Griffith v. Witten

GRAVES, J. Richard G. Griffith the duly qualified executor of the last will and testament of Jackson Shuler, deceased, brought this- action in the circuit court of Daviess county, to have .construed the will of the said Jackson Shuler. The will was drawn by the deceased and is hot elegant either in diction or spelling. It reads: - • “Will of Jackson Shuler His Will. “ February the 20 1908 knowing -añd Bleve to Be in my Rite mind knowing the codition I am in to save trubel and Expence I Jackson Shuler make my firsl and Last Will and Tesament knowing myself to Be — 634 — sound Mind I will or Bequeth to my sun Davied Sliuler One Thousand Dollars $1000.00 And I Jackson Shuler Will to or Bequeth to my Daughter Orpha Witten One thousan Dollars $1000.00 And I Jackson Shuler Will or Bequeth to my sun Zaehariah Shuler One thousan Dollars $1000.00 to Have at my Death after all Debts is paid and funeral Expenses is paid and Toom Stone is Put to My grave My household goods to Be sold and Personal Propty to Be sold at Public sale horses wagon Bugy harness and some farm Impliments Plows and tools and all grain on hand and hay And the farm In Daviss County Missouri to Be Rented For the term ov 2 years to give time to Be sold and the Grundy County Land to Be Rented for 2 years to give Time to Be Sold After the 3 children gets their shers and All Expences is Paid I jackson Shuler want or Will or Bequeth an Equal Shar to Each Grand Child Living who Names is Letha Witten and Heral J. Witten and Alford Witten and Hobert Shuler and William J. Shu-ler and Thelma Shuler and Irean Shuler and Doris M. Shuler these all to have an Equal Shear of the Remaining Sum I Apoint R. G. Griffith to Exicut this Will this is my Last Will and Testament of Jackson Shuler Zack to have all my cloths these children is to have their Shear as they Becom of Age Zack to have the Pictures and all the Books and Bible and the little Bible Dave a Bed and Zack a Bed and Orpha a Bed and the Rest of things to be sold at Public sale This I sign knowing Whalt I Sine and Am in my Rite Mind and Last Will and Testament. “JacksoN Shuler “This Will Directs that the Exicuter gives a Bond in which case he'mus comply with the Pervisions of the Will and Give the Bond Before he is qualified to act as Exicutor Also the Timber land to Be sold. ‘ ‘ JacksoN Shuler “Nathah DAVISSON “EugeNE Ham. ’ * — 635 — The petition of the plaintiff sought light from the trial court upon the following alleged uncertain and indefinite parts of the will: ■ “That said will is vague, uncertain and indefinite in this: “1. As to whether or not the will requires the land belonging to said Jackson Shuler at the time of his death, to be sold by the executor after two years, or at any other time, and the proceeds distributed. “2. As to whether or not the grandchildren mentioned in the will are to receive all of the personal property after the payment of the legacies of one thousand dollars each to his three children named in the will. “3. As to whether or not it is the intent of said will to give to said grandchildren each the sum of one thousand dollars out of the personal property. “4. As to whether or not the will requires the sale of all the land by the executor after two years and the distribution of the proceeds of sale among the children and grandchildren of said deceased, in any ratio or proportion. “5. As to whether or not the grandchildren mentioned in the will participate to any extent in the real estate or proceeds thereof, owned by the deceased at the time of his death. “6. As to whether or not said grandchildren participate in any part ,of the estate of said deceased, except personal property and that only, after the payment of the legacies of one thousand dollars each to Orpha Witten, David Shuler and Zachariah Shuler and after payment, out of said personal property, for expenses of last sickness, tombstone, debts and costs of administration. “This plaintiff further says that a dispute has arisen between the heirs and legatees under said will as to the construction thereof in the particulars above set forth, and that a further question has been raised — 636 — as to tlie right of this executor to distribute and pay to the defendant, Laura L. Shuler, the widow of David Shuler, deceased, the share, if any, or any part thereof, of said David Shuler in said estate; that the defendants are legatees and beneficiaries under said will and are the sole persons named therein as such; that they constitute all of the children and grandchildren, heirs, devisees and legatees of said Jackson Shuler, deceased; that by reason of thé vague, indefinite and uncertain provisions of said will, and of the difference and disputes that have arisen concerning the consideration thereon, this plaintiff cannot proceed with the administration of said estate and the distribution of. the assets thereof, without the construction of said will and the guidance and direction of this court.” Under the evidence it appears that this will was duly probated, and the inventory of the estate shows personal' property to the amount óf eight thousand dollars. Outside of this formal proof the case was submitted upon the will and the following admissions: “It is admitted that Jackson Shuler died on April 5, 1908. “It is admitted that Bichard G. Griffith is the duly named, appointed, qualified and acting executor of the will of Jackson Shuler, deceased. “It is agreed that at the time of his death Jackson Shuler was the owner of 167 acres, more or less, in Daviess county, Missouri, described as follows: “The east half of the southwest quarter of section 11, township 61, range 26, and the west half of the southeast quarter of section 11, township 61, range 26; also a strip 10 rods wide, commencing in the southwest corner of the east half of the southwest quarter of section 11, township 61, range 26, and running north far enough to make 7 acres; in all 167 acres, more or less, in Daviess county. • ■ “And' the following described land in Grundy county, Missouri: — 637 — “Twenty-four acres situated in tlie northwest quarter of the northeast quarter of section 15, township 61, range 25. “Timber land in Grrundy county, in section 8, township 61, range 25, containing 14.51 acres, more or less. “It is admitted that at the time of his death, Jackson Shuler was possessed of personal property of the value between seven and eight thousand dollars. “It is admitted that the wife of Jackson Shuler was dead at the time of his death. ‘ ‘ That he left surviving him three children, Orpha Witten, a daughter, David Shuler and Zachariah Shu-ler, his two sons. “It is admitted that David Shuler died after the death of his father and that David Shuler had no children. “It is admitted that Orpha Witten was the wife of Harry Witten, and had three children only, that is to say, Letha Witten, Harold J. Witten and Alfred Witten. “It is admitted that Zachariah Shuler had five children only, that is to say, Hobart Shuler, William J. Shuler, Thelma Shuler, Irene Shuler and Doris M. Shuler; and it is further admitted that the name appearing to be Orean or Irean in the will is identical with Irene Shuler, and that thereby the testator intended to name his grandchild, Irene Shuler. “It is admitted that Jackson Shuler left surviving him no, other children or descendants of a deceased child; that the children of Orpha Witten and Zachariah Shuler, aforesaid, were and are his only grandchildren. “It is admitted that Letha Witten, Harold J. Wit-ten, Alfred Witten, Hobart Shuler, William J. Shuler, Thelma Shuler, Irene Shuler and Doris A. Shuler are all minors, under legal age. — 638 — “That all parties, plaintiff and defendants, in this case live in Daviess, Harrison and Grundy counties, Missouri. “It is admitted that David Shuler died without issue, leaving a will, by the terms of which all of his property passes to his wife, Laura L. Shuler. “It is admitted that a controversy has arisen between the legatees and executor and between the legatees, as between themselves, as to the construction of this will. “It is admitted that the Heral J. Witten, as written in the will of Jackson Shuler, means and was intended for Harold J. Witten; and it is admitted that the name Alford Witten, written in the will, was in tended for and ought to be Alfred Witten; and that the name Hobert Shuler was intended to be and should be Hobart Shuler. It is admitted that where the name Doris M. Shuler appears in the will it was intended to be and ought to be Doris A. Shuler. “It is admitted that at the time of making the will in evidence Jackson Shuler was on equally friendly terms with all his children and grandchildren named as beneficiaries in said will. ’ ’ By its judgment the circuit court thus construed said will: “The court finds that said Jackson Shuler intended by his last will and testament to, and that he did bequeath to David Shuler, his son, one thousand dollars and one bed; that he intended to and did bequeath to Orpha L. Witten, his daughter, one thousand dollars and one bed; that he intended to and did bequeath to Zachariah Shuler one thousand dollars and all the clothing of said Jackson Shuler and his pictures and his books and two Bibles and one bed; that all the rest, residue and remainder of his personal property, after payments of debts, funeral expenses and a monument or tombstone for his grave and the cost of administration and the legacies aforesaid, was by said — 639 — Jackson Shuler intended to be bequeathed, and be did, by said will, bequeath such rest, residue and remainder to bis grandchildren, Letha Witten, Harold J. Wit-ten, Alfred Witten, Hobart Shuler, William J. Shuler, Thelma Shuler, Irene Shuler and Doris M. Shuler share and share alike, that is to say, one-eighth to each. “The court further finds that the said last will and testament of said Jackson Shuler, deceased, does not authorize the real estate belonging to him at the time of his death to be sold by the executor; that said executor has no power under said will to sell the same; that said Jackson Shuler intended by his said will and testament and did thereby devise, all the real estate of which he died seized to his said grandchildren, to-wit, Letha Witten, Harold J. Witten, Alfred Witten, Hobart Shuler, William J. Shuler, Thelma Shuler, Irene Shuler and Doris M. Shuler share and share alike, that is to say, one-eighth to each of them. “It is therefore ordered, adjudged and-decreed by the cotirt thát said last will and testament of said Jackson Shuler, deceased, be and the same is hereby construed, defined and adjudged to be in accordance with the findings aforesaid; that David Shuler, son of said Jackson Shuler, take under said will the legacy therein provided of one thousand dollars and one bed; that his daughter, Orpha L. Witten, take under said will the legacy therein provided for her of one thousand dollars and one bed; that his son, Zachariah Shu-ler, take under said will the legacy therein provided of one thousand dollars and all the clothing of said Jackson Shuler and his pictures and books and two Bibles and one bed; that Richard Gr. Griffith, executor of the last will and testament, is ordered and directed by the court to pay to said David Shuler, Orpha L. Witten and Zachariah Shuler or their legal heirs or legal representatives the legacies aforesaid. — 640 — “It is further ordered by the court that the debts of said Jackson Shuler, if any, his funeral expenses, and a monument or tombstone for his grave and the costs of administration of his estate shall in addition to the legacies aforesaid be paid and defrayed out of the personal property belonging to said estate, if sufficient, thereto, by said executor, and that the rest, residue and remainder of said personal property, after having paid the debts, funeral expenses, for a monu■ment or tombstone for the grave of said Jackson Shu-ler, and the cost of administration of his estate and the legacies aforesaid, shall by. said executor be paid to and distributed among the grandchildren of said Jackson Shuler, deceased, to-wit: Hobart Shuler, "William J. Shuler, Thelma Shuler, Irene Shuler, Doris M. Shuler, Harold J. Witten, Alfred Witten, and Letha Witten share and share alike, that is to say, one-eightli to each. And it is further ordered by the court that upon the expiration of two years from the date of the death of said Jackson Shuler he shall turn over all of the real estate of which said Jackson Shuler died seized to the grandchildren of said Jackson Shuler, deceased, to-wit, Letha Witten, Harold J. Witten, Alfred Wit-ten, Hobart Shuler, William J. Shuler, Thelma Shuler, Irene Shuler and Doris’M. Shuler, who shall take said real estate share and share alike, that is to say, one eighth to each, and it is further ordered by the court that the cost of this proceeding be taxed against and paid by the estate of said Jackson Shuler, deceased.” All of the defendants seem satisfied with the judgment nisi except Laura L. Shuler, the widow of David •Shuler, who has appealed. She 'filed a separate’ answer, but its terms need not be set out further than to say that it sufficiently raises the questions urged by her in this court. This states the case. I. Laura L. Shuler,.the appealing defendant, is the wife and devisee by last will of the son David — 641 — Shuler who died after the father, Jackson Shuler. She contends (1) that the purported will is so dense, dark and vague as not to he susceptible of construction, and that by reason of this fact it is void, and (2) that if susceptible of construction, it should he so construed as to say Jackson Shuler died intestate as to his real estate. These are the two principal contentions raised by her answer, and upon that pleading and the admitted facts, she seeks our judgment. If as a fact a paper writing purporting to be the last will and testament of a person, is so vague, indefinite and uncertain, that a court cannot by reason-Uncertainty. able rules of construction determine the real intent and purpose of the deceased, then such paper writing should he declared void. The legal proposition urged by appellant this court has and will recognize, but a sufficient answer here is that we think this will susceptible of construction. It reveals the illiteracy of the writer, but in it all we think there is a well-defined purpose expressed, and more, that such purpose contemplated the disposition of all his property. We therefore decline to follow the lead of appealing defendant to declare the paper writing void. II. Now going to the instrument itself, what was the intent of the testator? The cardinal principle of will construction is to get the real intent and purposes Construction of the testator. These must be gathered ^rom the instrument itself, if such be possible, but in so gathering the intent and purpose of the testator the whole instrument must be considered. It must, • in other words, be considered from its four comers. Of course, ambiguity appearing, if there is trouble in getting at the intent from the instrument itself, then pertinent matters aliunde may be considered in determining the intent. These fixed — 642 — rules of construction cannot be gainsaid, and citation of cases would be but to encumber, ratber than to elucidate, an opinion. Reverting to' tbe instrument itself. It is true there isn’t a punctuation mark throughout, yet there is a rather mixed use of capital letters, which gives us some idea of the beginning and ending of sentences. From the instrument it is clear to our minds that the purpose of the testator was to dispose of all his property, both real and personal. "We are further. im- „ , 111 ■ 0 J Estate: Power t0 Sel,‘ pressed with the idea that the testator had in mind the sale of his real estate, although there are no express words directing the executor to sell. The instrument says: “And the farm in Daviss County Missouri to Be Rented For the term of 2 years to give time to be sold and the Grundy County Land to Be Rented for 2 years’ to give Time to Be Sold.” Again at the close of the will are the words “the timber land to be sold.” The admitted facts show that there were farm lands in both Grundy and Daviess counties, and that there was also a small tract of timberland. Taking these expressions in the will as indicative of a purpose, it appears to us that the idea of the testator was to reduce all his belongings, except the small individual bequests, to cash,. and then after paying the specified legacies of $1000 to each of his three children, and the expenses of the administration, debts and tombstone cost, the residue should be equally divided between the eight grandchildren named, such grandchildren to have their respective shares as they reached their maturity. It is true that he used the word “children” in one place, where he should have said grandchildren, but the entire context shows that he was speaking of grandchildren. Not only does the context so speak, but aliunde it appears that there were none of his own children under age, and he must have used the word “children” for grandchildren, having reference by the use of such words — 643 — solely to the ages of the beneficiaries, rather than the exact relationship to him. If, as we think, the purpose of the testator was to dispose of his entire estate, then does the judgment nisi sufficiently effectuate that purpose, and along the lines of distribution above indicated? We think so. That testator had in view the disposition of his whole estate is evident from his expressed idea that there should be a sale of it at the end of the two years of rental period. If he contemplated the sale of his lands and personal property and thus the reduction of his entire estate to cash, it then becomes evident that he only desired his own children to have the sum of $1000 each out of his estate, leaving the residue of the entire estate to be divided among his eight grandchildren. We cannot agree with counsel for appellant, when they say that there is nothing upon the face of this will to indicate the intent of the testator to dispose of his entire estate. Why talk about selling the land at all, if there _was no purpose to dispose of the land by the will? We are not even driven to the principle which usually accompanies wills, i. e., that it is presumed in the construction of wills that the testator intended to dispose of his entire estate. [Tebow v. Dougherty, 205 Mo. 1. c. 321, and cases cited therein.] In the instrument before ns, awkwardly drawn as it is, we have clearly expressed ideas of disposing of the entire estate, and for the purpose, as expressed in the will,, “to save trub-el and Expence.” The spelling and capitalization may be bad, but the ideas are good. III. The trial court held that there was no power in the executor to sell the real estate. There is no express power given, although the intent of the testa- „ . _ ■Equitable conversion. tor is clear. In such case was the trial court right in decreeing the real estate to belong to the grandchildren? We are inclined to the view that this part of the decree can be — 644 — upheld upon the doctrine of equitable conversion. In other words, if it is clear that the testator intended that all his estate be converted into cash and then distributed under the will, then in equity the real estate will be considered as cash for the purpose of the will, and reconverted into land at the option or election of the beneficiaries. [Nall v. Nall, 243 Mo. 1. c. 256-7.] In Harris v. Ingalls, 74 N. H. 1. c. 343, it is said: “If he understood his order to the executors impliedly imposed upon them the duty of converting his real estate into money as a step necessarily to be taken in dividing the property into four equal parts, the order with the implied power of sale operated in equity to convert the property from realty to personalty (Perkins v. Coughlan, 148 Mass. 30; Salisbury v. Slade, 160 N. Y. 278, 288, and authorities cited; Penfield v. Tower, 1 N. D. 216) and the use of the word ‘bequeath’ was technically correct. ’ ’ And in the same case at page 343, it is further said: “Upon all the facts now pre•sented, it appears reasonably clear that the testator intended, by the provisions of the will, to impose upon the executors the duty of converting the residue of the property, real, personal, and mixed, into money as a necessary incident of its division into four equal parts, and the duty of distributing the parts among the legatees as set forth in the residuary clause of the will; and the plaintiffs are so advised. As was said in the former opinion, if the legatees all prefer to take the real estate and hold it in common and so elect, the executors will not violate their duty by allowing the legatees to so take the property. Indeed, if the legatees are all sui juris, it would seem that they have the right to elect to reconvert the property to real estate. [Sears v. Choate, 146 Mass. 395; Greenland v. Waddell, 116 N. Y. 234; Mellen v. Mellen, 139 N. Y. 210; Huber v. Donoghue, 49 N. J. Eq. 125; Lash v. Lash, 209 Ill. 595; Boland v. Tiernay, 118 Iowa, 59; Bank of Ukiah v. Rice, 143 Cal. 265; Craig v. Leslie, 3 Wheat. — 645 — (U. S.) 563; Pom. Eq. Jur., par. 1175; 1 Sto. Eq. Jur., par. 793.]” This Harris case in some respects is very much like the case at bar. In the case at bar there is a direction to pay each of the children $1000, but these bequests are not restricted to the sale of the personal property. Under this will, had the personal property proven insufficient, there can be no question that such legacies could have been paid out of the real estate, and this is an additional circumstance tending to show an intent on the part of the testator to have his real estate sold, bnt only a slight circumstance when we go to the proof aliunde as to the value of the personal estate. But going back to the doctrine of “equitable conversion” and “reconversion by election” it is sufficient to say that the facts of this case bring the decree of the chancellor below well within the limits of the rule as to “equitable conversion” and “reconversion by election” as discussed and held in Nall v. Nall, supra. If, as we hold, the will contemplated the sale of the real estate, then there was a conversion in equity of the land into money at the death of the testator. In the case of Chick v. Ives, 90 N. W. (Neb.) 1. c. 754, it is said: “It seems clear that the will, by a fair construction of its terms, and every implication, worked an equitable conversion of the real estate of the testator into money. [Clarke v. Clarke, 46 S. C. 230; Farmer v. Spell, 11 Rich. Eq. 547; Perry v. Logan, 5 Rich. Eq. 202; Moore v. Davidson, 22 S. C. 94; Jaudon v. Ducker, 27 S. C. 295; Penfield v. Tower, 1 N. D. 216; Dodge v. Williams, 46 Wis. 70; Chandler’s Appeal, 34 Wis. 505; Dodge v. Pond, 23 N. Y. 69; Craig v. Leslie, 3 Wheat. 563; Bank v. Paulsen, 57 Neb. 717; 1 Pom. Eq. Jur., p. 413.] The learned judge of the district court was therefore mistaken in his construction of the will, and his view of the law to be applied to its provisions. We therefore hold that under the will in question there — 646 — was an equitable conversion of the testator’s real estate into money at the time of his death.” The will under construction in this case, like the case at bar, contained no express power or direction to sell, bnt left the intent to be gathered from the context. It will be observed the court held the equitable conversion to have been of the date of the testator’s death. In Becker v. Chester, 115 Wis. 1. c. 116, the Wisconsin court thus puts it: “The general principles to be satisfied in determining whether equitable conversion of personal property into realty or realty into personalty was wrought in any given case, are too well understood to call for any extensive discussion of them. Equity deems that done which ought to be done. Therefore, if a- testator, in a valid testamentary way, unmistakably directs, expressly or by unmistakable implication, that his real estate shall be treated in the administration of his estate as personalty, equity will deem that purpose impressed upon the property immediately upon the taking effect of the will, and rules regarding personal property will govern.” To like effect are Lash v. Lash, 209 Ill. 595, and Starr v. Willoughby, 218 Ill. 485. The “equitable conversion” of the real estate into money continues until such time as there is an actual conversion, or until by election there has been a “reconversion. ’ ’ This reconversion may take place at any time prior to the actual conversion. The constructive conversion or “equitable conversion” is as of date of the will or death of testator; the actual conversion is as of the date of the sale of the real estate. [Nall v. Nall, supra, and cases therein- cited and reviewed.] As stated in the Nall case the reconversion may take place at any time during the period of constructive conversion and prior to actual conversion. In the .case of adults there must be an election, but this election — 647 — may come at any time before actual conversion. In the case of infants, as here, the court of equity may make the election for them, if the necessities of the case so require it, and the interest of the minors would thereby be best subserved. In the instant case the real beneficiaries are the eight minors. Under the will and the showing made in this case, they would be entitled to all the proceeds of this land, if it were sold. Under such facts the trial court had the power to elect for them to reconvert the property into land and decree that they so hold it. Upon this theory of .the law the judgment nisi is correct. Let the judgment be affirmed. All concur.