Sevier v. Woodson

104 S.W. 1, 205 Mo. 202, 1907 Mo. LEXIS 111

• Court: Supreme Court of Missouri
• Decided: June 29, 1907
• Status: Published

Opinion

GRAVES, J.

This is an action to construe the will of Thomas P. Woodson, instituted in the circuit court of Ray county, by Virginia E. Sevier, formerly Virginia E. Woodson, one of the devisees in said wall, and her husband. It becomes necessary to set out the whole will. This will is in words, as follows:

“In the Name of God, Amen:

“I, Thomas D. Woodson, of the city of Richmond, in the county of Ray and State of Missouri, being of sound and disposing mind and memory and in good health, but knowing the uncertainty of life and having an earnest desire to make disposition of my means and property to and among my dear children, and to give to them such and so much of my property as I desire each shall have, do make, ordain and publish this as and for my last will and testament:

“Item 1st. It is my will and desire that all my just debts be first paid.

“Item 2d. I will and desire that two thousand dollars be loaned out on real estate security for the benefit of my dearly beloved mother, Huldah Ann Woodson, and that the interest be paid to her as is needed for her comfort and maintenance for and during her natural life, and after her death-said amount to go to my children.

“Item 3d. I will, desire and direct that one thousand dollars be given the Board of Trustees of the Conference Fund of the Missouri Conference of the Methodist Episcopal Church, South, to be loaned and the interest accruing thereon to be paid annually to and in support of superannuated preachers of said conference and their widows and orphans of same.

“Item 4th. I will and bequeath to my son Harrie Philip Woodson, my two-thirds interest in lot number ninety-seven, including store building and appurtenances thereto, in Old Town now city of Richmond, Ray county, Missouri, for which property he is to be charged the sum of two thousand dollars.

“Item 5th. I will and devise to each of my daughters, Lydia Ann Woodson and Virginia Elizabeth Woodson, each one-third of my estate for and during their lifetime, then to go to their bodily heirs, if any, if not then to their brother, Harrie P. Wood-son, and his bodily heirs, and it is my will and I hereby so direct, that the share, interest and estate hereby devised be held in trust for each of them and their only and sole use and benefit by their brother, Harrie P. Woodson, who is hereby appointed and created their trustee, and I further direct that, he be not required to give any bond or security as such trustee. And I further direct and will that he, the said Harrie P. Woodson, trustee as aforesaid, pay over to each of said sisters as much of the interest accruing on the means hereby devised to each of them as will abundantly provide for their comfort asid necessities.

“Item 6th. I’ further will and devise that the remaining third of my estate go to my son, Harrie Philip Woodson, absolutely.

“Item 7th. I hereby nominate, constitute and appoint my son Harrie P. Woodson, the executor of this my last will and testament and direct that he be not required to give bond or security as above directed as trustee for his sisters.

“Item 8th. I will and direct that my son, as executor and heir as aforesaid, manage and control my estate, hold anid divide the same without cfoing into court or taking letters testamentary.

“Item 9th. It is my will and I hereby authorize and empower my said executor to sell, on such terms as he may think best, any or all real estate that I may have and own, and upon sale, to make and execute and deliver as such executor, deed or deeds conveying the same.

“Item 10th. It is my will and I hereby direct, that my brother Philip J. Woodson take complete charge of and manage our partnership matters, and business, as survivor, and as fast and as soon as he can divide and pay over to my executor my two-thirds interest in said partnership assets or estate, and I further will and direct that said, brother be not required to give bond in and about such partnership business.

“In Witness Whereof, I have hereunto signed my name and affixed my seal. This 11th day of April, A. D. 1885.

“ThomasL). Woodson, (Seal.)”

The plaintiff in her petition sets forth the contentions of the parties in full and with great precision. It will not be necessary to reproduce them here. Suffice it to say that the fifth and eighth paragraphs are alleged to be invalid and void, and that by reason thereof the whole scheme of the testator has failed, and all that portion of the will disposing of the bulk of the estate is of no effect and invalid.

The real fight is upon the last clause of the fifth paragraph and the eighth paragraph. With these eliminated, plaintiff claims that the whole will must fail.

The prayer of the petition reads thus:

“Whei*efore, the. plaintiffs herein pray for an order, judgment and decree of this court for the determination of the validity or invalidity of the items of said will hereinbefore mentioned and if for any reason the same or any part thereof be invalid or inoperative, that they be so adjudged and decreed, and that the legal effects of such invalidity on the remaining portions of said items be declared, and that if the intended scheme of the testator cannot be carried out by the execution of the valid portions of said items, and the testator’s scheme and purposes as expressed therein be effectuated, on account of the illegality of other parts thereof, then that the whole of said items be declared void, and if the whole of said items are valid, then for a construction thereof, and for a decree adjudging the rights of said plaintiff in and to the property of said testator disposed of or attempted to be disposed of by the items of his will aforesaid, under said will, if it be valid, or under the law, if it be invalid, and for instructions and directions, for future guidance and protection of the interests of said plaintiff and the parties to this suit, and for such other and further orders, .judgments and decrees touching the premises as to equity and justice my seem right and proper.”

All parties necessary were brought in as defendants and filed appropriate answers.. We think the real contentions fairly appear from the above, and further analysis of the pleadings superfluous. Thomas D. Woodson died August 28, 1902, leaving three children, viz.: plaintiff, Virginia E. Sevier, and defendants, Harrie P. Woodson and Lydia Ann Woodson, an invalid. Upon a hearing, the trial court found these portions of the will which we have italicized to be void and non-effective.

Plaintiffs appeal.

I. The.trial court was of opinion' that the latter portion of .clause five of this will was void, and was further of the opinion that the eighth clause was void. To this extent the judgment of the trial court was in favor of the plaintiffs and against the contentions of defendants. But plaintiffs go further and contend that if these portions of the will are void, then the whole scheme of the testator’s devise has been broken, the scheme fails, and the whole devise in said clause five contained and other dependent clauses, must fail and be by the court declared void, which would leave the deceased as if dying intestate save and except as' to some.minor bequests contained in the will. It occurs to us that the real questions, although verbosely stated in the pleadings, may be summarized thus: (1) Does clause five contain a valid and enforceable devise, and under the law should it be enforced? (2) If as a whole, it cannot stand, can a portion thereof be eliminated so as to leave a valid and enforceable devise? (3) Is the eighth clause violative of law? (4) If clause five or any portion thereof cannot be sustained, and. clause eight cannot be sustained, then does the elimination of such condemned portions of the instrument so change the general scheme of the disposition of the property in the mind of the testator at the making of the will, as to compel the court to say that there is no will in this respect. In .other words, if we ’find invalid portions to be in the instrument, do these invalid portions, when taken out of the instrument, so change the instrument as not to give effect to the general scheme and purpose of the testator in the disposition of his property? These questions we take in their order. In so doing we must and do recognize that it is the duty of courts to construe and not to make wills; that wills may be valid in part and invalid in part; that in determining what was the real scheme of disposition in the mind of the testator, the valid and invalid portions must be alike considered, and this for the reason that the presumption must be indulged that the testator in formulating his scheme of disposition thought all portions legal and valid; that if the elimination of the invalid portions, if any there be, so changes the general scheme and purpose of the testator as would make the remaining portions amount to a new and different will, then the whole devise must fail.

EL With due regard to the views of construction herein above stated let us proceed to consider clause five of this will. No objection is or could be urged as to the preceding clauses. Nor in our judgment could there be any objection urged as to clause five, if it be stopped with the first provision, to-wit: “I will and devise to each of my daughters, Lydia Ann Woodson and Virginia Elizabeth Woodson, each one-third of my estate for and during their lifetime, then to go to their bodily heirs, if any, if not, then, to their brother, Hafrie P. Woodson, and his bodily heirs, and it is my will and I hereby so direct, that the share, interest and estate hereby devised be held in trust for each of them and for their only and sole use and benefit' by their brother, Harrie P. Woodson, who is hereby appointed and created their trustee, and I further direct that he be not required to give any bond or security as such trustee. ”

This clause of paragraph five in our judgment gives to each of the two daughters a life estate in one-third of the residue-of the decedent’s property, after minor bequests are satisfied. But this interest or beneficial life estate is placed in trust, so. as to give to each daughter the earnings of. said life estate, as their absolute property, the corpus itself to- be preserved. Upon their death this corpus to go, first, to their respective bodily heirs, and if there are no such bodily heirs, then to H. P. Woodson “and Ms bodily heirs.” By the use of the term “each one-third of my estate for and during their lifetime” there is created two estates, one to the plaintiff, Mrs. Sevier, and one to the defendant, Lydia Ann Woodson, each of which is placed in trust, the usufruct or earnings going respectively to the beneficiaries therein named. Under this clause, or portion of the fifth paragraph of the will, there can he no question that the beneficiaries are entitled to the full proceeds of the trust property and such proceeds become their individual property and cannot be added to the-corpus of the trust fund. With only this clause in the will, upon the death of either beneficiary therein, the corpus (the third part of the whole residuary estate) thus preserved by the trust, would vest as by the will directed, but the earnings whether in the hands of the trustee, or in the hands of the deceased beneficiary, would be a part of the estate of such deceased' beneficiary and pass by the law of descents and distributions, or in accordance with the terms of such beneficiary’s will, if any she had made.

By the latter portion of paragraph five, the testator undertakes, in a vague, uncertain and indefinite way, to limit the amounts of the earnings of the corpus, which are to go to the beneficial owners of the life estate. By the first portion, the beneficiaries were entitled to it all; by the latter, they are presumably only entitled to such portion “as will abundantly provide for their comfort and necessities.” This might be all of such earnings, or it might be none. If the beneficiary had no “comfort and necessities” to be provided for, then it might mean that none of the interest or earnings should go to that beneficiary so situated. In other words, if either of these two daughters had the good fortune to be possessed of the comforts and necessities of life, in property, other than the property described in this will, such beneficiary, so conditioned, would not be entitled to any of the interests or earnings of the trust estate held for her. And if she was partly supplied with the comforts and necessities, then she would only be entitled to such portion of the interest or earnings as would make the quantum of her “comfort and necessities.” This quantum, as we take it, to.be judged by the trustee. So at least, there are two elements which render the amounts, if any, to be received by the respective beneficiaries of these two trusts, uncertain, viz.: (1) the condition of the beneficiary, as to whether or not any portion was required, in order that she have the comforts and necessities of life, and, (2) the judgment of the trustee as to what are comforts and necessities, and the amounts necessary to furnish them. At least this is one view which might be taken of the meaning of this clause. It might be viewed, however, as meaning that notwithstanding the beneficiary had other means of “comfort and necessities” yet she would be entitled to receive from the earnings of this trust estate sufficient to meet the requirements of her£ £ comforts and necessities. ” If this construction could be given it, we would still be met with uncertainty, thuS: (1) One’s station in life determines in a measure what are comforts and necessities, and (2) the judgment of the trustee as to the amount required for the same, as well as his judgment upon the station in life.

In reaching a conclusion as to the validity of this latter portion of the fifth paragraph of the will, it must be remembered, that with the exception of certain small bequests, by this paragraph, with paragraph six, which gives one-third of the estate absolutely to ■H. P. Woodson, the whole estate is disposed of and taken into consideration.

We take it to be well-settled law that where a certain estate is granted in plain and unequivocal language in one clause of a will, the same cannot be lessened or cut down by a subsequent clause of the will, unless the language used in such subsequent clause is as clear, plain and unequivocal as the language of the first grant.

In Banzer v. Banzer, 51 N. E. 1. c. 293, the New York Court said: £‘Where an estate is given in one part of a will in clear and decisive terras, that it cannot be taken away or cnt down by raising a donbt as to tbe meaning or application of a subsequent clause, nor by any subsequent words wbicb are not as clear and decisive as tbe words giving tbe estate, is a well-established rule applicable to tbe construction of wills. As was said by Judge 0 ’Brien in Goodwin v. Coddington, 154 N. Y. 283, 286, 48 N. E. 729, 730: ‘Whenever tbe will begins with an absolute gift, in order to cut it down tbe latter portion of the will must show as clear an intention in that direction, as tbe prior part does to make it.’. In Clark v. Leupp, 88 N. Y. 228, 231, this court said: ‘It is well settled by a long succession of well-considered cases that, when tbe words of the will in tbe first instance clearly indicate a disposition in tbe testator to give tbe entire interest, use, and benefit of tbe estate absolutely to tbe donee, it will not be restricted or cut down to any less estate by subsequent or ambiguous words, inferential in their intent.’ ”

Our court has followed tbe New York Court. In Chew v. Keller, 100 Mo. 1. c. 369, we said: “Again, an estate in fee created by a will cannot be cut down or limited by a subsequent clause, unless it is as clear and decisive as tbe language of tbe-clause wbicb devises tbe real estate. [Freeman v. Coit, 96 N. Y. 63; Byrnes v. Stillwell, 103 N. Y. 453; Landon v. Moore, 45 Conn. 422.]”

And again, in Small v. Field, 102 Mo. 1. c. 127, it is said: “Under this statute it is obvious that tbe absolute estate in fee granted to Mrs. Kate Green could not be impaired, cut down or qualified except by words as affirmatively strong as those wbicb conveyed, the estate to her. Such has been tbe ruling upon similar statutes elsewhere. [Roseboom v. Roseboom, 81 N. Y. 356, and cases cited.] And this seems to be tbe proper rule to apply apart from any statutory regulation. [Lambe v. Eames, L. R. 10 Eq. Cas. 266; Thornhill v. Hall, 2 Clark & Fin. loc. cit. 36; Clark v. Leupp, 88 N. Y. 228, and cases cited.]”

And to the same effect is Yocum v. Siler, 160 Mo. 1. c. 289 ; Roberts v. Crume, 173 Mo. 1. c. 580; Roth v. Rauschenbusch, 173 Mo. 1. c. 593, 594; Underwood v. Cave, 176 Mo. 1. c. 12, 13.

Measured by these rules the latter clause of paragraph five of this will is in our judgment void and of no effect. The trial court so held and we think correctly.

III. The next question presented is the validity of the eighth paragraph of this will. As will be seen this expresses the preconceived notion of the testator, that by an obiter in his will, he could overturn the statutes of the State upon the subject ¡of administration of estates. In this the testator was wrong. Such a provision is in our judgment violative of public policy, and violative of public policy as expressed' by the statutes of this State. The testator has no inherent right to keep his estate from the courts given jurisdiction to administer the same. To declare such a policy would be a very dangerous precedent. This court has heretofore indicated the views we entertain upon this question. [Southworth v. Southworth, 173 Mo. 59.] We, therefore, hold this paragraph void and of no effect. This was the view entertained by the learned trial judge, and we but add our approval to his, judgment thereon.

IV. We now reach the problematical part of this contest. Plaintiff claims that with the portions eliminated, as we have here indicated should be eliminated, then the whole scheme of the testator for the disposition of his property has been ¡changed, and what is left does not express the will of the testator. If this is true then the whole of paragraph five and paragraph six must fail, for in these two paragraphs we find the general scheme of the testator for the disposition of his property. We do not agree with counsel for the plaintiff in their contention that paragraph eight of this will seriously affects or becomes a part of the testator’s general scheme. This general scheme we think is found in paragraphs, five and six, for in these the bulk of the estate receives its disposition. Paragraph seventh simply provides the instrument or person for the execution of the will, and paragraph eighth ‘ simply expresses an erroneous idea of the power, which the testator thought he could invest in this instrument or agent. Both of these paragraphs could be stricken from the will, and yet the general scheme of the testator as to the disposition of his property remain intact. So that as to the effect of eliminating the eighth paragraph we find no, trouble. The serious question is in the elimination of the last clause of the fifth paragraph. We find no case exactly in point. All will eases are decided upon the peculiarities of the different instruments presented, so- that in the cases we have judicial expressions peculiarly applicable to the instrument then before the court in each case. At best the cases but suggest thoughts of value in the consideration of the question in hand.

Reverting to the sole proposition left in this case, we are asked to say that by striking from this will the last clause of paragraph five, the whole scheme of the testator has been changed, and we would therefore be making for him a new will, if the remainder were permitted to stand as his will. We think not. What was the general scheme of the testator, for the disposition of his property? This can be determined by what he says as to the bulk of the property. The minor gifts cut but little figure in this case. But answering our own question, what was testator’s general scheme, as appears from this will, and gathering such intent from within the four corners thereof, and considering valid as well as invalid portions? First, we find a purpose to husband and hold the property in the hands of the testator’s-blood" relatives. Second, we find a desire upon his part that the son have one-third of his estate absolutely, thoroughly in keeping with the first general purpose. Third, we find the desire upon the part of the testator, that each of his daughters have the benefit of one-third of his estate, for and during their life, with remainder over to testator’s blood relatives, likewise in keeping with the first-named general purpose. The only change contended for by plaintiff, save and except such as she imagines comes through the striking out of the eighth paragraph, is this, that with the last clause of paragraph five stricken out, plaintiff has a full life estate in trust, but with that clause in the will she has less than a life estate, and for that reason we have changed the scheme of disposition by striking out such clause.

In this plaintiff argues too much. Clauses of wills may be invalid for several reasons. They may violate express statutes, as in the Fair will, 132 Cal. 523; they may violate public policy; they may be too indefinite and uncertain to be enforced at all by the courts, as in Board of Trustees v. May, 201 Mo. 360; or they may be too indefinite and uncertain in terms to overcome previous express, clear and definite terms theretofore found in the same instrument, as in the ease at bar. There may be other reasons for invalidity of specific clauses in wills, but these will suffice to illustrate the idea we have. But for whatever reason the clause or clauses are declared invalid, it does not always follow that the general scheme of the testator has been changed and the whole will must fail. However, the reason for declaring the clause invalid may lend some light upon the question as to whether or not the general scheme has been changed by the elimination of the particular clause. In the ease at bar had the last clause of paragraph five been as clear, definite and certain in its terms, as was the grant expressed in the first part of said paragraph, then it would have modified and changed the first, and we would have had there an expression of the scheme of the testator. But we have held upon the contention of the plaintiff that the language here- used was too indefinite, uncertain and ambiguous to modify the first clause, and therefore by parity of reasoning, it must be too indefinite and uncertain to express any general scheme of the testator. Plaintiff is in the attitude of saying that it is too indefinite, uncertain and' ambiguous, to modify the scheme of disposition as expressed in the first clause, yet it is clear, definite and certain enough to show a scheme of disposition other than that expressed in the first clause, and when we cut it out, the scheme as left in the first clause is not the general scheme of disposition in the mind of the testator. We cannot assent to this reasoning. If by cutting out this last clause we have written for the testator a new will, it must be because there is such definite and certain language in the last clause as would show a .scheme and purpose of disposition within itself. If it is definite, clear and certain enough to show that, then it is definite, certain and clear enough to- modify the first clause, and we have erred, in cutting it out as invalid. We are not satisfied' that the elimination of this latter clause so changes the general scheme of the testator as to invalidate this will, or even paragraph five and six thereof, which are the dependent paragraphs. We think this can be cut out, and the general scheme as heretofore outlined still remain. We have read with care the judgment entered by the learned trial judge, and it sufficiently covers the full situation of this case. In this judgment, which upholds the will, save and except .the two clauses indicated as invalid, and construes the remaining portions of the will, the trial court was right, and the judgment is affirmed.

All concur, except Woodson, J., not sitting.