*1 Evah Frank et al., Appellants. Evans v. Rankin (2d) 644. One,
Division December 1931. *2 Moody
A. Mansv/r for appellants. *3 Lavelock, Kirkpatrick, respondents. Clark & Garner for
"HYDE, O. This is an action to determine title to real estate disposed of Evans, deceased, the will of Letha and remove a cloud from the title. providing
After payment bequest to $50 of debts and a cemetery, following portion disposed of the will of all her property: I will,
“3. bequeath George F. devise and to Mansur all the residue my of effects, personal, estate and both in trust for real and my daughter, during Evah Evans, her natural lifetime and after her death (%) go then one-half absolutely said to Evans, go heirs of Lorenzo D. (%) and one-half said estate to absolutely my heirs; hereby given right, said trustee is absolute power authority invest, manage and and said trust estate control with absolute from discretion time to time the life of my daughter, Evans, any part Evah pay all of the income estate, thereof, said trust or if the investments he shall from fit, any capital thereof, time to time think part my unto said daughter; apply or at his absolute for the discretion to the same personal my support daughter pro- maintenance said such portions my such manner as trustee his absolute discretion shall time proper.” from to time think personal property pay-
In addition than sufficient more for the debts, expenses administration, cemetery bequest, ment of and the County. forty Ray Letha Evans Evah owned acres of land daughter Evans, plaintiff, was the Letha father, Evans, D. Evans. six Lorenzo Her Lorenzo died about years mother, plead- prior to death of her Letha Evans. The give *4 ings they only information as to the facts and us the are our disputed relationship parties of the will. There are no the and questions all of fact. Letha had four brothers who were defendants, They as was living were made at the time of her death. D. Evans had no brothers sisters the trustee named. Lorenzo him, brother and four deceased who survived but he had a deceased surviving descend- sisters, each of whom descendants. Their left are ants the other defendants. alleged petition proper
Plaintiff’s that construction of the simple in fee of plaintiff forty will was that was the owner only of part which of the estate Letha Evans in- acres, was the was, claim in suit. Plaintiff’s that she was the volved this Evans, D. Evans and both Lorenzo Letha and and sole heir of child took, by it, beneficial interest in both the that as such she alleged that in fee. She the entire ben- the remainder estate and her; that, therefore, in land vested in the became eficial interest simple; absolutely part in fee and that the of of the land the owner upon land, created cloud title to the creating trust the will alleged its market value. diminished She that defend- which trustee, surviving of ants, the brothers Letha Evans and surviving of the deceased brother and descendants sisters of Lorenzo claim an interest in Evans, D. the land. She asked court to discharge trust in cancel and contained the will construe and plaintiff simple land; the owner in fee the will that that it; in cloud, had no interest to remove the defendants and plaintiff’s the will made on title. The part trustee, this Evans and one of brothers of Letha the descendants a deceased alleged Lorenzo D. an Evans, filed answer which sister of their relationship relationship of other Lorenzo and the defendants to alleged Evans; “heirs,” D. Letha Evans or that the word as used persons in meant “those would constitute the heirs from Evans and inherit the law said Letha said Lorenzo and Evans, the death said Evah and con- Evans at should not be Evans;” mean or Evah include and asked that the will strued contingent that construed the defendants were remaindermen subject remaining to the trust. The defendants were in default. parties alleged relationship court found that the of the was as
The simple; answer; in the was the owner of the land in fee provision title; will on and that the trust of the created a cloud had in the land. The found defendants no interest court also not, The spendthrift trust. that the did create decree ordered simple plaintiff; vest the fee title in the will be construed to attempted trust to be created in the third that the clause of naught held. this canceled and for From decree defendants assignments appealed. questions The to be determined under the defendants, whether who were relatives error are or not the husband, land, and her interest testatrix what, any, interest the trustee has. question of whether the heirs of testatrix her deceased at the death of the testatrix or at
husband shall be determined upon which the courts are not of the life tenant is one death in wills construing' provisions there have accord. similar question. course, ‘Of each case taking each of the side decisions language circumstances which the presents some difference in- attempting the testator’s to determine courts have considered tent. goes per- application
“The of the rule the remainder description answer the the time testator’s sons who *5 person the whom to prevented mere circumstance is the not of such or next given is one heirs previous life interest is previous life interest of kin. But whom where the of the class described sole member bequeathed by is will is the not heirs, given, are etc., is the authorities a remainder as to whom 416 put as to the construction to on
in accord be entire remainder the fact has been held that the first taker is also the over. rule, being not alter the the remainder over sole heir does vested On notwithstanding hand, that fact. the other it has been held life tenant is the sole heir or next of kin at that where the death given testator, the remainder will be considered answering description persons at the termination of the estate persons and, may life, since the time be entitled uncertain, contingent.” are take the estate remainder is [23 550, sec. R. C. L. English American and on both authorities sides of this ques- 25 1917a, Eng.
tion are collected Ann. Cas. 862, and Cas. Rui. 696. exact previously This situation does not seem to have been presented in a However, Missouri uniformly case. our decisions have favored vested estates and the rule is well settled unless very testator has clear words his manifested intention to the contrary, persons will, who take under designated, as the heirs French, must determined at the of the testator. v. [Palmer 32 (2d) 591; Dalby, 108, (2d) 428; S. 319 5 W. Ewart v. Mo. S. W. 803; 2 Smith, (2d) Ernshaw v. S. W. Baker Kennedy, v. 238 S. W. 790; 356, 283 222 Sims, 838; Dunbar v. Mo. S. W. Deacon v. St. 261; Louis 271 Co., 669, Long, Union Trust Mo. 197 S. W. Carter v. 701, 181 81 162; Tindall, Mo. S. W. Tindall v. Mo. 218, S. W. 1092.] statute,
Our 567, Section 1929, Revised us Statutes admonishes meaning make “the true and guide intent testator” our construing will. intention This must be determined from the may say will, itself. “It he not what have intended to in the but said.” Bushnell, what he 316 Mo. S. W. [Pommer 417; Wooley Hays, 842; Jones, 285 Mo. 226 S. W. Cox v. Appellants Mo. contend that testatrix must have meant someone her daughter, plaintiff, other than when “after [plaintiff’s] death, she said then one-half of said go absolutely to the heirs D. of Lorenzo one-half of said go absolutely my They say estate to heirs.” this is evident be- plural term singular cause the “heirs” was used instead term “heir;” because the remainder was between two divided distinct persons, namely, classes of the heirs of Lorenzo Evans and the testatrix; because, heirs of the since the testatrix had provided life, when for her for she mind, must have had disposed Appel- someone else mind when she the remainder. point proper lants out that “it where face whole relating particular subject, warrants, or to a certain clauses justice it, requires reason the word ‘heir’ may ‘grandchildren’ as ‘children’ or ‘issue’ construed ‘descend-
417 ” Naylor 348; 212 Gillilan, 99, 278 Mo. v. ants.’ [Gillilan 772; Tuschoff, v. 235 Mo. 423, 154 W. Brown McRuer, 248 Mo. S. v. Fanning 1032; 128 S. 497; Doan, 323, Mo. 30 W. v. 449, 138 W. S. However, 108 18 W. 267, Mo. S. the effect Maguire Moore, v. given to the word “heirs” most these cases of the construction The over collaterals. word “heirs” descendants is to direct favor heirs, brothers to mean collateral such as construed in some eases 94 Koppelman, v. their descendants. and sisters and [Reinders child) ; Philadelphia (excluding adopted 7 S. 288 an 338, W. Mo. (Pa.), 651; 31 Co. v. Isaac Atl. & Insurance Deposit Trust Safe Brasington 22 150; N. v. (N. Y.), E. Johnson v. James Woodward 783; 859; Munroe, Supp. 177 N. Y. Ludlum 50 N. E. re (N. Y.), Gibbon, 562; 40 Ga. Minot Hun, 410; 15 Gibbon v. (N. Y.), Otis v. (Miss.), v. 528; 132 Mass. Russell Woodson So. Harris, testator, person to, had no But in these or the referred cases children and the nearest relatives were collateral heirs. English Drewry 85, 29 L. case, Lee, Smale,
An & J. Lee presented substantially S. N. W. R. Ch. Jur. left his There the testator an estate to
situation we here. equally life. After her “to daughter, Lee, Ann divide nephew, among my kin, my but said Leonard next of exclusive Lee, my nieces, Mary Emma Jane Lee and Lee.” Ann Lee daughter, only argued him. It was the testator’s and survived was “ought taking there, Ann here, as Lee be excluded from gift kin, impossi- the next of because assumed bility supposing any thing him have that the testator intends appear than life interest.” court held it did not more takes a or unreasonable that a life interest “absurd particular gift to him nominatim also a fur- take virtue of jointly others, may be, as either alone or with ther interest case gift class, same will to a which class as described under a in the there, argued him.” as clearly testator includes was presumed here, be known that if that “the testator must to have of circumstances which existed the time the same state death, daughter would should exist also at the testator’s his excluded, if were of kin kin, and that next his sole next of sisters, nephews his be his brothers and at his death would any and sisters.” And deceased nieces the children brothers nephews express three of argued that exclusion of his was further daughter excluded, his next of kin his and nieces who daughter, and further clearly his intention to exclude the indicated per- “among” imported plurality that the words “divide” The court said: sons intended to take. only not making aware, will must be “A when his testator uncertain, but also that is most
the duration of his own life altogether given family uncertain whether individual of his will survive regard himself. He may indeed probable, highly probable, relation, instance, that a certain child for him, may provision survive and he make a for such child in the hope expectation occurring; of that but event assume that he *7 regarded contrary that event as certain seems to me to be to reason common 'Why present sense. it and are we to assume that was not daughter might pre-decease the mind the testator that his him? may was, so, may And if or it have been he not have introduced the excluding nephew clause and two if view, nieces with this that and, daughter his happen should to die his him, before and brothers nephews sisters and his and nieces the children of deceased brothers happen sisters should to be of kin, and then and in that next nephew nieces, names, case the and whom from he be excluded participating with the others.” “question
The court' held that when a arises whether a certain ought ought individual comes description within the not to excluded, him, not sufficient in order to exclude to show him; an absence of a clear intention to he include must show a clear unambiguous and indication of an intention to exclude him.” And language will, express of that with that exclusion nephew nieces, unambiguous and did not show a clear in- and daughter taking bequest tention to exclude the from next of kin. reasoning We think holding this is sound and that such a would harmony be in with the recent court, decisions this Palmer v. French, supra, Dalby, supra, and Ewart which held when one, provision real with devised to over in case of the issue, devisee’s death without means death without issue lifetime, the testator’s so the estates devised are vested See, also, 2 Remainders, at the testator’s death. Fearne on 340-344. language We do not think that of Mrs. Evans’s will shows unambiguous clear daughter and intention to her (plaintiff) exclude taking from as the heir of her mother and father. It seems more natural suppose and reasonable to Mrs. Evans had mind might daughter and, her die before event, she did in that de- go property sired her one-half to the nearest relatives of her hus- one-half to own nearest band and her relatives. A has no though plaintiff death. Even heirs until had her mother, survived certain that Mrs. was not Evans’s heirs would have been the same might Mrs. as of her deceased husband. the heirs have mar- again who would have her ried had children heirs her at D. death, but been heirs of Lorenzo would not have Evans. Had died, plaintiff mother, happened, leaving and had before her this nor children, plaintiff defendants would have ever neither become anything will; entitled to under the those entitled as heirs Evans, D. death, Lorenzo testatrix’s not have been the would group same as those to take testatrix. entitled as heirs of make, too, may well be to consider what difference would concerned, so far as defendants are whether the remainder is vested contingent, in case condition of plaintiff, existed at if made, the will was continued her time until death and changed. this condition if remainder, If took the then issue, un- intestate, survived mother but died without married, defendants, descendants, or their take the remainder would her, although exactly from heirs, as her perhaps not the same proportion they they get as the took under contingent D. heirs of Lorenzo testatrix, Evans and remainder- men. Likewise, if mother, Evah Evans chil- survived her but left her, nothing dren surviving from defendants would take either contingent will. or as Plaintiff’s chil- remaindermen under the testatrix, dren Lorenzo Evans and would be the sole heirs of *8 Also, contingent plaintiff’s be would therefore the remaindermen. if children would take remainder it held to be in her the was vested difference, case, at principal testatrix’s death. The either would that the in her dispose property, Evah Evans could of lifetime by will, if death. her the remainder vested in her at the mother’s We of think if we the whole clause Mrs. Evans’s that consider third will, apparent plaintiff have the it is that she did intend should right provisions the disposition of of remainder. The trust of the will his give powers: First, trustee absolute dis- the two distinct any part cretion, plaintiff turn over of the or of the to to income capital estate; for main- second, apply trust to same of the the support. could, thereby, the tenance and The trustee terminate property whatever plaintiff trust and in full control of the leave might by applying of form it all be. lie could terminate it to property plaintiff’s support. provisions the for These seem strong was if her Mrs. intention that us to that Evans’s evidence daughter Why make remainder. survived her the she capital of trust possible trust and turn the the to terminate the the plaintiff, must oyer estate to then hold of for benefit if construction, give for the at her To the will others to take death? argu- say, if follow contend, be to we their which defendants would saw turn logical that, in the trustee fit to conclusion case ment to its right have no to plaintiff, she would property of the over to to might be turned over spend single principal, cent of which the contingent of instead, intact benefit her, but, must for the hold by trustee, the use of all too, Then the the remaindermen. If of remainder. plaintiff’s effectively dispose the support, is, therefore, to valid, liable be defeated the remainder trust the given by power disposition of the Plaintiff was the the trustee. gave class, remainder, in the to whom the at the We hold it did at it vested testatrix. that vest death; defendants, it; that did take and that the who are brothers sisters and the brothers the descendants of Evans, of Lorenzo Letha have no sisters interest it whatever. defendant, or not trustee,
It remains to be determined whether claim, interest, an he interest. Plaintiff’s has no is based Peugnet Berthold, 183 Mo. upon of S. W. 874. case gave (his only In testator half of his estate to his son that case a child) another, trustee, and half for the son. The trustee was given manage power pay and invest the one-half interest and to the The trust income son life. was to cease at son’s gave power by death. The his son dispose, will, testator of by trustee; not, himself, the one-half held but interest he did any disposition by make of the fee his will. court The held that fee; the testator intestate as his son died since was his only heir, the went to son, descents, fee the statute of with- qualification; was, therefore, inoperative. out effect, holding fee, son when the inherited the he got all nothing the estate there was and was left for the trustee to take, upon trust could operate. court, The however, points out there is a distinction between the situation case, in that where the fee was inherited because of the failure dispose it, and a where the case fee comes the same instrument creating power disposition. the trust or It seems that bearing least, upon question this would have some in- tent the testator. present is not a dispose case case where will failed to *9 disposed fee.
the The will of remainder the in to the fee heirs of Lorenzo D. happened Evans and the heirs the testatrix. of It plaintiff theory was plaintiff’s the sole heir of each. It is that it was mother, expressed the intention of her in plaintiff conditions, existing take the remainder in if fee the at the made, the will time existed the time her death. at We have then, sustained this How, say contention. can we that she did not plaintiff remainder, intend for to if take the became she entitled subject it, trust? to to the Plaintiff’s mother created for plaintiff’s by instrument, by life the same paragraph, the same provided by which she for in her to take the remainder fee. She clearly during must have as intended land to be in the held trust plaintiff’s plaintiff remainder, lifetime as she did that take the be- plaintiff cause the trust not take effect did could unless outlive her, likewise, only the if and, plaintiff could take remainder she outlived
421 necessary make the conditions were to So the same her mother. give plaintiff the necessary to that were trust into existence come then, the conclusion certainly, escape We cannot remainder. remainder, that take the plaintiff plaintiff’s if mother intended subject the take intended that trust. impossible? this law which makes principle Is there legal equitable in land becomes estate the same the “Where merge legal the es equitable will in person, vested in same the the tate; fee which himself nor hold the for a man cannot be trustee for parts hold the several at same time the whole estate and the embraces Trusts, sec. Perry 588, on separate from the whole.” 347.] [1 intervening, merger there However, there can be no here because is in equitable ultimate life and her estate plaintiff’s between pointed and, also, trustee, as we have fee, legal the estate in the life The absence out, dispose of the remainder. power the trustee has merger. Asch any intervening estate is essential to [Asch 48 Atl. 70; (Pa.), (N. Y.), 21 N. Estate E. re Moore’s 37 R. subject in A. L. The authorities on this are cited discussed many cases, (note). in (note), held, A. R. 579 It is L. preserve corpus the purpose of trust is to only that where the by it, acquisition receive the fund for the entitled to corpus at termi beneficiary right the life receive the purchase gives inheritance, trust, nation of the whether 579, L. beneficiary right trust dissolved. A. R. to have the [2 note, held, many cases, and cases therein cited.] acquisition remainder, will beneficiary, termi of the life away necessity nate the trust where is to do with the effect continuance, of its will such effect where the and that not have put beyond purpose corpus evident is to of the fund of the trust impairment hazard and waste life bene ficiary. 579, note, A. Even where L. R. cases therein [2 cited.] law, merger beneficiary there would be a as where the inherits title, preserve “equity separate the trustee’s the estates where rights require parties and interests of it.” “And there merger parties.” contrary no intention of [1 Perry also, 1034, 234; Trusts, 589, See, 21 C. J. on sec. sec. R. C. L. 27-29. secs. beneficiary
It has not
uphold
been uncommon to
trusts where the
subject
years,
title
term of
or until
the trust. Trusts
time,
property belongs
a certain
when the trust
terminates and the
fee,
beneficiary
frequently upheld
this
coun-
try.
1086;
King,
57 L. Ed.
U. S.
S. C.
[Shelton
*10
261;
669,
Deacon v.
271
Co.,
St.
Union Trust
Mo.
197 W.
Louis
S.
Smith,
Smith
309;
(Mass.),
v.
Mo.
20
App.
194
Claflin v. Claflin
454,
370; Young
(Mass.),
N. E.
3 L. R. A.
v. Snow
422 lives
Likewise, for this has trust court refused to terminate a v. though persons, persons of certain these consent. [Shaller Dwyer Mississippi (2d) 726; v. St. Louis Valley Co., Trust 3 W. S. 481, Mo. a trust Co., Union Trust 286 228 S. W. And 1068.] exercising beneficiary fully until capable continue “shall be v. management” prudent upheld. a has safe been [Simmons St. Cabanne, also, 177 v. 336, See, 76 Kerens Mo. S. W. 618.] a 601, Co., So, also, Union 283 223 645. Louis Trust Mo. S. W. here) (as for beneficiary trust the life of the has remainder 270, Hamburger’s Will, upheld. has been Wis. fee re [In logical L. 267, 201 N. W. its conclu- A. R. Followed to 1413.] sion, plaintiff’s argument all such invalid. Some would make trusts English weight authority cases view, have taken this but the L. the United R. upholds States such trusts. A. note.] [37 trust, dry passive The trust is which this not a or case an by executed the Statute of Uses. R. S. [Sec. by management one given complete active which the trustee is control and will absolute discretion. Such a trust not be terminated beneficiary’s request it when “to end would be to thwart Valley Mississippi wish and intention of testator.” [Shaller Co., (2d) Trust S. 1. W. c. 730.] evidently
Plaintiff’s counsel
concede
is known
a
that what
“spendthrift
beneficiary’s
trust”
could not be terminated at
argue
request,
they
trust,
since
is not such
that this
a
it has
held,
gift
must
“the
donee
the income.”
Phillips,
Mo.
Mrs.
Evans’s
[Kessner
66.]
discretion,
gives
power,
the trustee the
in his absolute
to terminate
during plaintiff’s life,
the trust
by paying
all of
capital
to her
thereof,
byor
using
all for her
maintenance. But we do
think
not
plaintiff’s
fact
trustee
can
terminate
before
would, under
it.
authorities,
the above
defeat
It would rather seem
strong
to be
evidence of Mrs. Evans’s intent
the remainder
subject
authority
should be
trust. There is
where
beneficiary
right
fund,
has the
from a trust
prin-
receive
whether
cipal
income,
necessary
as much as may be
her
for
comfortable
support,
beneficiary
reversionary
becomes entitled to the
fund,
interest
legatee
as the
of the person to whom such
reversionary
given
may
testator,
interest
terminate
Bloodgood,
the trust.
re
172 N.
Supp.
Y.
That decision
[In
upon
was based
York
case,
New
statute.
this
right
lifetime,
no
corpus,
but it within the ab-
solute discretion of the trustee whether
of it is ever
for
used
paid
Furthermore,
power,
her.
this
has,
which the trustee
possible
makes
that the
remainder
be defeated
use
corpus
plaintiff’s
clearly
maintenance. The testatrix
mani-
*11
property
pro-
to have the
controlled and the
intention
lier
fested
plaintiff. She,
doubt,
other than
no
had a
by someone
spent
ceeds
doing
but,
so,
rate,
property
it was her
good
for
reason
speaking
provision
a
in a
right to do so.
she had
sought
avoid,
taking
the will
once
this court
said:
those
judgment
preferred
own
that matter
theirs
“He
[testator]]
right
was his
property
and he had a
to do with it
[devisees].
pleased,
bounty
as he
and those who take of his
must take it on the
imposes.”
Jones,
he
Mo.
1.
terms
c.
[Stewart
case,
preferred
it said:
S. W.
In another
“He
that a trustee
naming
property,
his own
husband his
and see that his
daughter got
profits thereof,
trustee,
from the hands of that
day
of her death. The desire of
man
expressed
the old
executed,
equity
in his will should be
will not interfere with
carrying
plain
[Dwyer
out of his
desire.”
v. St. Louis Union
'
Co.,
Trust
The circuit court should decree that defendants, who are brothers or sisters or descendants of brothers and sisters testatrix or Lorenzo D. Evans have no land; interest in and that subject the owner of the-remainder provided the will.
The decree is therefore reversed and the cause remanded with directions to enter such a C., decree. Ferguson, concurs; Sturgis, C., dissents. PER foregoing opinion CURIAM: The by Hyde, C., adopted opinion
as the of the court. All judges concur. County Fayman of Jackson, Appellant, v. J. H. and Massachu- Company. Bonding (2d) setts & Insurance 849. One,
Division December 1931.