in equal or some other definite proportions, the share of each being dependent for its amount upon the ultimate number. 40 Cyc. 1473; Jamison v. Hay, 46 Mo. 546; Kingsbury v. Walter, A. C. 187, 70 L. J. Ch. 546. (3) Conclusions of law have no place in an answer or other pleading. (4) The will must be construed and the intention of the testator determined by the law of the testator's domicile, regardless of the kind of property and its location. Especially is this true where the testator so words his will. 40 Cyc. 1382; Jones v. Park, 282 Mo. 610, 222 S.W. 1018; Rutherford v. Am. Security & Trust Co., 12 F.2d 158; Keith v. Eaton, 58 Kan. 732, 51 P. 271; Larned v. Larned, 98 Kan. 328; Lincoln v. Perry, 149 Mass. 368; Codman v. Krell, 152 Mass. 214; Proctor v. Clark, 154 Mass. 45, 27 N.E. 673; Gray v. Holmes, 57 Kan. 217, 45 P. 596, 33 L. R. A. 207; Ross v. Ross, 129 Mass. 243; Minor on Conflict of Laws, sec. 145, p. 339; Ford v. Ford, 80 Mich. 42, 44 N.W. 1059; Ford v. Ford, 70 Wis. 19, 33 N.W. 195; 2 Greenleaf on Evidence, sec. 671; Jones v. Patterson, 307 Mo. 462; Fruend v. Schilling (Mo. App.), 6 S.W.2d 673; Gibson v. Boynton (Kan.), 210 P. 648. (5) A construction resulting in partial intestacy is against the policy of the law. St. Louis Union Trust Co. v. Little (Mo. Sup.), 10 S.W.2d 47; Paris v. Erisman (Mo. Sup.), 300 S.W. 487; Tindall v. Tindall, 167 Mo. 218; Silverman v. Larson, 124 Kan. 267; In re Brown's Estate, 119 Kan. 402, 239 P. 747; 40 Cyc. 1409. (6) Under the will, properly construed, respondent Ethel Zombro is entitled to one-sixth of the residuary estate of John Moffett after allowing the widow's half. R. S. 1919, sec. 516; Guitar v. Gordon, 17 Mo. 408; Jamison v. Hay, 46 Mo. 546; Lounden v. Bollam, 302 Mo. 490, 258 S.W. 440; Murphy v. Enright (Mo. Sup.), 264 S.W. 811; Snow v. Ferril (Mo. Sup.), 8 S.W.2d 1008; 40 Cyc. 1517, N. 46; Kehl v. Taylor, 275 Ill. 346; McNamara v. McNamara, 293 Ill. 54; Barnes v. Huson, 60 Barb. (N. Y.) 598.

OPINION

Henwood, J.

This case comes to the writer on reassignment.

Ethel Mott Zombro filed her petition in equity, in the Circuit Court of Jackson County, at Kansas City, for the construction of the will of her uncle, John Moffett, asserting that Agnes Moffett Mott, her mother and a sister of testator, predeceased the testator, and that she is the sole lineal descendant of her mother, and that, as such, she is included among the beneficiaries of the testator's residuary estate and entitled to the share of said estate to which her mother would have been entitled had her mother survived the testator, and alleging that the executor of the will and other heirs of the testator refused to recognize her as a beneficiary under the residuary clause of the will, and that the executor of the will refused to bring a suit for the construction of the will, and joining as defendants Thomas S. Moffett, executor, Thomas S. Moffett, brother of testator, and Louise McGrew Moffett, his wife, R. J. Moffett, brother of testator, and Bessie Moffett, his wife, J. W. Moffett, unmarried brother of testator, Jennie Lynn, sister of testator, and John C. Lynn, her husband, Annie M. McKee, sister of testator, and B. S. McKee, her husband, and Helen Moffett, widow of testator.

Helen Moffett, formerly Miss Helen Mustard and so named in the will as a legatee, was married to the testator shortly after the execution of the will, and, prior to the filing of plaintiff's petition, elected to take her share of the testator's estate, as his widow, under the statutes of this State. She filed a separate demurrer to plaintiff's petition, and said demurrer was sustained by the trial court on the ground that she is not a necessary or proper party to the suit.

The contesting defendants, Thomas S. Moffett, Executor, Thomas S. Moffett, Louise McGrew Moffett, R. J. Moffett, Bessie Moffett and J. W. Moffett, filed a joint answer in which they deny that plaintiff is included among the beneficiaries under the residuary clause of the will, and allege that the testator's residuary estate includes real estate in Arkansas, Oklahoma and Kansas, and assert that the courts of this State have no jurisdiction to determine the operative effect of the will in so far as it involves the title to real estate situated in Arkansas, Oklahoma and Kansas, and plead certain statutes and court decisions of said states bearing on the issues in this case, and join in the request to construe the will in so far as it affects personal property and in so far as it affects real estate situated in this State.

The trial court sustained plaintiff's motion to strike from said answer the parts thereof which relate to a limitation on its jurisdiction and to certain statutes and court decisions of Arkansas, Oklahoma and Kansas, and another part of said answer in which it is asserted that plaintiff is entitled only to a legacy of $ 5,000 specifically provided for in the will.

The case was submitted to the trial court on the pleadings, the will and an agreed statement of facts, and that court found the issues in favor of plaintiff and adjudged that, under the will, plaintiff is entitled to a one-sixth interest in the testator's residuary estate, to which Agnes Moffett Mott, plaintiff's mother and the testator's sister, would have been entitled had she survived the testator, in addition to a specific legacy of $ 5,000, and said defendants appealed.

It has been suggested that the death of Thomas S. Moffett, a party appellant as executor of the will and individually, has occurred since the submission of the case to this court. Under the provisions of Section 1055, Revised Statutes 1929, the case proceeds at the suit of the surviving appellants.

The will, omitting the certificate of witnesses, and the agreed statement of facts, read as follows:

"LAST WILL AND TESTAMENT OF JOHN MOFFETT.

"I JOHN MOFFETT, of Kansas City, Jackson County, Missouri, being of sound mind and disposing memory, do make, publish and declare this my last will and testament, hereby revoking all former wills by me made.

"1. I direct the payment in full of all my just debts, my funeral expenses and the expenses of my last illness.

"2. I give and bequeath unto Miss Helen Mustard, the sum of Five Thousand ($ 5,000) Dollars.

"3. I give and bequeath unto each of my nieces and nephews the sum of Five Thousand ($ 5,000) Dollars, and, in case of the death of any one or more of said nieces and nephews prior to my demise, then the Five Thousand ($ 5,000) Dollars to which they would be entitled, if living, shall be paid over and delivered to their lineal descendants, per stirpes, according to the laws of the State of Missouri, and, in case of the death of any of my said nieces and nephews without being survived by lineal descendants, then the bequests to such nieces and nephews shall become null and void.

"4. All of the rest, residue and remainder of my estate whatsoever, real, personal and mixed, wheresoever situated and in whomsoever possession same may be found, I give devise and...