Opinion
No. 21575.
April 30, 1951.
APPEAL FROM THE CIRCUIT COURT, ANDREW COUNTY, FRED H. MAUGHMER, J.
John J. Robison, Harold Miller, Maysville, for appellants.
Raymond O. Sears and J.W. Roberts, Savannah, for respondents.
This is an action to construe the will of Robert E. Tolle who died testate in May, 1936. His only surviving heirs were his widow, Mollie A. Tolle, and two sisters, Ollie Housman and Edna Smith, the plaintiffs. The material part of his will reads:
"Second ____ I give devise and bequeath to my beloved wife, Mollie A. Tolle, all my property of every kind and description, wherever located to be her absolute property."
"Fourth ____ I request and direct that my beloved wife shall be (by) will or otherwise, divide any remainder that may be left of my estate at her death, one-half to her relatives and the other one-half to my brothers and sisters, or their descendants."
The will was admitted to probate and, upon final settlement, Mollie A. Tolle received from said estate $13,525 in personal property. She died intestate in March, 1949, and defendant, Lewellen, is the administrator of her estate and her heirs are the other defendants. Robert and Mollie both died without bodily issue or their descendants.
It is conceded that at the time of her death she possessed the personal property which she had received from her husband's estate. It is also conceded that only one-half of that property ($13,525) is in dispute; thus this court has jurisdiction. Secs. 3 and 13, Art. 5, 1945 Const.; Sleyster v. Eugene Donzelot and Son, 323 Mo. 822, 20 S.W.2d 69; Dixon v. Postlewait Glass Co., Mo.App., 238 S.W.2d 93.
The sole question for determination is whether Mollie Tolle took absolute title or a life estate in the personal property which she received under her husband's will. The trial court constructed the will to give her a life estate and ordered one-half thereof to be paid to the plaintiffs (the heirs of Robert Tolle) and the other one-half to the defendants (the heirs of Mollie Tolle). The defendants have appealed.
They contend that the will gave the property involved to Mollie Tolle absolute; the plaintiffs contend to the contrary.
We are again confronted with the often litigated and vexing question of determining the intention of a testator as expressed in his will. By Sec. 468.620, R.S. 1949, we are admonished that "All courts * * * 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." There are certain well established rules of law which aid the courts in the construction of a will. However, the pole star of construction is that the intention of the testator should be gathered from the four corners of the instrument and all of its terms and provisions should be given a fair and reasonable interpretation. The first and last inquiry is, what was the intention of the testator? That intention will be carried out unless it conflicts with public policy or positive law. English v. Ragsdale, 347 Mo. 431, 147 S.W.2d 653; Vaughan v. Compton, Mo.Sup., 235 S.W.2d 328.
In approaching a solution of the question confronting us, we must keep in mind that the language of one will is rarely, if ever, like another, and frequently a slight difference in the words used calls for different construction of testamentary provisions similar in other respects. Even identical words properly receive diverse interpretations when used in contexts or under circumstances which are not the same. Therefore, decisions constructing similar testamentary provisions are of small value as precedents and must be considered with caution. Shelton v. Shelton, 348 Mo. 820, 155 S.W.2d 187.
It is conceded by all the parties that paragraph "Second," standing alone, would give the widow absolute title to the personal property. That admission is amply supported by the following cases: Middleton v. Dudding, Mo.Sup., 183 S.W. 443; Weller v. Searcy, 343 Mo. 768, 123 S.W.2d 73; Roth v. Rauschenbusch, 173 Mo. 582, 583, 73 S.W. 664, 61 L.R.A. 455, and Vaughan v. Compton, supra. However, the plaintiffs contend that by the "Fourth" paragraph "the testator intended to and did cut down the absolute title given in the second clause to a life estate only, in that part of his estate remaining in the hands of the widow at her death."
It may be conceded that subsequent language in a will may limit or reduce an absolute estate created by prior language; but this rule requires that the subsequent or limiting words must be equally as clear and conclusive as are those granting the first (absolute) estate. Vaughan v. Compton supra; Presbyterian Orphanage of Missouri v. Fittering, 342 Mo. 299, 114 S.W.2d 1004; Palmer v. French, 326 Mo. 710, 32 S.W.2d 591; Middleton v. Dudding, supra; Glidewell v. Glidewell, Mo.Sup., 230 S.W.2d 752; Blumer v. Gillespie, 338 Mo. 1113, 93 S.W.2d 939.
It has also been held that a life estate may be created by implication and need not be created by express words. In Threlkeld v. Threlkeld, 238 Mo. 459, 467, 141 S.W. 1121, 1123, the court said: "* * * that a life estate may be created by implication, where, in language not ambiguous, the testator has manifested an intent to create such estate, even if it results in cutting down the absolute estate which would be created if the words first used stood alone."
With these rules in mind, can it be said that the language of the will, as a whole, gives the widow an absolute estate in the personal property or does it give her a life estate with the right to consume any part or all of it during her life, but if any part of it be left at her death, such part shall be distributed as directed by Robert Tolle's will?
We shall consider the meaning and effect of the words "I request and direct * * *" found at the beginning of the fourth paragraph of the will. If the testator meant, by the use of those words, to express a mere wish or desire as to the disposition of the property remaining at the widow's death but left such final disposition to the full discretion of his widow, then such words would not reduce the absolute estate granted in the second clause; however, if he intended to impose an obligation upon his widow to carry out his directions, then those words might be sufficient to reduce the estate granted in the second paragraph. Blumer v. Gillespie, supra; English v. Ragsdale, supra; Murphy v. Carlin, 113 Mo. 112, 20 S.W. 786. In the last cited case it is said, 113 Mo. at page 119, 20 S.W. at page 787: "In considering this question it is to be remembered that the devisee is the wife of the testator, between whom it is not expected that commands would be expressed in such forcible language as between strangers." In arriving at what the testator intended by the use of such words we must, of course, consider the whole will and the surrounding circumstances of the parties at the time it was made. It is stipulated that in addition to the personal property owned by the testator at the time of his death he and his wife also owned, as tenants by the entirety, 220 acres of farm land and a residence in the town of Rosendale, which she would take absolutely; that they had no children or lineal descendants and the only property he sought to leave to his relatives was a one-half interest in any personal property not consumed by his widow.
It is to be noted that in the fourth paragraph he refers to the property that may be left at the death of his widow as "my estate," and that he designated the parties who should receive such estate. Thus the subject matter (property) and the object of the estate (the parties) are clearly and certainly pointed out. See Murphy v. Carlin, supra, 113 Mo. at page 119, 20 S.W. at page 787; Noe v. Kern, 93 Mo. 367, 6 S.W. 239.
A reading of the whole will, and considering the circumstances of the parties, convinces us that when the testator used the words, "I request and direct," he used them to express his will and intention; in fact, a bequest, and did not intend to leave it to the discretion of his wife whether she should transfer or devise his property remaining at her death to the designated parties. This results in the conclusion that Mollie Tolle took a life estate in the personal property with power and authority to consume any part or all of it during her lifetime but, if not consumed, then that portion of his estate should be divided equally among the plaintiffs and the defendants (except Lewellen, the administrator). This conclusion is supported by the opinions in English v. Ragsdale, supra; Blumer v. Gillespie, supra; Glidewell v. Glidewell, supra; Threlkeld v. Threlkeld, supra; Schorr v. Carter, 120 Mo. 409, 25 S.W. 538; Lewis v. Pitman, 101 Mo. 281, 14 S.W. 52, and many other cases cited and referred to in those opinions.
Tolle Will
"Second: I give, devise and bequeath to my beloved wife, Mollie A. Tolle, all my property of every kind and description, wherever located to be her absolute property."
"Fourth: I request and direct that my beloved wife shall be (by) will or otherwise, divide any remainder that may be left of my estate at her death, one-half to her relatives and the other one-half to my brothers and sisters or their descendants." (Italics supplied.)
The court held that the word "desire" in the fourth item of the Phillips will was not the expression of a mere wish of the testator, but was in fact his will and, when the fourth item is so constructed, it had the effect of reducing the absolute title devised in the third item to a life estate. The wording of the Tolle will is more specific and emphatic than the Phillips will. Robert Tolle designates the property remaining as "my estate."
In McMillan v. Farrow, 141 Mo. 55, 63, 41 S.W. 890, 892, the court was considering a will quite similar to the one now under consideration, and held that: "The testator speaks of the property in both the second and third clauses of the will remaining undisposed of by his wife, Sarah Ann at her death, as his property, and in fact disposes of it by said clauses, which clearly shows that he did not intend to give it to his wife absolutely, but that he only intended to give her a life estate therein, with power of disposal."
In Blumer v. Gillespie, supra, the will provided:
"`(2) the rest and residue of my estate * * * I give, devise and bequeath to my wife Louise Blumer.'
"`I have unquestioned faith that she will protect, educate and take care of our son, * * * as I should have done had I lived.
The will discussed in the English case is almost identical with the Tolle will; consider the similarity:
Phillips Will
"Third. I give and devise and bequeath to my beloved wife, Sue B. Phillips, all of my property, real, personal, and mixed, it being my desire that she take same as her absolute property.
"Fourth. It is my desire that my said wife, prior to her death shall provide for the disposal of all the property she may possess at the time of her death equally between our nieces, Vivian White and Frances Hodge." [347 Mo. 431, 147 S.W.2d 655.] (Italics supplied.)
It is my wish that after my death she make a will bequeathing such of her real and personal estate, as she may inherit from me, to our son * * * upon her death. My idea and wish being that our son, * * * inherit what may remain of my estate after my wife's death'." [338 Mo. 1113, 93 S.W.2d 941.] (Italics ours.)
The court held that the first sentence of clause two, standing alone, would give the widow an absolute title to the property. However, it was said the remainder of the language made it clear (942) "that it was the intention of the testator to bequeath to his wife, * * * a life estate only in the property in question, with remainder absolutely to his son * * *." The court held that the words "my wish" and "my idea and wish" expressed the testator's will and intention and did not leave it to the discretion and judgment of his wife to say what disposition should be made of the property remaining at her death.
Defendants cite and rely upon the following cases: Vaughan v. Compton, supra; Roth v. Rauschenbusch, supra; Tisdale v. Prather, 210 Mo. 402, 109 S.W. 41; Jackson v. Littell, 213 Mo. 589, 112 S.W. 53, and Middleton v. Dudding, supra. These cases lend support to defendants' contention and we have given them careful consideration, together with other cases of similar import which we have read; but we think the wording of the Tolle will makes them inapplicable.
The most recent case cited is Vaughan v. Compton, supra. There the court was discussing a will, one clause of which devised a fee simple title in real estate to the devisee, and held that the subsequent language in the will was too indefinite and uncertain to convert the original fee title into a life estate. The court recognized the rule that subsequent language may reduce a prior devise of an absolute estate, but held it did not apply in that case because of the wording of the will under consideration.
In Middleton v. Dudding, supra, the court held that the testator had "attempted to make a double devise of a fee" [ 183 S.W. 445] which, of course, cannot be done. In Roth v. Rauschenbusch the language of the will calling for construction is similar to the language of the instant will. After reviewing the authorities and announcing the general principles, to which we have referred, the court distinguished the opinion in the McMillan v. Farrow case, supra, emphasizing the fact that in the McMillan case the will referred to the property which remained at the widow's death as his property; whereas, in the Roth case, the court said, 173 Mo. at page 593, 73 S.W. at page 667: "* * * after using the most emphatic language conveying `the whole of his estate, absolutely and forever,' to his wife, speaks of it not as `my' property, but `the property herein bequeathed to her.' We think the intention of the two testators is plainly different." The conclusion of the court is stated in this language 173 Mo. at page 595, 73 S.W. at page 667: "We look in vain in the will of Jacob Roth for any words `as affirmatively strong' or even approximating those which he used in devising the fee simple of his estate to his wife." (Italics ours.)
The apparent conflict in the decisions is the result of the application of general principles to the facts in each case. The cases cited by defendants reaffirm the general uncontroverted rules that "a limitation over after a devise of the fee is void" and "that a devise of the fee cannot be cut down by subsequent ambiguous language." We recognize those general principles as being sound and the fixed law of this state, but we do not consider them applicable and controlling in the instant case because of the wording of the particular will under consideration.
It is our conclusion that the judgment of the trial court correctly construes the will under consideration and should be affirmed. It is so ordered.
All concur.