Opinion
No. 41988.
July 9, 1951. Rehearing Denied September 10, 1951.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, JAMES F. NANGLE, J.
Michael J. Doherty, George W. Curran, St. Louis, for appellant.
Walther, Hecker, Walther Barnard and Herbert E. Barnard, all of St. Louis, for Respondent Gerald B. Estorge, Curator for Ruth Margaret Estorge, N.C. M.
This suit was brought by plaintiffs as co-executors of the last will of Louise M. Gaertner for judicial construction of her will.
Mrs. Gaertner, a resident of the City of St. Louis, died on February 2, 1948. Her last will, dated November 15, 1940, and the codicil thereto, dated November 26, 1940, was duly admitted to probate. The estate consisted of personal property valued at $417,605.37 and real property valued at $17,500. Her heirs were a daughter, Ruth Margaret Estorge, a person of unsound mind, and a granddaughter, Joan Irving Gaertner, a minor. Gerald B. Estorge is the curator of the estate of Ruth Margaret Estorge, non compos mantis, and as such is a party defendant and respondent herein. Elizabeth M. Gaertner is the guardian of Joan Irving Gaertner, minor, and as such is a party defendant and appellant herein.
Prior to the execution of her will in November, 1940, Mrs. Gaertner, on December 31, 1938, executed two trust indentures, in each of which she conveyed to herself and her successors in trust certain stocks and bonds. One of these trusts was for the use and benefit of her son, Irving R. Gaertner, and, in the event of his death, for the use and benefit of his daughter, Joan Irving Gaertner. The other was for the use and benefit of her daughter, Ruth Margaret Estorge, and, in the event of her death, for the use and benefit of her son, Gerald B. Estorge, Jr. At the death of Mrs. Gaertner, Tower Grove Bank and Trust Company and Catherine B. Wall were, and are now, co-trustees in both trusts and as such are parties defendant herein. Irving R. Gaertner predeceased testatrix on October 17, 1940, survived by his widow, Elizabeth M. Gaertner, and his daughter, Joan Irving Gaertner.
Following certain specific bequests, amounting to approximately $6500, the ninth clause of Mrs. Gaertner's will divided the residuum of her estate into one hundred equal units and disposed of them in three paragraphs, (A), (B) and (C). There is no controversy as to paragraphs (A) and (C), and we state their substance, but paragraph (B) is set forth as written. So stated, the ninth clause provides:
(A) To the trustees of the Irving R. Gaertner trust, forty units, to be administered as directed in the trust indenture.
(B) "In the event my beloved daughter, Ruth Margaret Estorge, shall be of sound mind and capable of managing her own affairs in the sole discretion of my executors, at the time of my death, then and in that event I hereby give, devise and bequeath unto my beloved daughter, Ruth Margaret Estorge, twenty (20) units.
"In the event my beloved daughter, Ruth Margaret Estorge, shall be of sound mind and capable of managing her own affairs, in the sole discretion of my executors, at the time of my death, then I direct that my hereinafter named executors shall pay to the said Ruth Margaret Estorge the sum of Seventy-five ($75.00) Dollars per month, beginning one month after my death, during the period of administration of my estate, which said monthly payments are to be made out of this bequest of twenty (20) units. The balance of said bequest of twenty (20) units is to be paid over and delivered to my beloved daughter, Ruth Margaret Estorge, by my executors at such time as final distribution of my estate is made under this my last will and testament."
(C) To the trustees of the Ruth Margaret Estorge trust, forty units, to be administered as directed in the trust indenture.
As stated, there is no controversy as to the eighty units disposed of in paragraphs (A) and (C) of the will. The sole controversy is as to the true intent and purpose of testatrix as expressed in paragraph (B).
Appellant Elizabeth M. Gaertner, guardian of Joan Irving Gaertner, a minor, by her answer contended, and here contends, that the will is free of ambiguity and expresses the intention of testatrix to give said twenty units to Ruth Margaret only in the event she was of sound mind and capable of managing her affairs; and that, it being admitted by all parties that Ruth Margaret is now and was of unsound mind upon the death of testatrix, with no other provision having been made in the will for disposition of these twenty units in the event Ruth Margaret was of unsound mind and incapable of managing her affairs, the will should be construed to bequeath said twenty units to Joan Irving Gaertner, and thereby avoid partial intestacy.
Respondent Gerald B. Estorge, curator of the estate of Ruth Margaret Estorge, non compos mentis, by his answer contended, and here contends, that it was the intention of testatrix to give said twenty units to Ruth Margaret if she be of unsound mind and incapable of managing her affairs upon the death of testatrix, and that the failure of the will to so state was the result of mistake or oversight on the part of the scrivener.
The trustees in the Ruth Margaret Estorge trust, by separate answers, prayed for a construction of the ninth clause in accordance with the contentions of Gerald B. Estorge, curator of the estate of Ruth Margaret Estorge. The trustees of the Irving R. Gaertner trust, by separate answers, prayed for a construction of the ninth clause of the will. Neither the plaintiffs nor the co-trustees in either of the trust estates have filed briefs in this appeal.
The trial court found it was the intention of testatrix to dispose of her whole estate by will and to bequeath therein said twenty units to Ruth Margaret Estorge if she should be of unsound mind and incapable of managing her own affairs at the death of testatrix, and that the failure of her will to so state was due to a mistake and oversight of the scrivener; and the will was construed to so read.
Ruth Margaret Estorge is now and has been since 1934 of unsound mind and a patient in St. Vincent's Sanitarium in St. Louis County. At some undisclosed time, in the probate court of the County of St. Louis, she was declared to be non compos mentis and, thereafter, in October of 1943, her estate was transferred to the Judicial District of the Parish of Iberia, Louisiana, since which time Gerald B. Estorge has been the duly qualified and acting curator of her estate. All parties admitted and the trial court adjudged that Ruth Margaret Estorge is and was at the death of testatrix of unsound mind and incapable of managing her affairs.
Over the objection of appellant, the trial court admitted into evidence and considered a former will executed by Mrs. Gaertner on the 22nd day of September, 1939. By that will, she divided the residuum of her estate into 500 units. She then gave 54 units to seven beneficiaries; and the remaining 446 units as follows:
To Irving R. Gaertner, son 75
To trustees for the use and benefit of son, Irving R. Gaertner, 148
(1) To Ruth Margaret Estorge, on condition that daughter be of sound mind and capable of managing her own affairs, 75
(2) To trustees for the use and benefit of Ruth Margaret Estorge, 148
(3) The trustees to receive the 75 units first provided if daughter of unsound mind or if incapable of managing her own affairs, making a total to trustees, 223
The provisions of that will do not support the finding of the trial court. The ninth clause of Mrs. Gaertner's last will is as clear as language can express. There is not a word or phrase in that clause or elsewhere in the will that casts any doubt upon its meaning, and it is not contended otherwise. There is no evidence of any error or oversight of the scrivener. The will, on its face, shows it was drawn by an experienced scrivener. We must presume he knew what he wrote. By the codicil of November 26, 1940, Mrs. Gaertner made a special bequest of $5000 to Elizabeth M. Gaertner, Irving's widow, and again expressly ratified, confirmed and republished this will in every other respect. The mere fact that a different bequest was made to Ruth Margaret in the former will cannot change the language in the will here under consideration to make it speak exactly the opposite of what it says.
By the provisions of R.S.Mo. 1949, § 468.620, we are required to have due regard for the directions of the will and the true intent and meaning of the testator. In determining the true intent and meaning of the testator we look first to the will itself. If the language therein is ambiguous, then we may look to the surrounding facts and circumstances. Mudd v. Cunningham, Mo.Sup., 181 S.W. 386, 387; Paris v. Erisman, Mo.Sup., 300 S.W. 487, 490; St. Louis Union Trust Co. v. Kern, 346 Mo. 643, 142 S.W.2d 493, 496. But extrinsic evidence is admissible only for the purpose of ascertaining the testator's intention from the language used in the will. "It cannot be heard to show that he meant one thing when he said another or to show an intention not expressed in the will itself, or to aid in making a will which the testator intended to make, but did not in fact make. However clearly an intention not expressed in the will may be proved by extrinsic evidence, the rule of law requiring wills to be in writing stands as an insuperable barrier against carrying the intention thus proved into execution. 28 R. C.L. § 243." McCoy v. Bradbury, 290 Mo. 650, 235 S.W. 1047, 1049. See also Masterson v. Masterson, 344 Mo. 1188, 130 S.W.2d 629, 631.
As argued by respondent, there is a strong presumption against partial intestacy. Paris v. Erisman, supra; Smoot v. Harbur, 357 Mo. 511, 209 S.W.2d 249, 250, 252. But "where the language used by the testator is plain and unequivocal the court cannot give it a different meaning, for the purpose of carrying into effect a conjecture or hypothesis of the testator's intention, by supplying, rejecting, or transposing words or phrases." Crowson v. Crowson, 323 Mo. 633, 19 S.W.2d 634, 637.
To construe the will as contended by respondent would have her will speak exactly the opposite of her clearly expressed intention. That we are not authorized to do. Furthermore, the evidence does not show whether Mrs. Gaertner intended to dispose of all of her property by will. We only know she did not so dispose of it. However desirable it may be to construe her will to avoid partial intestacy, yet we may not do so in the absence of evidence of an ascertainable intention on her part so to do. Crowson v. Crowson, supra.
In the case of Smoot v. Harbur, supra, cited by respondent, there was an ambiguity in the wording of the will itself, the meaning of which was made clear by the aid of extrinsic evidence. In the case of Meiners v. Meiners, 179 Mo. 614, 78 S.W. 795, extrinsic facts and the will itself revealed an ambiguity and a clear intent on the part of the testator to dispose of his entire estate. No such intent is directly or indirectly shown here. Neither of these cases is in point.
The cause is reversed and remanded for entry of judgment construing Mrs. Gaertner's will as written, and directing the disposition of the twenty units mentioned in the ninth clause thereof to be administered and distributed according to the laws of intestacy.
All concur.