Carr v. Dings

Vories, Judge,

delivered the opinion of the court.

This was an action of ejectment brought to recover the possession of a tract of land, in Jefferson county, in the petition described.

The petition was in the usual form. The defendant’s answer was a denial of the facts stated in the petition, and also set np a special defense, which need not be noticed, as no evidence was offered in support thereof. A trial was had before the court, a jury having been waived by the parties.

*404 It is conceded that the plaintiff, under the evidence, had a right to recover, provided that the last will of John Kerr could be properly construed so as to vest a title to the land in the children of George Washington Kerr at the death of Susan Kerr, the wife of the said John Kerr; the plaintiff claiming title under the children of George Washington Kerr. It is admitted that the title to the land was in John Kerr at the .time of his death, and that the plaintiff has acquired all of the right and title which was vested in the children of George Washington Kerr, by virtue of the will of John Kerr and the death of his wife.

The will of John Kerr which was read in evidence reads as follows : “ The last will and testament of John Kerr, of the city of St. Louis, Missouri, made this 1st day of December, in the year 1813. First. I revoke all former wills by me at any time heretofore made. Second. I hereby constitute and appoint Beverly Allen, of the city of St. Louis, aforesaid, executor of this, my last will and testament. Third. I devise and bequeath to my said executor, all my estate, real, personal and mixed, and whether lield by me as joint tenant, tenant in common, or in severalty, in trust for the payment of my debts, which he will pay and discharge in the order prescribed by law for the payment of debts of deceased persons, hereby giving to my said executor power to lease or sell the same, without intervention of court, as to him shall seem best for my estate and creditors; also in trust,after the payment of my debts, to convey what may remain of my estate to my wife, Susan Kerr, to be used and appropriated by her in and about her maintenance and support, with power to my said wife to dispose of one-fourth of same remaining at time of'her death, as to her shall seem fit, and the residue of what may so remain, shall, at time of her death, pass to and be vested in the children of my deceased brother, George Washington Kerr. In testimony, etc.”

In view of the foregoing state of facts, the court was asked by the defendant to declare the law tobe as follows: “1st. On the pleadings and evidence the plaintiff is not entitled to *405 recover in this action. 2. The will of John Kerr did not, and does not, operate to pass the title of said Kerr, of any interest he had in the land sued for, to the children of George Washington Kerr. 4. The will of John Kerr passed all the title he had in his property to his widow, Susan Kerr, absolutely, subject to the payment of his debts. 5. The plaintiff can in no event claim more than three-fourths of the property of John Kerr, which remained at the death of his widow, Susan Kerr, and the plaintiff, therefore, is not in any event entitled to recover more than three-fonrths of the property sued for.”

These declarations of law were all refused by the court, to which exceptions wore taken. Judgment was then rendered in favor of the plaintiff, from which the defendant in due form appealed to this court.

The only matter presented for the consideration of this court is the proper construction to be given to the will of John Kerr, as set forth in the evidence. It is insisted by the defendant, that the effect of the will was to vest in the wife of the testator, after the payment of his debts, an absolute title to all of the property which should remain after the debts were paid, and secondly, it is insisted, that even if the will should be construed so as to vest in the widow of the testator only a life estate in the property left after the payment of the testator’s debts, still, by the provisions of the will, the children of George Washington Kerr could only take three-fourths of the property remaining at the death of the wife of John Kerr.

As to the first position relied on by the defendant, it is only necessary to say, that when this case was in this court at a previous term, it was held that the wife of John Kerr, by the provisions of his will, only took a life interest in his property, with a power to dispose of one-fourth of the property remaining after her support, at the time of her death. (Carr vs. Dings, 54 Mo., 95 .) After a further examination of the subject, we see no reason to doubt the opinion then expressed. (Rubey vs. Barnett, 12 Mo. 1 ; Gregory vs. Cowgill, 19 Mo., 415 .)

*406 The second position taken by the defendant, in the argnmeat of this case, was not directly argued or brought in question on the former hearing of the case in this court. It is now insisted that the children of George Washington lien-can only take three-fourths of the estate of John Kerr, under his will. The will devises the whole of the estate of the testator of every description to Beverly Allen, the executor, in trust, first, for the payment of the debts of the testator. After the debts are paid, the executor is directed by the will to convey whatever may remain of the estate to the wife of the testator, to be used and appropriated by her, in and about her maintenance and support, with power to the wife to “dispose of one-fourtli of the same remaining at the time of her death, as to her shall seem fit, and the residue of what may so remain shall, at the time of her death, pass to and be vested in the children of my deceased brother, George Washington Kerr.” It is insisted that the “residue of what so remains,” as these words are used in the will, confines or limits the bequest to the children of George Washington Kerr to three-fourths of the estate, the same being what would remain after excluding the one-fourth which was subject to the disposition of the widow, and that, as the widow made no disposition of the fourth of the property remaining at her death, as to that part of the estate the testator died intestate, and it would descend to his heirs or next of kind under the law.

By a technical construction of the language used in the will, the bequest to the children might be so limited ; but in construing wills, the intention of the testator is the object to be attained, and in order to ascertain this object, it frequently becomes necessary to look at the whole will, by which it will sometimes become necessary to qualify particular clauses so as to bring them in harmony with the general intention, as the same may be indicated by other clauses. When a doubt arises as to the extent of the application of the word “ residue,” as used in a will, whether it was intended to apply to the'residue of the whole estate, or to be confined to a partic *407 ular part of the estate, courts generally incline to extend it to the whole estate, where there is no other residuary clause. (2 Redf. Wills, 448.)

In reference to the will under consideration, it appears to have been the intention of the testator to dispose of his whole estate, and to die intestate as to none of it. The testator clearly intended to provide for his wife, during her life, and at her death he gives her the power to dispose of one-fourth of what remains after her support, as she may deem fit, and as she has no power conferred on her to dispose of the fourth of the estate until her death, the disposition must be by will if any is made. After this power is given to the wife he gives the residue of what shall so remain at the death of his wife, to the children of his brother.

Now, the question is, did the testator intend by his will to give the residue of his estate, after carving out one-fourth thereof, to be disposed of by his wife, or did he intend to give his brother’s children the residue of his whole estate remaining undisposed of for any of the purposes named in his will at the death of his wife? While we admit that the language used in the will is not entirely clear, yet we think that the testator intended to dispose of his whole estate, and that the intention was, that the children referred to in the will should take whatever remained undisposed of at the death of his wife.

. With this view of the case, it follows that the judgment must be affirmed ;

the other judges concur.