411 S.W.2d 65 | Mo. | 1967
The issue is whether decedent’s widow (now also deceased), life devisee of his estate, may validly have allowed to her as part support and maintenance almost ten years after administration was begun, the bulk of his estate as against the contention that she had no power to consume the estate absent an actual need therefor. The underlying issue is the sufficiency of a duly published notice of final settlement in the estate of January, 1952 (which settlement was not then made), to support a final settlement and discharge of the executrix on April 22, 1960. We have jurisdiction at least by reason of the amounts in controversy, commingled funds claimed by appellants from various respondents, exceeding $15,000.
The facts are: Theodore Harris and Lulie A. Harris, each having been previously married, were married in 1944. Theodore had no children. Lulie had two children by her prior marriage, Grace Cox and Hattie Thomas. Theodore and Lulie were each 72 years of age at the time of their marriage and left no children thereof. Theodore died first, on November 21, 1950, leaving a will dated March 13, 1948, which was admitted to probate November 24, 1950, the here relevant portions of which are:
“SECOND: If I am survived by my beloved wife, Lulie A. Harris, then, as of the date of my death, I give, devise and bequeath all of the residue of my estate, whether real, personal or mixed, wheresoever situate, and whether now owned or hereafter acquired, unto my said wife, if she survive me, TO HAVE AND TO HOLD DURING HER NATURAL LIFE, with full and complete discretion capacity, authority and power to her, my said wife, if she survive me, to sell, grant, convey and deliver, in such manner, on such terms and at such price as she may best elect, all or any part of said residue, and make perfect record title thereto and create perfect ownership thereof, all absolutely and forever the same as I could do if living, and collect and reinvest the proceeds thereof or any insurance thereon during her natural life. The life estate here provided for my said wife, if she survive me, to be in lieu of her dower in my estate; and I appeal to her to accept, such provision; and it is my wish that she consume so much of my estate as may be required for her support in the manner to which she is accustomed, conserving the balance for the purposes hereinafter stated.
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“FOURTH: If I am survived by my said wife, then at her death I give, devise and bequeath all of the remainder of my estate as aforesaid in the same manner and under the same conditions as in Section THIRD hereof stated for the residue of my estate in event my said wife should predecease me.”
Lulie was appointed executrix of the will, and on November 25, 1950, filed inventory: Lots 5 and 6 in Block 3 of the Original Survey of Pierce City, appraised at $5,000; bank account $267.40; John W. and Nadine Mulkey note $3,570; M.F.A. Dairy Products Co. certificates $1,200; W. L. Bray note $1,334; 1939 Chevrolet automobile $315; Theodore Moennig note, dated February 10, 1948, $10,000; a total of $16,686.40 personal property and $5,000 real property. Title to the real estate is not here in issue.
On April 22, 1960, Lulie, as executrix, filed a petition in the probate court for an order allowing her individually the sum of $200 per month for the period of 100 months preceding that order for her support and maintenance. The court granted the order, and $200 per month thereafter until further order of the court, and assigned the Moen-nig note, balance $9,000, to Lulie in partial payment of the allowance. No formal notice of this petition and order was given to the Lawrence County, Missouri, Baptist Association (the Moderator and his successors of which were residuary legatees under Theodore’s will).
In a final settlement also dated April 22, 1960, Lulie charged herself with $2,060 paid on the Mulkey note; $1,200 on the M.F.A. certificates; $1,034 on the Bray note; $315 on the automobile; $2,800 interest on the Moennig note, and $9,000 principal thereon; a total of $16,409. A short time after the filing of the final settlement Lulie died on June 20, 1960, at the age of 87 years. For her support and maintenance she claimed credit for $16,971.31 for assets paid to herself individually. The probate court approved the final settlement on the same date and discharged Lulie as executrix.
Other than the published notice of January, 1952, no notice of the filing of the final settlement of April 22, 1960 was made, and no formal notice thereof was given to the Lawrence County, Missouri, Baptist Association.
We rule that the January, 1952, published notice of final settlement was not sufficient to support the actual final settlement made in April, 1960, more than eight years later. Note that the published notice stated that Lulie would make a final settlement at the next term of court to be held February 11, 1952. She did not in fact then make a final settlement which is for the purpose of auditing her accounts and making a final distribution to the person or persons entitled to the residue of the estate, but made an annual settlement on February 15, 1952, thus continuing the administration of the estate. She must be held to have abandoned her published intention to make a final settlement and wind up the estate. Of course, at that time and from this record, there was apparently no intention upon her part of then invading the corpus of her life estate for needed support and maintenance. That came later, in April, 1960. The case of Hewitt v. Duncan's Estate, 226 Mo.App. 254, 43 S.W.2d 87, is in point. There, the executrix caused notice of final settlement to be published in which it recited that final settlement of the estate would be made in the Probate Court of Clinton County on August 9, 1926. No settlement was then made and the probate court made general orders of continuance up to April 28, .1927, but none thereafter. On May 31, 1928, a purported final settlement was made and the executrix was ordered discharged upon filing inheritance tax receipts. Plaintiff’s claim for attorney fees for services rendered the executrix was thereafter filed on August 25, 1928. The court held that the notice that final settlement would be made on August 9, 1926, was not sufficient to confer jurisdiction on the probate court to render the
Under the terms of Theodore’s will Lulie clearly had a life estate in the residue of his property. Respondents agree, but contend the two powers conferred upon her by paragraph Second of the will: (1) to sell and convey all or any part of the estate in such manner and on such terms and at such price as she might deem best; and (2) “it is my wish that she consume so much of my estate as may be required for her support in the manner to which she is accustomed * * showed an intention of Theodore that Lulie be supported for the remainder of her life from his estate (emphasis respondents’). No doubt that was Theodore’s intention, but the words that she might consume so much of his estate as might he required for her support in the manner to which she is accustomed added the requirement, as contended by appellants, that there be a necessity for her encroachment upon the corpus of her life estate. The cases so hold: Cook v. Higgins, 290 Mo. 402, 235 S.W. 807, 812, where this court en banc disapproved Griffin v. Nicholas, 224 Mo. 275, 123 S.W. 1063, and adopted the minority opinion therein that a power to sell (and consume) was coupled with a limitation based upon the existence of a fact — that the sale was reasonably necessary for the widow’s comfort and support! See also Citizens’ Bank of Lancaster v. Foglesong, 326 Mo. 581, 31 S.W.2d 778;
Clause Second of Theodore’s will is not ambiguous. His intention is clear to devise to his wife a life estate in all his property, with a power of sale for reinvestment purposes. No extrinsic evidence is therefore admissible to ascertain his intention in benefiting his wife, Lulie. Burrier v. Jones, 338 Mo. 679, 92 S.W.2d 885; Winkel v. Streicher, 365 Mo. 1170, 295 S.W.2d 56; In re Sidebottom’s Estate, Mo., 327 S.W.2d 270. There is, however, a limitation placed upon Lube’s right to invade the corpus of the estate in the words: “and it is my wish that she consume so much of my estate as may be required for her support in the manner to which she is accustomed, conserving the balance for the purposes hereinafter stated.” (Emphasis added.) Evidence is admissible to show what was required by Lulie for her support and to show in what manner she was accustomed to be supported. The trial court erred in refusing the proffered evidence of these latter matters in determining the amount of the estate to which Lulie. was absolutely entitled. Compare McMahan v. Hubbard, 217 Mo. 624, 118 S.W. 481, 484; and cases involving the performance of a condition to a devise or bequest imposed by a testator, Hovey v. Grier, 324 Mo. 634, 23 S.W.2d 1058; Ray v. Nethery, Mo., 255 S.W.2d 817; Lehnhoff v. Theine, 184 Mo. 346, 83 S.W. 469. A further inquiry would be the matter of Lube’s good faith in taking as an allowance for past support 200 months at $100 per month, she having a duty to conserve the balance above what was necessary for her support to the benefit of the residuary legatees. “A trustee who is also a beneficiary and who is given a power, or discretion, to-invade the trust principal for the accomplishment of the settlor’s purpose has a fiduciary obligation to the remainder-man to confine his, the trustee’s, demands within reasonable limits.” 90 C.J.S. Trusts § 349, p. 625.
The judgment is reversed and the case is remanded for new trial.
PER CURIAM:
The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.