Rossi v. Davis

362 Bower,

to be propounded to the witness “Did the defendant state day robbery?” Answer, where he was on the “No.” His rights prejudiced question constitutional were not this because entire he conversation at the time was arrested was admissible. [State Hardin, v. (2d) Mo. 21 W. S. 758.] assignments The other of error in for a trial motion new are assignments without merit as either the record does not sustain such and, points particularity are raised detail and net with there- fore, appel- are before us for review. "We have also examined objections argument attorney the closing lant’s of the circuit nothing judg- we find there that would warrant reversal of this ment. judgment follows the trial court should be affirmed.

It is so ordered. All concur. Defendants,

Victor D. Respondents, Rossi v. Theresa R. Davis al., et al., et Appellant. R. Dallavalle, nk Fra Victor D. Rossi et Respondents, R. v. Theresa al., et al., Davis Defendants, Frank R. Dallavalle, Guardian, etc., Appellant. Respondents, R. Victor D. al., al., et et Rossi v. Theresa Davis Defendants, R. Appellant. Dallavalle, Clara Victor D. Respondents, R. v. Theresa al., al., Rossi et et Davis Defendants, Davis, Appellant. Walter T. D. Rossi et Respondents, Theresa R. Davis al., Victor et al., v. Defendants, R. Appellant. Davis, Theresa D. Rossi et R. Respondents, v. Theresa al., Victor et al., Davis Defendants, Davis, Guardian, etc., Appellant. R. Theresa (2d) 133 W. S. 363. Two,

Division November 1939. Jones, Hooker, Gladney & Davis, Grand for Theresa R Walter T. Davis and Theresa R. guardian Davis as of her minor children. Strong Frank Dal- Edwards, Dallavalle, R. R. & Clara Metcalf Dallavalle, guardian, Frank R.

lavalle and etc. Stanley Rossi, Polk Rossi, Rossi, <&Williams Marie A. Elvira Rossi, Rossi, Rossi, Rossi, George Ida Lillian John F. W. B. James Peters, Sophia R. Peters and Harold E. Johnson.

Foristel, Mudd, Cox, Blair, Blair & Kooreman Hdbemoht and & Wallach \ for trustees.

COOLEY, ap- C. The action out of which the six above entitled peals grew City was instituted in the of St. Circuit Court of the by Louis Haseman, Victor D. plaintiffs, Eossi and Mae E. trustees of Simon D. (now deceased), Eossi exe- under a trust instrument by cuted the latter. Plaintiffs are children of said Simon D. Eossi and are by They the trustees named him in instrument. said trust accepted trust, qualified acting. and are so The defendants are the other children of said grandson, Simon D. Eossi and a son of a daughter, deceased grandchildren, named beneficiaries, and other potential beneficiaries in the trust instrument. plaintiff The trustees by their petition sought the direction of the court ques- as to certain relating tions to the administration of the trust. From court’s decree separate six appeals by They were taken various defendants.

appear here as separate by cases caption, as indicated but are separate fact appeals in one together case and heard were will disposed opinion. of in one Eossi,

Simon D. Louis, citizen of St. whom we shall refer to as trustor, anwas able and successful business man and accumulated large amount property, consisting of several pieces valuable real estate in St. corporation Louis and stock of a known as the S. D. Grocery Eossi Company. family consisting He had a wife, of his Madeline, living and ten children. There grandson, was also a Har- Johnson, only old descendant of a daughter. deceased Several of his children were who, married and had along children with their parents, were parties made hereto. years

Several prior to his death said Simon D. Eossi formed a corporation under the name Eossi, of S. D. Incorporated, to which he estate, transferred all his real substantially all the property he owned except his stock D. Grocery S. Eossi Company. He executed the trust involved, instrument here January on 10th, 1922, whereby conveyed son, he to his Eossi, Victor D. daughter, and his E. Haseman, Mae trustees, as Eossi, stock of D. Incorporated, S. by certificate, 1, evidenced one No. name, shares, his for 3998

one, another, No. for one in the name of D. share Victor Eossi and Haseman, No. for one share in the name of Mae E. the latter two being holders, being in blank the nominal endorsed all par each, aggregating $400,000. value of $100 trust provided might the trustor thereafter add to the trust estate property, trust, other held on the same he thereafter which Grocery transferring did to the trustees his stock in the S. D. Eossi Company, substantially left him in his which with no own By right name. the trust instrument he to direct reserved voting during life, right he Eossi, Inc., of the stock of S. D. his the evi contention, exercised. There is no nor can there be under dence, that in Eossi was not of sound mind and free from undue fluence he executed It executed when said instrument. long him after and careful and consultation with consideration legal his expressed able counsel. It is not to be doubted that parties definite well considered wishes. named as sec part daughter, Mae, trustees, ond his son and Victor and wife, Madeline, of the third his his his children and grandson, generally Harold provided, speaking, pay Johnson. parties ment of the income from the to the trust estate the third of part successively any, and if of descendants such of the grandson, Harold, children or as should die until of the death parties last part, whereupon corpus survivor of said the third of of the trust estate then in the of the in hands trustees was to vest living sons, Harvey the then male of children trustor’s Victor D. and J. Eossi. any Provision was also made that on the death of of said leaving parties surviving spouse, third him or her a but no descend ants, person dying one-half of the income which the so would have living paid surviving been entitled to if spouse should be to said long so as he or she lived and remained unmarried. Provision was payment also specific sums, income, made for of certain upon out of death, organizations trustor’s to certain (not charitable here in controversy), sums, during and certain lifetime, her to trustor’s widow, (also controversy). Madeline Eossi not here in The trust long instrument and is set in in al., out full Davis v. Rossi et (2d) 8, Mo. 34 W. S. to which we shall have occasion to refer thQ hereinafter and to which reader is referred. We shall make such further reference herein to said trust instrument as be deemed necessary. following trust instrument contained the “no contest” clause: any parties part, any

“Should of the them, of the third or one for any them, any or institute proceedings any action or kind in any any court at purpose setting time for the aside this instru- ment, any ground whatsoever, on therein, and be unsuccessful then in parties and such event said of the part pay second shall to' each party part instituting proceeding third such or directing or proceeding, the sum prosecution or of such Assisting in tbe institution party parties of such or all further interest Dollar, and of One property con- or his children and descendants part, the third thereof, in the distri- shall cease and hereby, and the income veyed itself, property and the property from said of the income bution shall part and his or her children parties of the third party or the third party parties of such or further, share not share assigned, paid, and descendants shall be and their children part conveyed by of the second parties transferred and Eossi, their part, excepting Madeline or the third said other descendants, equal parts (alike?), share and share children prop- portion of said income as and when distribution respectively paid distributed to them shall erty paid to be or distributed.” December, 1925, leaving no debts or cred D. Eossi died

Simon subject herein, no and, so far as shown the' record itors Shortly administration, if trust instrument is valid. after said meeting in there of his children at which the trust his death was Davis, daughter, Theresa E. and one of the strument was read. herein, instru expressed dissatisfaction with the trust

appellants it, of an intention to “break” ment and made statements indicative adjudged expressed or it invalid. Such sentiments were to have appear It does not that she believed her on several occasions. her at his grounds possessed property for belief that father

had subject if the valid. death to administration appointed probate herself to be court as admin- procured She and, capacity, in purportedly of her father’s estate istratrix probate proceeding assets of discover stituted Rossi, (Mo. D. Section Revised Statutes 1929 Stat. Simon under 38). going say into Ann., p. Without detail is sufficient here only proceeding property supposed “assets” or said belonged D. to have to Simon Eossi at his death were the claimed Rossi, Grocery Inc., of D. and of the S. D. Rossi shares of stock S. his

Company, all of which said Eossi had transferred to said trustees death, In if said trust instrument was valid. essence prior to his validity proceeding to assets the of effect said discover attacked and sought instrument and to recover the trustees there said trust from conveyed property- of stock—which had been in named the —shares trustees, thereby pursuant prop thereto to said and no other and validity proceeding In the of said instru erty assets. that trust following grounds: on the ment attacked was challenges validity of the trust administratrix deed of

“The first, that it not executed with the intention of grounds, was on the trust, evading purpose but for the of creating a bona-fide State relating the statutes and the tax and wills adminis- inheritance its second, that terms and conditions and the acts of estates: tration therewith, requirements do not meet of tbe connection third, trust; completely executed of for of a the law the creation and, fourth, it character, that violates testamentary in that it is there that contends against And she further perpetuities. rule of assignment the 120 shares alleged of proof is a failure Grocery Company.” of S. the stock D. Rossi The (2d) 34 S. W. supra, Mo. l. c. Rossi, v. [Davis 17.] treat claim, seemingly probate said administratrix’ court sustained said trustees invalid, and ordered ing trust as instrument and distri for administration deliver the stock to said administratrix appealed The trustees property of Simon D. Eossi. bution as said trust holding the they court court, prevailed, that circuit where trustees belonged to the and that the instrument valid instrument. provided them in the be held and handled as judgment appeal On to this court the administratrix validity was sustaining the of the trust circuit court In Eossi, present action followed. supra. The affirmed Davis v. them, and adjudge direct plaintiff trustees asked the court "no things, E. had violated among other Theresa Davis whether other of the income clause and thus forfeited share contest” her her or sur payable to or in event of death to children wise her her viving her had aided and abetted husband; whether husband another contest, contest; Dallavalle, if such and also whether Clara abetting daughter, aiding like and said had incurred forfeiture Dalla- Theresa E. Davis. The circuit court found in favor Clara appeal portion that on that issue and there no from 'vale finding judgment. appeal herein is from the court’s Dallavalle facts judgment issue, and on another relative which will Davis adjudged later. that Theresa E. stated The court found and T. clause, husband, "William "no contest” that her had violated the ‘‘ therein, they Davis, and abetted here and that and those had aided Davis) might them” E. (the who take under children of Theresa participation from in the income from were therefore barred judgment E. Davis trust estate. From Theresa themselves, guardian E. Davis husband, and her and Theresa as ap (minors), appealed. for her children refer to these We shall peals appeals them as the Davis and shall consider first. sought Davis procured court found that Mrs. her

The circuit appointment proceeding administratrix instituted probate purpose assailing with intent for the the trust having it instrument and declared invalid and her husband justified purpose. her in that The evidence aided and abetted finding finding, and the further court that Mrs. Davis her prop- the trust instrument there husband knew of and knew was no erty subject if administration to be discovered said trust instru- questions provision arise: —Is the "no contest” ment valid. Two was

373 attempt or a contest so, there enforceable, if was and valid and a forfeiture? as to work instrument so the trust set aside in involving provision a similar cited to a ease We have not been sides here but both as we have vivos sueb inter a trust The construed. in have been provisions wills similar cite cases wherein shall apply and we principles that the same seem to concede question. treat the so in wills question in the character provisions

Forfeiture and country to be valid this generally been held the courts have contrary public they are against the contention enforceable Estate, 322 Mo. In re court, banc, so held in Chambers’ policy. This en holding provision valid 30, 41, A. R. such (2d) 18 W. L. S. to be considerable against policy. But there seems public exception should or not an judicial opinion as to whether difference of accurately speaking, apply in rule, or, more perhaps to the be allowed forfeiture, appears there enforcing the where ing the rule courts, we believe probable for the contest. Some been cause definitely point where majority which have decided exact exception ground issue, an on it an have refused allow was none; others have probable cause the testator had made where exception should be allowed and forfeiture taken the view that an contest, though unsuccessful, had been appeared it denied where good faith courts also have probable in and on cause. Some made gift where was no over of the made a distinction between eases there legacy question gift there over of such and cases which legacy clause, to another in case of'violation of the “no contest” holding' provision in the the “no contest” former situation to be merely really upon offending terrorem and not intended to visit forfeiture, legatee grave consequences upholding while enforcing gift the forfeiture over there is fur where such disposition property. 'ther This latter distinction is mentioned Estate, supra, and the reasons referred to in In re but Chambers’ clearly need not here consider because this case there was a ex pressed gift conflicting suggested over. in In re views are Cham Estate, supra. In that one had bers’ case Chambers made will son, left in trust which he certain for a and which will following provision, (2d) contained the 322 Mo. l. c. S. W.

30: any devisee, legatee beneficiary this, my will,

“Fifth. If or under validity object probate shall contest the of this instrument attempt change any to vacate same pro- or to alter or person thereby deprived visions hereof such shall of all beneficial any my estate, interest thereunder and of share in and the share person my residuary estate, shall become a and such person taking any part residuary shall be excluded from es- of such

374 entitled among persons the other divided tate, the shall be and same residuary estate.” to take such un will, alleging that the testator was the son contested purported the making and that a will incapable and

sound mind lost in the circuit influence. He procured undue will was the affirmed appeal this court this the appealed and court. On 415. We Chambers, 512, 249 S. W. 297 Mo. judgment, Chambers v. that undue influence but there no evidence of there said that testamentary ca upon the issue of pro evidence and con there was holding ef extent, to some pacity, and we discussed that evidence Estate, jury. the In In re Chambers’ question that it made a for fect contesting father’s son, by his the supra, question the was whether We for him. held provision therein made will, had forfeited l. c. 1091, (2d) 18 W. said, 322 Mo. l. c. S. that he had. We there 31: run as respective counsel follows:

“The issues as framed invalid, appellant provision insist that the forfeiture is Counsel for although may but, alternatively, insist, provision that further authority, sense, yet, in reason and and general in a that , be valid grounds policy, exception an is to be made where rea- upon public grounds appear; and, of contest that under evidence sonable appellant exception. respondents that for on the is within Counsel weight of author- other hand contend that reason and under ity provision valid, exception; but, no that is and admits of even may considered, exception the evi- if the asserted is one which exception. appellant fails to show that is within dence suggests reading the reasons advanced “A of the decisions and thought judicial opinion that be constructed on either side of the can controversy, by authority, apparently support- supported well contrary appellant reason. for insist that it is ed Counsel any deny public policy of for state to access to courts redress or any remedy wrong, any right, protection or for and cite VI, II, 1 Sections 10 and 30 of Article Section of Article of the State Constitution, 1 and Section of Article XIV Amendments to States; also the Statute of Constitution United Descents Distributions, and the Statute of Wills.” provision

We held in In re that viola- Chambers’ Estate said was not any and, said, provision tive of constitutional as above it was against public policy. not In that case we referred to and considered jurisdictions bearing upon ques- a number of cases from various exception ap- tion of whether or not an should be allowed where it peared probable there for the Most of them had been cause contest. are cited in the instant case. We refer the reader to that decision for specifically herein discussion of cases which we not refer to. Meech, In v. l. Smithsonian Institution U. S. c.

court said : upon all language bequests “The here used is that ‘these are made will, hereby I legatees acquiesce this condition any bequeath disputing the share or shares of this to the residu- will ’ ary legatee words, In in the' acquiescence hereinafter named. other will, provisions, upon will as a in all its is condition legatees can bequests. acqui-' take their to mere confined residuary legatee, in his in his escence selection of the but decla- any property ration as title to of that to the named his devise legatee property. bequest No is to a who shall receive controvert fact, attempted prevent he to or that which has stated be a to specific disposition any property of he has And in made. ease comply to bequest given of a failure with this condition is over residuary legatee. fully to authorities warrant The this conclu- sion. “ legacies given persons upon ‘When are to conditions not to dis pute validity of, testaments, dispositions or the in or wills general obligatory, only If, conditions are not in but in terrorem.

therefore, probábilis litigandi, there exists causa the non-observance Morgan, of 2 the conditions will not be forfeitures. v. Vern. [Powell 90; Loyd v. 1 Burroughs, 404; Spillet, Morris Atk. v. P.3 Wms. The reason equity seems to be this: A court of does con 344.]

sider that the testator meant a bounty, such clause to determine his legatee if the resorted to such a tribunal to rights ascertain doubtful wills, might under the by it; how far his other interests be affected merely guard against but to litigation. vexatious “ ‘But acquiscence legatee when the appears of to be a material ingredient gift, upon which is made to determine his contro verting any the will or provisions, its and in either of those events legacy given person, is over to another longer the restriction no terrorem, continues a condition in but assumes the a character of conditional limitation. bequest only The guousgne, legatee is disturbing and, shall refrain from will; it, if he his controvert pass legatee.’ Leg interest will cease and to the other Roper on [1 ” (2d acies Am. Ed.), 795; 4th Lond. Ed.] then said, The court referred to other cases and 169 U. c. S. l. 415: ‘‘ fully propositions The thus laid down commend themselves to our They approval. good good are law Experience morals. has shown that often after the death of unexpected arise, a testator difficulties technical rules of law are to trespassed upon, found have been con- infrequently tests are brought light commenced wherein not are to private ought matters of public, life never to be made and in respect to which the' voice of the testator cannot be heard either explanation denial, and as a result the manifest intention of the testator is strange, this, thwarted. It is not view that testators compliance dispositions desired secure with their sought incorporate and have provisions operate which should And when a accomplish that result. testator powerfully most upon are made the condition bequests declares in his will his several provisions will, courts legatees acquiesce in the his that the con- legatee compliance with that wisely no shall without hold that use it the effort bounty, put position or be dition receive his ’’ expressed purposes. his thwart (and others) said in In re Chambers’ Es Speaking of that ease (2d) tate, 1100, 18 l. c. 36: supra, 322 Mo. c. S. W. l. re- provision the forfeiture

“Some of the courts have sustained regardless gift over, ques- gardless of there was whether probable cause as a probable tion have considered cause. Others including Others, ought exception. matter which to constitute give gift as a States, over Supreme effect Court of United taking the viola- upon legacy, view that conditional limitation legacy, legacy given, the tion the condition under which considering designated also ipso person, other facto, vests ’ ’’ ‘ legacy. ingredient in the annexed, a material that the condition enforceable, without holding provisions in will for reason ' Searles, v. cause, well stated in Rudd exception probable are so quote there 1548, L. that we 262 Mass. E. 56 A. R. N. the in number of decisions on from The court reviewed a extenso. point said, and 262 Mass. l. c. 495: “ prohibition the cannot ‘Upon principle, it is to be observed that only validity of a will the absolute, be can be invoked where and de- patent a clear and unsuccessfully If has been contested. there instrument, attending fect in execution of the formalities the the notorious, the alleged if be clear and incapacity the testator will, and, course, will, of contest the or other interested heirs contesting forfeiture. successfully, it will with the clause of set it aside may easy why pro- not hand, other a testator On the it not to see attempts to against tect and unsuccessful representatives his estate my “I, being of own litigate by saying legatee, a master will, his to free, subject bounty, give give you legacy withhold, and to or to this general disposition of you dispute condition that do not you my may validity my please; of if estate. You contest the will gives established, it but what peril losing, will do so at the if it be of ’’ ’ England you. authority in Upon held that the whole law foun- subject a upon put upon and sound had been considered & W. by Turner, 15 M. Exchequer dation 727, of v. Court Cooke cases both these to the effect a valid. In that such clause was apparently allowance was probable there cause to contest to be appears plainly will. The result of these decisions will by legatee upon clause forfeiture contest or devisee con- gift though the English with law, over under even is valid test probable be made upon cause.” including Norwalk cases, South court then reviewed a number

377 Estate, In 209 John, 168, and re Friend's Conn. Trust Co. v. St. by appellant), cited herein (the L. R. A. 447 latter ease

Pa. prob exception an to the rule should be allowed held that wbieb (which cause, from Norfolk Trust Co. case quoted said South able by suggests theory exception which said is based courts allow on 498: ing it), follows, 262 Mass. l. c. as general theory been founded in on the exception

“This has contrary public policy. case would be It is a forfeiture strongly anywhere in South Norwalk Trust Co. v. expressed as pages 176, exception at 177: ‘The that a John, St. 92 Conn. ground is a reasonable will not work a for-

contest for there likely feiture, upon ground. quite It is that the stands better true greater accept exception, authorities of number refuse to this but upon think it has behind it the better reason. It rests sound public policy. prescribes The law who make a will and how it by made; mode, person shall executed in a named that must be having testamentary capacity acting freely, and under undue vitally having property influence. The law is interested in trans- conditions, mitted can- will under'these and none others. Courts good conformity will, face, not know whether a on its made in statutory requirements, mind, whether the testator was of sound product influence, whether undue the will was the unless these court; only presented matters were and those who have an interest disposition lay the will have the facts before court. they If silent, upon penalty are forced to remain of forfeiture of a legacy given will, prevented or devise them the court will be ascertaining command from truth; testator and the statutory against devolution of will be had in a manner both and common apply law. Courts exist to ascertain the truth any given situation; right the law to it and a of devolution which prevent enables a testator to shut the door of truth and the observ- ’ ’’ law, public policy. ance of the is a mistaken allowing then The Massachusetts court refers other decisions concludes, exception and Mass. l. c. 499: opinion supports “We are of that sounder reason the view that the general power subject make a will is not to the a exception to that testamentary void, provision opposition is to effect that to upon probable by the allowance of the will undertaken cause a bene- ficiary testamentary provisions shall cause forfeiture of the in favor beneficiary contesting gift of such there a upon where is over such universally It forfeiture. is conceded that a condition in a testa- mentary gift against inherently contest of the will There is not bad. nothing contrary policy standing public provision

is in a such only upon probable alone. is when such contest is instituted having thought, one an in cause holiest belief his cause that it is group cited, in a public policy springs up decisions last that Manifestly exception prevent

to create an in order to forfeiture. deliberately expressed purpose exception such an violates a can in become effective until testator. clause no event Such duly an approved and allowed. To establish such ex- will has been gift in con- the donee of the over case of ception deprive would also a beneficiary. aspect in double it would by the named Thus test first contrary to the matured desire of the testator. accomplish a result beneficiary under a contest prevent Such a clause does not beneficiary either to receive option, . has the the will. . . gift will, undertake a contest of the will. He can under the or The moral effect of such a clause would be exercise his election. only gift a in instances where the substantial manifest a condition of which the dependent the estate is made on such bene- by making ficiary might deprived be an unsuccessful contest over only in operative a can be the allowance of the will. Such clause successful, If the that clause falls comparatively few cases. contest is may flow from private the rest of the will. Public and benefits with a the allowance of wills operation of such clause. Contests over invariably, in minute examination into the frequently, if not result beliefs, conduct, idiosyncrasies, all habits, manners, and the essen- tially testator, private personal and affairs of the when he is not may explain explanation given what without be a alive and cannot appearaiiee. persons exposure publicity sinister To most distasteful, personality their own if not abhorrent. The with ease may plausible sup- which contentions as to mental be unsoundness ported by may some evidence is also factor which well determining mind of a to insert such a testator clause his will. Nothing it, in public policy, requires the law or as understand making the denial of solace of that nature to one a will. A will con- infrequently engenders test not animosities and arouses hostilities among may testator, put never the kinsfolk of to rest general unhappiness. Moreover, and which contribute to suspicions personal insanity, weakness, eccentricities, mental per- beliefs habits, centering radiating other nicious old characteristics in or testator, may bring family repute from the his into evil and ad- versely standing community affect the of its members. Thus may bring suffering many will contest sorrow concerned. A reputation clause of this nature contribute to the fair of the dead harmony peace living. Giving weight due considerations, bring all we are unable these our minds to the con- public policy requires testamentary viction clause such stamped unlawful, as here is involved be even if the contestant had good grounds opposing the allowance will. It seems to us that, weight principle authority, on is the both this ’ ’ right result. denying exception

For for probable other cases cause see:

379 Brenton, Sciffer v. 512, 253; 247 Mich. 226 N. W. Moran, Moran v. Iowa,

144 451, 202, (N. 123 N. 30 S.) 898; W. L. R. A. In re Estate of Miller, 119, 156 842, (N. S.) Cal. 103 Pac. 23 868; L. R. A. Brad Bradford, ford v. 19 2 546, Rep. 419; Bateman, Ohio St. Am. Bender v.

33 App. Ohio In 66; Kitchen, 384, re 301, Cal. 220 Pac. 30 A. See,

L. R. also, Donegan 1008. Wade, 501; v. 70 Ala. Hoit, Hoit v. 42 N. Eq. J. 388. For opposite view, allowing exception, addition to the South Norwalk Trust Co. case and In re Friend’s Es tate referred to above see: Tate v. Camp, 137, 147 Tenn. 245 W. S. 839, 26 A. 755; L. R. (Wis.), Re Keenan 205 N. W. 42 A. L. R.

836.

It seems quite to the writer court, not clear whether or not this in In Estate, re supra, distinctly Chambers’ meant to hold that probable cause for contest did exception not constitute an and relieve from the forfeiture, but such seems to me necessary effect said, decision. The court (2d) 30, Mo. l. c. 18 S. W. take, “Under the view we necessary go it is not into a discussion question probable cause, under the evidence introduced to ’’ sustain and to combat the will. already But the court had referred to pro decisions and con on question, pointing divergent out the courts, views of pointed different had out gift that there was a over (as here) there legacy in question in case anof unsuccessful contest and that “the grave testator meant to consequence visit that (forfeiture) upon (the him” contesting legatee); that the testator had right gift to attach to his long conditions as he saw fit so they contrary public policy were law; or settled rules of condition, gift that the with over, ingredient was “a material legacy;” that, and had also said opinion as shown case, will contest v. Chambers, supra, Chambers while there was no evidence of undue influence there was evidence pro and con on question testamentary capacity. Chambers, And Chambers v. supra, court, said, as we have treated the evidence on that issue as sufficient to a question make it jury. making After quoted non-necessity above statement as to for “discussion” of the question probable cause the pointed out facts shown the record good which tended to show why reason made, testator made, well the provision he did will, make his and con cluded thus: legacy given “The appellant to have upon terms, certain since, think, as we there was no public consideration of policy required

which him dispute sanity father, of his there is now public no consideration policy requires the court to relieve consequences him from the of the choice he made.” Now, since in the Chambers case there was at least sufficient evi- testamentary dence of incapacity to make that question issue a for the jury, court, if In re Chambers’ Estate, had considered that

380 relieve seem that probable from the forfeiture it would cause would the I court question received further discussion. believe would have contesting’ legatee prob- regarded the had it as immaterial whether certainly any rate or At the decision able cause for his contest not. an un- holding probable that excuses regarded cannot be as a cause and from the forfeiture. successful contest relieves question opinion we are of After careful consideration the and in other that the reached conclusion the Massachusetts indicated, the better effect, supported to is decisions like above must logical be upon reasons the sounder foundation. and rests or not exceptions conceded to limitations here (subject that certain necessary may as he consider), person dispose a of his to right has, generally speaking, A heir no vested prospective wishes. legatee in be a will the or devisee property. his ancestor’s If there gives subject takes the will him and to the conditions thereunder what can, thereby imposed. may show, that He contest the will if ancestor, whereupon purported it is not the will his whole will falls. if it be that it is in fact the ancestor’s But established in stand, toto. part will then it the will must not in but would seem He against cannot a it time. One claim under will and at the same will, will, not at according or, far as concerns the takes so one under a general principle all. “It is a of law that cannot claim against too, will a interest under accepts it one who beneficial right every thereby a will and renounces or adopts whole will Bernays’ Estate, with claim is inconsistent the will.” re [In (2d) 216, In a 209, 344 Mo. 126 W. case S. eases cited.] gift upon made a condition which such as we have before us the is public to or morals generally opposed policy courts hold is not law, gift a another nor to rules of with definite over to established engraft upon case violation of the condition. To condition distinctly expressed maker an not expressed exception thus reasonably language is inaplicable nor from the to instrument nullify maker, be Whether or if in fact it his will. will any question legatee devisee not it is fact his will is or or beneficiary He is to arbitrament of courts. not submit seeking in the courts. precluded by the no-contest clause from redress alleged can, him will open show, The courts if he that the are valid —in which or is not the will of his ancestor-—is not instrument the will adjudged But if it be to be case whole instrument falls. written, why given it absent of the maker should not be effect as rule of law? prohibitive public policy rule of or established some may, legatee beneficiary day has his court. He or The dissatisfied pur legal restraint, question, court the submit to the without adjudged fact the If it be ported will of maker? But adjudged is, it he loses. not, that it is he wins. If it a law- every litigant chance to or lose and must take the win takes legatee obligation disappointed on the There is no suit.

beneficiary sanity gift comes, him question from whom the —or, may add, question or not the in purported we whether product was the of undue influence. re strument Chambers’ [In Estate, Moran, Iowa, In supra, Moran v. l. c. supra.] “The condition is lawful and read: one which testator has right disposition legatees annex in the property. of his own accept bequest, but, accepted, are bound to if must be subject onere, to the disabilities annexed. It must taken cum not at all.”

It good seems to the writer that the instant case furnishes illustration of the soundness of the rule we have indicated. above case, contention, There no was evidence this in fact no that Simon D. Rossi was not sound mind and free from undue influence when he executed the trust instrument here involved. Neither there was any such evidence Rossi, or such contention in supra, Davis v. validity

which the of the instrument was assailed and was sustained. probate court found for the proceeding administratrix the -upon theory discover grounds what or on what is not shown. assets— have been—must theory provisions have been—on the that the of the trust principle law, contravened some since there was no substantial incapacity evidence of mental or undue in theory fluence—a Rossi, denied the decision in supra, Davis v.

which held the trust instrument valid. Appellants argue that finding of the probate court in favor of the administratrix is at least prima proof facie that there probable contesting was cause for validity of the trust Indeed, say instrument. counsel that such find ing proof is conclusive of the probable existence of cause unless shown been improperly have induced, they say not so shown. They cite and apply seek to cases, rule in prosecution malicious such as Randol Inc., v. 343, Kline’s 330 (2d) 112, Mo. 49 S. W.

like express cases. We opinion no as to whether or fact probate administratrix, found in favor of holding invalid, trust instrument technically amounted showing to a prob able cause for contesting validity instrument, of said because in opinion, our stated, reasons above it is immaterial whether it did or not. In either event we Davis, by believe that Mrs. contesting the instrument, if she question next to did.so—a be considered— forfeited provision therein (in made for her and event of her death) for her husband and children. appellant,

Did Davis, Mrs. violate the no-contest clause of the trust instrument ? We think argued so. It is in her behalf that the proceed- ing brought by her probate court was prosecuted instituted and by her as administratrix and binding is not upon her individ- ually, proceeding by was not a her in capacity her individual and not a violation of provision the no-eontest of the trust instrument. It is

382 judgment four former estoppel “in order to an

asserted that thing for; (2) Identity sued (1) must concur: conditions and the identity persons identity action; (3) of the cause of person identity quality of action; (4) parties to cite on Davis against Appellants claim made.” for or whom the (Mo.), 188 Electric point: Empire District Co. this Scheurich v. Branch, 134 Boulware, 254; Hospes v. 114;W. Terrill v. Mo. S. 617, W. D’Arcy, 154 S. 592, 248 Mo. 226; Mo. 36 S. W. Dibert v. Kirk 467, 443; 1116; 201 Mo. 100 S. W. Joseph, Womach v. St. (2d) 519; Co., App. 756, 38 S. W. Rollins v. Met. Ins. Mo. Life Judgments (5 419; Freeman on 953, v. 316 Mo. 292 S. W. Shaner, Ed.), 1012-13; and some cases from other 418; L., pp. sec. 15 R. C. Water Joseph ex rel. St. jurisdictions. appellants also cite State Said Blair 59; 213 W. ex rel. v. Center Eastin, 662, v. 278 Mo. S. State Co. 356; 490, Donnell, Mining Co., 262 W. McKenzie v. Creek Mo. 171 S. 188; Smith, 164 Mo. 64 W. 40; 208 Mo. 106 S. W. Garland v. S. Generally speaking, those jurisdictions. and some from other cases adjudicata question cases deal with of res and tend to sustain appellant’s requisites estoppel contention as to the former judgment. recognizing But, principle enunciated in the cases cited, appellants in the applicable we do not believe it or available to provides circumstances of instant case. The no-eontest clause any parties (of “should of the of the third whom Mrs. Davis one) any any proceedings was . . . institute action or of kind any any setting in purpose court at time for the of aside this instru ment, any ground whatsoever, on and be unsuccessful therein . . portion .” the forfeiture should follow and the of income given or, death, to such third in her to party event his or his her surviving spouse, go or children or should We have to others. pointed that the purpose probate proceeding out evident of the aside,” was to “set annulled —the To trust instrument. —to purpose that end and for that procured ap Mrs. Davis to be herself pointed administratrix and instituted proceeding probate the assets,” being, knew, court to “discover there as she no assets to the discover unless instrument That should be held invalid. proceeding ownership one in corporation of the only stock—the in question “assets” ad appropriately be —could judicated. Huffman, In re Estate App. Mo. 111 S. W. [See proceeding If the instituted in the probate court had been suc 848.] cessful and the trust adjudged invalid, leaving thus question in as of the Rossi, assets estate of Simon D. Mrs. heir Davis would have shared therein as and thus distributee. She only represented, administratrix, way not as Rossi in estate and a distributees, one, but, heirs and whom being she was an heir distributee, a personal, she had individual having interest in the trust instrument set aside. al., al., Harison, Executor, et 78 Ga. Fouche, Assignee,

In et v.

359, 410, it is said: executor, a as be is contended that when an executor files bill

“It character, notbing personal and individual commits bimself to in bis party estate, and representing that be is not a than as otherwise bill, may any pending freely, touching he individual that act as right involved, complain- person interest if other as some were ant. To this doctrine are the con- quite unable to assent. On trary, as we in law, understand the an a bill his executor who files representative capacity party is a capacity his individual thereto also, subject- if as an individual he has manifest interest of the being matter bill. Thus legatee an executor to the extent of the net during life, income of the ex- whole estate his and to the tent general of one-fourth residuum, having of the exec- filed bill as utor to restrain some of proceeding subject his creditors from his to by levy interest law, estate, and sale at to which bill of the creditors well as as some of his creditors, defendant, own pray- are ing for a directing decree him, conflicting claims of view of the the defendant, how to testatrix, administer the that estate of his the defendants priorities they establish their and show what extent to legally can subject claims, assets payment estate to the of their a party complainant, only legatee executor, as as but likewise and debtor. supposed Can it be that the decree a bill on such would not bind him individually in respect legacies, an in- his or that as dividual he would not entitled to take the benefit of the decree so might far as it redound to his touching lega- individual interest those Moreover, cies? is it protection not as much for the executor as for advantage estate, so, more a court of often equity interposes give direction ? Whoever heard that an executor has to make a party himself to his own bill in order bind himself individually, give creditor, or to himself, legatee otherwise, fruits decree the extent of personal his interest the same? possible Is it to doubt present competent on bill it would to decree proper disposition legacies, to be made whether pay them out on creditors, the claims of or to hold them free from such claims? And how executor, individual, could the as an either shun the burden or be any rightful shorn of the benefit of decree on subject that might wholly be rendered? Unless we are unfit judges to be on a plain such question, are at a we loss understand why it should be question considered a authority at all. That no direct upon it has produced been must be legal due alone to the fact that evolution has progressed not enough far develop prec- a needless necessary edent for a conclusion.” We think reasoning the Georgia of the court is sound and that it by is sustained Chesapeake Corcoran Co., v. & Ohio 94 Canal U. S. See, 745. also, Morton et al., al. v. Rep. Packwood et 3 La. Ann. 276, 286, 315 Mo. Corp., Lead & Zinc

167, 171-4; Coerver v. Crescent under which, instrument there the trust in under 286 S. W. seq., et by judgment were held bound trustent consideration, que cestuis said, Mo. l. 287 : c. against The court the trustees. Story Equity in on Missouri is thus stated rule in “The followed been laid down Lord Redes- Pleadings (10 Ed.), 150: ‘It has sec. any for that, persons are trustees general rule, where made dale as a suit, they may either legacies, sustain payment the of debts bringing court the defendants, before the without plaintiffs as asor many cases, which, trustees, in they are legatees, whom or for creditors legatees will rights or the of the creditors impossible. And would be fairly for or obtained court, when the decision the be bound executors, like are cases, trustees, against In the trustees. such creditors, lega- or persons, interests all supposed represent ours.) (Italics tees.” Davis, adminis- that, had Mrs. as In the instant case can it be said not proceeding, it would tratrix, probate been court successful she, as heir an Would not have redounded to her benefit as heir? and dis- distributee, same as other heirs profited the she, if as whom, administratrix, represented? she And tributees as heirs and administratrix, represented estate and the other distributees, why represent not herself as one such did she thus she, In how could heirs and distributees? the circumstances shown shun the burden either as administratrix or as an individual “either any rightful decree” rendered or shorn of benefit of questions them- answer probate proceedings court ? to us seems selves. urged though have violated

It is that even Mrs. Davis wrong in judgment the no-contest clause the' of the circuit thereby deprived holding that her her are children and husband this possible cannot sustain con their interest the income. We As he had abetted tention. to the husband the court found that . contest, finding prosecution assisted institution he not named supported which we think evidence. While was (Davis v. as a instrument “party part” of the third the trust in the no- Rossi, supra), are to think he is included we inclined any clause, provides contest that “should anyone third instrument, third or such them” contest said directing assisting” in party instituting “or proceeding prosecution institution or his or her interest. thereof should forfeit theory. But we need not base on that our conclusion to the husband theory not think Whether husband is barred on that both he precluded participation and the children are from further instrument, express income under the because: said terms necessary provides (subject payments to notice connection) par- pay in this the net income to trustees shall any of said “and should equal proportions part, the third ties of surviving him or her leaving . . part die . of the third parties trustees are . . children, descendants or other a child or parent income their of such “the share to such descendants pay to any if living;” and or still received were he she would have surviving a leaving no descendants but should die third long surviving spouse, so pay should such spouse, the trustees net income share of the unmarried, one half of the remained he or she been had he would have entitled party third such deceased any event paid be Note, of income to portion not died. or she “party of the third a deceased surviving spouse of or descendants be the third would only party of such income as such part” is expressly provides living. clause if The no-contest entitled to receive other- of income that contest the share that in ease of an unsuccessful for- contesting party shall be payable would have been wise contesting party “or his “all further interest” of feited and such go to and such share shall cease children and descendants” shall of the trust instru- that the terms apparent It is others named. surviving spouse, any, none, if surviving children, if

ment the any conditionally only only are party to take of named third entitled to party would be deceased third portion event the such if surviving alone the whose share living. Now, party,” if such “third and, her take, his or interest can has forfeited spouse children or nothing, said that how can be living, if would be entitled given anything? They are not surviving spouse can take children or death of the deceased bequest upon the independent a definite or have been party would only bequest of what party third but If, her death. living and until his or entitled to receive while nothing. they given nothing, are forfeiture, that then reason of the contingent. given them derivative The interest is held should be void argued the no-contest clause

It is instru purpose of the trust because, said, dominant it is it defeats the is vest say, corpus of the estate which, is that the ment, appellants Harvey of Victor ultimately in male children or descendants Harvey contest argue that should Victor or Appellants Rossi. both) (or one so con the male descendants trust dominating pur ultimate and testing cut of£ and thus the would be legal contemplation wherefore, because pose defeated— invalid. We must be held provision no-contest happen, that could corpus of the can sustained. think that contention do not until or descendants” “male children not to vest estate thereupon have will died. The trust parties” all “third gift is not gift children or descendants to such male ceased. The to but a direct been entitled their ancestor would have of what They terminated. when the trust has gift corpus unqualified directly and uncondi contingently derivatively but not take do tionally. appeals: the Dallavalle

Of husband, and her by Dallavalle taken Clara appeals These were litem for guardian ad by latter as Frank, for themselves alleged certain acts They present questions their infant children. Dalla appellants for which part of the trustees of malfeasance on Davis, that the trustees R. ask valle, effect, appellant Theresa account. compelled removed and be be in this by the trustees request made we shall consider First expense (including by directed the court whether

action to be Davis, by R. osten- litigation, begun Theresa attorney fees), of the prosecuted and thereafter sibly administratrix, probate as income paid out of court, should be circuit court and to this latter, what and, if the or in out of both corpus or out of paid all out that it should be proportions. Appellants assert amount out of income. corpus; respondents paid that it should be shown, was reasonable nor whether same expenses of such law, to be as one of question presented to us not. The seems be by the trust trustor as evidenced the intent of determined the income that out provides That instrument instrument. may be assessed every kind which pay shall “all taxes of trustees any necessary therefrom, and against or the income said including created, rea- thereby administering trust expenses of considered (trustees, compensation to the” . . . be sonable hereafter). litigation expense of the contend that the above indicated

Appellants “extraordinary or unusual” an R. Davis is instituted Theresa as instrument contemplation of expense, not within the against chargeable in toto being income, and is payable out of jurisdic from other They a number of cases cite corpus estate. expenses” “extraordinary or unusual general tions to effect an at litigation incident to they contend, the —(including, costs chargeable to the instrument), are validity of the trust tack on the 536, 206 Estate, 188 Cal. estate, as: In re Duffill’s corpus of the such 38; re E. In 219, 117 N. Cogswell Weston, 228 Mass. 42; Pac. v. cases 209; and several 648, 198 Pac. Estate, 185 Cal. Gartenlaub’s but, cited eases have examined the Supp. reports. from N. Y. We they distinguish are analyze them, we think taking space to without It is not denied—cannot us. in their facts from the case before able incurring rea justified in the trustees be denied—that were necessary in fees) might attorney be (including as expenses sonable they they accepted the trust When trust instrument. upholding the they far carry out, so think, uphold bound, became Estate, re Duffill’s in In reasonably The rule is thus stated could. Pomeroy’s Eq. Jurisprudence 50, quoting from 206 Pac. l. c. supra, all allowed ... is to be 1085: “The trustee Ed.), (3 section preser- security, protection reasonably necessary for expenses prevention property, or of tbe trust vation failure of of that case.) Of tbe soundness in said (Italics tbe court’s trust.” Tbe tbe instant question be no doubt. think there can doctrine we allowed to question should be expenses tbe case is not whether they charged to income or to the should be but whether tbe trustees by reference to the must resolved question think the be corpus. We trust instrument. intent as disclosed trustor’s every “all kind” and provides that taxes

That administering hereby necessary trusts created” “any expenses only income and net income is to distributed paid shall out of question suggests itself, how can during the life of the trust. The destroyed? And, out if it is the trust be administered and carried therefore, necessarily preserving incurred in the expense is not an hereby administering cre- “necessary of the trusts expense trust Also, to be purview of trust instrument? it is ated” within the the only conveyed to the trustees when he noted, property the the trustor Rossi, Inc., which executed the trust instrument the stock of S. D. was Mae, trustees, children, Victor and named as was to be held his two authority (qualifying) share to permissible with to transfer one person comply requiring corpora- some other so with the law the as to being directors, qualified by is tion to have three stockholders.

obvious the trust instrument that the trustor meant that the from corporation kept he had be stock the control of the formed should designated designated in trust those he for his beneficiaries. He anticipated have the of the possibility must someone more might instrument, why parties” named “third contest said trust else happen expenses, no-contest clause? If that the should court attor- ney fees, etc., necessarily would be incurred. This the trustor must have known.

Now, (as occur) if that should occur it did from what source could necessary expense defending preserving paid, such of the trust be —from what paid? source did the trustor intend it should When be only conveyed the property he executed trust instrument he to Rossi, Inc., the trustees was the stock of S. D. and the trust instrument clearly evidences an intent that stock in kept said should be and un family, through children, der the control of the Rossi trustor’s named expenses defending Victor and Mae. If possible upon assault validity of the trust instrument be incurred should have to trustees, money whénee pay expenses? should come the such conveyed At property that time no or funds had been to the trustees except and, said, said stock and the therefrom income as we have the trust instrument an evidences intent stock to be said was kept family. the control of the for the There trustees benefit of the at property corpus was that time no other trust assets of the of the expenses they estate out of which paid. could be If had to be paid corpus Rossi, Inc., out of it would meant have that stock of S. D. money sold, outsiders, pay

would had to be to raise perhaps them, imperiling underlying purpose an thus what we believe was paid If estate would kept trustor. out of income trust be intact, redounding ultimate not alone to benefit of the remainder- beneficiaries, men but also to life future that of whose income earning unimpaired upon would thus maintained the basis of the corpus. Considering language apparent and the value purpose all trust instrument and the circumstances we believe right holding expenses charge court are circuit that said supported by able to income. We believe this conclusion the rea soning Hoffman, conclusion court in 290 Mo. Melvin v. 464, 500, 500), 235 S. W. Mo. l. c. defined (290 wherein remaining expenses “net income” as the after paying income including (among things) attorneys’ other fees “reasonable defending suit, . . litigation . or other to which this he necessary party expenses as trustee . . . and all other incurred as such trustee in preserve corpus property order to the trust intact for the provided remaindermen as said deed.” The for in provisions of the trust Melvin v. Hoffman instrument construed in differ from those of the us but we think the have before given here, definition of “net keeping income” there is applicable mind conveyed the trustor’s purpose keep evident Rossi, trustees —the stock of S. D. Inc.—intact and the control designated. those whom he

Complaint is made that the failed to trustees have distribute large income have a surplus earnings and of accumulated out which periodically, large should have been A part distributed as earned. of this accumulation came proceeding about reason of the instituted in probate the E. consequent Theresa Davis and the uncer tainty they of the trustees properly as to whether or not could safely distribute income the trust instrument directed. Mrs. attacking validity Davis was the of said trust That liti instrument. gation finally Being did till terminate about December 1930. uncertain whether or interest, not said Mrs. her Davis had forfeited (because also they received) of certain information had whether Mrs. had contesting Dallavalle aided Mrs. Davis in and thus forfeited interest, her the 1, 1931, seeking trustees August instituted this suit the court, of the they direction as we think were entitled to do. Pending these suits considerable income had accumu undistributed appears lated. There from the record disposition part no on the of the any trustees withhold distributable income from the bene ficiaries when advised how such distribution made. And should be it that, be observed except Davis, for Mrs. Dallavalle and Mrs. all the beneficiaries named as third in the trust instrument are asking that the judgment circuit court be affirmed. We that Mrs. Davis her held has forfeited It appear interest. does not prejudiced prejudiced by will be that Mrs. Dallavalle has been the during periodically the to distribute income the of trustees failure litigation. appear Neither it pendency of this does this matter acted bad faith. trustees express Another violated an complaint is that trustees provision this: of the instrument of the stock properties

The which constituted basis valuation Inc., conveyed Rossi, corporation of Rossi S. D. which organized substantially it, when he consisted of several valuable parcels properties, real Louis. One on Del- of estate St. of those Boulevard, buildings, mar its improved but, was not with from buildings location, improved if was was valuable and with suitable capable In then producing substantial income. its condition high produced very against small it were income. taxes practically nothing. net income was In the trust corporation directed that set aside out of its trustor should per purpose improving annum “for the suit- income with $5000 buildings” It property. able said Delmar Boulevard did so way years, (some- until it several had thus accumulated fund sinking fund) of That approximately $25,000. referred to as times buildings thought was the kind of the trustees not sufficient erect advantage In order accelerate and for the estate. suitable building (income) of a and the increased erection suitable rentals building proceeded the trustees to and did erect a thus to be secured $43,000. sinking costing They $25,000 used the about fund which remaining $18,000 in- paid “out of had been accumulated additional was come,” but as we understand evidence such sum paid rentals While it not seem out of the increased received. does $18,000 quite whether all additional had been so returned clear of said appear account at the of trial it to the distributable income time does nearly least all of it had been and that the balance will be. that at They along the intention of the to return it. all trustees so part improvement they fund ex- merely anticipated were income, using it for purpose pressly directed to out accumulate it, in it had been designated, as to advance time but improvements accumulated. Since erection revenue, had, increased revenue yielded largely has increased of the substantially least, paid cost up trial, at to the time “sinking fund” then accumulated improvements over and above the by to be treated has been and is and all which increased revenue of can be no erection income. There doubt trustees as of made, to benefit improvements, as when has and redounded Neither the income of the trust estate. entitled to beneficiaries making good faith any trustees acted in doubt that the can there be trustees, they did. or not said Whether improvements as and when to income right use technically, had the under the trust anticipation mandatory advance or its tbe of accumulation for designated purpose unnecessary deem tbe trust instrument we for ‘purpose enjoined bere to decide. Tbe which it was was used one by Only of such be tbe trustor. tbe time use can claimed to have been a express provisions violation of tbe of tbe trust instrument and think, that, circumstances, we under tbe to import- has ceased be of ground ance. We find in this matter no sufficient for removal of tbe trustees.

It is tbe and contended that trustees violated their trust they should up maintained, removed because set out be of income, ‘'depreciation depreciation.” account” or “reserve for appears up regular to tbe time of trustor’s death no bad books charge they been When kept. death, tbe trustees took after trustor’s books, up” They “set of as December 1925. did so with the as according sistance and an expert to tbe instructions of accountant (whose honesty qualifications questioned). are Fol not bere lowing tbe depreciation” advice said accountant “reserve for was on up set the books. Victor Rossi testified that at tbe time bad, tbe trial herein tbe as depreciation trustees “undistributed sum $75,998.00 He $8,400.00.” minus further testified: my understanding

“It is tbe sum set on our up books should distribution, be from my understanding withheld but it is that tbe way changed adjusted books should some tbe so that all of money any which has come in income as should be distributed without being sum taken provide depreciation. off to for We at have never any up anything time wanted to set deprive beneficiaries their income. course, being

“Of this for up depreciation represents sum set a sum apart just set out of income and that what we do not want do.” continue to testimony subject

His on this is not disputed. Neither of the trus- money tees desires withhold In said from as distribution income. setting up depreciation they account the advice of .followed They proceeding by accountant. ask in this advised the court regard thereto, request being included, think, we general prayer any for on question regarding instruction might deem it proper, and from the fact that the matter such depreciation ap- account made an the pleading issue' pellant Dallavalle and was heard the court. The court did not specifically instruct on trustees this item. On record before agree us with that the the trustees sum their shown books depreciation that, reserve for should be as income distributed at unless special calling least some circumstances should arise it, such out depreciation reserve of income for should not be con- any contingency tinued. If in requiring event arise should justifying of a portion the use of income in order effectuate rights and tbe interests trust, keeping of tbe mind purposes by appro- taken eare income, entitled that can best be those to necessary facts can shown. For if the priate proceedings when and say presents proposition to that this present we deem it sufficient ground just no for removal of trustees. alleged on account of misappropriation, item of

Another removed, say is this: appellants the trustees should be Shortly Rossi, D. all of his children and death after the of Simon instrument), met (named parties as the trust his widow third read and Victor The was discussed. had a conference. trust instrument request that expressed the wish and that his father had Rossi stated rendered to he, Victor, paid prior for services trustor’s $5000 should be objection being any payment to such death and asked if there was indicates, found, weight The the court made. the evidence made and thereto. agreed that all that the assented payment#should party in grandson, named as a third the trust Johnson, Harold instrument, He then a was present. $5000 not was minor. was agreement. Johnson pursuant to that Harold paid to Victor Rossi therein, action, appeared and is age prior present became only asking judgment “party affirmed. The that the below be now alleged is complaining misappropriation third of that part” of the Davis, has forfeited perhaps Theresa R. Dallavalle —and who Clara testimony from Clara Dallavalle to her interest. There some from payment nor said to effect that she neither assented to dissented justifies Victor, weight of the the court’s but think the evidences affirmatively We finding that and Mrs. assented. both she Davis on this just ground of of the trustees account find no removal payment. that trustees violated their

Appellants claim also have they corporation* paid salaries because, officers of the were trust By say appellants they were not entitled. instru to which after all of the stock D. provided ment the his death S. trustor Rossi, Inc., corporation on the books of the should be transferred (trustees), except said second one share which parties” the “second person to “a third to hold for parties were authorized transfer corporation second in order that said qualifying was trans at least three stockholders.” Such share Naturally be (the widow). those three ferred Madeline Rossi they Victor corporation elected came the three directors of the secretary corporation. president D. and Mae R. Haseman of said Rossi fixed By order of board of directors salaries were said said paid corporation. We do understand officers were unreason appellants contend that were themselves the salaries entitled to able, being were not their contention trustees compensa their corporation but that entire salaries as officers tion, rendered, limited capacity was whatever service

compensation by instrument, fixed for them as the which trustees trust provides that the property parties “out of from said said of income part (trustees) every the second may shall all kind pay first taxes of which against and property be assessed said the income therefrom any necessary administering hereby created, of expenses the trusts including compensation the parties part reasonable to of the second services, (5) for per their which shall five of all be centum disburse- by property conveyed ments made . .” them. . The to the trus- designated following tees is as the trust instrument “the described personal property capital . . four thousand the . shares of stock Rossi, of (being stock). S. D. the Aft- Incorporated . . .” all of er providing payments corporation for certain to be out of the made (including per “sinking income $5000 the annum fund” above men- that, tioned) said provides trust remainder the “the of of corporation dividends, net income said as out shall be distributed by of when shall parties the same be received the the second of part they pay shall said Madeline Rossi the hereinbefore directed sums paid her, remaining they to be to payments and the balance after such Rossi, shall to pay parties part the of other the third than Madeline provided. as hereinafter corporation Should the terms for which said incorporated was terminate before the termination of herein trusts created, parties said cor- of second shall either extend the porate existence corporation corporation of said or form a new to take the property corporation, over said corporation of which new shall Rossi, conducted in the same manner as said S. D. Incorporated, by was conducted part.” (Italics ours.) of the second only We think it apparent that the distributable income which the trustees, such, they as which, trustees, disburse, receive and as can is what is to turned over them in the 'form of dividends the cor- poration. It appears corporation also to us that the is not a mere dummy. As corporation manages a it owns and prop- the extensive forming erties for capital basis its stock. It to kept is alive functioning and corporation. requires as a and much time labor good ability and business to properly conduct the business and affairs corporation. The evidence two shows above named corporation, officers of the who familiar are with its and affairs, spend practically attending their entire time the business corporation. per five cent income disbursable meager and, think, trustees inadequate compensation would be but we time, ability required manage labor and business the affairs corporation. if, they trustees, manage Of course as are bound to and conduct the of the corporation compensation affairs and if the fixed for them trustor, trustees intended as declared in reasonably provisions from be understood of the trust instru- ment, full compensation to be services, for all such such trustees then perform must required services for the compensation stipulated pro and con in the Much has been said briefs serve. or else decline to or not the instrument contem- as whether learned counsel was intended to include therein mentioned per that the five cent plates corporation. In the view we as officers to be rendered services necessary question case, determine this in this be- it is take not proceeding and in party is not a to this order corporation cause the corporation bind the think cor- question and to determine the necessary party. poration is dummy is a mere corporation

We indicated that the owning live, going concern, operating organization but based, although upon capital which its stock is physical properties they controlling by the constitute the is owned trustees its stock yet directors, corporation separate members the board obligations rights. entity duties, has its and distinct as such (3 Ed.), 4650, pages 546-7, Thompson Corporations In 6 on section read: we action general purpose is of the is to

“The rule that where the a the directors or prevent wrong corporation or to the redress proceed the to corporation officers refuse to allow action other of the relation corporation plaintiff name or whenever their in the the as of improper be for the subject the action that it would to the of is such proceed corporation plaintiff, the while action to name of as control, indispensable corporation remain under their it is should made In corporation party be a defendant. other that should party an indispensable an to action corporation words itself is remedy wrong corporation proceeded a have to to should remedy if not itself, corporation and the bill is is demurrable is a party. corporation party a make a not made failure to demurrer., advantage special mere defect taken of be party leaves the without cause of action since the but stockholder ’’ to the relief is not before court. entitled Also, section, page 549, same necessary corporation party

“The is a defendant where the bill is against against for relief their breach trust or filed the directors they may using be restrained from funds that carry corporation is corporation to a breach of trust. The out necessary sought is party defendant where it restore

likewise unlawfully corporation assets converted the directors or use.” officersto their own Fletcher, 1313, 820, 821; Corp., 13 also, pp. 3 Enc. sec. [See, p. Pomeroy’s Equit.

Fletcher, 300; Jurisp., 3 Corp., Enc. sec. 1095; 324-5, 951; Sawyer, 146 Mo. 47 W. Gruen Ester v. S. sec. Schaeffer, App. (Memorandum If the cor v. 7 Mo. opinion).] money wrongfully induced out it should not pay has been poration recovery thereof, paid dissipate or its assets have otherwise Also, think the seem, corporation. for the be would should corporation only right heard, would have a to be to whether paid expenses, including or not it have operating should salaries its employees, officers and other as to the reasonableness of such ex- but penses.

The circuit court found this issue: on

“The corporation party sep- is not a defendant to the is a suit. It entity irrespective arate of the fact that it be the foundation all litigation, nevertheless, equity this in order that court of any orders, party Furthermore, make it should be a to the suit. there those other earnings are than the income beneficiaries of the from the corporation might who an affecting interested in outcome corporation its The corporation party affairs. is not a to this proceeding. brought action, any, has not It been in. The cause of if in the corporation. is party, questions Since it is not a as to payment salary extraordinary or remuneration for service cannot corporation be considered. The an indispensable party is in such (Citing agree issues.” above.) authorities we cited We with conclusion. carefully

We have considered the numerous contentions advanced by the several aj)pellants opinion herein and are of the the judg- ment circuit court should affirmed. is so West- ordered. CC., imes and Bohling, concur.

PER foregoing by Cooley, CURIAM: The opinion C., adopted opinion as the All judges court. concur. Natural Fair,

Pearl Guardian Fair, Fair, Elwood Pete Martha Fay Alpha Jane Fair, Fair, Dixie Fair and Lee Appellant, v. May Agur. (2d) 133 S. W. 402. Two,

Division November 1939.

Case Details

Case Name: Rossi v. Davis

Court Name: Supreme Court of Missouri

Date Published: Nov 22, 1939

Citation: 133 S.W.2d 363

Court Abbreviation: Mo.