*1 why it nоw, can discharged, ently? political If can for reasons be years new charter again future under the again not be done not, course, know what amendment, We do if it carries? equity in thought that provides. amendment Our courts with whole- every employees civil threatened ease are closed to service provisions, of charter discharge reаsons violation political sale new amend- what the they are, it make no difference whatever would We think separate a multitude of suits. says; and would breed ment case, whether followed in this ruling in be the Lucas ease should For facts, not. its own concurred in it on would have we here- prohibition, rule in provisional our we conclude reasons stated ex- All сoncur quashed. It is so ordered. issued, tofore should J., sitting. cept Tipton, Kingston Frank, Administrator Tes- (James V. Cum
William Kingston) al., et of William F. Annexo of the Estate tamento Company, Corporation, Trust Louis Union Appellants, v. St. Eliza et al. Will of McMillan Surviving Trustee Under (2d) 39. —154 S. W. Two, July 25, 1941.
Division Denied, September Rehearing 1941. *2 Monnig Hugo appellants. *3 (cid:127)
Isaac G. Orr St. Louis Union Company. Trust *4 452- O’Bryen, guardian George Douglas Tolly
B. F. litem Nairn, ad Kingston Nairn, Ashbaugh Judith Eula Phillip Lawrence Ash- baugh, minors. *5 WESTHUES, Appellants, plaintiffs nisi, suit filed this C.
Seeking interpretation and the construсtion and of will the last year McMillan, testament of Eliza trial died in the 1915. The who court, hearing, plaintiffs’ after a petition, whereupon dismissed an appeal taken. was
. Eliza question May 15, McMillan will in on less executed the year twenty a pages than before she died. will The covers abstract of record. The this will here- the clauses involved in suit be provisions inaftеr set forth. of will are in con- the the Man}*- troversy, necessary give thereof, but will which synopsis it to will attempt briefly possible. we to do as at estate valued was (cid:127) By $2,000,000. over will the clause of the testatrix be- second the queathed property daughter-in-law. By certain her son and clause to special bequests made, three number and the fourth clause bequеsts contained with in previous instructions reference to made By bequeathed clauses. the fifth testatrix clause the devised and designated estate, certain property, which in will her to was her Bixby William Company, K. and the Louis or the St. Union-Trust them, survivor in trust for outlined in 'latter purposes provisions of the will. with power The trustees were vested full management; authority convеy any with prop- also to sell and erty reinvest in ad- the funds securities believed most .to vantageous directed, estate. among The trustees were other to things, pay to annuities, ranging $'250 life from $50 to amounts fifty month, per specifically or will. persons to more named persons England, These lived Canada and the United States. pay
trustees were also certain institutions; each instructed to sums month to number persons payments and charitable to twenty years. period continue for a Then followed clauses gave They which to birth lawsuit. read as follows: “Upon any beneficiaries, except the death of the said Charles Northrup, Kingston Lawrence, Ashbaugh, Norah Grace Dr. John Mabee, Kingston, Kingston, Northrup, J. William Florence Eula Lynne stepdaughters her Mrs. or in case of death her Jennie Cavers Jean, payable them the amounts theretofore hereunder- shall my corpus estate, principal be added to the benefit *6 454 If, however, either
residuary legatees, provided. hereinafter Kingston Lawrence, Northrup, Grace Ash- Charles the said Norah Kingston, Northrup, Kingston, William baugh, Dr. John J. Florence daughters, еither her or Mrs. Cavers or said Eula Mabee Jennie n shall leaving trust, children or during die the continuance them, surviving such children or other descendants other descendants income, per net respective parent’s their share said shall take stirpes per capita. and not twenty years from the expiration period
“After McMillan, my Josephine Warfield and the deaths of date of death after Tonnot, Caldwell, Madame McCool, Hattie Gustave Kate Fisher Davis, Cadwell, Emily Lewis, Mary Paul Lee Cadwell Westwood Mary Lee, Mary Dillon, Westwood, Nellie L. Elizabeth Westwood McConnell, Perkins, A. T. McConnell, Minnie Harriet Mrs. P. de Peterson, Laughlin, Lynne Cavers, Anna Ellen Haas, Cavers, Jean Dyer, McConnell, mother, Mrs. Elizabeth Mabel Duane and her Julia Mаry Goodwin, McMillan, Adair, Miss Rebecca Mrs. Cassie Mrs. Maury, Prynne wife, L. M. Chute, M. and his E. Louisa Charles Beasley, Emily Jenkins, Margaret K. M. Hankinson, Ellie S. Cassie Carroll, Webber, Villa, Saundersj Lizzie Mrs. Gertrude Elizabeth G. Sawyer Achorn, Sawyer, Moses, Virginia M. Harriet Harriet A. Edith Chute, Emily Moses, Caldwell, Davock, 'Hattie Miss Ella James E. Nelson, Margaret' Mary Dorgan, and this trust -cease J. Nelson shall estate, together property composing and the trust with the then unexpended therefrom, undivided income shall be distributed then alike, to, equally, among, paid and the said share and share Charles Ashbaugh, Kingston Lawrence, Dr. Northrup, Norah Grace John J. Kingston, Kingston, Northrup, William Eula Florence Mabee .and daughters, respective their Jennie or her and descend- Cavers said ants, any surviving, leaving per shall hаve died other descendants Mary stirpes per capita; provided, Kingston and not that Mrs. E. shall Kingston succeed to and-take the interest of Dr. John J. in said income ’’ principal. and in afterwards said many that at the trial- of- the evidence disclosed time twenty years died, more than annuitants had and that had life the trust. In in elapsed since the creation of annuities largest $70,905 paid. amount This was the ever amount gradual paid any year in annuities. was a decrease in one There annuitants, year payments, due to the death and in the these $37,320. year paid In the 1937 the amount was the trustees $130,785. greatest their income which amounted to The total received year. always $64,000 exception with the If income above of onе was any necessary ques- become for determination of the further' facts presented opinion. them in the course of the tions we will state ; Frank, are, plaintiff: James V. adminis- parties to the suit Kingston, William F. trator annexo the estates of cum testmvento .of Mary Kingston, deceased; Northrup, E. Florence deceased n Ashbaugh; McLeod; Eula deceasеd; Northrup Mabee; Florence Grace Kingston Lawrence; Lynne Norah Jean It-will Cavers Cavers. named, persons of all plaintiffs be noted that the residu- consist ary (with Cavers) legal exception of their repre- clause Jennie -or : plaintiffs These were relatives of the sentatives. testatrix. . . The defendants are: The St. case Union Trust Com- Louis pany, surviving trusteе; life *7 the all the annuitants the children plaintiffs. represented or of were descendants minor children by guardian in the case ad litem who filed an answer in their behalf and briefed the case for them this The adult court. descendants which, plaintiffs, defendants, they of filed named as answers in con- petition'be sented that relief for in prayed plaintiffs’ granted. the remainder, they given Plaintiffs insist that were a- vested in the corpus right enjoyment the estate with or possession the thereof they at the termination the trust. Plaintiffs that should also insist paid now, trust, be before the termination of the such as sums would paid have been they words, to the life had In annuitants lived. other year in the required pay 1916 the total sum- to the was annuities: $70,905. year only In $37,320 the 1937 .required dischаrge -to obligation. this should,' Plaintiffs contend that trustees under the year will, the pay terms the to them each the difference between the required amount pay to annuities and the sum the total of all provided by the annuities the will. court, Plaintiffs also asked the in case it should hold that the trustees were do to authorized by the will, the to'permit terms to terminate the trust insofar as pay the trustees plaintiffs. say to such sums to Plaintiffs that the trust as to the fund representing lapsed the accumulation of annuities dry trust, is a agree and all since of the remaindermen and vested request to have trust grant the terminated the court should that request. exceedingly The case by parties was well briefed all to this They agree suit. great to a to extent as thе law governing the case. They sharply disagree question on plaintiffs were, the of whether by will, the terms given contingent of the a vested or a remainder: They disagree question also on the dry .of existence trust .of portion to that corpus income from the repre estate , by sented lapsed accumulation of annuities.
A recognized number of well keрt rules law be must construing mind when interpreting or paramount wills. The controlling yield rule to which all others must that the intention governs of the testator unless such conflicts with some ^intention positive rule of law. The intention gathered of the testator tois be will County from the a as whole. v. Boone Co., Trust 338 Mo. [Carter l. c. 651 629, 647, (2d). S. W. Where there is doubt (1-4).] as to of a remainder it presumed nature interest will be a be contingent vested rather than a say, remainder. That law is.to al., 334 Vanlandingham et v. favors vested remainders. [Gardner 947, c. 950 (2d) 69 S. W. l. Mo. (3-5).] position of the trustees Suppose place we ourselves The first in the will. contained attempt to follow the instructions fund accumulated is, be done with the question presented what is to through has said: lapsed annuities 1 testаtrix (certain beneficiaries, except” any
“Upon of the said the death hereunder named) to them payable theretofore “the amounts persons estate, for the benefit principal or corpus shall added to my legatees, provided.” hereinafter residuary when certain events residuary that In the clause the testatrix said pass, came to composing property then . and the
“. . this trust shall cease undivided together unexpended with estate, the then trust alike, equally, share and share therefrom, income be distributed shall “and their' among, to, (naming persons) paid the said” leaving any descendants, shall died other respective have per capita;” surviving, and not per stirpes descendants say аssuming remaindermen, that the Plaintiffs, vested that are my residuary leg- by testatrix, using the benefit of the words “for *8 atees,” Plaintiffs, citing paid meant them. the fund should be to many say cases, also as to that: person a bequeathed
“Where or to with a property is devised taker, gift upon the first the over to another conditioned death of the testatrix, of so during death referred thе lifetime the that to is death if the the a vested interest.” first taker testatrix he takes survives applies have no find with that rule. It unless the
We fault'to by provided otherwise, which we think she did. testatrix her will specific. representing The in the are The amounts directions will lapsed annuities, says will, corpus or prin- the shall be added the to cipal corpus as to the shall be estаte. The direction when specific to distributed is also as time. Note: property composing “. . . then this trust cease the shall together unexpended the with then estate, trust the undivided' or therefrom, (Italics ours.) income . .” shall be distributed . at The for a the death of certain time cessation the trust named the persons. pay plaintiffs If the to the trustees should by fund would be direсt vio- represented lapsed the annuities it in lation in Note also specific the contained the will. instructions in paragraph that the first will set forth the testatrix the above one,of any that provided para- that in case named annuitants in the trust, graph prior the then such should die to termination descendants, paid to the payments person named should be to the any, anywhere in the will if not a word person. of such There is any plaintiffs or their payments that other be made to the should We rule therefore prior trust. descendants to the termination authority pay plaintiffs terms of the will to to that under the no exists petition. for in their the fund asked agree they a plaintiffs
Neither can we
with
that
have
vested
above,
corpus
remainder in the
of the estate. As
the intention
said
remainders,
govern.
the testatrix must
While the law favors vested
a
rather
and where doubt
declares
remainder
be vested
exists
to
it is
contingent, yet,
than
that
is not
be done where
or should not
contingent
The
re
apparent
that a
remainder was intended.
will
carefully
Many
have
prepared.
provisions
flects
it was
of its
that
bearing
they
in
no
on
opinion
not been referred to
this
because
have
rights.
the plaintiffs’
do
affect
or the defendants’
issues
or
plaintiffs
But nowhere
the will did
indicate
the testatrix
that
any
should, during
trust,
paid
their
the life of the
descendants
sums
specified.
suppose
in excess of the
it not reasonable to
annuities
Is
greater
a
plaintiffs
that had the testatrix intended
to have
share
made
provision
she would have
therefor?
If we construe
will
have
plaintiffs
remainder,
plaintiffs
so as to create
a vested
then
by
conveyance.
power
disposition
to make
thereof
will
either
In
re
plaintiffs
dispose
such a
number of
their
ease,
should
prior
leaving
mainder and die
trust,
to the termination of the
de
scendаnts,
descendants,
what answers are the
make
trustees to
such
to
may
yet
who
be the minor defendants in
case or descendants
unborn,
by
in answer to a demand
them their
distributive share
the estate?
trustees have been directed
trust
that when the
ceases
are to
trust
property
composing
distribute the
then
estate,
together
income,
unexpended
with the then
or undividеd
among plaintiffs and
respective
their
descendants.
trustees will
not be able
comply
to
with that
of the will if
hold
direction
we should
plaintiffs
given
that
corpus
vested remainder
greatly rely
estate.
Jones,
Plaintiffs
on
v.
cases
Sanders
such
255,
(2d) 424;
Damron,
Mo.
147 S. W.
(2d)
Garrett v.
110 S. W.
1112;
Sims,
Dunbar v.
283 Mo.
estate shall and vest in in children, seven . . . argue Plaintiffs that the words “at her death” in Dunbar the case meaning have the same and effect as testatrix in to time as the this convey by providing case meant to that the of the at termination property trust the persons. should be delivered to certain In the ease now gift before us the testatrix did not a life with a create estate over. The cannot be a life life annuitants said have estate in the to corpus. They only were paid stipulated tо be certain sum each during month conveyed their life. The title the to estate was to absolutely manage, dispose to to hold administer and trustees of by power convey reinvest, the will as directed with to and etc. trustees,, they given only, with direction power and were title and the estate, event, happening to distribute the at the a certain to class of. being plaintiffs, living, if We living, their descendants. then or right plaintiffs corpus in of the estate rule therefore that to share the contingent they trust upon living the event that be at time the the They living must be at time .the are ceases. the trustees authorized unnecessary ruling to the estate to them. That renders distribute dry representing consideration of whether a exists as the fund trust to -an lаpsed accumulation of annuities. Appellants the of will forth portion that the above .insist set clauses, -in provides contains will trust shall inconsistent that the the including persons named, not cease until after of the death certain Lynne and will Caver; and Jean that the the trustees to dis directs Lynne persons named, including the to the estate said tribute -Cavers, Jean stеpmother die, and- in ease their which event should appellants has this the provisions In correct. The of occurred.. are respect. opinion, are It is our after a careful inconsistent in will provisions will, Lynne of the of names the that the consideration and inadvertently were Jean. included the list names in of C.avers persons designated deaths whose event occur when to were. the trust will the should cease. It be noted that in the latter part above, Lynne will by set forth' and Jean Cav.ers were mentioned designated merely name but daughters referred to and were Jennie will probably Cavers.'- scrivener the was directed to all in persons include life annuitants the list who must die before terminated, except the trust shоuld be the persons in the named residuary Therefore, Lynne clause. the since names of Jean Cayers appear did not that clause in included the Lynne list. Cavers, We therefore rule that names of and Jean appearing in persons upon' the list of names whose death the trust terminate, eliminated, shall should and if both either out shall persons other named in live that list the trust shall be terminated Lynne Jean Cavers shall then share in the corpus of the interpretation estate. That harmonizes with the evident intention testatrix, specifically Lynne because she stated that and Jean corpus living Cavers should share the estate the ter at ' mination of trust. - Plaintiffs insist that even if this court disagree should with contentions, yet judgment all of their сourt, dismissing the trial plaintiffs’ petition, plaintiffs be reversed because must asked for an interpretation are, declaratory will and under judgment act, 1939, R. Sec. S. Mo. rights entitled have the to adjudicated. parties plaintiffs In this we think are correct. petition
Plaintiffs their also asked the court allow *10 a for compensation sum as their for them reasonable counsel services granted We think court in this cause. should have rendered legitimate filed to request. dispute concerning suit was settle a This may large There opinion trust estate. have difference been plain ambiguous, to whether the will were xirovisions agree respect all that in one but terms will were incon- previous The record disclosed that had been filed sistent. two suits terminated demurrers. which judgment dismissing of thе trial court plaintiffs’ petition is hereby reversed, therefore is directed to enter trial.court judgment opinion, and decree consistent with this allow plain- payment legal a reasonable for the tiffs sum It services. so Cooley Bohling, CC., ordered. concur. foregoing opinion PEE CUEIAM:- The C., is by Westhues,
adopted All opinion judges court.. concur. v. Dorris Morrison, Appellant. (2d) S. W. 79. The State Two, September 25, 1941.
Division Boy Attorney McKittriclc, General, and O’Keefe, Arthur Assistant ' (cid:127) (cid:127) Attorney General, respondent.