Opinion
No. 27924.
March 21, 1950. On Transfer to Supreme Court April 6, 1950.
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY, AMANDUS BRACKMAN, J.
Victor A. Wallace, St. Louis, for plaintiff-respondent.
David Y. Campbell, St. Louis, for defendants-respondents.
Oliver T. Remmers, St. Louis, for defendants-appellants.
This suit to construe the will of Nora Mary Morris was tried in the circuit court of St. Louis County and appealed to the Supreme Court, which Court found that it did not affirmatively appear that the amount involved exceeded the jurisdiction of the St. Louis Court of Appeals, and consequently transferred the appeal here.
The case was tried and submitted to the circuit court on a stipulation, which is as follows:
"Stipulation.
"It is stipulated and agreed by and between the parties hereto that the following are the facts in this cause of action:
"1. Plaintiff is a resident of St. Louis County, Missouri. Defendants, Thomas O. Morris and Catherine Morris Schuchat, are residents of St. Louis County, Missouri. Defendants Julia A. Kobs, John L. Kobs and Harry M. Kobs, are residents of Ashland, Kentucky. Defendant George H. Kobs is a resident of Buchanan, Kentucky. Defendant Thomas O. Morris, Jr., is a resident of the State of California. Defendant Marjorie Bonita Powers is a resident of Indianapolis, Indiana.
"2. Nora Mary Morris, who was a resident of St. Louis County, Missouri, died June 13, 1947, and her will, dated June 26, 1946, was duly admitted to probate in the Probate Court of St. Louis County, Missouri, on July 7, 1947.
"3. The executors named in the will of Nora Mary Morris, namely, Thomas O. Morris and the St. Louis Union Trust Company, declined in writing to serve as such, and on July 7, 1947, plaintiff was, by an order duly made and entered of record, appointed administrator cum testamento annexo of the estate of Nora Mary Morris, deceased, by said Probate Court of St. Louis County, Missouri, and letters testamentary were duly issued to him, and plaintiff ever since has been and is now the duly appointed, qualified and acting administrator cum testamento annexo of the estate of Nora Mary Morris, deceased. As such administrator cum testamento annexo, plaintiff now has in his custody and possession the estate of Nora Mary Morris, consisting principally of cash and United States Government Bonds in the approximate amount of $19,000.00, and an undivided one-fifth interest in certain real estate on Greenup Avenue, Ashland, Kentucky, with improvements thereon.
"4. The last will and testament of Nora Mary Morris is as follows:
"I, Nora Mary Morris, a married woman, residing in the City of Kirkwood, State of Missouri, do make, publish and declare this instrument to be my last will and testament, hereby revoking and cancelling all former wills and codicils by me at any time made.
"First — I direct that all my just debts, including the expenses of my last illness and funeral, shall be paid out of my estate by my Executors hereinafter named, as soon after my death as may be practicable.
"Second — I hereby give and bequeath all my personal effects, including furniture and household furnishings, books, pictures, clothing, jewelry and all similar articles of household use and wearing apparel, my automobile, if any, to my husband, Thomas O. Morris, if he is living at the time of my death, otherwise, I give my diamonds to Catherine Morris Schuchat, daughter of my husband, and the remainder divided equally between Catherine Morris Schuchat and Thomas O. Morris, Jr., children of my husband, Thomas O. Morris.
"Third — I give and bequeath the net income from my estate, which at the time this will is made, consists mostly of stocks and bonds, to my sister, Julia A. Kobs, now of 1602 Carter Ave., Ashland, Kentucky, for her life time. And should illness or unforeseen circumstances arise making it necessary for her to be in need of more funds, she is to have the privilege of drawing on the capital for the amount required. It is my wish that she consult the Executors of this will in regard to the withdrawal.
"Fourth — At the death of my sister, Julia A. Kobs, the estate is to be divided as follows:
"(a) One-half to my husband, Thomas O. Morris, if he is living at said time, otherwise in equal shares per capita to the children of my husband, Thomas O. Morris, Jr., and Catherine Morris Schuchat. If either Thomas O. Morris, Jr., or Catherine Morris Schuchat is not living at this time his or her share is to be paid to his or her children living at this time. If neither Thomas O. Morris, Jr., nor Catherine Morris Schuchat is living at this time, their descendants are to receive equal shares of this part of the estate, share and share alike.
"(b) One-half to be divided equally among my brothers, John L. Kobs, now of Ashland, Kentucky, George H. Kobs, now of Buchanan, Kentucky, and Harry M. Kobs, now of Ashland, Kentucky, or unto the survivors or survivor. If all my brothers should be dead at said time, this one-half share shall be paid to my niece, Marjorie Bonita Powers, now of Indianapolis, Indiana.
"Fifth — I direct my Executors, hereinafter named to pay all estate and inheritance taxes assessed by the United States or any State thereof against my estate or against any gift or bequest out of the general assets of my estate, and such taxes shall not be charged against or deducted from any such gift or bequest.
"Sixth — I hereby nominate, constitute and appoint my said husband, Thomas O. Morris, and the St. Louis Union Trust Company, a Missouri Corporation, Executors of this my last will and testament, my said husband to act as such without bond, and they to receive for their services the compensation provided by law.
"In Witness Whereof, I have hereunto subscribed my hand and affixed my seal to this my last will and testament, at the City of Kirkwood, Missouri, this 26th day of June, 1946.
Nora Mary Morris."
(Here follows attest clause of will and signatures of three witnesses.)
"5. Defendants, Thomas O. Morris, Catherine Morris Schuchat, Thomas O. Morris, Jr., Julia A. Kobs, John L. Kobs, Harry M. Kobs, George H. Kobs and Marjorie Bonita Powers, constitute all of the legatees, devisees and beneficiaries under the will of Nora Mary Morris and all of her heirs at law.
"6. On the 15th day of August, 1947, defendant Thomas O. Morris, the widower of Nora Mary Morris, executed and filed in the Probate Court of St. Louis County, Missouri, an instrument in writing renouncing the will of Nora Mary Morris and elected to take the share of her estate to which he is entitled by the laws of Missouri.
"7. Defendant, Thomas O. Morris, by reason of the renunciation filed by him is entitled to one-half of the personal property in the estate of testatrix and a dower interest in the realty, plus $4,000.00 widower's statutory allowances.
"8. Testatrix, Nora Mary Morris, in 1941 or 1942 inherited from the estate of her mother, cash and securities in the amount of $12,681.41, exclusive of the Ashland, Kentucky, real estate. Thomas O. Morris, widower of testatrix, managed and handled the investment and reinvestment of the amount so inherited, plus some cash and securities testatrix owned at the time of her marriage to Morris. At the time of the death of the testatrix her estate had a value of approximately $24,000.00.
"9. The entire income of the estate which testatrix, Nora Mary Morris, inherited from her mother was, during the lifetime of testatrix, paid by her to defendant Julia Kobs, with the consent of defendant, Thomas O. Morris.
"10. Thomas O. Morris and testatrix were married August 23, 1921; no children were born of their marriage. Thomas O. Morris, Jr. and Catherine Morris Schuchat are children of Thomas O. Morris by a previous marriage. On August 23, 1921 they were, respectively, 8 years old and 6 years old and Thomas O. Morris, Jr. and Catherine Morris Schuchat were reared by testatrix.
"11. Income for the past year, on the lease expiring June 19, 1948, from the real estate located on Greenup Avenue in Ashland, Kentucky, has been $65.00 a month, less taxes, insurance and repairs. In past years it was $40.00 a month and at one time as low as $30.00 a month. This income, since the death of the mother of Julia, John, George and Harry Kobs (who was also the mother of testatrix) has been paid by the agreement and consent of John, George, and Harry Kobs, and by consent of testatrix during her life, to Julia A. Kobs, and such income continues at the present time to be so paid to Julia A. Kobs.
"12. The will which has been probated as the last will and testament of testatrix was drawn and typed by testatrix herself.
"13. Julia A. Kobs will be 74 years old June 13, 1948.
"14. By an order duly made and entered on the 4th day of December, 1947, the Probate Court of St. Louis County, Missouri, authorized and directed plaintiff herein to institute this suit in the Circuit Court of St. Louis County, Missouri, to interpret and construe the provisions of the will of Nora Mary Morris, deceased, and to employ his attorney of record herein as his attorney to represent him in the filing of this suit and in all matters relating thereto.
"15. It is stipulated by the parties that the entire will of Nora Mary Morris and all its provisions shall be construed and interpreted by the court.
"The foregoing stipulation of facts herein shall be without prejudice to the rights of any of the parties to introduce evidence of such other and further facts in this cause as they or any of them may deem material and relevant."
The decree of the circuit court, which was necessarily of considerable length, was to the effect that the trust property consist of the remaining property after payment to Thomas O. Morris of the share he is entitled to after renouncing the will, and the payment of costs of administration; and at the death of Julia A. Kobs be divided and one-half thereof go to Thomas O. Morris, Jr., and Catherine Morris Schuchat, or their heirs, and the other one-half thereof (approximately one-fourth of Nora Mary Morris' estate) go to the Kobs brothers or the survivor, or if no survivor to Marjorie Bonita Powers. The Kobs brothers and Marjorie Bonita Powers appeal.
After carefully reading the will here in controversy, together with the stipulation, and considering the diverse views of the parties, all of whom are represented by able counsel, it is convincing that the terms of the will are more or less uncertain, and should be interpreted by the court. There is no controversy about the law to be applied when construing a will. Certain rules have been applied which are summarized by the Supreme Court en Banc in the case of First Trust Co. v. Myers, 351 Mo. 899, 174 S.W.2d 378, 380, as follows: "At the present time, there are a few well settled rules to be applied in the construction of wills, and these are so generally accepted that citation of authority is not needed to further establish them. The prime rule of construction is that the court, without attempting to make a new will or an equitable distribution of the estate, must confine its endeavors to ascertaining the real intent of the testator. To this end the will must be read from its four corners and effect given to all its plain provisions, provided, of course, they are not in violation of law. If there is doubt as to the proper construction of the will, after its own provisions and language are fully considered, then the court has the right, in aid of construction or interpretation, to consider the circumstances surrounding the testator at the time of making it."
Here we have a will written by the testatrix herself, a childless married woman. For several years she had given an unmarried sister the income from property she had inherited from her mother. This property consisted of cash and securities in the amount of $12,681.41 and an interest in real estate in Ashland, Kentucky. The total value of her property at the time she wrote the will and at the time of her death was approximately $24,000. Thomas O. Morris and testatrix were married August 23, 1921; no children were born of their marriage. Thomas O. Morris, Jr., and Catherine Morris Schuchat are children of Thomas O. Morris by a previous marriage. On August 23, 1921, they were, respectively, eight years old and six years old and were reared by testatrix. Defendants, Thomas O. Morris, Catherine Morris Schuchat, Thomas O. Morris, Jr., Julia A. Kobs, John L. Kobs, Harry M. Kobs, George H. Kobs and Marjorie Bonita Powers constitute all of the legatees, devisees and beneficiaries under the will of Nora Mary Morris and all of her heirs at law. Thomas O. Morris, the husband of testatrix, had managed and handled the investments and reinvestments of his wife's property since their marriage in 1921, and he was appointed coexecutor of her estate by the will to act without bond.
From the will itself and these surrounding circumstances the meaning and intention of clause Third and clause Fourth of the will must be gathered, and this in view of the fact that the surviving husband has renounced the will.
By clause Third testatrix intended to create a trust for and during the life of Julia A. Kobs of what? She said, "I give and bequeath the net income from my estate." That could only mean her entire estate, not one-half of it, or any other part, but all of it. True, she did not name a trustee, but the law will not suffer a trust to fail for want of a trustee. The testatrix thought that the executors of her will would manage the trust property because she provided that before Julia could encroach on the corpus of the estate she should consult the executors, one of whom was her husband. She either knew nothing about a right of renunciation that her husband would have, or else she had confidence in his carrying into effect the wish and intention of her entire estate remaining in trust during Julia's life. She intended that her estate, about $24,000 in value, remain intact and not distributed to those ultimately to receive it until after Julia's death.
Then follows clause Fourth: "At the death of my sister, Julia A. Kobs, the estate is to be divided as follows." By the words "the estate" could only have been intended her entire estate which she said would constitute the trust property. And at the death of Julia, and not before, one-half of the estate she intended should go to her husband, Thomas O. Morris, and the other one-half to her brothers, John L., George H. and Harry M. Kobs, or the survivor, and in case of the death of all three to Marjorie Bonita Powers.
This clearly indicates that the testatrix intended that one-half of her property be ultimately given to her husband or his children (the Morris family), and the other one-half be given to her blood relatives, the Kobs family. This being her intention it may logically be carried into effect by giving the will the construction we have indicated, and do no violence whatever to the renunciation rights of her husband, or to his children. If Morris is dead his children will inherit from him (unless he wills otherwise) what he takes at this time from his wife's estate, instead of waiting until Julia's death. While the court is enjoined not to make a will for the testatrix and not to alter her intention by construction, nevertheless we take it to be the rule that if two different constructions can be given to the words used in the will, one of which would result in the will as construed being fair and just, and as she intended, and the other would be unfair and unjust, and not what she intended, the court will resort to the fair and just construction, which would accord with her intention.
Julia is still living and so is Thomas O. Morris. Thomas O. Morris has not seen fit to carry out his deceased wife's wishes and intentions, but has renounced her will, as he had a legal right to do. It is conceded that by reason of his renunciation he will now take one-half of the personal estate, plus dower in the real estate, and be entitled to nothing further when Julia dies. He is receiving his one-half before the time his wife desired and intended he should, and at Julia's death the three brothers will take the one-half that Nora Morris intended they should have. Under such circumstances as presented by this will it would be a strained construction to say that by his renunciation of the will the husband can thwart the wishes and intention of his deceased wife so that he and his children will take three-fourths of her estate, instead of the one-half she intended.
The intention of Nora Morris was that the persons entitled to her bounty were her husband (one-half of the estate), and her three brothers (one-half of her estate). It could only have been that she went beyond them so that in the event of the death of any of them it would not cause a lapse of either legacy. The two children of Thomas O. Morris were only to take in lieu of their father if he were dead at the time of distribution. By reason of the renunciation the one-half Nora intended will already have been paid to her surviving husband, and consequently will never reach the trustee. The trust fund will only consist of the approximately one-half of Nora's property intended by her to go to her three brothers. To construe the will otherwise we would be ruling in effect that while a disinterested court cannot by construction make a will for the testatrix (which is the law), that a surviving husband by renunciation can, contrary to the wishes and intention of his wife, so change the effect of the will that he and his children will ultimately have received three-fourths of the estate instead of one-half, as his wife intended.
Defendants'-respondents' counsel has cited the following cases: Lilly v. Menke, 126 Mo. 190, 28 S.W. 643, 994; Lilly v. Menke, 143 Mo. 137, 44 S.W. 730; St. Louis Union Trust Co. v. Kern, 346 Mo. 643, 142 S.W.2d 493; Crossan v. Crossan, 303 Mo. 572, 262 S.W. 701; Borchers v. Borchers, 352 Mo. 601, 179 S.W.2d 8. Those cases involved the question of the result of a renunciation by the widow of the testator, who was the life tenant under the terms of the renounced will, with designated devisees to take the remainder. That is not this case at all. In those cases the remainder, at the death of the life tenant, was definitely fixed in named devisees. But here, there is only a contingent remainder in the children of Thomas O. Morris. The contingency is that if Thomas O. Morris is dead when Julia A. Kobs dies, in that event and that event only, would they take in lieu of their father, and then only the one-half he would have taken if living. Thomas O. Morris is still living. When Julia A. Kobs dies there will be no one-half of her present estate for Thomas O. Morris or for his children to take because by his renunciation he has taken the full share now. Certainly if Thomas O. Morris is still living when Julia A. Kobs dies, his children will have no interest in the property of Nora Mary Morris because they only take as contingent remaindermen in his stead if he is dead. He not being dead at that time they would have no interest whatever in the property. An entirely different situation is presented where the life tenant (the widow as in respondents' cases cited above) renounces the will. Thomas O. Morris is not a life tenant in this will; he is a remainderman to the extent of one-half of his wife's estate, and is cashing in his remainder interest now, and there will be nothing left for him or his children (heirs) when he dies, whether before or after the death of Julia A. Kobs.
The judgment and decree should be reversed and the cause remanded with directions to the trial judge to amend, change and alter the decree so as to provide, —
1. Thomas O. Morris is entitled (subject to debts and costs of administration) to take one-half of the personal estate (in addition to his dower interest in the real estate belonging to his wife at the time of her death), to be paid over to him by the executor, and
2. That a trustee be appointed by the court to take over the other one-half of the personal estate, and the interest in the real estate, less the dower interest, to constitute a trust fund, and at the death of Julia A. Kobs to be distributed to the three Kobs brothers or the survivor or if no survivor to Marjorie Bonita Powers.
It is so ordered.
ANDERSON, P. J., dissents on separate opinion.
McCULLEN, J., concurs.
The opinion in this case reversing and remanding the decision below being deemed by one of the Judges of this Court to be contrary to previous decisions of the Supreme Court of Missouri, the case is hereby transferred for final determination to the Supreme Court of Missouri.
ANDERSON, P. J., and HUGHES and McCULLEN, JJ., concur.
I am unable to agree with the conclusions reached by the majority in their opinion filed in this cause. I believe that the trial court reached the right result, and the only result possible under the law as announced by the Supreme Court in Lilly v. Menke, 126 Mo. 190, 28 S.W. 643.
I deem the majority opinion to be contrary to the previous controlling decisions of our Supreme Court and therefore request that this cause be certified to the Supreme Court for final and authoritative determination.
On Transfer to Supreme Court