Summary
In First National Bank of Kansas City v. University of Kansas City, Mo.Sup., 245 S.W.2d 124, 128, we thus stated this principle: "The clear, plain and positive terms of a will are not changed by a subsequent clause unless the subsequent clause is as clear, plain and unequivocal as the prior clauses.
Summary of this case from First National Bank of Joplin v. SolomonOpinion
No. 42430.
January 14, 1952.
Cornelius E. Lombardi, Kenneth I. Fligg, Warren E. Slagle, James H. Bernard, and William A. Kelly, all of Kansas City (Lombardi, Fligg, McLean Slagle, Kansas City, of counsel), for appellant.
Blatchford Downing, M. D. Blackwell, and Caldwell, Downing, Noble Garrity, all of Kansas City, for respondent.
This is an appeal from a judgment rendered in an action instituted by The First National Bank of Kansas City, testamentary trustee under the will of (Doctor) James Elmore Logan, deceased, for a construction of the will and codicil thereto, and for directions as to distribution of the corpus of a trust estate.
For the purposes of review there are but three parties to this appeal — The First National Bank of Kansas City, trustee, plaintiff-respondent; The University of Kansas City, defendant-appellant, successor in interest to Lincoln and Lee University, a named conditional beneficiary in Dr. Logan's will; and Board of Church Extension of Disciples of Christ, defendant-respondent, successor in interest to The United Christian Missionary Society (and The American Christian Missionary Society), a named conditional beneficiary in the will. The question involved is whether, according to a true interpretation of Dr. Logan's will and first codicil thereto, The University of Kansas City (successor, as stated, to Lincoln and Lee University) had only until 1938 or has until 1959 to satisfy a condition qualifying it as a beneficiary in remainder of a testamentary trust estate of more than $100,000 in value. Hereinafter we shall refer to plaintiff-respondent, The First National Bank of Kansas City, as "Bank"; to defendant-appellant, The University of Kansas City, as "University"; and to defendant-respondent, Board of Church Extension of Disciples of Christ, as "Board".
James Elmore Logan, a resident of Kansas City, died March 24, 1928, and his will and codicil were duly probated in the Probate Court of Jackson County at Kansas City.
Dr. Logan was survived by his wife, Helen R. Logan, and his sisters Frances M. Logan and Mary Leana Means. Mary Lena Means died February 6, 1932; Frances M. Logan died January 26, 1946; and Helen R. Logan died November 21, 1949. In 1927, when the will and codicil were made, Dr. Logan and his wife Helen were both sixty-five years old; the sister Mary was then sixty-nine years old; and the sister Frances, seventy-three.
By his will, testator made provision for payment of his debts; bequeathed certain personality to his wife; made bequests to various relatives and friends; established trusts with which we are not concerned upon this appeal; and, in making further disposition of his estate, provided as follows,
" Fifteenth: I give and bequeath to The First National Bank of Kansas City, or it's successors, in trust, the sum of Twenty-five Thousand Dollars and direct that the net income therefrom be paid to the Trustees * * * in Charge of the Lincoln and Lee University * * *, provided it shall maintain a class `A' Medical School, as hereinafter provided, for the purpose of establishing in said University a Nose, Throat and Ear Clinic to be known as the `James E. Logan Clinic'. The Officers and Trustees in charge of Lincoln and Lee University shall have full authority to use said fund in the manner in which they may direct, so long as it is used for the purposes herein designated. (The words italicized in this subparagraph of paragraph Fifteen were interlined by the testator in his own handwriting.)
"If, after the death of the last surviving member of my family namely Helen R. Logan and my Sisters Frances M. Logan and Mary Lena Means, Lincoln and Lee University does not have a class `A' Medical School, or if so graded as class `A', does not thereafter maintain a class `A' Medical School, then it is my will that at the time such school shall cease to be class `A' that this legacy shall cease and determine and the Trustee shall pay and deliver the entire trust fund in the trust estate to the United Missionary Society of the Christian Church, to be used exclusively as a part of the Church Erection Fund of said Society, as is provided in paragraph Twenty, subparagraph `a' hereof. In passing upon the grade of the Medical School of Lincoln and Lee University the Trustee shall accept the rating as given said school by the Educational Committee of the American Medical Association * * *. (The language of this subparagraph of paragraph Fifteen which we have italicized was written by the testator in his own handwriting, the testator having stricken out the phrase "at the date of my death" which had been typed at that place in that subparagraph in the typewritten draft of the will.)
" Nineteenth: I give, devise and bequeath to The First National Bank of Kansas City, or it's successors, in trust, all of the rest, residue and remainder of my estate * * *; In Trust, however, for the uses and purposes hereinafter mentioned and upon the conditions, restrictions and limitations hereinafter provided:
"(a) Said Trustee in the trust created in this, the nineteenth paragraph of my will * * * is given the absolute right, in it's uncontrolled discretion to handle, manage, sell and convey any part or all of the several trust estates, and to invest or reinvest any part or all of said trust estates, or the proceeds thereof, or derived therefrom. * * *
"(b) The Trustee shall take and receive all of my said residuary estate * * * and * * * pay and distribute the entire net income as follows:
"One-half thereof to my beloved wife Helen R. Logan so long as she may live.
"One-half thereof, divided equally, share and share alike, to my dear sisters Frances M. Logan and Mary Lena Means, so long as they, or the survivor of them may live. In the event of the death of both of my sisters while my wife is still living, then I direct that my Trustee pay to my wife as long as she shall live the net income from my residuary estate. In the event my wife should die while either one or both of my sisters live, then I direct my Trustee to pay such surviving sister, or sisters, the net income from my residuary estate so long as they or the survivor of them may live.
" Twentieth: Upon the death of my wife and both of my sisters my Trustee shall * * * liquidate the entire residuary estate, converting the same into cash, and shall pay over and deliver same as follows:
"(a) One-half of said estate shall be paid to the United Missionary Society of the Christian Church * * * and I direct that said one-half of the residuary estate shall be used exclusively as a part of the Church Erection Fund of Said Society, and not otherwise.
"(b) The remaining one-half of the residuary estate shall be paid to The First National Bank of Kansas City or it's successors, in trust * * * and the Trustee shall annually pay the net income therefrom to the Trustees * * * in Charge of Lincoln and Lee University now in the process of organization * * *, provided said University maintains a class `A' Medical School as hereinafter provided. The net income shall be used exclusively by the said Lincoln and Lee University for the maintenance of a chair of Otolaryngology in said University, and this fund shall be known as the `James E. Logan Fund'. (The language of this subparagraph (b) of paragraph Twenty which we have italicized was interlined by the testator in his own handwriting.)
"If, after the death of the last surviving member of my family, namely, my wife, Helen R. Logan and my sisters Frances M. Logan and Mary Lena Means, Lincoln and Lee University does not have a class `A' Medical School, or if so graded as class `A', does not thereafter maintain a class `A' Medical School, then it is my will that at the time such school shall cease to be class `A' that this legacy shall cease and determine and the Trustee shall pay and deliver the entire trust fund in the trust estate to the United Missionary Society of the Christian Church, to be used exclusively as a part of the Church Erection Fund of said Society. * * *"
The testator by codicil, dated July 8, 1927, provided,
" First: I realize that Lincoln Lee University has not been in existence long enough so that it may be classified as a class `A' Medical School * * *, and so that it may have sufficient time to increase its rating among the Medical Schools of the country, it is my will and wish that paragraphs Fifteen and Twenty of my Last Will and Testament be changed in the following particular.
"(a) If, at the time of my death, Lincoln Lee University is not classified as a class `A' Medical School * * *, then the Trustee shall permit the income from the trust funds created by paragraphs Fifteen and Twenty of my said Will, to accumulate for 10 years. If, within 10 years, Lincoln Lee University has not been classified as a class `A' Medical School, then I direct that the trust fund created under paragraphs Fifteen and Twenty of my Will shall be paid and delivered to The United Missionary Society of The Christian Church, to be used exclusively as a part of the church erection fund of the said Society as is provided in said paragraphs Fifteen and Twenty of my Will.
"The Trustee is authorized and directed to deliver the accumulated net income to Lincoln Lee University at any time it may qualify as a class `A' Medical School, as herein provided, during the time herein limited.
"In the event Lincoln Lee University has qualified as a class `A' Medical School prior to my death, or during the said period of 10 years does qualify as a class `A' Medical School as herein provided, then it is my wish and will that the provision of paragraphs Fifteen and Twenty of my said Will shall remain and be in full force and effect and that all funds mentioned therein shall be distributed, used and maintained as therein provided."
University has not (at the time of trial of the instant action) established or maintained a medical school of class "A" rating; and it is the contention of University that testator intended University should have until ten years after death of the last survivor of his family — Helen, wife of testator — that is, until November 21, 1959, to establish and maintain a class "A" medical school and thus satisfy testator's stated condition upon which University might receive the beneficiary interest in the corpus of the trust estate in remainder as provided in subparagraph (b), paragraph Twenty. On the other hand, respondent Board contends and the trial chancellor ruled that testator intended University should have only until ten years after testator's death, that is, only until March 24, 1938, to establish and maintain such class of medical school and thus satisfy the stated condition.
The cases cited by the parties, appellant University and respondent Board, are not especially helpful to us in attempting to arrive at the true meaning of the will of Dr. Logan. The cited cases do not treat with clauses couched in like language, or with like clauses of wills of similar contexts, and the testamentary dispositions were not of the same kind as those made by Dr. Logan; nor were the circumstances in which the wills were made in the cited cases like those existing and in which Dr. Logan made his will and codicil thereto. We are quite sure this court was right in saying the language "of one will is rarely, if ever, like another and frequently a slight difference in the words used calls for different constructions of testamentary provisions similar in other respects. Even identical words properly receive diverse interpretations when used in contexts or under circumstances which are not the same." Shelton v. Shelton, 348 Mo. 820, 155 S.W.2d 187. However, at the present time "there are a few well settled rules to be applied in the construction of wills, and these are so generally accepted that citation of authority is not needed to further establish them. The prime rule of construction is that the court, without attempting to make a new will or an equitable distribution of the estate, must confine its endeavors to ascertaining the real intent of the testator. To this end the will must be read from its four corners and effect given to all its plain provisions, provided, of course, they are not in violation of law. If there is doubt as to the proper construction of the will, after its own provisions and language are fully considered, then the court has the right, in aid of construction or interpretation, to consider the circumstances surrounding the testator at the time of making it." First Trust Co. v. Myers, 351 Mo. 899, 174 S.W.2d 378, 380.
A codicil is to be regarded as a subsequent clause of a will, and the will and codicil are to be construed as one instrument. Obviously a codicil, being of a later date, is made with the purpose of modifying or changing in some way the effect of the testamentary disposition made in the earlier instrument, the will. The codicil is not a new will, however. It but becomes a part of the will which it in some way modifies or changes. Wells v. Fuchs, 226 Mo. 97, 125 S.W. 1137; Clark v. Mississippi Valley Trust Co., 357 Mo. 785, 211 S.W.2d 10. The clear, plain and positive terms of a will are not changed by a subsequent clause unless the subsequent clause is as clear, plain and unequivocal as the prior clauses. This, however, is nothing more than an application of the general rule that the intention of the testator must be ascertained from the will as a whole, for in no such case would the weaker provisions be permitted to overthrow the stronger. St. Louis Union Trust Co. v. Kelley, 355 Mo. 924, 199 S.W.2d 344. As with a subsequent clause in such respect, so it is with a codicil. Middleton v. Dudding, Mo.Sup., 183 S.W. 443; Wells v. Fruchs, supra; Clark v. Mississippi Valley Trust Co., supra.
Defendant-appellant University urges that, in construing the will of Dr. Logan, the trial court erred in failing to apply the most liberal rules of which the case admits in order to uphold or sustain the charitable trust or gift in favor of University. See Burrier v. Jones, 338 Mo. 679, 92 S.W.2d 885; Gossett v. Swinney, 8 Cir., 53 F.2d 772. It is said charitable gifts are the favorites of the law. But our case involves a controversy between parties, one of which, University, is engaged in educational work, and the other, Board, is engaged in religious work. Testator did manifest a charitable intent, but testator evidently desired the benefactions of paragraph Fifteen and subparagraph (b) of paragraph Twenty should go either to educational use by University, or to religious use by Board. While a gift for educational use is considered charitable, so is a gift for religious use, Jackson v. Phillips, 14 Allen, Mass., 539, including gifts for the erection and maintenance of church buildings. Harger v. Barrett, 319 Mo. 633, 5 S.W.2d 1100; Ervin v. Davis, 355 Mo. 951, 199 S.W.2d 366.
Giving attention first to the paragraph Fifteen of Dr. Logan's will, we notice he established a testamentary trust fund of $25,000, University's beneficial interest therein to be conditional upon University's maintenance of a class "A" medical school. As the paragraph was originally typed, the time at which University's interest was to be ascertained was "at the date" of the death of Dr. Logan; however, before or when the will was executed, testator changed such time to "after the death of the last surviving member" of his family, namely, his wife and two sisters. We believe it is of importance to note that the members of testator's family had no beneficial interest in the trust as created by paragraph Fifteen, and that the corpus of this trust was distinct and apart from that of the trust as provided by paragraphs Nineteen and Twenty. The corpus of the latter trust consisted of testator's residuary estate. It is our understanding the corpus of the trust established by paragraph Fifteen was paid and delivered over to Board by Trustee in the year 1938.
Attending paragraph Nineteen — testator gave the residue of his estate in trust for the lives of the members of his family (his wife, Helen, and his sisters Frances and Mary) and to the survivors and survivor, they to receive the entire net income of the corpus as provided in subparagraph (b), paragraph Nineteen. We shall call the property interest testator gave his family an equitable life estate.
By paragraph Twenty, Dr. Logan made disposition of the remainder interest in the corpus. Half of the corpus in remainder was given to Board by subparagraph (a), paragraph Twenty. As hereinbefore indicated, there is and has been no controversy relating to the remainder in the half given to Board by subparagraph (a), paragraph Twenty. We are concerned upon this appeal with the other half of the corpus of trust estate in remainder disposed of by subparagraph (b), paragraph Twenty. In the subparagraph (b), Dr. Logan gave the income from the latter half of the corpus to University if University "maintains a class `A' Medical School as hereinafter provided"; but if, at the death of the last surviving member of his family, University "does not have" such class of medical school, Trustee "shall pay and deliver" the corpus to Board. By the subparagraph (b) of paragraph Twenty, it would seem Dr. Logan created alternative or substitutional and contingent remainders — a remainder to University (to Bank in trust for University) or, in the alternative, the remainder outright to Board, the interest in remainder of University or Board to become vested at the death of the last surviving member of Dr. Logan's family, that is, at the time the particular life estate vested in testator's family was determined.
Dr. Logan certainly intended to change the time at which the estate or interest in remainder was to be vested. In the introductory subparagraph of the paragraph First of the codicil, he expressed his realization that University had not then been in existence long enough to be classified as a class "A" medical school. He knew, of course, that Lincoln and Lee University was then, in 1927, but in the process of organization. See subparagraph (b), paragraph Twenty. And "so that it (University) may have sufficient time to increase its rating" he willed that paragraphs Fifteen and Twenty of the will be changed in the particular as provided by the codicil. Further examining paragraph First of the codicil, it will be noticed Dr. Logan directed that if, "at the time of" his death, University was not classified as a class "A" medical school, the income on the corpora of the trusts (of paragraph Fifteen and Twenty of the will) was to be accumulated for ten years. "If, within 10 years," University "has not been classified as a class `A' Medical School, then I direct the trust fund created under paragraphs Fifteen and Twenty of my Will shall be paid and delivered" to Board.
It is the contention of defendant-appellant University that the introductory sub-paragraph of paragraph First of the codicil, from which we have quoted, is the solution of the problem presented in this case. University says that, prior to the making of the codicil, the will already gave University until the death of the last surviving member of the testator's family to achieve a class "A" rating; and, if the testator had considered such time "sufficient," he would not have thought it necessary to change his will so as to give University "sufficient" time. It is urged it follows that the declared purpose of the codicil was not to reduce the time which the will already gave, but to give more time in addition thereto, that is to say, more time after the death of the last surviving member of testator's family. University further argues that to adopt the construction advocated by Board, that is, the construction that the time (ten years) was to run from the death of the testator, which might give University "less time (and, as matters stand, would in fact give it a great deal less time) is to fly in the face of the clearly expressed intent of the testator." Here we believe we see a basic unsoundness in the argument of defendant-appellant University.
It is true the period of ten years after Dr. Logan's death, as subsequent events demonstrate, gave University less time than that originally given by the will. And it is also true that, from Dr. Logan's viewpoint when he made the will and codicil thereto, a period of ten years after Dr. Logan's death might give University more time than that originally given by the will, and would have done so had all of testator's family died within ten years after the death of testator. In determining a testator's real intent, a will should be examined from the testator's standpoint as of the time the will was made. Cox v. Jones, 229 Mo. 53, 129 S.W. 495; First Trust Co. v. Myers, supra. In 1927 Dr. Logan was making provision for the disposition of his estate, and was of necessity considering the uncertainties of human life. Now we must divorce our thoughts from the shown facts of the subsequent ultimate survivorship and demise of Dr. Logan's family, of which survivorship and demise Dr. Logan could have had no prescience at the time he executed the codicil. He knew, of course, that a period of time ending ten years subsequent to his death might be more or less than a period of time ending at some unknown and uncertain date of the death of the last survivor of his family. So far as testator knew, he and his family might die within the year, and by the terms of the will (if testator had not executed the codicil) University could not have thereafter qualified as a beneficiary; but (the codicil having been executed) had testator and his family died within the year, University, in that event, would have had ten years after testator's death in which to qualify as a remainderman. Moreover, Dr. Logan did not express the purpose of giving University "more time" to qualify than that originally given in the will; he expressed his will and wish that the paragraphs Fifteen and Twenty be changed so that University might have sufficient time to qualify.
We believe testator nicely selected the language in expressing what he had in mind to do by changing the time within which University could comply with the condition he had imposed. He, of course, did not know when his own death might occur; he apparently considered the eventuality that the members of his family might die within a short while; he apparently considered that the members of his family might live for many years; and so he expressed his purpose of fixing a time which, in any eventuality of survivorship or date of demise, he believed should be sufficient (equal to the end proposed, adequate, enough — Webster's New International Dictionary, 2d Ed., p. 2520) for University to qualify to receive the beneficial interest in trust funds in remainder. The time he considered sufficient was ten years after his death. He said so, in effect. See subparagraph (a), paragraph First of the codicil. Testator did not fix the "sufficient" time as ten years "after the death of the last surviving member" of his family. If he had intended the time (ten years "after the death of the last surviving member" of his family) he would have said so. We say this because we know testator had shown he was actually aware of a difference as to the effect upon the time of devolution of property interests by the use of the language "at the time (date) of my death" and the language "after the death of the last surviving member of my family." See again the deletion and interlineation, paragraph Fifteen of the will.
But University reminds us that by the codicil testator provided for an accumulation of income for the period of ten years on the funds of the trusts created by paragraphs Fifteen and Twenty. University urges that it is obvious the ten-year period of accumulation could not have begun until there was income to accumulate; and University further reminds us in this connection that by paragraph Nineteen the income from the funds of the trust created by that paragraph was to be paid to the testator's family so long as they or any of them should live. From these premises University urges the conclusions that the ten-year accumulation of income was intended to begin at the death of the last survivor of testator's family, and that the ten-year period during which University could qualify to receive beneficial interest in remainder is also the period, ten years, after the death of Helen, the last survivor of testator's family.
As we have said, testator's family had no beneficial interest in the fund of the trust created by paragraph Fifteen, and there was no reason the ten-year accumulation of income from that fund could not have commenced at the death of the testator. But the income from the fund of the trust created in paragraph Nineteen was, as stated, to be paid to testator's family and the survivors and survivor for life, and testator did not intend or attempt to provide for an accumulation of the income from that fund during the lives of the members of his family. The testator in his codicil only referred to the "trust funds created by paragraphs Fifteen and Twenty." Certainly testator had no intention to affect in any way the equitable life estate he had vested in his family, that is, he had the steadfast and dominant desire to provide for his family so long as they might live.
But testator did have a definite purpose in providing for the accumulation of income from the corpus disposed of by subparagraph (b), paragraph Twenty, of the will. The clause of the codicil providing for the accumulation of the income was not in conflict or inconsistent with the payment of the income to testator's family as provided in paragraph Nineteen. The accumulation of income during the ten-year period, but after the death of the last survivor of his family, was not inconsistent with a payment of income to his family until the death of the last survivor. Inasmuch as testator had given his residuary estate to Bank in trust for his family and the survivors and survivor for life, the corpus of the trust created could be possessed or enjoyed by neither University nor Board until the death of the last survivor of testator's family. This does not mean testator could not provide that the estate or interest in remainder either of University or Board could be vested before the death of the last survivor of testator's family. See generally 31 C.J.S., Estates, § 69, pages 88-90. Testator could and did provide that the remainder interest in the corpus should be vested in either University or Board ten years after his death. The device of a trust he had already set up in subparagraph (b), paragraph Twenty of the will, was utilized by the testator in the codicil to the will to bridge a possible gap between the determination of the life estate and the vesting of the interest in remainder ten years after testator's death. Here again, at the risk of being too repetitious, we say we must try to put ourselves in the shoes of the testator as of the time the will and codicil thereto were made. He did not know any member of his family would live throughout a ten-year period to commence at his death. And, considering the eventuality none of his family might live throughout a ten-year period commencing at his death, then it may be readily seen testator's provision for accumulation of income from the fund as created by subparagraph (b), paragraph Twenty, was applicable to such eventuality and would have been of service in providing, in such event, for the accumulation of the income until the ultimate cast of the estate in remainder was ascertained at the expiration of the stated ten-year period of time.
It is our opinion the trial chancellor truly and correctly interpreted Dr. Logan's will and codicil to mean that "said period of ten years was to begin at the death of the testator, which occurred March 24, 1928, and not at the date of the death of the last survivor of testator's said two sisters and wife, and said period accordingly expired March 23, 1938." We think such an interpretation or construction makes whole and harmonious all of the language of the will and codicil. Since we have concluded such an interpretation is according to the true intent of the testator, we must give the interpretation effect. R.S. 1949, § 468.620, V.A.M.S.
The judgment should be affirmed.
It is so ordered.
LOZIER and COIL, CC., concur.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court.
All of the Judges concur.