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In Grundmann v. Wilde, 346 Mo. 327, 332(4), 141 S.W.2d 778, 780(6), this court in construing a will said "by no stretch of imagination could it be ruled that the phrase `lawful issue'... includes an adopted child..."
Summary of this case from Kindred v. AndersonOpinion
June 28, 1940.
1. WILLS: Construction. In construing a will it is the task of the court to find the general purpose of the testator, to reconcile and coordinate provisions which may appear to be in conflict where such reconciliation and coordination can reasonably be consistent with the general purpose.
2. WILLS: Construction. In construing a will the courts must always keep in mind the intention of the testator as the guiding principle and that his heirs are the favorites of the law entitled to the first consideration in doubtful expressions.
3. WILLS: Construction: Statute. Under a statute providing that where the words "heirs and assigns" or like expressions are omitted and no expressions are contained in such will whereby it shall appear that the devise was intended to convey an estate for life only, and no further devise be made of the devised premises, it shall be understood to be the intention of the testator to devise an absolute estate in his property.
But in such case a subsequent granting clause of the will should be considered in determining the intent of the testator.
4. WILLS: Construction. Where the testator in his will gave all his property to his wife during her life and upon her death a part described to his daughter and a part described to his son and providing further that on the "death of either one of my children without leaving lawful issue the other child shall inherit his or her share as provided in this article," under no construction could it be ruled that the words "lawful issue" included an adopted child of either the son or daughter.
Although said article of said will provided that the part devised to the son should be kept in trust for the lawful issue of testator's children, it was not intended by the phrase "in trust" to create a trust, and each child was severally given a lawful estate in said property with the remainder in fee to his or her lawful issue, and on the death of either without lawful issue the other should inherit the share of the deceased as provided.
Appeal from Circuit Court of City of St. Louis. — Hon. William S. Connor, Judge.
REVERSED AND REMANDED ( with directions).
Edwin C. Luedde for appellant.
(1) A devise may be cut down by subsequent language in the will showing such intention. The rule is that the testator's intention must be ascertained from the whole instrument, and all clauses construed together. Blumer v. Gillespie, 338 Mo. 113, 93 S.W.2d 939; McClelland v. Martin, 257 S.W. 808; Payne v. Reece, 297 Mo. 54, 247 S.W. 1006. (2) The intent of the testator to create a trust, if it can be fairly ascertained from the entire instrument, will be upheld. No particular phraseology is required to establish a trust. Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135; Davies v. Keiser, 297 Mo. 1, 246 S.W. 897; McDowell v. Brown, 21 Mo. 57. (3) An adopted child is not a child, nor it is an heir, as to any persons other than the immediate parties to the deed of adoption. A child adopted in a deed by a son of the testator does not become the grandchild of the heir of such testator. Hockaday v. Lynn, 200 Mo. 456, 98 S.W. 585, 8 L.R.A. (N.S.) 707, 118 Am. St. Rep. 672, 9 Ann. Cas. 775; Reinder v. Koppelman, 94 Mo. 338, 7 S.W. 288; 8 L.R.A. (N.S.) 117; Drake v. Drake, 328 Mo. 966, 43 S.W.2d 556; Melek v. Curators of Univ. of Mo., 213 Mo. App. 572, 250 S.W. 614; R.S. 1909, sec. 1673; Nickerson v. Hoover, 70 Ind. App. 343, 115 N.E. 588. (4) An adopted child is not included in a bequest or devise to the "heirs of the body" of the person adopting him; nor is it a "lineal descendant." R.S. 1929, sec. 14079; Clarkson v. Hatton, 143 Mo. 47, 44 S.W. 761; Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672; Rauch v. Metz, 212 S.W. 357; Hale v. Hale, 237 Ill. App. 410. (5) The terms "heirs of the body" and "issue" are equivalent. An adopted child does not come within either term. Rembert v. Vetoe, 85 S.C. 198, 71 S.E. 959; In re Russell's Estate, 284 Pa. 164, 130 A. 319; Wright v. Gaskill, 74 N.J. Eq. 742, 72 A. 108; Ballentine's Law Dictionary, p. 687; 2 Bouvier's Law Dictionary, p. 1686; Beckley v. Riegert, 212 Pa. 91, 61 A. 641; Stayman v. Paxson, 221 Pa. 446, 70 A. 803; Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672. (6) An adopted child is not "issue," nor "lawful issue," as those terms are used, either generally or in a bequest or devise to some one with a remainder over to his issue or lawful issue. Adopting a child does not prevent a failure of issue. Philip's Excr. v. McConnica, 59 Ohio St. 1, 51 N.E. 445, 69 Am. St. Rep. 153; Gallagher v. Sullivan, 251 Mass. 552, 146 N.E. 769; Davis v. Fogle, 124 Ind. 41, 23 N.E. 861, 7 L.R.A. 485; In re Book's Will, 89 N.J. Eq. 509, 105 A. 878; Munday v. Munday, 164 Va. 145, 178 S.E. 917; Morse v. Osborne, 75 N.H. 487, 77 A. 403, 30 L.R.A. (N.S.), 914, Ann. Cas. 1912A, 324; Bealor's Estate, 23 Pa. Dist. Rep. 1117; Middletown Trust Co. v. Gaffey, 96 Conn. 61, 112 A. 689; Stanley v. Chandler, 53 Vt. 619; Morton v. Amer. Sec. Trust Co., 387 N.Y.S. 297, 159 Misc. 166; In re Cotheal's Estate, 202 N.Y.S. 268, 121 Misc. 665; In re Smith's Will, 95 Vt. 97, 112 A. 897; Miller v. Wick, 311 Ill. 269, 142 N.E. 490, 30 A.L.R. 1407.
Case, Voyles Case for respondent.
(1) Such intention to create such further devise must be apparent, and cannot rest upon the basis of uncertain language or ambiguous terms and provisions. Therefore, the preceding clause or grant will not be limited or cut down when the provisions relied upon for such purpose are not as plaintiff, clear and unambiguous. In re McClelland's Estate, 257 S.W. 810; Sevier v. Woodson, 205 Mo. 214; Payne v. Reese, 297 Mo. 58; Ewart v. Dalby, 5 S.W.2d 432; Yocum v. Siler, 160 Mo. 289; Tindall v. Tindall, 167 Mo. 225. (2) Since enactment of Section 3993, Revised Statutes 1879 (R.S. 1929, sec. 3106), the word "heirs" is not required to vest a fee. Where a devise is made containing no expressions showing it was intended to be a mere life estate, no further devise over is made, and the words "heirs and assigns" are omitted, such grant must be construed to vest an absolute fee. R.S. 1929, sec. 563. Where there is a devise in fee at the death of the testator, and a devise over in case of death without issue, it will be presumed that such time of death refers to death of devisee, if occurring during the lifetime of the testator or of the life tenant; unless in the will a different intention is expressed. Ewart v. Dalby, 5 S.W.2d 432; Owens v. Men, 296 Mo. 118; Smith v. Smith, 157 Ala. 79, 25 L.R.A. (N.S.) 1045n; 2 Thompson on Real Property, sec. 2574. (3) In 1825 our Legislature abolished estates-tail in this State. And since the Revision of 1845, directing that "dying without issue" should be construed as meaning heirs or issue living at the time of the death of the ancestor named no implication of an estate-tail can longer be raised from their use. Yocum v. Siler, 160 Mo. 296; Elsea v. Smith, 273 Mo. 412; Green v. Irvin, 309 Mo. 311; R.S. 1929, sec. 3110. (4) Intention to create a trust in a will must be found in language sufficient to sever the legal from the equitable estate, and to clearly identify the subject matter, beneficiaries, and object of the trust. 2 Thompson on Real Property, secs. 2273, 2578; Schmucker's Estate v. Reel, 61 Mo. 596; In re Johnson's Estate, 100 Or. 389. (a) The doctrine of resulting trusts has no application to create trusts in land where, by statute, as in Missouri, such trusts are void unless manifested and proved by some writing. R.S. 1929, sec. 3104; Parker v. Blakely, 328 Mo. 1189. (b) To be valid, a trust must arise at the time of attempted creation. Trautz v. Lemp, 329 Mo. 580. (5) Conditions which are repugnant to the estate limited are void. A testator cannot create a fee with absolute right of disposal, and at the same time clog the power of alienation by limitations over to another, by provisions which are absolutely inconsistent. 2 Thompson on Real Property, sec. 2562; Reid v. Voorhees, 216 Ill. 236, 74 N.E. 804; Law v. Douglas, 107 Iowa 606, 78 N.W. 212. A restraint on alienation may be void because repugnant to the grant of a fee. Thompson on Real Property, sec. 2562; Millard v. Beaumont, 194 Mo. App. 73; Kessner v. Phillips, 189 Mo. 526. (6) Since abolition of entails and rule in Shelley's case, in case of limitations over to issue, or upon failure of issue, on death, the issue take as purchasers. Brock v. Dorman, 339 Mo. 615; Clarkson v. Clarkson, 125 Mo. 381; Hancock v. Butler, 21 Tex. 817; 2 Thompson on Real Estate, sec. 2565. In the ascertainment of these the statutes of Descent and Distributions and Adoption, control. St. Louis Union Trust Co. v. Hill, 336 Mo. 23; R.S. 1889, sec. 5246; R.S. 1929, secs. 306, 3110, 14079. (7) A testator is presumed to have known the adoption statutes enacted by the Legislature. St. Louis Union Trust Co. v. Hill, 336 Mo. 23; Hartwell v. Tefft, 19 R.I. 644, 35 A. 883; Munie v. Gruenewald, 289 Ill. 472. A child adopted under provision authorizing adoption existing prior to the Adoption Code of 1917 has been held to be a child within the meaning of Section 306, Revised Statutes 1929. "First, to his children, or their descendants." Fosburgh v. Rogers, 114 Mo. 123; Bernero v. Goodwin, 267 Mo. 435.
Action to determine title to Lots 7, 8, 9, 10 and 11 of city block 587, St. Louis, Mo. The common source of title is Henry T. Wilde, who died July 12, 1900. The widow, Friedericke Wilde, son Claus and daughter Sophie survived him. The widow died May 10, 1909. Claus and Sophie survived her. The daughter Sophie is the plaintiff. Paul T. Wilde, the adopted son of Claus Wilde is the defendant. He was adopted by Claus and wife Aug. 15, 1916. Claus died testate May 27, 1937. He gave his estate to the adopted son.
Plaintiff contends that the will of her father Henry T. Wilde gave the lots to her brother Claus for life. Defendant, adopted son of Claus, contends that said will gave the lots in fee to his adoptive father Claus. The trial court found that said will gave the lots to Claus in fee. Plaintiff appealed.
In construing a will we stated a rule as follows:
"Those who deplore technical rules and precision of statement required by the courts in interpreting legal documents, should consider the matter of wills. Of all written instruments, wills are the least formal. Anything written, in any form, goes for a will if it reveals the intention of the maker to dispose of his property at death. Yet wills cause more misunderstandings, more difficulties of interpretation, and more litigation than any other kind of writing; in discovering the intention of the maker, in reconciling his contradictions, in reducing to order his confused purposes. It is our task here to find the general purpose of the testator, to reconcile and coordinate provisions which may appear to be in conflict where such reconciliation and coordination can reasonably be made consistent with the general purpose, and, if the testator was confused in the expression of his desires, to pierce through such confusion and reduce to articulate terms the underlying intent. [2] In doing so we must always keep in mind that the intention of the testator is the guiding principle; that his blood relatives, his heirs, are favorites of the law and entitled to first consideration in doubtful expressions; that a testator however clear of intellect cannot always foresee and provide for contingencies that may arise to hamper interpretation." [Coleman v. Haworth, 320 Mo. 852, 857, 8 S.W.2d 931; Gibson v. Gibson, 239 Mo. 490, 503, 506, 144 S.W. 770; Burnett v. Burnett, 244 Mo. 491, 148 S.W. 872; Payne v. Reece, 297 Mo. 54, 247 S.W. 1006.]
In this connection we should consider the statute with reference to the construction of wills, which statute follows:
"All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them." [Sec. 567, R.S. 1929.]
"In all devises of lands or other estate in this state, in which the words `heirs and assigns,' or `heirs and assigns forever,' are omitted, and no expressions are contained in such will whereby it shall appear that such devise was intended to convey an estate for life only, and no further devise be made of the devised premises, to take effect after the death of the devisee to whom the same shall be given, it shall be understood to be the intention of the testator thereby to devise an absolute estate in the same, and shall convey an estate in fee simple to the devisee, for all such devised premises." [Sec. 563, R.S. 1929.] (Italics ours.)
Under the provision in italics, and, absent a fee simple by express grant, a subsequent granting clause of the will should be considered in determining the intent of the testator. [Coleman v. Haworth, 320 Mo. 852, 858, and cases cited, 8 S.W.2d 931.]
The material parts of the will of Henry T. Wilde follow:
"Article II. And all the real estate I possess or may be owner of at the time of my death, I give and devise unto my said wife to have and to hold the same during her natural life and with the condition attached, that she do keep the same in good repair, free of all taxes and incumbrances and the improvements properly insured."
"Article VI. Upon the death of my wife, (which will terminate her life estate), in my realty,) it is my will that said real estate shall be disposed of as follows:
"1stly the premises numbered 1237, 1239, 1241 1243 Franklin Avenue, in city block No. 271, in the City of St. Louis, State of Missouri, I devise and bequeath upon the death of my wife to my daughter Sophie, Marie, Therese, Mathilda Grundemann, nee Wilde, and 2dly the premises South east corner of 11th street and Case Avenue in City block No. 587 in said city I devise and bequeath upon the death of my wife to my son Claus, Otto Wilde."
"Article VII. The real estate in city block No. 1 (271) and in city block No. 587, as described in Article VI, shall be kept by my children in trust for their lawful issue, the net income of same shall go in their hands for their sole use, but no debts shall be created on same, it shall be kept in good repair, free of all incumbrances, all taxes shall be paid punctually and it shall not be sold by them. In case of the death of either one of my children without leaving lawful issue, then the other child shall inherit her or his share as provided in this Article VII."
Thus it appears that Article VI is an undefined grant of the lots mentioned in city block No. 271 to Sophie, and an undefined grant of the lots (7, 8, 9, 10 11) in city block No. 587 to Claus. This article, standing alone, grants a fee simple title to the lots in block 271 to Sophie, and grants a fee simple title to the lots in block 587 to Claus. However, Article VII must be considered in determining the intention of the testator. It is not difficult to determine his intention. He did not intend by the phrase "in trust," as used in said article, to create a trust. The phrase is therein used in a fiduciary sense. Furthermore, the children are severally given the control, management and net income of the respective properties. That is, each child is severally given a life estate in said properties, with remainder in fee to his or her lawful issue. On the death of either child without lawful issue, the surviving child "shall inherit her or his share, as provided in this Article VII." In other words, the surviving child is given a life estate in the lots given by testator to the deceased child, with remainder to the lawful issue of the surviving child. Furthermore, by no stretch of imagination could it be ruled that the phrase "lawful issue," as used in the article, includes an adopted child of either of said children of the testator.
On the death of Claus the plaintiff, Sophie Grundmann, became the owner of a life estate in all the lots granted in blocks 271 and 587, with remainder in fee to her lawful issue.
The judgment should be reversed and the cause remanded with directions to enter a decree in accordance with the rulings of this opinion. It is so ordered. All concur.