Burnet v. Burnet

OPINION. BOND, C. I. The question presented,by this appeal is the meaning of the testatrix as expressed in the — 497 — tenth clause of her will. The subject-matter of the devise contained in that clause was personal and real estate. When it was made the testatrix had no direct descendants, but had a sister, Sarah F. Burnet, who was the mother of three living children and the grandmother of the two plaintiffs, whose father, the son of said Sarah F. Burnet, had died, leaving plaintiffs his only heirs. These facts were in the mind and purpose of the testatrix when the tenth clause of her will was drawn. That she was alive to these ties of blood and that she intended to make just provision for each of the persons so related to her is plain, for she disposed of the “residue of her estate” upon two assumptions: First, that she should be outlived by her sister; second, that she should survive her sister. In both contingencies she, expressly, gave her estate to said niece and nephews and two sons of a deceased nephew. In the former case she devised to them “whatever of said residue may be left undisposed of at the death” of her sister to whom she devised it in case she should be living when the testatrix was dead. In the other case she devised to the same persons “the residue of her estate” as it should exist at her own death. These specific persons were thus kept within her testamentary intent, and all provided for by name, whether her estate should pass under the one or the other provision of her will. The conclusion is unavoidable that she intended them and each of them, or their descendants, to take either the whole residue of her estate at her death, if her sister was then dead, or what should “be undisposed of” at the sister’s death in case her sister was alive at the death of the testatrix. When the intent of its maker is discovered, the will is solved, unless that intent runs counter to an inflexible rule of law or public policy. In the case at bar the testatrix, in simple terms incapable of other meaning, stated her intention to give directly — if she — 498 — survived her sister — to the descendants of her sister all of the property referred to in clause ten of her will, or to give indirectly to the same persons what was “left undisposed of ” if the sister survived to take under thfe preceding devise to her. The latter happened. Hence, it is necessary to determine whether the plain intent of the testatrix to give the descendants of her sister “the property left undisposed of” at the sister’s death can he carried out under the law governing, the making of wills. To answer that question we must determine, first, whether the devise to Mrs. Burnet was a life estate hy implication from all the terms of the will; second, if so, whether her deed of gift to one of her children exceeded the limits of any power to dispose of the property impliedly arising from the language of the will. There was no express grant to her of a life estate nor any express power given to dispose of the property devised to her. The power to create a life estate, without using express words, but hy implication from the terms and clauses of the will, or by language of equivalent meaning, is no longer an open question in this State. The proposition was so logically and exhaustively considered hy Marshall, J., speaking for this Division, that it has not been questioned since that ruling and after the array of prece- • dents there cited, to which reference is here made. [Cross v. Hoch, 149 Mo. l. c. 343-344; Walton v. Drumtra, 152 Mo. l. c. 507, opinion hy Marshall, J., concurred in hy a majority of the court, overruling Cornwell v. Wulff, 148 Mo. 542; Roth v. Rauschenhusch, 173 Mo. l. c. 591; Armor v. Frey, 226 Mo. l. c. 669-670.] That words, expressions, or clauses, inferential only in import, contained in a will devising in general or indefinite terms real or personal property, with a limitation over after the death of the first taker, are sufficient to create.a life estate in the immediate dev-, isee and uphold the remainder, has been recognized — 499 — by statute and repeatedly decided in this State. The statute relating to wills declares such devises can only convey a fee simple to the first devisee, when the will contains “no expressions whereby it'shall appear’.’ that “an estate for life only” was' devised in the first instance nor any “further devise” to take effect after the death of the devisee to whom the estate was first given. [R. S. 1909, sec. 579.] That ■statute was enacted to prevent the conclusion, as a matter of law, that devises containing the above •quoted features must vest a fee simple in the devisee and destroy the limitation over. Its necessary effect is, in the excepted cases, to leave it to the courts to determine the nature and extent of the interests and •estates devised, by an interpretation of the will, as a whole, under the rules prescribed by law to ascertain the intent of the testator. If it should turn out therefore that the intent of the testatrix was in the case at bar by the terms used in her will, to create a remain-, •der in the children and descendants after a life estate to her sister, then it is obvious such intent would not ■offend any rule of law or principle of public policy, since the statute leaves the court free to gather the intent of the makers of wills in all cases which, like the present one, fall within its exceptions. Looking at the clause of the will in the light of its language, the situation and relation of the parties, and the rulings made in similar cases in this State and elsewhere, no doubt will exist as to the intentions of the testatrix or their legal consequence. The motive and object of the will of Mrs. Andrews as shown on its face was to provide for all of her next ■of kin. These were her sister and descendants of her ■sister. Her sister, like herself, was advanced in years. The descendants of her sister at the making of the will were three adult children and two grandchildren representing a deceased son of the sister. It was then problematical by reason of the ages of both whether. — 500 — she or her sister -would survive the other. She prepared for either event by devising her estate, or what should remain of it, to the descendants of her sister in any case but with a prior devise to the sister in case her sister should be living when the will took effect.- This intention on the part of the testatrix is unmistakable. It must prevail, and the limitation over upheld, and the estate given to the sister held to be one for life, unless the testatrix has thwarted her own intention by the language of the will. Defendants (respondents) insist she has done this, and as the sole basis of their contention refer to the words descriptive of the property devised over, to-wit: “Whatever of said residue may be left undisposed of at her (the sister’s) death shall go, etc.” They claim these words necessarily imply power in the sister of absolute and unlimited conveyance by sale, gift, any method of transfer, or testamentary .disposition, and that therefore their use in the will vested a fee simple title in the sister which defeated any limitation thereafter. Defendants cannot urge-any other theory for the vesting of a fee simple title-in the sister, for there is no express power given to her in the will to dispose of the property devised to-her; and the law is clear that no implied power so to-do, can arise from the mere grant to her, of an estate in terms sufficient to carry a fee where there is a limitation over as here. [Read v. Watkins, 11 Lea (Tenn.),. l. c. 161; Brown v. Hunt, 12 Heisk. (Tenn.) 409; Bean v. Kenmuir, 86 Mo. l. c. 670, 671, affirmed Walton v. Drumtra, 152 Mo. l. c. 501.] II. Tantamount terms to those contained in this, will have been repeatedly considered by this court in the interpretation of other wills containing similar devises. In a case closely like the present, the will devised' to the wife all the estate of the husband “to be held! — 501 — and enjoyed by her as her own” with a limitation over after her death to an adopted daughter of “such of said property as shall then be in her possession.” The court held, that the use of that phrase was for the reason that “in all probability, all the property which his wife receives under the will, will not be £in her possession or left’ at her death,” and not because he intended that she £ £ should have the power to dispose of all the property so that none might be left.” The court said: “The intention of the testator is plain; the whole will must be read together and effect given to every clause of it, and the words used are to be understood in the sense indicated by the whole instrument. The testator’s wife was to have the use and enjoyment of all of his property during her life, and at her death what had not been consumed, or lost, in that use and enjoyment, was to go to his adopted daughter.” [Munro v. Collins, 95 Mo. l. c. 41.] In another case certain personalty, including the shares of stock in a business corporation, belonging to the testator, were devised to his wife with a limitation over to his children of whatever “remained” after the death of the wife. It was held, that a life estate in this personalty was vested in the wife by implication, and that the power of disposal inferable from the use of the words “estate left by her” and “remaining of that she acquired under the will,” was referable to the uses she might make of the property during her tenancy, and did not enlarge the life estate into one in fee. [Lewis v. Pitman, 101 Mo. l. c. 293.] In another case, the will of the husband gave to his wife, Sarah Ann, all of his estate, both real and personal, “to hold and enjoy absolutely with full power and authority to dispose of all or any part thereof at her option” In a second clause the will provided, “In the event of the death of my said wife prior to my death, or if she survive me, whatever of my property may remain undisposed of at her death, — 502 — I give and bequeath to Joseph McKinney and to his-heirs absolutely and in fee.” The court held, that the wife tools a life estaté with power of disposal only, and that the limitation over was valid as to all of tbe property remaining at her death. [McMillan v. Farrow; 141 Mo. l. c. 62, 63.] . In all of .the preceding cases, the life estates were not expressly declared but deduced by implication from the devises over and the terms and objects óf the will. In another case, the life estate was expressly devised and-entire control of the property given to the wife with a limitation over “of what is left of it” at her death.In referring to the implication of a .right to dispose arising from-these terms, the court said that some of the property was perishable and that some would be consumed in the use, and it was not. designed that such portion should be accounted for to the remainderman; adding, “By a devise over of ‘what is left’'the testator evidently had in mind such possible losses, and did not intend that the legatee for life should be chargeable with them.” The court further added: “By the words ‘what is left’ the testator-intended to include in the bequest over, the entire property which should be in the hands of the life tenant at her death, whether it had been diminished by losses or increased by profits, or whether it consisted of personal property or had been invested in real estate.” [Bramell v. Cole, 136 Mo. l. c. 213-215.] In another case, the husband conveyed to a trustee certain property for the support, use and benefit of his wife, and directed the trustee to “sell, mortgage, encumber, lease or otherwise dispose of the same.to such person or persons” as the wife might direct and appoint with a limitation over after the death of the wife to other persons. The wife by deed of gift and also by will attempted to convey property to her adopted son. The remainderman brought ejectment — 503 — and had judgment in the circuit court, which was affirmed here. The court held, that the broad powers to dispose of the property enumerated in the deed to the trustee did not authorize the life tenant, Mrs.. Smith, “to give away this property,” and hence her attempted deed and subsequent will in favor of her ■adopted son were void. [Garland v. Smith, 164 Mo. l. c. 16.] In another case, an express life estate was granted to the wife with a remainder over “of what may be left of my estate after her death” to the brothers of the testator.- In referring to the effect of these words as affording a power of disposal, the court held, that the widow was entitled to consume as much of the estate as she desired and could not be held accountable ■by the remainderman for what she chose to spend “as long as good faith” was preserved. [Burford v. Aldridge, 165 Mo. l. c. 425-426.] In another case, an express life estate was created in a wife and an express power of absolute disposal superadded. The will contained a further clause devising over “anything that should be left” at her death. It was held that the deed executed in pursuance of that power for a valuable consideration was not subject to be set aside at the suit of the remainderman, since this disposition was in strict accord with the power of disposal given to the wife during her life tenancy. [McMillan v. Farrow, 141 Mo. 55.] This case cites, among’ others, Roth v. Rauschenbusch, 173 Mo. 582, which is also referred to by respondents in the case at bar. That case, however, is not in point, for there no life estate was created either by implication or by express terms, but there was a distinct grant of a fee in item two of the will and an attempt by a subsequent item to make a devise over. The court held, that the testator in that case having devised “the whole of his estate, real, personal and mixed, absolutely and forever” (the italics are the court’s), could — 504 — not in a subsequent clause of the will devise a fee in remainder. The court held, that no words or expressions were contained in that will supporting any inference that the testator intended to create a life estate in his wife or restrain her “power of disposal.” The writer of the opinion expressed his assent to the doctrine “that the life estate need not be created by express words, but if it is the clear intention from the whole instrument that the first taker is to have but a life estate, the added power of disposition will not convert it into an absolute ownership,” and insisted his views had been misconceived on that point. It was held in that case there was nothing contained in any part of the will which afforded an inference of intention on the part of the maker to make any person, other than his wife, the object of his bounty, and in that respect it could be distinguished from the will passed upon in McMillan v. Farrow, supra. In a very recent case a testator devised certain land and personal property to his children, and by a subsequent clause of his will provided that “upon the death of my children without issue, I direct the share of such child shall revert to my estate to be divided equally amongst my surviving children, ’ ’ etc., and provided further that upon the death of any one of his children, leaving issue, the property should go to such issue. The court reviewed all the precedent decisions, quoting- from them in extenso, and cited the statute (R. S. 190-9, sec. 579), saying: “Manifestly, this statute, when properly analyzed, means that if expressions are embraced in the will whereby it shall appear that such devise was intended to convey an estate for life only and a further devise be made of the devised.premises to take effect after the death of the devisee, then the intention of the testator to devise an absolute estate in fee simple to the devisee will be negatived and the estate devised limited to that of a life estate.” The court said further: “In our opinion, the ninth — 505 — item in the provisions of the will of Oreen Moore clearly manifested the intention of the testator to limit the estate of his children devised in other items of snch will to that of a life estate. It is clear that to hold that this item in the provisions of this will should be eliminated, would not only be violative of the manifest intention of the maker of such will, but would as well be ignoring the plain provisions of section 579, Revised Statutes 1909. That statute, as heretofore pointed out, fully recognizes that a devise, which if .standing alone should be construed as an absolute estate in fee simple, might be limited to a life estate by the use of expressions in the .instrument which made it appear that such devise was intended to convey an estate for life only, or by making a devise over of the devised premises to take effect after the death of the devisee first named.” [Armor v. Frey, 226 Mo. l. c. 667-669.] The principles to be extracted from these cases are: 1st. That where a life estate is created, whether by implication only or in express words, with a remainder over, the power of the life tenant to defeat the remainder depends upon the exercise of a superadded power of disposition expressly or impliedly given by the will; that such additional power will be strictly construed and confined to its exact intendment, and any attempted exercise thereof beyond its just scope will not affect the rights of the remainderman. 2d. That no fee is vested in the first taker whose power to convey the estate is restricted either as to mode or object, and that a conveyance in any other manner or for any other purpose is ineffectual against a remainder over. 3d. That where the power to dispose is inferential only, its proper extent is to be measured by the situation of the parties, the objects had in view and the intention of the testator, as shown in the will; and that when, as in this case, there was a devise to the first taker of personal as well as real property and a power to — 506 — dispose inferable only from tbe nse of snob terms as “whatever may be left undisposed of at her death shall go to her descendants per stirpes,” it will be held to cover sales dr transfers for the personal uses and enjoyment of the first devisee, and will not be construed to cover gifts by deeds or will, for such a holding would transform the life estate, shown by the terms of the will, into a fee in the first taker and defeat the intention of the testatrix in that respect, and the further intention to create a limitation over. III. We think from the terms of the will, the relationship of the parties, and in accordance with the foregoing principles of law,- the testatrix by that instrument gave a life estate to her sister with full power to dispose of the property for her use, ■ comfort or enjoyment, or any other purpose incident to these ends, but with no power to give it or will it away; for if these powers had been donated, the life estate would have been transformed into an absolute fee, and the plain purpose of the testatrix to give the property left at the expiration of the life estate to the persons named in the devise over would have been set at naught. This interpretation of the will gives full effect to the power to dispose implied in the life tenant by the use of the words “whatever is undisposed of at her (the life, tenant’s) death.”- Any other construction would clearly contravene the intent in the mind of the testatrix when she put the second devise in her will, and further indicated by all of the language and. provisions of the will as a whole that she intended., only to make the prior, devise one for life coupled with a power to dispose adequate to the uses of such tenure and restricted in its exercise by the obligations of good faith on the part of the life tenant or trustee of ■ the preceding devise. In reaching this conclusion we have applied the principle, that the whole efficacy of a will is wrapped up in the lawful.intent of its maker. ■ — 507 — It follows that the deed of gift made by the life tenant •under which defendants (respondents) claim, is inoperative against the estate given to the plaintiffs as-remaindermen under the terms of the will for want of power to execute it; and since the grantee therein was ■a volunteer, he is charged with notice of the want of authority of his grantor to make the same. The judgment in this case is reversed and the •cause remanded to be tried in conformity with the views herein expressed, and for a, decree in accordance with the stipulations made and entered into by the parties and embodied in the agreed statement of facts set out in the record. Brown, C., does not concur. PER CURIAM. The foregoing opinion of Bond, 0., is adopted as the opinion of the court. All the judges concur.