Estate of Carter v. Carter
Estate of Carter v. Carter
Opinion of the Court
This is an appeal from a judgment of the Circuit Court of Greene County affirming a judgment of the probate court. We have jurisdiction because title to real estate is involved. Art. V, § 3, Constitution of Missouri, V.A.M.S.; Buschmeyer v. Eikermann, Mo.Sup., 378 S.W.2d 468, 469.
Our task on this appeal is to construe the will of William J. Carter, which was written in his own handwriting and signed and witnessed on May 27, 1957. We reproduce the will, omitting signatures and attestation clause.
Testator died at the age of 65 years on June 1, 1957, leaving surviving him his wife Marie, his daughter Blanche Margaret Carter and his brother Walter S. Carter. Marie elected to take against the will. Marie died on March 8, 1962. Blanche Margaret, the executrix, proposed a final settlement on the basis that the property remaining after payment of debts and expenses belonged to Blanche Margaret absolutely and in fee simple. Persons claim
The general question is whether the will gave Blanche Margaret an absolute and indefeasible estate in fee simple upon termination of the preceding life estate in her mother, or a defeasible fee subject to divestment if she died without “direct blood heirs.” The specific question is whether in providing that “at her death in case she should leave no direct blood heirs” (our emphasis) testator was referring to his wife Marie or his daughter Blanche Margaret.
Both parties assert at the outset that the will, read in its entirety, is clear and unambiguous; that it reveals the intent of the testator, and that resort to auxiliary rules of construction is not necessary.
Blanche Margaret claims that testator’s intent to give her an indefeasible estate in fee simple is apparent, considering the entire will; that the court’s construction of the words “at her death” as referring to Blanche Margaret’s death ignores the four corners of the will, ignores the logical listing and paraphrasing of the events prefaced by the words “And at her death,” ignores the presumption that the phrase “her death” has the same meaning in the disputed sentence that it had when twice previously used by testator, and ignores the situation which would result from the meaning read into the will by the circuit court, namely, that testator, incredibly, would have made no provision for the payment of the expenses of his wife’s funeral or for the erection of a monument to mark her grave.
Those who claim as collateral heirs contend that it is clear from the whole will that when testator wrote “And at her death in case she should leave no direct blood heirs” he was referring to his daughter’s death anytime after his death and not his wife’s death.
Examining this will from its four corners and as a whole, with due regard to its directions and the true intent and meaning of the testator, § 474.430, V.A.M.S., it clearly and without ambiguity discloses a scheme, plan and design on the part of testator, after provision for his wife during her lifetime or until her remarriage, by which his estate would devolve upon and go to his heirs in his bloodlines: first to his nearest blood heir, his daughter, Blanche Margaret, and at the time of her death if she left no direct blood heirs, then to the direct blood heirs of his brother Walter. This is the dominant purpose and effect of his testament. This controlling intention must be effectuated. The words used in the testamentary writing will be subordinated to such intention and purpose. Pursuant to his general plan testator left his “entire estate” to his wife until her death or remarriage, with the right in his wife and daughter, by agreement, to convert the real estate into federally insured interest-bearing securities at any time before his wife’s death or remarriage. Next,"| he provided that at his wife’s death or re-' marriage the “entire estate” should go to j his daughter, Blanche Margaret, not in feej simple absolute, but as an estate in fee with j an executory.jdeyise over, in the nature of' a shifting use, to take effect upon the con-j tingency that the daughter die leaving di-| rect blood heirs, failing in which the feej would be defeated and the executory de-'; vise over to the direct blood heirs of tes- j tator’s brother Walter would become effec- j tive. 1
Blanche Margaret relies on the fact that the grant of the estate to her ends with a period, followed by a space, and that the paragraph ends there, thereby indicating an intent to give her an indefeasible estate in fee simple absolute without limitation or qualification. It is noteworthy that the grant to Marie also ends with a period followed by a space, and that that paragraph could be said to end there, but no one contends that this is indicative of an intention to vest a fee simple title in Marie. The will demonstrates on its face that testator was not skilled in the use of punctuation or paragraphing, and that his spacing was unconventional. He used periods when no punctuation was appropriate or when commas were more appropriate. He omitted commas where appropriate and used them when inappropriate. He capitalized words inappropriately and in the middle of sentences. Under these circumstances testator’s spacing, paragraphing, punctuation and capitalization are not reliable guides to ascertain his intention, which we have gleaned from the context of the will. We regard the periods after the grants to Marie and Blanche Margaret as punctuation mistakes which we have a right and duty to disregard under the circumstances. 95 C.J.S. Wills § 612. Treating those periods as mistakes which should be excised, the granting clauses, the contingency, and the remainder clause all flow together in one
Blanche Margaret presses for a ruling that the phrase “her death” appearing in the disputed paragraph refers to the same death as the same words used twice before, i. e., to the death of Marie; that “If a testator uses a given word in one part of his will with a certain meaning, it will be presumed that in using the word in another part he intended it to have the same significance.” Hogg v. Falk, 359 Mo. 1103, 225 S.W.2d 756, 758; Snow v. Ferril, 320 Mo. 543, 8 S.W.2d 1008; English v. Ragsdale, 347 Mo. 431, 147 S.W.2d 653. The rule relied upon is an auxiliary rule of construction, of assistance in cases of ambiguity, but it is to be used only as an aid in determining the intent of the testator. “Where, as in the instant case, the intent may be clearly ascertained from the will itself, rules of that kind have little, if any, application.” Commerce Trust Co. v. Weed, Mo.Sup., 318 S.W.2d 289 [3]. Such a rule of construction “ * * * must yield to an otherwise manifest intention of the testator.” Prior v. Prior, Mo.Sup., 395 S.W.2d 438, 443. Jarman on Wills, 8th ed., Vol. 3, p. 2071, states the rule and its limitations as follows: “ * * :⅛ [W] ords, occurring more than once in a will, shall be presumed to be used always in the same sense, unless a contrary intention appear by the context, or unless the words be applied to a different subject.” (Our emphasis.) Here the words “her death” apply to a different person. In our judgment the intention of the testator to apply the words “her death” to Blanche Margaret, and not to Marie, is clear.
Blanche Margaret contends that the application of the words “her death” to her rather than Marie results in an incredible situation. The unreasonable, unnatural and strange result would be, she says, that this testator, whose first concern was the welfare of his wife, would have made no provision whatever for his wife’s burial expenses, or for a monument for her grave. In our judgment the provisions of the will reasonably justify this rationalization: Testator, who was on his deathbed when he wrote this will (he died three days later) had in mind that he would die first; that Marie would die next, in the normally-to-be-expected course of events, and that of the three his daughter would die last. Payment of testator’s funeral expenses was provided for by his will. Upon his wife’s death his daughter could be depended upon to pay for her mother’s funeral expenses and provide her with a monument. If his daughter died with blood heirs, having succeeded to the estate in fee, her funeral and monument costs would be paid out of her estate. This left unprovided for the situation in which the daughter died without leaving blood heirs, in which event the estate would pass to the collateral heirs. This was a distinct possibility. Blanche Margaret had not yet married. Testator, seeking to stop this gap, wrote the provision requiring payment of Blanche Margaret’s funeral expenses and the erection of a “nice monument” to her grave, before the remainder of the estate should pass to the collateral heirs, who might not be as solicitous in this regard as her father, the testator. This left one situation for which provision was not made: if the daughter died without blood heirs after her father’s death but before her mother’s death. In that event testator, if he considered it, would reasonably have expected his wife to take care of the expenses of the daughter’s funeral and monument: We conclude that the application of the words “her death” to Blanche Margaret, and the provisions with respect to funeral, etc. expenses, lead to reasonable and natural results.
In the second portion of her brief Blanche Margaret, arguing alternatively that the will is ambiguous and that the intention of the testator is unclear, seeks
The judgment is affirmed.
PER CURIAM.
The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.
All of the Judges concur.
. I. e., the rule that the law favors testator’s heirs; that the law favors the early vesting of estate: and the rule applied in Ewart v. Dalby, 319 Mo. 108, 5 S.W. 2d 428, that when property is devised to A in terms denoting an intention that A take the fee, coupled with a devise over in ease of A’s death, without issue, the words refer to A’s death without issue during the lifetime of the testator, and A surviving the testator takes an absolute estate in fee simple.
Reference
- Full Case Name
- In re ESTATE of William J. CARTER v. Blanche Margaret CARTER
- Cited By
- 2 cases
- Status
- Published