Estate of Holmes v. Holmes, 40 S.W.2d 616

143 294 241 Payne, 170, 915; Mo. S. W. 260 W. v. S. Leighton Davis Railway 691; Brock 986; Co., v. 266 S. W. v. Wells, Schroeder 806, Henry W. v. Co., S. Railroad S. where the W. injuries case,-we present were similar to those in the could well'hold $15,000 damages would be limit to the in this case. How large ever, plaintiff’s expenditures hospital on account of lor fees suffering and his medical attention unusual both in the manner attempts injury same, of' his should to cure the this amount $17,000. If, therefore, plaintiff within ten be increased to will days $4,000, enter remiitil-ur in sum this case the further judgment $17,000 affirmed and entered for as of the ease original verdict; otherwise, the the date of the case will be reversed Hyde Ferguson new trial. is so ordered. and remanded for It CO., concur. foregoing opinion by Sturgis, C.,

PER is a- CURIAM: 'The All opinion judges dopted as the of the court. concur. Holmes, Deceased;

In of Belle Florence Matter of Estate R. Trustee, Woodruff Woodruff Florence Holmes Holmes Holmes. 40 S. and J. Howard Appellant, v. Robert Holmes (2d)W. 616. One, 24, 1931. June

Division <&Gentry appellants.

Watts' for English

Jourdan & respondents. . appeal FERGUSON, brought on an here proceeding C. This Circuit action of the Woodruff Mrs. Florence Holmes overruling her City Louis in of St. Court Robert, Holmes, executors J. Howard Holmes and statement of deceased. Holmes, R. of the estate of Belle leaving children, four Eoberl R. Holmes died testate

Mrs. Belle Holmes, Mrs. Florence Holmes Woodruff and Holmes, Howard J. surviving By pro- her. her she made H. Keech Mrs. Isabel legacies, and then devised payment of certain vision rest, “of part residue re- bequeathed one-fourth sons, estate to each of her Eobert her mainder” of of her Holmes. The other one-half J. Howard Holmes and disposed as follow's: my bequeath my two sons two said give, unto “I devise survivors, survivor successor daughters, jointly and unto (Va) rest, residue equal one-half of said undivided the other them personal property and to have my real and or remainder TRUST, forever1, IN HOW heirs unto them and their and to hold separate and benefit their use behoof EVER, for sole Isabel, equal my daughters Florence and lives, of said natural conditions and with all the upon the terms and parts, undivided out and declared: trustees hereinafter set powers and duties as hold, control, assign, manage, “My sell and said trustees shall personal property of which said trust estate or rent the real or lease sale, such may any any composed and the at time be they reinvest for the assignment shall invest and conveyance or trustees hereby said created as of the trust estate benefit hereby income, intend- discretion, as to derive so best in their seem lease, sell, convey power rent, giving ing give and to them the personal property real and exchange dispose said or otherwise it, into -which trustees, as v'ell as that in them as vested reinvested, reconverted, for invested, converted or thereof, may be daughters, who of said separate my and benefit and use the sole monthly life, or receive, during her natural respectively shall each arising elect, (%) of net income one-half quarterly, as she composing said property at time personal and real the trust estate.” of her of death said that in the event the provides will then

The “leaving children” such a child or them daughters or either of stirpes, the share equally, per and “shall have take children child or they may arrive at the and as parent when of its their deceased or maintenance, support and years” age and twenty-one of twenty-one age the of years children until of such child or education said opinion in proper the “if it attained be reasonable is parent, if sufficient income of the deceased out of the trustees” It be not sufficient. if as -well the principal out of the daugh- said of either of the death event of that in the directed then share of the descendant, the entire any lineal leaving ters without go shall to the during her life for her which had been held daughter surviving and equal the two sons in shares or if any of dead, then them should to their children, if any, per stirpes. sons, two Robert

The Holmes and J. Howard Holmes were named duly as executors. The will was admitted probate to in the Probate City of Louis, Court of the St. and testamentary letters were issued to the executors named therein. following listed property comprised the assets the by

estate received the executors: 3000 shares, being*all the stock, of the Company, Holmes Investment a family investment corporation; shares the St. Joseph Lead Company, shares of the Railway Company; Manhattan Electric bank, Cash in $56,856.83; promissory a in principal note the $10,000; sum of Jewelry of an appraised $4,765, value of an automobile of appraised an value $3,000. jewelry specifically bequeathed was to the two daughters, Florence Holmes Woodruff and Isabel Holmes Keech. during

In of and the the course administration the executors col- corporate lected and received dividends on the stocks interest deposits on and on bank the note follows: on Dividends St. Joseph Company stock, $3221; Lead dividends on Manhattan Electric Rail- way stock, Company $3,647; dividends on Holmes Investment Com- pany stock, $248,000; deposits, $1124.58; on bank interest interest note, $767.78. In addition the money dividends listed, a Joseph stock of the St. Company above dividend Lead bank, $1250 par $56,856.83, value of was received. The money by taken over appointment, *was the executors on their the $10,000, principal note, $3,000 the sum of for which sum the money sold, automobile received as and in- dividends out, comprised money set terest as above collected and received from all a common the executors sources constituted fund they paid legacies, in their hands out of Which certain illness expenses incurred last and the funeral burial claims allowed expenses, all accounts and state costs, administration, city taxes, the New State transfer $307.31, and tax in amount of the Federal estate $146,542.06. In final settlement the balance amount apportioned and distributed corporate stocks were on hand and relating estate. pursuant provisions final settle- Woodruff filed Holmes Florence court, probate ment, which were overruled cir- exceptor appealed Whereupon approved. settlement hearing exceptions were over- thereon the court, where after a cuit for the distribu- and the order ruled, approved, final settlement the conformity in probate court the made tion and stocks of the confirmed. The settlement set in apportionment out with the .148 original exceptions

exceptor appealed to this court. The then number, follows: probate filed court were seven proceeds 1. of the of the automobile were used That sale pay debts. paid

2. That the New York inheritance tax was out of income instead of corpus. paid

3. tax was in- That Missouri inheritance income corpus. stead of payments and 5. That of executors’ commissions ex- were

cessive. paid

6. Federal tax was out of That estate income instead of corpus. only portion

7. stock was That certain distributed a trustees instead of all of the trustees. hearing probate appearing in the court

At the that- the Missouri estate; paid tax had not been inheritance that the executors’ excessive, commissions were not but in fact less that which than were, statute, entitled, the executors under and that the stock to be distributed to the trustees had been issued in the name ordered trustees, exceptor exceptions of all the dismissed and abandoned her 7. 3, 5, Only 1, numbered numbered were for heard in the circuit court and are our consideration here. exception alleges number 6 We shall first discuss which that paid Federal estate tax out of executors income estate.

Exceptor’s contention is stated her brief as follows: law, properly paid “Under that tax could not by the executors out of the income of of Mrs. the estate Holmes, deceased, since, will, the terms her a Belle R. under qtrovided and it was the income on that trust fund was created- paid Keeeh, daugh Mrs. Woodruff and Mrs. trust fund should be deceased, equal long ters of the shares so as both of them lived. comprises Un The trust fund one-half estate. residue (cid:127)was, law, therefore, Mrs. Woodruff entitled to one-fourth der the of the income of the estate from the date of the death the de beginning trustees, ceased, should have been at however, noted, It will be of the testatrix.” death legacy, exceptor quest the benefit of is not arising from the real “one-half of the net trust composing the said estate.” The trust at time any given which is one-half of the estate referred to is per two whom exceptor is one and are to four trustees of whom “My provision: said trustees with the than the executors sons other assign, or control, rent manage, sell and lease real hold, shall said trust time personal property of which at conveyance of-any sale, such as- composed and the signment they shall invest and reinvest . . . sell, convey,' ex- change or dispose otherwise of said real and property vested them as trustees.” provide does not sep- for the aration of corpus income from payment any of income or beneficiary thereof to the named the trust period administration, but exceptor paid directs that one-half of arising t"ne net income any composing “at time said trust estate.” provided The trust estate for could not be determined and did not come into existence until the admihis- tration completed was made, whereupon and settlement “rest, one-half of the residue or “property remainder” of the passed estate” to and “vested” in the trustees named and composed residuary “said trust estate.” The estate is that which remains obligations constituting against after all charges the estate specific legacies bequests discharged. have been met and. outright If a bequest had been made certain shares of stock exceptor, to the benefit such shares of trustees stock would as appropriated be considered at the time of the testa- upon tor’s death and whatever dividends accrued them from and beneficiary belong (Woerner’s after that time would to the Ameri- (3 Ed.) 1572) p. exceptor’s theory can Law and Administration be applicable, would but such is not instant case. Congress imposing upon

The act of the transfer of a “tax decedent,” pro- parties net estate of each referred to to this ceeding tax, provides that such tax shall be the Federal estate paid by Re- the executor of the to the of Internal estate Collector venue, designate w'hat but the act does not or indicate out of funds parties payable except relating the tax is insurance. The that agreed estate, paid hereto are that the must be says corpus appellant paid out of the should have been payment estate, applied not been to the income should have thereof, was insuf- corpus of the estate and since the have- a sufficient pay should sold ficient to the tax the executors ap- purpose. This contention number of shares of stock for that against her that the pellant theory have ruled follows the which we set have been corpus the estate should accruing from the executors, upon distribution apart, intact held legatees. to the New State of Appeals of the Discussing this tax the Court directs, whole tax says: testator otherwise “Unless the before the estate practicable, out of the paid, so to be far can thereafter for distribution remaining estate amount residixary fixed.” bequest [Farmers’ determined or the amount of will in this case Winthrop, 238 N. Y. L. & T. Co. v. 488-497.] ap- shall be does not direct funds or assets what propriated payment of the Federal tax or other charges against the “in estate and the absence of a definite direction subject on the presumed it must be the intention weight’' the ultimate charge of the tax as a the estate must law relating rest where this State to the administration of persons estates of places Converse, deceased v. it. 246 Mass. [Bemis 131, If it be inequalities claimed that will result must 134.] be contemplated by assumed to have been the testatrix. York [New Eisner, 256 Trust Co. v. U. S. in the Therefore absence 345-349.] of concerning direction will accruing upon the income the corpus estate, an income, of earnings, the on increase and ac- corpus cretions personal to accessions the of the estate received by upon the appointment, arising accruing executor his period administration, the of to payable are executor the and be- (23 1129; (6 Ed.) come in his assets hands C. J. on Wills Schouler 1954) may p. rightfully debts, which he for payment use of the taxes, obligations legal charges of costs administration and which are against specifically provide estate. Our administration statutes the by that “all interest received or administrators on debts executors 222, S. due the deceased shall be assets in tlieir hands.” R. [Sec. 1919; 224, 225, 223, Sec. R. S. Revised Statutes Sections 1929.] .1919,being 225, 1929, ap- 226, Sections Statutes direct the Revised plication money of “which has to the hands of such executor come against payment all sources" the of debts administrator money coming If into the and costs of administration. the pay the the hands of the from all sources sufficient executors necessity legal against full nor charges estate in neither right remaining portion corpus the estate or of the of to sell the may except perishable. be Sec- any part part such exists thereof (Sec. 1929), provides 112, 111, R. tion Revised S. Statutes that are of the deceased goods of and chattels for the sale “all by keeping” worse perish, liable be or rendered consumed (Sec. 1929), S. reads: 113, R. Statutes and Section Revised ‘‘ debts, pay goods If not sufficient to execu- perishable manner, personal sell other in the same shall, tor or administrator specific legacies legacies paid; estate until the debts necessary pay- any case; become shall not sold unless of this facts case under the hold, therefore, that ment of debts.” We the note and the interest corporate stocks and the cash dividends on assets by were the executors received deposits bank collected and against charges payment their hands for the out payable against being charge a Federal estate tax common fund by properly paid the executor estate it was part said, composing a up, made hereinbefore We have by the execu- received interest corpus dividends and and tors.

The payment the New York tax in transfer the sum $307.31 necessary was to effect the transfer of certain assets of the estate to paid prior and was executors to the semi-annual settle- By

ment- by reference to the settlements made and filed bthe we executors note that after payment specific money legacies approximately $57,000 paid was corpus out of the in the discharge charges against debts and allowed the estate hence the transfer State in fact been paid New have out of corpus.. allegation basis pay used to this tax is the fact that none of the shares stock were sold and unless of the income payment debts, was used in the charges by taxes the executors it would have been neces- sary to sell some of stocks. transfer the tax is imposed directly was not a transfer of to trustees under will, a trust passed created but the estate as whole into the of the executor hands and the trust said,

created as we have could not not did come into finally existence administration until the of the estate was concluded debts, bequests, charges and all and of costs administration discharged imposed tax estate determined. The by upon by property of New York of a non- the state the transfer the, per upon market resident decedent is a fixed centum clear value computed up- of less and is property certain allowed deductions passes heirs, legatees or on the total amount which to all devisees beneficiary single relationship from a of the to the decedent. liability bearing question of or the extent decedent has no passes to each computed upon not the amount thereof. It is legatee separately upon nor the amounts heir, or individual devisee degree relationship. of passing of a certain to beneficiaries York, of New tax of the state and the transfer Federal tax of the state of tax to in the as the inheritance referred .Both, the Federal York, operation. and principle New alike in are right to are levied on the York transfer tax tax and the New by of the estate. payable and out [John- transmit and are approving 294 What have said Keith, Fed. we son v. 964.] New payment applies to Federal estate tax therefore 2 against exception numbered and rule the State transfer we appellant. automobile, in- when the

Exception complains that numbered placed were proceeds was sold the ventoried as an asset of the debts, (cid:127)which the estate general fund of in the al- paid, and were of administration taxes, and costs will the terms bleges that under the chil- four among equally divided forthwith should have been consideration involves a exception A of this dren. determination portion quote vill and pertinent provisions we certain which, think, of the will we tend to reflect the intention of the tes- disposition tatrix reference to the of the automobile: long my daughter “as Isabel H. Keech shall a widow remain my dwelling and house, shall desire reside Number Portland Place, Louis, Missouri, '. . right St. . she shall to use have occupy together and dwelling furniture, said with all the furnish- ings bric-a-brac, paintings and fixtures, silver, linen, and china, beds, beddings and my rent, therein at the time death free of provided occupation however that and said her use house keep the contents aforesaid she shall in good the same repair, beep taxes, 'against elements, pay the same insured fire and the all general special imposed levied or thereon. ... In event daughter again marry said Isabel use my .that should cease to dwelling occupy bric-a-brac, linen, . . said . china and equally my daughters per- silver shall said divided between all gifts furnishings, belongings sonal rest of formerly by me dwelling contained in said owned furniture my shall four equally divided between children or their descend- daughter shall (per My Isabel have stirpes) ants forthwith. said right owned me at the use automobile or automobiles subject my payment time of rent, death free expenses, maintenance, her running repairs, insurance taxes and my all four of for the benefit of disposed same shall be disposed of divided furnishings are children -wheneversaid house policies procured All shall be provided. insurance as above may ap- their my four children as interests benefit of issued ’’ according pear and testament. should riot have been No is made that automobile contention happening of which contingency upon the sold, appears as it that the four equally divided between” furnishings should “be the house thereupon the auto- occurred, directs children daughter, when the will be disposed of. It noted mobile be linen, dwelling, bric-a-brac, occupy the Isabel ceased to use daugh- the two equally between china, to divided and silver was furniture” belongings and furnishings, and the “rest of ters “forthwith.” children “equally between” the four divided ivas disposed of relating is that it provision the automobile concerning in- of the children “for of all four” the benefit carry required auto- daughter Isabel surance which the it, will states that the use mobile the time had she children four benefit be “issued such insurance should and testament.” my will according may appear as their interests from the derived concerning proceeds say The will does not equally forthwith divided shall be of the automobile that same sale among children, the four as is said in reference to the furniture. clearly specifically

Since directed that the furniture be equally among divided children, the four while it is directed that disposed automobile be of for the benefit of children, the four with the insurance thereon issued for the benefit of the chil- four dren, “as their appear interests according will, to” the we conclude that the testatrix intended words “for the benefit” to mean as the interests of the four children were defined in the re- siduary clauses of the will and that she intended that the from the sale of the automobile become a of the residue to be divided in residuary provisions accordance with the- of the will. We exception rule appellant. judgment circuit Sturgis court is Hyde, affirmed.

CO., concur.

PER foregoing opinion CURIAM: The Ferguson, C., is adopted opinioin judges All of of the court. concur. Tickameyer

In re Petition of T. J. DeJarnett v. W. H. et al. et (2d) Appellants. 686. al., S. W. One,

Division June 1931.

Case Details

Case Name: Estate of Holmes v. Holmes

Court Name: Supreme Court of Missouri

Date Published: Jun 24, 1931

Citations: 40 S.W.2d 616; 1931 Mo. LEXIS 614; 328 Mo. 143

Court Abbreviation: Mo.