Allison v. Hitchcock

*493 WHITE, J. An action to determine title. George Mnngall, the common source of title, died June 17, 1913, leaving a will. He left a widow, Eliza, or Lizzie Mungall. Afterwards she married Samuel S. Hitchcock, and died October 5', 1919, leaving- a will in which she devised all her property to her surviving husband, Samuel S'. Hitchcock, for life, with remainder to her stepson, Louis G. Hitchcock. They are defendants. Mungall left no children or descendants. The plaintiffs are Ms collateral heirs, his brothers and sisters, and their descendants, and as such heirs claim the property in dispute, mentioned in the record as the Clifton Place property. The defendants assert that they acqMred the property througjh Lizzie Mungall, the widow, and that George Mungall in his will devised it to her in fee simple. The plaintiffs claim that the will of George Mungall did not mention or dispose of the Clifton Place property. The will, omitting formal parts, was as follows: “I dispose of my real and personal property as follows : ‘ ‘ First : I desire that my honest debts be paid. “Second: I hereby give, bequeath, devise, convey, set over and confirm unto my beloved wife, Lizzie Mun-gall, all of my real estate, money in bank, cash on hand, my business goods and chattels and all personal property. “My real estate consists of premises known as 2732 and 2734 Clark Avenue, and 2630 Laclede Avenue, which she shall enjoy without let or hindrance, but shall have quiet and peaceable possession thereof for her life time. I request that she take care and maintain my sister, Mrs. Elizabeth Grierson, and her daughter, Isabelle Grierson, during* their life. In event of my wife’s death, I desire that the Clark Avenue property be given to my sister, Mrs. Elizabeth Grierson and her daughter, Isabelle, if both are living to share alike. In the event of the death of either, her share shall revert back to other heirs.” The disposition of the case turns upon the construction of tins' will. If by that will George Mungall devised to Lizzie Mungall the Clifton Place property in dispute *494 here, which is not described nor specifically mentioned therein, then the title passed to the defendants. If, however, George Mungall died intestate as to that property, the plaintiffs acquired the title. The trial court found that the will did not dispose of the property, rendered judgment for the plaintiff, and defendants appealed. I. The first rule in construction of a will is to determine the intention of a testator, and that intention must be gathered from the language used j[n light of the circumstances surrounding, [Doneghy v. Robinson, 210 S. W. l. c. 657, 658.] The evidence shows that the Clifton Place property was acquired by George Mungall after he executed his will, which described all the property fhe owned at that time. Appellant seeks to apply to this case a presumption that the testator intended to dispose of'his whole estate and did not intend to die intestate as to any of his property. Such a presumption is indulged by the courts when-it appears consistent with the intention of a testator, but when the language of the will shows a contrary intention, that presumption fails. [Tillerson v. Taylor, 282 Mo. l. c. 211; Farish v. Cook, 78 Mo. l. c. 221; Williamson v. Roberts, 187 S. W. 19.] In the case last cited the will contained this clause: ‘ ‘ I desire that all the rest and residue and remainder of my estate be disposed of as the law directs. ” It was contended that that clause was a testamentary disposition of the property so as to include unnamed heirs; the court held, however, 1. c. 20, that the effect of the clause was to show that the testator intended to die intestate as t5 the residue of his property. A similar intention is shown by the language of the will here. The Clark Avenue and the Laclede Avenue properties are given to the widow “for her life time.” In the Clark Avenue property the remainder was to go to Elizabeth Grierson, testator’s sister, and her daughter, and upon a certain contingency it was to- “revert back to *495 other heirs.” In the Laclede Avenue property no remainder was provided for. This definite failure to dispose of that remainder, the mention of “other heirs,” the language he used and refrained from using, show his intention to die intestate as to what was not specifically disposed of. Therefore, the presumption that he did not intend to die intestate as to any of his property does not obtain. II. It is further argued by appellant that the will speaks as of the moment of the testator’s death and takes effect upon his property as he possessed it then,’ so that in this case after-acquired property would Pass though it is not mentioned in the will, and passed to Eliza Mungall under the second clause of the will where he bequeathed to her “all of my real estate.” Here, too, the intention of the testator is to be gathered from the language of the will and it will not be held to have the effect suggested where the words used show they refer to 'things as they existed at the date of the will. [Webb v. Archibald, 128 Mo. l. c. 307; Mueller v. Buenger, 184 Mo. l. c. 478; RoBards v. Brown, 167 Mo. l. c. 461.] This makes it necessary to examine more closely the language of the will. The appellant claims that the expression “all of my real estate” carries sufficient force to include after-acquired land, and that the specific mention of the Clark Avenue and the Laclede Avenue property would not limit or prevent the general force of that expression. Did the testator by that expression intend to include any real estate other than that which he owned at that time, mentioned particularly in the next sentence and paragraph! He;says: “all of my real estate;” then, “my real estate eousists of ” the Clark Avenue and the Laclede Avenue property. The expression, “my real estate consists of,” can.refer to nothing else except “all'-of my real estate” mentioned in the preceding sentence. In the first sentence he gives all his real estate to. his' wife, Elizabeth *496 Mungall. In the second sentence mentioning; Clark Avenue and Laclede Avenue property he says, “which she shall enjoy without let or hindrance.” “She” of course, refers to Eliza Mungall in the preceding sentence. If there was any intention to make a general disposition to her, and then a special disposition of other property to her, it looks as if the name would have been repeated in the specific bequest, but “she” used in the next sentence, refers to Eiliza Mungall and to “all of my real estate” in the preceding sentence. All of these expressions show an intimate connection between the two sentences, uniting them as one statement of the property and the person to receive the property. It would be a strange construction to hold that the testator had any intention to include in the disposition to his widow any property other than that specifically described. III. A further rule invoked by the appellant is that where the language of the will is sufficient to convey an absolute fee, the interest cannot be cut down by subsequent vague and general expressions. The argument is that the devise of “all of my real estate” exPresses a devise in fee, and that it oannot be cut down by the following sentence. Of course, if that expression was intended to vest a fee in Eliza Mungall, then it could not be cut down without a clear intention, but there is a clear intention in the next sentence to cut down the fee to a life estate, so far as the Clark Avenue and the Laclede Avenue properties are concerned, and that is all the property mentioned. The rule is stated in case of Cornet v. Cornet, 248 Mo. 184, where the authorities are collated and the rule is quoted from an earlier case, 1. c. 224; it is there said that such an estate cannot be out down by a subsequent clause of the will “unless the language used in such subsequent clause is clear, plain and unequivocal as the language of the first grant.” If the second paragraph could be construed as another clause of the will, the language is as unequivocal and as clear as it can be *497 made to show that only a life estate is intended in the real estate devised. The argument of appellant is that the expression, “I hereby give, bequeath,” etc., “all of my real estate,” affects real estate other than that described in the next sentence. Here is a clear intention of the testator to give his widow a. life estate only in all the real estate he possessed; all he could possibly have in his mind at the time. We are asked to construe this will so that it gives her a fee simple in after-acquired real estate, not mentioned or thought of at the time. The second paragraph of the second clause of the will is not another clause; it is another sentence so intimately connected in language, purport and 'meaning, with the previous, sentence, that it all goes together and means the same thing as if the two sentences were connected by the word ‘‘ and. ’ ’ It has been held that the expression, “my property” is referable to property at the time the will is written. [Simmons v. Cabanne, 177 Mo. l. c. 354.] Here the testator in the first sentence speaks of “all my real estate,” and in the next says, “my real estate consists of.” “My real estate” must mean the same thing, and affect the same thing1;, in the second sentence as it does in the first. The will is almost exactly the same in terms as that in the ease of Dunlap v. Hart, 274 Mo. 600, l, c. 603, where it was held that the will did not include after-acquired property. In that case the will gjves all of the real estate to the wife of the testator, and then uses the expression, “and described as follows.” The only difference between the language in that case and in the present is that the description is connected with the words of general gift by the word ‘ ‘ and. ’ ’ Appellant, however, points out that in the Hart case the land described in the will was sold before the testator’s death, and other real estate, the property in dispute in that case, was acquired afterwards; whether with the.,proceeds of the first, or not, is not determined. The court held that the conveyance of the property mentioned in the will was an ademption *498 of the devise; that by conveying property upon which the will was to operate the testator pro tanto revoked the will, and therefore it would not operate upon future-acquired real estate. It is true the Hart case turned upon that principle, but Judge Faris, who wrote the opinion in that case, held (1. c. 604) that the will made a specific devise to the wife of the -lands mentioned. The will in this case is a specific devise. The testator in giving “unto my beloved wife Eliza Mungall all of my real estate” devises .specifically the real estate he then had iii possession. In order to remove all doubt about it being such real estate as he had then he says “my real estate consists of” certain property. Language could not more clearly express a specific devise unless the two sentences were connected by the conjunctive “and.” We think the, trial court correctly construed the will* and the judgment is affirmed. All concur.