Opinion
No. 41265.
June 13, 1949.
The facts and holding of the case are adequately summarized by the headnote.
WILLS: Devise to Stepsons as Class: Survivor Takes Entire Interest. Where the testator devised his entire estate to his widow for life with remainder to his two stepsons, and one of the stepsons predeceased the testator, the entire remainder estate went to the surviving stepson, who acquired the entire fee upon the death of his mother. This was a devise to the stepsons as a class, and Sec. 3504 R.S. 1939 has no application.
Appeal from Platte Circuit Court; Hon. Fred H. Maughmer, Judge.
AFFIRMED.
Jay B. Wilson, Hook Thomas, Inghram D. Hook and Harry L. Thomas for appellants.
(1) The bequest to Albert M. Laswell became void as to him and his heirs, as he predeceased the testator. The common law is not changed by the statute as he was not related to testator and was not survived by lineal heirs. Sec. 528, R.S. 1939; Snow v. Ferrill, 320 Mo. 865, 8 S.W.2d 1001. (2) If the bequest is held to be to a class as joint tenants, the share of the survivor would be increased and the bequest to the deceased would not revert to the testator's estate. Holloway v. Burke, 336 Mo. 380, 79 S.W.2d 104. (3) The case authorities holding similar bequests to be to a class are distinguishable from the issues at bar upon the facts. Such authorities, beginning with the last reversal of interpretation of the statute, are: Holloway v. Burke, 336 Mo. 380, 79 S.W.2d 104; Ashner v. Hostetter, 344 Mo. 665, 127 S.W.2d 697; Adams v. Simpson, 213 S.W.2d 908. (4) The controlling statute has remained unchanged since territorial days. Act of January 19, 1816, Terr. Laws, p. 436, sec. 2; Sec. 8844, R.S. 1899; Sec. 3504, R.S. 1939. (5) The interpretation of the statute by the Supreme Court of Missouri has been reversed twice since first announced, the last reversal returning to the original rule. Holding a class bequest created joint tenancy. Crecelius v. Horst, 78 Mo. 556. Holding a class bequest created tenancy in common. Lemmons v. Reynolds, 170 Mo. 227, 71 S.W. 135; Philbert v. Campbell, 317 Mo. 556, 296 S.W. 1001. Holding a class bequest created joint tenancy. Holloway v. Burke, 336 Mo. 380, 79 S.W.2d 104; Adams v. Simpson, 213 S.W.2d 980. (6) The testator is assumed to have known and to have acted in accord with and to have intended the results of the law, statutory and case, existing at the time the will was made and of statutory law at the time of his death. Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672; Kindred v. Anderson, 209 S.W.2d 912; Philbert v. Campbell, 317 Mo. 556, 296 S.W. 1001. (7) When the will was executed, the bequest to the two remaindermen, even if held to be to a class, was as tenants in common and not as joint tenants under the statute then existing and as interpreted by the then last and controlling decision of the Supreme Court of Missouri. Sec. 8844, R.S. 1899; Lemmons v. Reynolds, 170 Mo. 227, 71 S.W. 135. The same interpretation was followed later. Philbert v. Campbell, 317 Mo. 556, 296 S.W. 1001. (8) The court will determine the intent of the testator and will seek to enforce that intent, without attempting to make a new will. First Trust Co. v. Myers, 351 Mo. 665, 174 S.W.2d 378. (9) It is not a matter of construing the right of a class member to inherit, but simply a question of the testator's intent with respect to those who are to share in his estate. Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672. (10) Where, by a change of statute, words have a different meaning than if used in a will executed under the new law, and no longer express the intention of the testator, the will must be construed in accordance with the law at the time of execution. 69 C.J., p. 50, sec. 1116. (11) In determining the intent of the testator, the courts look to the facts, circumstances and statutory law existing at the time of the execution of the will. Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672. (12) Assuming the rule in Holloway v. Burke, supra, is followed, the issue is whether, as a matter of law, the evidence showed testamentary intent to create a joint tenancy then impossible to create without the use of express words so declaring. Lemmons v. Reynolds, 170 Mo. 227, 71 S.W. 135; Sec. 8844, R.S. 1899. (13) Testator's blood relations, as his heirs, are favorites of the law and are entitled to first consideration in construing doubtful expressions in the will. Adams v. Simpson, 213 S.W.2d 908.
John W. Coots, David R. Clevenger, Pross T. Cross and Gerald Cross for respondents.
(1) This appeal must be determined solely by consideration of the intention of the testator, Frank M. Jennings. Sec. 568, R.S. 1939; 69 C.J., sec. 118, p. 52; Lyter v. Vestal, 196 S.W.2d 769, 355 Mo. 457; Thompson v. Thompson, 175 S.W.2d 885; First Trust Co. v. Myers. 174 S.W.2d l.c. 380; Estey v. Common Trust Co., 64 S.W.2d 608. (2) The testamentary intention of Frank M. Jennings must be ascertained from the four corners of the will itself, the particular language used, the relationship of the parties, and all surrounding facts and circumstances. 69 C.J., sec. 1175, p. 139; 147 A.L.R., p. 728; Lang v. Taussy, 180 S.W.2d 698; First Trust Co. v. Myers, 174 S.W.2d 378, 351 Mo. 899; Lansdale v. Dearing, 173 S.W.2d 25, 351 Mo. 147; Gannett v. Shepley, 172 S.W.2d 857, 351 Mo. 286. (3) Under controlling law and authority, and the facts hereunder, the testator. Frank M. Jennings, intended to and did constitute his two step-sons as a class of beneficiaries to receive his bounty. Holloway v. Burke, 79 S.W.2d 104; Stolle v. Stolle, 66 S.W.2d 912; Swallow v. Swallow, 166 Mass. 241, 44 N.E. 132; Zombro v. Moffett, 329 Mo. 137, 44 S.W.2d 149; Crecelius v. Horst, 78 Mo. 566; Lounden v. Bollam, 302 Mo. 490, 258 S.W. 440. (4) At the time of testator's death the step-son, Albert M. Laswell, had previously died, thereby leaving the step-son, Fred L. Laswell, the only surviving member of the class entitled to receive the devise herein. Holloway v. Burke, 79 S.W.2d 104; Stolle v. Stolle, 66 S.W.2d 912; Swallow v. Swallow, 177 Mass. 241, 44 N.E. 132; Zombro v. Moffett, 329 Mo. 137, 44 S.W.2d 149; Crecelius v. Horst, 78 Mo. 566; Lounden v. Bollam, 302 Mo. 490, 258 S.W. 440. (5) The trial court by its judgment properly decreed that the step-son, Fred L. Laswell, as the sole class survivor, became sole owner, in fee, of the lands in question. Holloway v. Burke, 79 S.W.2d 104, 336 Mo. 380; Stolle v. Stolle, 66 S.W.2d 912; Swallow v. Swallow, 166 Mass. 241, 44 N.E. 132; Zombro v. Moffett, 329 Mo. 137, 44 S.W.2d 149; Crecelius v. Horst, 78 Mo. 566; Lounden v. Bollam, 302 Mo. 490, 258 S.W. 440. (6) We concur with appellants that Sec. 3504, R.S. 1939, has remained in existence "unchanged since territorial days." Such section is and was in words and figures as follows: "Every interest in real estate granted or devised to two or more persons, other than executors and trustees and husband and wife, shall be a tenancy in common, unless expressly declared, in such grant or devise, to be in joint tenancy." However, such statute in no manner limits the right of testator to create a class of devisees with right of survivorship. (7) Rights of the devisees are to be determined under the law and its interpretation existing at the time of the demise of the testator. Legg v. Wagner, 155 S.W.2d 146; Humphreys v. Welling, 111 S.W.2d 123; Vitt v. Clark, 66 Mo. App. 214. (8) In the absence of an expressed intention to the contrary in construing a will, a favor will be accorded to those beneficiaries who appear to be the natural or special objects of the testator's bounty. 69 C.J., sec. 1151. (9) The intent of testator to make a devise to his two foster sons as a class can be clearly ascertained from the language of the will itself. Therefore, the court will not construe the will and appellants must fail. Husser v. Markham, 210 S.W.2d 405.
This case involves title to real estate. Appellants, plaintiffs below, claim title to a one-half interest in the land involved as heirs of Frank M. Jennings, deceased, while respondent Joyce Newman claims to own all of the title to the land by virtue of the will of Frank M. Jennings. The trial court decreed that the defendant Newman owned the whole title and entered judgment accordingly. Plaintiffs appealed.
The controversy is whether through the death prior to that of the testator of one of two beneficiaries under the will of Jennings the legacy lapsed or whether the whole title vested in the surviving beneficiary. The case was tried upon an agreed statement of facts. In substance the facts are as follows: In the year 1903 while Frank M. Jennings was the sole owner of "The North Fifty Acres of the East one-half of the Southeast Quarter of Section Sixteen (16), Township Fifty-four (54), Range Thirty-three (33), Platte County, Missouri", he married Addie Laswell, who by her first marriage had two sons, Albert M. Laswell and Fred L. Laswell, twelve and ten years old respectively. Thereafter the four lived as a family on the property here involved. This property constituted their home until their deaths which occurred as follows: The stepson, Albert M. Laswell, died July 27, 1937; Frank M. Jennings, the stepfather, died February 25, 1941; the mother died in February, 1945; and Fred L. Laswell, step-son, died April 2, 1947. No children were born to Frank M. Jennings and his wife, Addie. The two stepson never married and, therefore, had no descendants.
On February 23, 1909, Frank M. Jennings executed a will wherein he made the following provision which is the controversy of this lawsuit:
"Second: I give and devise to my wife Addie Jennings all of my property both real and personal and where ever situate to be held by her during her natural life time and at her death to be divided equally between her two children Albert M. Laswell and Fred L. Laswell."
It will be noted that the stepson. Albert M. Laswell, died about four years before the testator. Fred L. Laswell, the last survivor of the family, executed a will on February 14, 1947, whereby he devised the property in question to Joyce Newman, one of the defendants in the case.
Plaintiffs are the heirs of Frank M. Jennings and as such claim one-half interest in the land. They assert that through the death of Albert M. Laswell his share under the will lapsed and, therefore, Frank M. Jennings died intestate as to a one-half interest in the property.
Appellants' points III and IV of the brief read as follows:
III.
"The controlling statute has remained unchanged since territorial days.
Act of January 19, 1816, Terr, Laws, p. 436, Sec. 2.
Revised Statutes of Missouri, 1899, Section 8844. (should be 4600)
[489] Revised Statutes of Missouri, 1939, Section 3504.
IV.
"The interpretation of the statute by the Supreme Court of Missouri has been reversed twice since first announced, the last reversal returning to the original rule.
"Holding a class bequest created joint tenancy. Crecelius v. Horst, 78 Mo. 556. (should read 566)
"Holding a class bequest created tenancy in common.
Lemmons v. Reynolds, 170 Mo. 227, 71 S.W. 135.
Philbert v. Campbell. 317 Mo. 556, 296 S.W. 1001.
"Holding a class bequest created joint tenancy.
Holloway v. Burke, 336 Mo. 380, 79 S.W.2d 104.
Adams v. Simpson (Mo. Sup.), 213 S.W.2d 980." (should read 908)
The section of the statute referred to reads as follows:
"Every interest in real estate granted or devised to two or more persons, other than executors and trustees and husband and wife, shall be a tenancy in common, unless expressly declared, in such grant or devise, to be in joint tenancy."
The above statute has no bearing on the question to be decided in this case. Appellants evidently misinterpreted the ruling in the Crecelius, Holloway, and Adams opinions. When a testator devises land by will to two or more persons as a class, such persons have no interest in the property prior to the death of the testator. They are neither tenants in common nor joint tenants. If prior to the death of the testator, one of such a class dies, the prospective share of the others is enhanced not because they receive anything from the would-be beneficiary who died, but the class who will receive the devise upon the death of the testator has been reduced and, therefore, each member of the class takes more under the will than if the class had remained the same in number. When the testator dies, the persons named in a class take as the statute provides, as tenants in common, unless otherwise expressly provided. It was so ruled in the Crecelius, Holloway, and Adams cases, supra.
Appellants do not challenge the correctness of the ruling of those cases but insist that when Jennings executed his will, it must be presumed that he knew the law and had in mind the ruling in the Lemmons and Philbert cases. Their contention is untenable. It is just as logical to say that testator must have known the law as it was declared in the Holloway case and it was in force for a number of years before his death, and yet testator did not change his will. In Stolle v. Stolle, 66 S.W.2d 912, l.c. 916 (9, 10), a case decided before the Holloway case, a clause in a will reading as follows was held to be a devise to a class: (Stolle v. Stolle, supra, p. 914)
"`After the death of my said wife, the remaining part of my estate shall then be divided between my said children above named in equal parts share and share alike, to have and to hold the same unto them and their heirs and assigns forever.'"
And in Crecelius v. Horst, 9 Mo. App. 51, affirmed by this court in 78 Mo. 566, a devise to two children share and share alike was held to be a devise to a class. One of the children predeceased the father and the court of appeals held the survivor took all because she was the only one of the class living when the testator died.
The case before us now is almost identical with the exception that the two named as a class were stepchildren of the testator. In view of the record it is evident that the testator intended to leave all of his property to his wife and her children. The testator had no descendants of his own. He lived with his wife and her two children for many years. They all remained members of the household until death called them one by one.
It is evident the trial court ruled the case correctly and the judgment is affirmed. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.