Summary
In Harwell v. Magill, 348 Mo. 365, 153 S.W.2d 362, it was held that the devise, "I give and bequeath to my beloved wife, Addie Magill, the home place... to have and to hold during her natural life, and during her widowhood, but in case the said Addie Magill should marry, then in that event the property hereby devised to her, is to revert to my heirs share and share alike", created a vested remainder in the [474] testator's heirs, children and grandchildren.
Summary of this case from Harlow v. BenningOpinion
July 25, 1941.
1. WILLS: Construction. The "home place" mentioned in the will is construed as including the original home place, plus adjoining land purchased by the testator prior to the execution of the will.
2. WILLS: Construction. The devise of the testator's home place to his wife, Addie Magill, ". . . to have and to hold during her natural life and during her widowhood, but in case the said Addie Magill should marry, then in that event the property hereby devised to her, is to revert to my heirs, share and share alike" is construed as a devise of an estate to the testator's wife for life, or during widowhood, with remainder to his heirs. This clause disposed of the whole fee in the home place, and it was not devised by a subsequent clause commencing "all the residue of the real property of which I may die seized and possessed . . ."
3. WILLS: Construction: Remainder Vested. The clause as to the home place created a vested remainder in the heirs of the testator at the time of his death.
4. COURTS: Jurisdiction: Construction of Will. The defendants, having affirmatively sought construction of the will, are estopped to assert that the abandonment by the plaintiffs of an attempt to obtain certain equitable relief deprived the court of the right to construe the will.
5. APPEAL AND ERROR: Competency of Witness: Preservation for Review. An assignment in the motion for new trial that "The court erred in rejecting competent, relevant and material evidence offered by the defendants" does not preserve for review the question of the competency of certain witnesses to testify.
Appeal from Carter Circuit Court. — Hon. Will H.D. Green, Judge.
AFFIRMED.
Lawrence E. Tedrick for appellants.
(1) When the plaintiffs abandoned their prayer for injunctive relief, there was nothing left for the court except the construction of the will, and this being true the court should have dismissed plaintiffs' petition, for a court will not entertain jurisdiction of a suit brought for the sole purpose of construing a will without seeking other relief. Haugh v. Bokern, 30 S.W.2d 47. (2) Courts of equity will not construe will on application of one claiming mere legal title. Haugh v. Bokern, 30 S.W.2d 47. (3) Since Ida Magill, the widow of the testator, has a life estate in the land described in the will as the "Home Place," unless she remarried, the interest of the other heirs therein could not be ascertained until the determination of the widow's estate, and it has been consistently held by the courts of the various states, that a court of equity will not construe a will so as to determine future rights. In re Quigley's Estate, 198 Pa. App. 85; 69 C.J., p. 868. (4) Courts will not construe clauses of a will creating remainders for the purpose of determining their nature, validity, operation and effect during the life of the life tenant. 69 C.J., p. 869; Morrill v. Roberts, 117 Mo. 465; Minot v. Taylor, 129 Mass. 160; In re Good's Estate, 260 N.Y.S. 292; In re Gill's Estate, 155 N.Y.S. 1019; Fleishman v. Bregel, 197 Md. App. 593. (5) A bill in equity for the construction of a will cannot be maintained by one who has no present interest in the property. 69 C.J., p. 872; In re Gill's Estate, 155 N.Y.S. 1019. (6) The refusal of the court to permit the defendants, M.H. Magill, John Magill and George Magill to testify constitutes reversible error. Sec. 1723, R.S. 1929. (7) The next of kin of a decedent or the beneficiaries under his will, are not surviving parties to a contract with him, so as to render them incompetent as witnesses in a contest over the will or the distribution of the estate. 70 C.J., p. 280; McKee v. Downing, 124 S.W. 7; Jones v. Jones, 36 Md. 447, 11 Am. Rep. 505. (8) Testator's son, nominal party, held not disqualified from testifying in mother's favor to circumstances to show testator's intent relative to property not within strict terms of codicil. Paris v. Erisman, 300 S.W. 487. (9) In a suit to cancel a deed made by the deceased, the mere fact that the witnesses were parties to the suit did not disqualify them. Nordquist v. Nordquist, 14 S.W.2d 583. (10) The disqualification of a witness is not general but is limited to the transaction between the witness and the party dead. Elsea v. Smith, 202 S.W. 1071; Goodrich Rubber Co. v. Bennett, 281 S.W. 75. (11) In construing will, court must find out testator's intention as gathered from four corners of will, and must control unless it contravenes some established rule of law. St. Louis Union Trust Co. v. Hill, 76 S.W.2d 685. (12) Testator's intention is to be arrived at by what will actually says and not by what court might imagine testator intended to say or would have said if he had decided to further explain his intention, and language used is usually to be taken and understood in its ordinary sense and primary meaning. First Presbyterian Church of Louisiana v. Lynott, 78 S.W.2d 396; Mo. Dig. (Wills) Key No. 440. (13) In construing will, court must gather testator's intention from words used in the will. Carter v. Boone County Trust Co., 92 S.W.2d 647, 338 Mo. 629; Mo. Dig. (Wills) Key No. 440. Another reason why the judgment rendered in this case is erroneous, is the fact that the court attempted to determine the interest of each of the heirs of the testator. This may not be done because the interest of the heirs would be a contingent interest rather than a vested one, and if one of them should die before the widow, then his contingent interest would become extinct. Dickerson v. Dickerson, 110 S.W. 700, 211 Mo. 483. (14) Contingent interest of son of grantee of life estate, with remainder to children who are alive at his death, is terminated by his death before that of grantee. Donaldson v. Donaldson, 278 S.W. 686; Mo. Dig. (Remainders) Key No. 10.
Phillips Phillips for respondents.
(1) This is an action to determine interest and quiet title as authorized by Sec. 1520, R.S. 1929. (a) This section is remedial and beneficial and should be liberally construed. Talbert v. Grist, 201 S.W. 906, 198 Mo. App. 492; Ball v. Woolfolk, 175 Mo. 278. This statute is as broad and far-reaching in its terms as language can make it. Coal Co. v. Dent, 274 S.W. 30, 308 Mo. 547. This section affords a method whereby a plaintiff may enforce any kind of right or interest in real estate, whether legal or equitable, to which rules of equitable procedure apply. Ross v. Alyea, 197 S.W. 268. The action may be maintained without regard to the nature of the estate or interest, whether legal or equitable, certain or contingent, present or in reversion or in remainder, or that plaintiff is, or is not, in possession. Utter v. Sidman, 170 Mo. 284. Remainderman in land contingent on this survival of their father, devisees by will, under which they claimed as remaindermen could sue while their father was living for an adjudication of their title. Fountain v. Starbuck, 209 S.W. 900. (b) The above statute is a public statute and it is not necessary to plead it or refer to it in plaintiffs' petition for plaintiffs to avail themselves of its provisions; all that is necessary is for the petition to allege facts to which the statute is equitable. Jones v. C., B. Q. Ry., 125 S.W.2d 5; Emerson v. Ry. Co., 111 Mo. 161. Where a petition sufficiently states a cause of action based on a public statute of the State, it is immaterial that it does not mention the statute. Blair v. Heibel, 103 Mo. App. 621; Hance v. Wabash Ry., 56 Mo. App. 476. (c) The defendants by their answer and evidence in the trial court presented their case on the theory that this was an action to determine title and they cannot present the case in this court on a different theory. Smith v. K.C. Pub. Serv. Co., 43 S.W.2d 548, 328 Mo. 979; Rath v. Knight, 55 S.W.2d 682. A party who tried his case on theory that his good faith was in issue could not on appeal claim issue of fraud was erroneously submitted. Nick Doffing Co. v. Moeck, 58 S.W.2d 475. Where trial court followed theory of a plaintiff's petition, plaintiff could not complain that trial court tried case on wrong theory. Benz v. Powell, 93 S.W.2d 877, 338 Mo. 1032. For other cases holding that litigants on appeal are bound by position taken in trial court, see cases collected and too numerous to be cited here. West's Digest Appeal Error, Key No. 882 (3). Where defendants joined with plaintiff in trying case upon certain theory, defendants could not shift their position and urge another theory upon appeal. State ex rel. v. Kelly, 131 S.W.2d 371. (d) Defendants in their answer asked the court to construe the will and determine the title of the parties to the land in suit, and they are therefore now estopped to allege in this court that the trial court was without authority to do so. (2) This court is precluded from passing on the question of whether or not the refusal of the trial court to permit the defendants, W.H. Magill, John Magill and George Magill, to testify, constitutes reversible error for the reason that the error, if any, of the trial court in holding them to be incompetent witnesses, was not presented to the trial court in defendants' motion for a new trial. In Assignment 5 of their motion for a new trial defendants merely say: "5" The court erred in rejecting competent, relevant and material evidence offered by the defendants. This allegation is not sufficient to preserve the ruling of the court that W.H. Magill, John Magill and George Magill were incompetent witnesses and that they were not permitted to testify for that reason. Drake v. Kansas City Pub. Serv. Co., 63 S.W.2d 80, 333 Mo. 529; Howard v. Hurst, 163 Mo. App. 641, 147 S.W. 497; Alexander v. Sov. Camp W.O.W., 186 S.W. 4, 193 Mo. App. 411; Hill v. Alexander, 77 Mo. App. 303. (3) The court will not consider an alleged error in rejecting a witness not assigned in a motion for new trial below. Long v. Story, 13 Mo. 4; Hill v. Alexander, 77 Mo. 296; State ex rel. Wakefield v. Richardson, 77 Mo. 589; Berman v. Hoke, 61 Mo. App. 376. It is axiomatic that the appellate court will review no assignment of error that was not presented to the lower court in appellants' motion for a new trial. See cases too numerous to set out here. West's Digest Appeal Error, Key No. 301; Blankenship v. Pub. Serv. Co., 71 S.W.2d 723; Murphy v. Cole, 88 S.W.2d 1023, 338 Mo. 13, 103 A.L.R. 505. The Supreme Court has no authority to pass on assignments of error which were not called to the trial court's attention in the motion for new trial, notwithstanding that in an equity case it may weigh the evidence on appeal. Aetna Ins. Co. v. O'Malley, 124 S.W.2d 1164. (4) A part of the "Home Place" was testator Magill's homestead and beyond any question of a doubt, upon his death the title to it "passed to and vested in the widow" and as such widow, she had, and still has, because she is still living, being one of the plaintiffs, and unmarried, "the right to occupy such homestead during her life or widowhood, and upon her remarriage or death it shall pass to the heirs of the husband." R.S. 1929, sec. 612; Regan v. Ensley, 222 S.W. 773, 283 Mo. 297; Martin v. Cox, 199 S.W. 185. The husband or wife cannot by will give to the other less than a homestead right and thus deprive him or her, as the case may be, of rights given to them under the homestead or other statute. Collier v. Porter, 16 S.W.2d 49. (5) It will be remembered that the husband is not the sole owner of a homestead; in fact, a deed signed by him, attempting to convey it without the signature of his wife is void. Haines v. Carroll, 38 S.W.2d 1047. (6) The term "residue of my estate" means property of which no effectual disposition is made by the will. 54 C.J. 716. (7) The courts will, if possible, construe wills so that the heirs may receive an equal distribution of their ancestor's estate, unless such a result is in plain conflict with the intention of the ancestor, as expressed in the will. 69 C.J., p. 103.
Plaintiffs filed this suit in which they asked the court to construe the last will and testament of Henry Magill, deceased, and ascertain and determine title in certain real estate. From the decree of the trial court defendants appealed.
Plaintiffs and defendants constitute all of the legal heirs of Henry Magill. The plaintiffs are: Dora Harwell, Nella Selvidge, Irene Estes, daughters of the deceased; Glenn Harwell and Gladys Foard, grandchildren of deceased, being children of a deceased daughter; and Ida Magill, widow of Henry Magill. The defendants, sons of the deceased, are: W.H., John, George and Fred Magill.
Henry Magill died testate leaving personal property valued at about $75,000, and real estate consisting of about three thousand acres of land and some town lots. This suit does not involve the personal property, nor does it involve about 1900 acres of the land. The controversy is over 1025 acres. The main question in dispute is, what did the testator mean to include by the term "home place" in the will? Plaintiffs say he meant to include all of the 1025 acres. The defendants maintain that the term included only 265 acres of the land. This land was situated in Butler County, Missouri, lying in Sections 11, 12, 13 and 14, Township 26, Range 5, near Black River and Hendrickson, Missouri. The will in question provided as follows:
[363] "SECOND: I give and bequeath to my beloved wife, Addie Magill, the home place upon which we may be residing at the time of my death, with all appurtenances; as many as five milch cows, all household and kitchen furniture, to have and to hold during her natural life, and during her widowhood, but in case the said Addie Magill should marry, then in that event the property hereby devised to her, is to revert to my heirs share and share alike."
By clauses three to eleven, inclusive, the testator made certain bequests which are not involved in this lawsuit. The will then contained the following:
"All the residue of the real property of which I may die seized and possessed, I desire shall be retained intact my said heirs, and that the same be not sold for a period of ten years after my death, then and the same is to be sold to the best advantage, and out of the proceeds of the sale thereof, I desire that my Executors hereinafter named shall pay to each of the devisees, the specific l agacies or bequests in money hereinabove specified, and after paying said bequests, I give and bequeath the residue of the proceeds from the sale of said lands to my four sons, share and share alike."
The bequests referred to in this latter clause were, by mutual consent of all parties interested, paid to the legatees. The will was dated March 30, 1917, and the testator died in the year 1932. The evidence disclosed that in the year 1881 the testator purchased 265 acres of land, known and referred to in the evidence as the "Keener farm." Testator lived on this place until the date of his death. From time to time he purchased land adjoining the Keener place until the year 1912, at which time he owned all of the land in question. One of plaintiffs' witnesses testified as follows:
"I remember the time when Mr. Magill died. He died at his home where he had lived all the time. He must have lived there about 50 years; he bought it in 1881 and moved there not long after that. He died in 1932. He lived in the log house at the foot of the hill, and in the other house, since 1881, and Addie Magill lived there with him. That was all inside of the big fence, fencing in the thousand acres, the present fence. That fence was put around all of this, what is claimed to be the home place, by the plaintiffs about in 1912, and it has not been enlarged any since then."
There was substantial evidence that the testator farmed the 1025 acres as one unit and often referred to it as the "home place." Olive B. Gomer, at one time assessor for Butler County, testified in part as follows:
"I knew Henry Magill in his life time and assessed his property. I have discussed his property with him and know what property he referred to as the `Home Place.' That was while I was Assessor. He referred to where his home was as the `Home Place.' He wanted it put under one assessment so it would all be on the books in one call, but I couldn't do it because it was located in various sections."
None of the plaintiffs were called to testify.
The defendants did not offer any evidence by disinterested witnesses, and when William Magill, one of the defendants, was called as a witness, plaintiffs objected on the ground that he was not a competent witness to testify to any fact material to the question in dispute. The trial court sustained this objection. The objection was based on Sec. 1887, R.S. Mo. 1939.
[1, 2] The trial court, by its judgment and decree, found that the testator, by the term "home place," meant to include therein all of the 1025 acres. That interpretation is consistent with the terms of the will and the situation of the testator at the time the will was executed and also at the time of his death. The trial court also found that the testator, by the second clause of the will, devised an estate to his wife for life, or during widowhood, with remainder to his heirs; that each of the children was given a one-eighth vested interest in the home place and each of the two grandchildren a one-sixteenth interest. Appellants insist that the home place, whatever it may contain, was devised to them by the residuary clause of the will. We think the trial court's conclusion was correct. The testator, by the second clause, disposed of the whole fee in the home place. In the clauses following special bequests were made, then followed the residuary clause by which all the land not theretofore devised was ordered to be sold after ten years and the proceeds paid to the four sons. Note that the residuary clause does not read, "all of my real estate," but "all the residue of the real property." Appellants therefore have a one-eighth interest each in remainder in the home place and [364] not a one-fourth interest as claimed by them.
Appellants also argue that the testator created a contingent remainder by the second clause of the will. Under the ruling in Garrett v. Damron, 110 S.W.2d 1112, the estate must be declared a vested remainder. The word "heirs" refers to heirs of the testator at the time of his death. This point was fully discussed in the Garrett case and we are of the opinion that the second clause did not create a contingent remainder.
Plaintiffs in their suit asked the court to enjoin the defendants from committing waste on the land in dispute. At the trial this was abandoned. Appellants, defendants below, now say that this action on the part of the plaintiffs left nothing for the court to do except construe the will, and therefore the case should have been dismissed. It is argued that a court of equity will not entertain jurisdiction for the sole purpose of construing a will where no other relief is sought. If this point has any merit the appellants are estopped to rely thereon. The trial court had jurisdiction of the subject matter and of the parties. The defendants, by their answer, specifically asked for relief. Note their prayer:
"WHEREFORE, the premises considered, defendants pray that the court construe the term `The Home Place' as used in said will, to mean the Two Hundred Sixty-five (265) acres as hereinabove described, and that it ascertain and determine the right, title, estate and interest of the plaintiffs and defendants respectively, in and to all of said real estate described in plaintiffs' petition, . . ."
It will be noted the defendants asked the court to try the very issue they now say the court should have refused to try and determine. Having thus invoked the jurisdiction of the court to try the issue they cannot now question the court's jurisdiction. [See Winning v. Brown, 340 Mo. 178, 100 S.W.2d 303, l.c. 306 (3, 4).]
Appellants also briefed the point that the trial court erred in holding that they were incompetent witnesses under Section 1887, R.S. Mo. 1939. This question was not preserved for our review. In the motion for new trial, paragraph 5, appellants stated:
"The court erred in rejecting competent, relevant and material evidence offered by the Defendants."
This court has, on various occasions, ruled that such an assignment does not preserve for review the question of the competency of a witness to testify. See Drake v. Kansas City Pub. Service Co., 333 Mo. 520, l.c. 533, 63 S.W.2d 75, l.c. 81 (8), where this court said:
"There is a material difference between an objection to evidence as incompetent and an objection as to the competency of a witness to testify, and it has been held that an allegation in a motion for new trial such as that here is not sufficient to present for review an objection to the competency of the witness to give the testimony."
We therefore hold that the point was not preserved for our review.
The decree of the trial court is affirmed. Cooley and Bohling, CC., concur.
The forgoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.