Summary
In Adams v. Conqueror Trust Co., 358 Mo. 673, 217 S.W.2d 476, 7 A.L.R.2d 268, a change in the corporate structure of a corporation rendered uncertain a provision in the will bequeathing a specified number of shares of stock in said corporation, for which shares of different proportions of the corporate assets had been thereafter substituted.
Summary of this case from Shackelford v. FiferOpinion
No. 40736.
January 7, 1949. Rehearing Denied, February 14, 1949.
1. WILLS: Construction. The primary rule for the construction of a will is to determine the true intent and meaning of the testator. When all is not entirely clear the court may consider the amount, nature, extent and condition of the testator's property.
2. WILLS: Corporations: Bequest of Stock: General Rule. The general rule is that a mere bequest of a stated number of shares of stock of a particular corporation is to be regarded as a general or demonstrative bequest rather than a specific bequest.
3. WILLS: Corporations: Specific Bequest of Stock: Increased Shares Follow Bequest. When all the provisions of the will are considered together a bequest of 40 shares of du Pont common stock is held to be a specific bequest, so that when the stock was subsequently split into 280 shares the increased number of shares belong to the beneficiaries of said bequest.
4. WILLS: Trusts: Corporations: Specific Bequest of Stock: Power of Sale of Trustee Not Applicable. When all parts of the will are considered the power of sale of the trustee under the will did not extend to the specific bequest of 40 shares of du Pont common stock.
Appeal from Jasper Circuit Court. — Hon. Walter E. Bailey, Judge.
AFFIRMED.
Watson, Richart Titus, Ray E. Watson, F.H. Richart, Rex, B. Titus for appellant.
(1) Plaintiffs' right to share in the corpus of the trust estate was contingent upon the event that they be living at the time the trust ceased, the date of the death of testator's wife, Jennie Spiva. Kingston v. St. Louis Union Trust Co., 348 Mo. 448, 154 S.W.2d 39. (2) The measure of value of quantity of a legacy is to be determined as of the date the beneficiary is entitled to distribution. So plaintiffs were entitled to receive only the number of shares specified in the will, and of the kind as existed at the time of the death of Jennie Spiva, which was the time of the vesting of their interest and when they were entitled to distribution. 4 Page on Wills, sec. 1587, p. 514, Sec. 1589, p. 518; Callahan v. Peltier, 121 Conn. 106, 183 A. 400, 403; In re Lendle's Estate, 250 N.Y. 502, 166 N.E. 182, 63 A.L.R. 521; Volpe v. Benavides, 214 S.W. 593; Rogers v. English, 130 Conn. 332, 33 A.2d 540. (3) Testator's will created a single trust of all testator's estate except the household goods, books, apparel, jewelry and all other like contents of the home, which were bequeathed to testator's wife, Jennie Spiva, as her absolute property, which trust was for the purpose of retaining the estate together as a whole during the lifetime of testator's wife and furnishing support to her from the income therefrom, and no separate trust of any specific property was created in behalf of plaintiffs, nor was the Trustee required to keep any separate record or account of any particular portion of the trust estate. Kingston v. St. Louis Union Trust Co., 348 Mo. 448, 154 S.W.2d 39; Deacon v. St. Louis Union Trust Co., 271 Mo. 669, 197 S.W. 261; St. Louis Union Trust Co. v. Clarke, 352 Mo. 518, 178 S.W.2d 359. (4) A gift payable in money or in other property, or a gift in the alternative of specific property or money is a general legacy. 4 Page on Wills, sec. 1393, p. 110. sec. 1397, p. 124; 69 C.J., sec. 2104, p. 932; Sec. 2115, p. 935; Industrial Trust v. Tidd, 49 R.I. 188, 141 A. 461; Graham v. De Yampert, 106 Ala. 279, 17 So. 355. (5) A specific legacy is a bequest of a particular thing and can be satisfied only by delivery of the particular property bequeathed. 4 Page on Wills, sec. 1394, p. 112; Asbury v. Shain, 191 Mo. App. 667, 177 S.W. 666; In re Bernheimer's Estate, 352 Mo. 91, 176 S.W.2d 15; Fidelity Nat. Bank v. Hovey, 319 Mo. 192, 5 S.W.2d 437. (6) The mere fact that testator owned property answering the description of that bequeathed is not sufficient to render the bequest specific. Camden Trust Co. v. Cramer, 136 N.J. Eq. 261, 40 A.2d 601. (7) The legacy of 20 shares of common stock of E.I. du Pont de Nemours Company was payable out of the Trust Fund created by the testator under the provisions of his will and therefore cannot be a specific legacy, since a legacy payable out of the estate, generally, out of the residue, or out of a trust fund or special portion of the testator's estate is either a general legacy or a demonstrative legacy. First Huntington Natl. Bank v. Colvin, 171 S.E. 413; Camden Trust Co. v. Cramer, 136 N.J. Eq. 261, 40 A.2d 601; Lansburg v. Lansburg, 37 F.2d 997. (8) The bequest to plaintiffs cannot be a specific bequest since the form in which the gift passes from the testator's estate and not the form in which it is to be delivered to the beneficiaries determines whether it is a general or specific legacy. 4 Page on Wills, sec. 1393, p. 110; In re Weed's Will, 213 Wis. 574, 252 N.W. 294; Devenney v. Devenney, 74 Ohio St. 96; 77 N.E. 688. (9) The provisions of paragraph Fourth of Article III of testator's will granting to the trustee full power to sell, exchange or otherwise dispose of any or all of the property in the trust fund is inconsistent with an intention to give to plaintiffs a specific legacy of 20 shares of common stock of E.I. du Pont de Nemours Company as of the time of testator's death, since, the will provided that no title in the trust estate or in its accumulations should vest in any beneficiary, and, if the trustee had exercised such authority it would have operated as an ademption of plaintiffs' legacy. 4 Page on Wills, sec. 1517; Fidelity Natl. Bank v. Hovey, 319 Mo. 192, 5 S.W.2d 437. (10) Courts favor general bequests and lean against specific bequests and for that reason presume that testator intended to give a general legacy instead of a specific one; this intention is quite a strong one and in order to make a legacy a specific one testator's intention must be clear. 4 Page on Wills, sec. 1392; Methodist Episcopal Church v. Thomas, 235 Mo. App. 671, 145 S.W.2d 157; Fidelity Natl. Bank v. Hovey, 319 Mo. 192, 5 S.W.2d 437. (11) The fact that the trustee kept no separate record or account of any particular or specific portion of testator's estate on behalf of plaintiffs as beneficiaries thereunder; and that testator's widow, Jennie Spiva, in her will, bequeathed a like number of shares of stock in the same company to another nephew and niece of testator, for the apparent purpose of treating them equally with plaintiffs is of some weight in determining the intention of the testator. St. Louis Union Trust Co. v. Clarke, 352 Mo. 518, 178 S.W.2d 359. (12) Bequests of stocks or bonds are considered general legacies, in the absence of a clearly expressed intention of the testator to the contrary. 4 Page on Wills, sec. 1397; In re Bernheimer's Estate, 352 Mo. 91, 176 S.W.2d 15; Desoe v. Desoe, 23 N.E.2d 82. (13) The language of testator's will is unambiguous, its directions are clear and understandable; the will was carefully planned as stated in Article V; there is no inconsistency in its provisions; each part is in harmony with each other part; there is no reason for a strained construction to effect its purposes and courts will not read ambiguity in a will where none exists or create inconsistencies where there is none. 2 Page on Wills, sec. 919, p. 810, sec. 922, p. 831; Mercantile-Commerce Bank Trust Co. v. Morse, 201 S.W.2d 317. (14) A court may not reform an unambiguous will, or impute to a testator an intent not expressed in will. Cockrell v. First Natl. Bank of Kansas City, 211 S.W.2d 475, (15) Attorneys' fees allowed Trustee and court costs should be taxed against plaintiffs. St. Louis Union Trust Co. v. Kattenbach, 186 S.W.2d 578; Thatcher v. Lewis, 76 S.W.2d 677; Trautz v. Lemp, 72 S.W.2d 101. Scott, Scott Blair for respondents.
(1) In this state it is established by both statute and decision that the paramount rule to which all other rules of construction must yield is to determine and give effect to the true intent and meaning of the testator, which the trial court did in this case. Mercantile Commerce Bank Trust Co. v. Morse, 201 S.W.2d 317; Graves v. Graves, 163 S.W.2d 544, 349 Mo. 722. (2) The intention of the testator must be gathered from his language used in the will in the light of the surrounding circumstances. In re Bernheimer's Estate, 176 S.W.2d 15, 352 Mo. 91. Gardner v. Vanlandingham, 69 S.W.2d 947, 334 Mo. 1054; Paris v. Erisman, 300 S.W. 487; Mitchell v. Board of Curators of Morrisville College, 266 S.W. 481, 305 Mo. 466; Gannon v. Pauk, 200 Mo. 75, 98 S.W. 471; Stewart v. Jones, 219 Mo. 614; 118 S.W. 1. (3) The testator is presumed to have known the amount and character of his own property and to have willed it accordingly. 69 C.J., sec. 1172, p. 133, notes 41, 43; Williamson v. Roberts, 187 S.W. 19; Wiechert v. Wiechert, 294 S.W. 721, 317 Mo. 118. (4) Almost every will presents some difference in language and circumstances, so that, to some extent, each must be considered apart from any other case in order to ascertain its meaning in the light of the facts as they were known and considered by the testator. Gardner v. Vanlandingham, 69 S.W.2d 947, 334 Mo. 1054. (5) The terms of the will and the surrounding circumstances indicate a specific bequest. In re Largue's Estate, 183 S.W. 608, 267 Mo. 104; Fidelity Natl. Bank Trust Co. v. Hovey, 5 S.W.2d 437, 446, 319 Mo. 192; Waters v. Hatch, 181 Mo. 262, 79 S.W. 916; In re Calnane's Estate, 28 S.W.2d 420. (6) The distinguishing characteristic of a specific legacy is its liability to ademption, general or demonstrative legacies being not subject to ademption. Fidelity Natl. Bank Trust Co. v. Hovey, 5 S.W.2d 437; Gorham v. Chadwick, 135 Me. 479, 200 A. 500, 117 A.L.R. 805; 57 Am. Jur., sec. 1582, p. 1082, note 2. (7) As to a specific bequest in particular, a will speaks as of the time of its execution, and the will is not ambulatory as to the meaning of the language used relating to such a bequest. Therefore, the court will look back to the time of the execution of the will to ascertain the intention of the testator on the subject of the specific bequest. Lansdale v. Dearing, 173 S.W.2d 25, 351 Mo. 356, 147 A.L.R. 728. (8) The term ademption is applied where a specific legacy has become inoperative because of the withdrawal or disappearance of its subject matter from the testator's estate during his lifetime. Lansdale v. Dearing, 173 S.W.2d 25, 351 Mo. 356, 147 A.L.R. 728. (9) The fact that testator, by his will, created an active trust, which included a certain number of shares of corporate stock, was a manifestation of the testator's intention that the bequest with respect to the corporate stock was to be specific, rather than general and demonstrative. Fidelity Natl. Bank Trust Co. v. Hovey, 5 S.W.2d 437, 319 Mo. 192; In re Largue's Estate, 267 Mo. 104, 183 S.W. 608. (10) The stock which the testator directed the trustee to deliver to the respondents was still owned and held by the testator at the time of his death and the legacy was therefore not adeemed. In re Calnane's Estate, 28 S.W.2d 420; Vogel v. Saunders, 92 F.2d 984. (11) The trustee, in compliance with the direction of the testator, should, at the death of testator's wife, have delivered to each of the two nephews one hundred forty shares of that common stock which the trustee held at that time. Hayes v. St. Louis Union Trust Co., 298 S.W. 91, 98, 317 Mo. 1028; Robert v. Mercantile Trust Co., 23 S.W.2d 32, 324 Mo. 314; Chase Natl. Bank v. Deichmiller, 152 A. 697, 107 N.J. Eq. 679; In re Hinners' Will, 257 N.W. 148. (12) The general power to invest, reinvest, sell, lease, mortgage, exchange, or otherwise dispose of any or all of the property in the trust fund, as contained in paragraph fourth of Article III of testator's will, and the general power given the trustee in paragraph fifth thereof to make distribution of the trust estate in money, securities or other property, does not apply to the forty shares of common stock which the testator, by the second and third paragraphs of Article III of his will, directed the trustee to deliver to testator's nephews upon the death of testator's wife. The court will not eliminate paragraphs second and third of Article III in considering paragraphs fourth and fifth. All parts of the will will be read so that they shall stand rather than that any part should perish by construction. To give effect to all parts, the general words of one part may sometimes be required to be limited in their application. Mersman v. Mersman, 136 Mo. 244, 37 S.W. 909; Broaddus v. Park College, 180 S.W.2d 268, 238 Mo. App. 304; Malone v. Moberly, 55 S.W.2d 1008; Scott v. Fulkerson, 60 S.W.2d 34, 332 Mo. 734.
This is an action to construe the will of Edward J. Spiva, deceased. The controversy is between plaintiffs (respondents) and defendant Fannie Branham. The trial court construed the will in accord with the construction sought by plaintiffs and defendant, Fannie Branham, appealed. The amount in dispute gives the supreme court jurisdiction of the appeal. Hereinafter, unless otherwise noted, the term appellant has reference to defendant Fannie Branham.
The will was executed May 14, 1926; testator died September 25, 1926, survived by his widow, Jennie Spiva, and collateral kin. The widow died February 10, 1946. Respondents are nephews of the testator and appellant is a sister of the widow. Defendants Gladys Shelby and W.E. Spiva, Jr. are the niece and nephew of the testator; defendant Conqueror Trust Company was trustee under the will. The cause was filed July 20, 1946. At the time of the execution of the will and at the time of his death, testator owned 56 shares, par value $100 per share, of the common stock of E.I. du Pont de Nemours Company, a Delaware corporation. The stock was evidenced by two certificates, one for 16 shares, the other for 40. Testator bequeathed 20 shares of the du Pont stock to each of respondents, and the question is whether this bequest is a general or special bequest. Respondents contend that it is special; appellant contends that it is general. The will, omitting the preliminary and witness paragraphs, is as follows:
"Article I. I direct that all my just debts allowed in the due course of administration and the expense of my interment be promptly paid.
"Article II. I give and bequeath to Jennie Spiva, my wife, as her absolute property, all household goods, books, apparel, jewelry and all other like contents of our home.
"Article III. All the rest, residue and remainder of my estate, of whatever nature and wheresoever situate, I give, devise and bequeath to my trustee hereinafter named, in trust for the following uses and purposes:
"First: To pay the net income therefrom, in monthly or quarterly installments, to my wife, Jennie Spiva, for the term of her natural life.
"Second: Upon the decease of my wife, deliver to Jerry C.C. Adams and Norman L. Adams, sons of my sister May Adams, of Joplin, Missouri, each twenty shares of common stock of the E.I. du Pont de [478] Nemours Company, completely discharged from the operation of this trust. The surviving child or children of either of said sons in this paragraph named shall take the same share and at the same dates as the deceased child would have received such share, if living.
"Third: At the death of my wife and after delivery of the forty shares of common stock of the E.I. du Pont de Nemours Company, as provided for in the preceding paragraph, all the then remaining portion of my estate shall be distributed in such manner as my wife, Jennie Spiva, may direct in her last will and testament.
"Fourth: The trustee shall hold and manage the property as a trust fund; invest and reinvest the same in real estate mortgages, municipal bonds or any other form of income bearing property (but not real estate nor common corporate stock). The trustee is granted full power to sell, lease, mortgage, exchange or otherwise dispose of any or all of the property in the trust fund as it may deem proper. It may employ counsel and other agents in the discharge of its duties and determine and pay to them reasonable compensation.
"Fifth: The trustee in making distribution of principal hereunder, may do so in money, securities or other property and the judgment of the trustee as to what shall constitute a just and proper division or apportionment among beneficiaries shall be binding and conclusive on all parties.
"Sixth: No title in the trust estate hereby created or in the income accruing therefrom or in its accumulations shall vest in any beneficiary, and no beneficiary shall have the right or power to transfer, assign, anticipate or encumber his or her interest in said estate or the income therefrom prior to the actual distribution thereof by said trustee to said beneficiary, and neither the income nor principal shall be liable in any manner in the possession of the trustee for the debts, contracts or engagements of any of the beneficiaries. No beneficiary shall be permitted to appoint any agent or attorney in fact, except as may be specifically permitted by the trustee, to collect or receive such income or principal if such agent or attorney in fact has directly or indirectly advanced any of such income or principal to such beneficiary.
"Article V. This will has been carefully planned by me and it is my deliberate judgment that all of its provisions are wise and just and that the plan as a whole will prove beneficial and satisfactory to my wife and family. It is therefore my desire that my wife assent to this will and cooperate with this plan which I am confident will work to the advantage and welfare of herself and of the family as a whole.
"Article VI. I hereby nominate and appoint The Conqueror Trust Company of Joplin, Missouri, and my wife, Jennie Spiva, as co-executors of this my last will and testament; and I hereby nominate and appoint The Conqueror Trust Company of Joplin, Missouri, as trustee hereunder, with full power to said trustee to sell and convey, lease or mortgage any and all real estate of which I may die seized, without license or leave of court, and I direct it to do each and every act and thing necessary or proper to the full and complete administration of the trust hereby created." (There is no article IV in the will as it appears in the record.)
Shortly prior to testator's death, the du Pont Company commenced proceedings which resulted in a corporate structure change respecting its stock. Notices of a stockholders' meeting for such purpose, to be held on September 13, 1926, were sent out in August, 1926; testator received copy of the notice. The stockholders' meeting resulted in the change of the authorized common stock from 1,500,000 shares of the par value of $100 per share to 5,000,000 shares of common stock of no par value. Under this change, one share of the $100 par value common stock could be exchanged for 2 shares of the no par value common stock. After this change of the corporate structure as to stock the trustee under the will exchanged the 56 shares of $100 par value common stock for 112 shares of the no par value common stock. Later, the stock structure of the du Pont Company was again changed from no par value common stock to common stock having a par value of $20 per share. Under this second change, one [479] share of the no par value common stock could be exchanged for 3½ shares of the $20 par value common stock. After the second corporate structure change as to common stock, the trustee exchanged the 112 no par value shares for 392 shares of common stock of the par value of $20 per share. At the time of testator's death (September 25, 1926), one share of the du Pont common stock of the par value of $100 was worth $125.50. At the time of the widow's death (February 10, 1946), one share of the $20 per share value common stock was worth $193.00. In other words the 40 shares of common stock bequeathed to respondents and worth $5,020.00 ($125.50 per share) at the time of testator's death, were, by the change in the corporate structure and the two exchanges, changed into 280 shares worth $54,040.00 ($193.00 per share) at the time of the death of the widow.
Jennie Spiva, widow of the testator, and who by his will (subdivision third of article II) was given the power of appointment, executed her will July 30, 1943, and died, as stated, February 10, 1946. By her will, after making certain bequests, she gave the residue of her estate to her sister, Fannie Branham, appellant. Respondents contend, as stated, that the bequest of the 40 shares to them was a specific bequest and that the 280 shares, derived from the 40 shares held by the testator at the time of his death, were obtained by the two exchanges for their benefit and that the 280 shares are a mere subsitution for the original 40 shares, and that they, respondents, were entitled to receive the 280 shares upon the death of the widow. On the other hand appellant contends, as stated, that the bequest of the 40 shares was not a specific bequest, but was a general bequest and that respondents are only entitled to receive 40 shares (20 shares each) of the 392 shares of the du Pont common stock held by the trustee at the time of the widow's death, together with accumulated dividends thereon after her death. The difference, in money value, between these two contentions is $46,320.00.
The primary rule for the construction of wills is to determine the "true intent and meaning of the testator." Sec. 568 R.S. 1939, Mo. RSA, Sec. 568; Bates et al. v. Bates et al., 343 Mo. 1013, 124 S.W.2d 1117, l.c. 1119, and cases there cited; Mercantile Commerce Bank Trust Co. v. Morse et al., 356 Mo. 179, 201 S.W.2d 317, l.c. 319; Graves v. Graves et al., 349 Mo. 772, 163 S.W.2d 544, l.c. 546. When all is not entirely clear certain auxiliary rules of construction may be invoked, and among such is the rule that the court will consider the amount, nature, extent and condition of the testator's property. In re Bernheimer's Estate, 352 Mo. 91, 176 S.W.2d 15, l.c. 20; Gardner v. Vanlandingham et al., 334 Mo. 1054, 69 S.W.2d 947, l.c. 949.
The general rule is that a mere bequest, and no more, of a stated number of shares of stock of a particular corporation is to be regarded as general or demonstrative bequest rather than a specific bequest. 57 Am. Jur., Wills, Sec. 1411. There is authority, however, supporting the view that where the amount or number of the securities bequeathed corresponds exactly with the amount or number owned by the testator, the bequest is to be construed as specific. 57 Am. Jur., Wills, Sec. 1411, supra; 6 ALR, note, p. 1379; Unitarian Soc. v. Tufts, 151 Mass. 76, 23 N.E. 1006.
In the present case, when all the provisions of the will are considered together it is reasonable to infer that the testator, when he executed his will, intended to bequeath to plaintiffs the 40 shares of du Pont common stock represented by his stock certificate for exactly 40 shares of this stock. Facts supporting such inference are: (1) That he then owned 40 share of the du Pont common stock evidenced by a separate stock certificate for exactly 40 shares; (2) by article III, subdivision second, he bequeathed the 40 shares of du Pont stock and other property to the trustee with direction to pay the net income therefrom to his (testator's) wife for life; (3) while the trustee was given the power (subdivision fourth of article III of the will) "to sell, lease, mortgage, exchange or otherwise dispose of any or all of the property in the trust fund", and to invest and reinvest "in real estate mortgages, municipal bonds or any other form of income bearing property", nevertheless [480] the trustee was specifically directed not to invest in "real estate nor common corporate stock"; (4) that upon the death of testator's wife the trustee was directed (subdivision second of article III of the will) to deliver to plaintiffs, 20 shares each of the common du Pont stock completely discharged from the operation of the trust created; (5) he further directed (subdivision third, article III of the will) that after delivery of said stock to plaintiffs, the remaining portion of the estate be distributed as might be provided in his wife's will.
The fact that the trustee was forbidden to invest in any "common corporate stock" is not without significance. As appears, supra, the trustee was given power to sell, etc., yet the trustee was directed, upon the death of testator's wife, to deliver 20 shares of the common du Pont stock to each of plaintiffs. As we construe the will, had the testator, prior to his death, sold the 40 shares of his du Pont stock, evidenced by the 40 shares certificate, the legacy of the 40 shares of said stock to plaintiffs would have been extinguished under the rule of ademption. In Fidelity National Bank Trust Co. v. Hovey, 319 Mo. 192, 5 S.W.2d 437, l.c. 441, 73 ALR 1228, 28 RCL, Sec. 341, p. 345, is quoted with approval as follows: "The distinctive characteristic of a specific legacy is its liability to ademption. If the identical thing bequeathed is not in existence, or has been disposed of, so that it does not form a part of the testator's estate, at the time of his death, the legacy is extinguished or adeemed, and the legatee's rights are gone."
The case of In re Estate of Largue, 267 Mo. 104, 183 S.W. 608, is, we think, in point here. Mathilda A. Largue of St. Louis executed her will July 6, 1909, and died October 9, 1909. At the time of the execution of the will and at the time of her death she owned 510 shares of the stock of the National Bank of Commerce, St. Louis. The will disposed of 318 shares of this stock, referring to it as "stock of the National Bank of Commerce in St. Louis." The second paragraph of the will bequeathed 100 shares of said stock to her brother; the third paragraph bequeathed 137 shares to her sister; the fourth paragraph bequeathed 136 shares equally to 4 of her nieces. The fifth paragraph bequeathed 46 shares to the trustee named in the will with the direction that he or his successor "keep said shares of stock and collect such dividends as may be paid thereon and pay the same as they are collected to" five named individuals "share and share alike." The sixth paragraph bequeathed 46 shares to six named individuals "share and share alike"; the seventh paragraph bequeathed 45 shares to a named individual; the eighth paragraph bequeathed $1,000 to a named individual; the ninth paragraph also bequeathed $1,000 to a named individual; the tenth paragraph devised and bequeathed the residue of the estate to a niece not theretofore named.
The case of In re Estate of Largue was commenced in the probate court. The plaintiffs were the named legatees in the third, fourth and seventh paragraphs of the will; the defendants were the executors under the will. The plaintiffs claimed that they were the owners of the 318 shares of stock mentioned in the third, fourth, and seventh paragraphs of the will; that these were specific bequests, and that they were entitled to receive the dividends paid on the 318 shares which dividends had been paid to the executors, but not distributed. The aggregate amount of dividends paid on the 318 shares and received by the executors was $8,586.00. The probate court and the circuit court held that the bequests in paragraphs third, fourth, and seventh were general and not specific, and that plaintiffs were not entitled to receive such dividends. It was held by this court that these bequests were specific; that such was the intention of the testatrix, and that the plaintiffs were entitled to the dividends claimed. That conclusion was reached by a consideration of the provisions of the will, together with the pertinent facts and circumstances obtaining at the time of its execution.
In the Largue case, supra, these facts were pointed out as indicative that the testatrix intended to make specific bequests in paragraphs third, fourth, and seventh of her will: (1) That at the time she executed her will she owned the number of [481] shares (318) of the named bank, which shares she bequeathed to the named legatees; (2) that she owned and was in the possession of the same shares at the time of her death; (3) that by the fifth paragraph (not directly involved in the case) of her will she bequeathed 46 shares of stock in said bank to a named trustee to be held by him with direction to pay the dividends thereon to a named individual for life and at the death of this individual the 46 shares went equally by the will to five named persons; and (4) that there was nothing in the will to indicate that the testatrix intended to adeem any portion of said bank stock or to require her executors to go into the market and buy stock of any kind. In the present case the trustee was directed not to buy any corporate stock. See also Fidelity National Bank Trust Co. v. Hovey, supra; Waters v. Hatch et al., 181 Mo. 262, l.c. 288, 79 S.W. 916; In re Calnane's Estate (Mo. App.), 28 S.W.2d 420. In the present case the testator, at the time of the execution of his will and at the time of his death, owned and was in the possession of the 40 shares of the du Pont stock which he bequeathed to plaintiffs, and in view of the fact that he, at the time, owned 40 shares of this stock evidenced in a separate stock certificate, it is reasonable to infer that he intended by his will to bequeath these identical shares to plaintiffs, and the fact that the exchanges of stock were made by the trustee should not operate to destroy the identity of this stock. The stock bequeathed to plaintiffs became a part of an active trust created by the will, and the trustee was directed, upon the death of testator's wife, to deliver to each of plaintiffs 20 shares of said stock completely discharged from the trust. The proportional interest of each stockholder in the du Pont Company remained the same after the exchanges as before. The identity of the stock was substantially preserved. Hayes et al. v. St. Louis Union Trust Co. et al., 317 Mo. 1028, 298 S.W. 91, l.c. 97 (10-11); Robert et al. v. Mercantile Trust Co. et al., 324 Mo. 314, 23 S.W.2d 32, l.c. 43; Chase National Bank et al. v. Deichmiller et al., 107 N.J. Eq. 379, 152 A. 697; In re Hinners' Will, 216 Wis. 294, 257 N.W. 148.
It is contended that the general power given the trustee to sell, invest, reinvest, etc. as provided in subdivision fourth of article III, and as to what the trustee might do in making the distribution as provided in subsection fifth of article III suggested that the testator did not intend the bequest of the 40 shares to be a specific bequest. But when subsections second and third of article III are read in connection with subsections fourth and fifth, it cannot be fairly said that the testator intended that the trustee have the power to sell the 40 shares bequeathed to plaintiffs. One rule of great force in solving the difficulties in the construction of a will is that all parts of the will "should be so read that they shall stand rather than that any part should perish by construction." Mersman et al. v. Mersman et al., 136 Mo. 244, l.c. 257, 37 S.W. 909. See also, Scott et al. v. Fulkerson et al., 332 Mo. 734, 60 S.W.2d 34, l.c. 36(5); Broaddus et al. v. Park College et al., 238 Mo. App. 304, 180 S.W.2d 268, l.c. 273(9); Malone v. Moberly et al. (Mo. App.), 55 S.W.2d 1008, l.c. 1009 (2, 3).
The trial court, we think, correctly ruled that the bequest of the 40 shares of the du Pont common stock was a specific bequest and the judgment should be affirmed. It is so ordered. Dalton and Van Osdol, CC., concur.
The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur.