Webb v. Archibald

Brace, C. J. — This is a suit instituted by Mrs. Webb, one of the devisees and heirs at law of Mrs. Margaret Lindsay, deceased, and her husband, against the administrator and the other devisees and heirs at law of the said deceased, to obtain a construction of the last will and testament of said deceased, which, omitting the formal parts, is as follows: “I give and bequeath to my beloved daughter, Kate Webb, the sum of thirty-seven hundred and fifty dollars to her sole and separate use, and in order to secure the same to her sole and separate use, from the control of her present or any future husband, I hereby appoint and constitute my friend, Repps B. Hudson, to receive and take possession of said thirty-seven hundred and fifty dollars, on my death, and invest the same in land — the deed for said land to be made to her, the said Kate Webb, to her sole and separate use. “2. I give and devise to Thomas Archibald, William Archibald and Margaret Winkler, my .children, .and Harry Archibald, my grandchild, their heirs and assigns, all my real estate, including the farm of four hundred acres on which I now live, and twenty acres of timber land about one mile south of said farm of four hundred acres, this being all of my real estate — each of the four persons last above named to have one-fourth of said real estate or land; said land is situated in Carroll county, Missouri. — 304 — “3. I give and bequeath to my son, "William Archibald, oue thousand dollars, for the purpose of making him even with the other children, on account of which they have received heretofore. Out of the balance of my property I desire my debts to be paid, and should there be anything left, I desire it to be equally divided between Thomas Archibald, William Archibald and Margaret Winkler; above named are all of my children, as I have never had any children by my present beloved husband, Clark Lindsay.” The will was executed on the sixth of March, 1885. The testatrix died in the year 1891, the owner of the real estate mentioned in the will, and of a tract of one hundred and twenty acres in addition, called the “Winfrey Earm,” acquired by her after the execution of the will; and of personal property of the value of several thousand dollars. The trial court held that the said Margaret Lindsay died testate as to all her personal property, which is to be distributed according to the terms of the will; but that she died intestate as to the said real estate, purchased after the date of the execution of the will, and that the same descends in equal parts to her heirs at law, the said Kate Webb, Thomas Archibald, Margaret Winkler and Harry Archibald, and decreed accordingly. Erom this decree, defendants appeal, contending that the court committed error in holding that the said Margaret died intestate as to the after acquired real estate aforesaid, and this is the main question to be decided here. I. In the leading case of Liggat v. Hart, 23 Mo. 127, Leonard, J., said: “Men know that their wills are not to take effect until they die, and they make them for the purpose of fixing the distribution of their property from that moment.” Since that decision, construing the first section of our statute of wills, there never has — 305 — been any question in this state but that the language of a will is to be construed as of the date of the decease of the testator, unless the contrary appears to have been his intention, and that the will operates upon all the estate of the testator, real and personal, at the time of his decease, so far as its terms are applicable, unless the intention of the testator appears to be otherwise. 1 Redfield on Wills [3 Ed.] chap, 9, sec. 1. The language of the will in question leaves no room for doubt that the testatrix in the disposing clauses of her will was fixing the distribution of her property “from the moment of her death.” The first item of her will, containing the legacy to the plaintiff, discloses this as her thought in the expression “on my death,” which runs through the dispositions of the will. Nor does that language leave any room for doubt that the testatrix intended to dispose of all the property of which she was possessed at the moment of death, for, after making all the specific bequests she desired, she closed the third and last item with a residuary clause disposing of “anything left,” “out of the balance of my property.” There is nothing in the language of the will, nor rules of law given for its interpretation, upon which the idea of an intestacy as to any of the testatrix’s property can be predicated. There is no room in the case for the indulgence of any presumptions on account of a disherison. There is no disherison in the ease. The testatrix carefully named all those who by nature had immediate claims on her bounty, and as carefully provided for them. That the provision made by her may have been unequal as between them can furnish no basis for a presumption that she intended an intestacy as to any of her property; yet, in order to sustain the trial court in its ruling, we should not only have to indulge in some such presumption, but permit it to — 306 — override, not only the foregoing well settled principles of law for the construction of the testatrix’s will, but her unequivocally expressed intention as to the share the plaintiff should have in her estate; for nothing can be clearer than that it was the intention of the testatrix, not only that plaintiff should have no interest in the testatrix’s landed estate, but that her husband should have no interest in such estate, or in any lands that might come to her by means of the legacy left in the will. In both respects the intention of the testatrix would be defeated by the ruling of the trial court that she died intestate as to the “Winfrey Farm.” This brings us to the only remaining question, to whom did that farm pass by the will? It passed either by the second item or the residuary clause of the third item of the will. Reading these items together it is impossible to escape the conclusion that the intention of the testatrix was to make a difference between her three children and her grandchild named therein— that there was a part of her estate in which she wished that they should all share equally, and there was a part of her estate in which she wished that only her said three children should share equally and in which her grandchild should have no share. The estate in which the four should share equally was devised by the second item. It was a landed estate. The disposing part of that item is “all my real estate.” This expression, if there had been nothing more, would have been sufficient to pass all her real estate, including any that she might have acquired after the execution of the will. She did not stop there, however, but immediately, in the same item and connection, proceeded to define those terms, by giving her meaning thereof to be the “farm on which I now live” and the timber land south of it. It is not material that she may not have given correctly the number of acres therein. — 307 — There is no difficulty in identifying the land devised, and it was in these particular lands that the four were to share equally at her death. For purposes of description she referred to an existing state of things, thus giving an illustration of the exception to the general rule, hereinbefore stated, that the language of the will is to be interpreted as having been used with reference to the time of the death of the testator, the exception being, in the language of Ellswobth, J., in Gold v. Judson, 21 Conn. 616, that “wherever a testator refers to an actually existing state of things, his language should be held as referring to the date of the will, and not to his death, as this is then a prospective event. Such, it is clear, is the construction of the word now.” The estate in which her three children, Thomas Archibald, William Archibald and Margaret Winkler, were to share equally, but in which the grandchild Harry Archibald, was to have no part, was devised in the residuary clause of the third item of the will, and it was to be anything left of her property after her debts were paid, not included in the specific bequests— anything left, whether of real or personal property. The estate has been administered, the debts have been paid, and according to the manifest intention of the testatrix upon the face of the will. The plaintiff’s trustee is to have the sum of $3,750, to be invested for her benefit in lands, as directed in the first item of the will. Thomas Archibald, William Archibald, Margaret Winkler and Harry Archibald are to have the farm on which Mrs. Lindsay was living at the date of the execution of the will, together with the timber tract south of it in equal shares in fee simple. William Archibald is to have $1,000, to make him even on account of what had been received by the other devisees by way of advancement before the execution of the will. The — 308 — remainder of the estate, whether It be real estate or personal property, goes by the terms of the will to Thomas Archibald, William Archibald and Margaret Winkler, and with it goes “the bone of contention,” the “Winfrey Farm.” The judgment of the circuit court will be reversed and the cause remanded, with directions to enter a decree construing the will in conformity with the views expressed in this opinion, G-antt, Macearlane and Burgess, JJ., concurring; Barclay, Sherwood, and Robinson, JJ., dissenting.