*1 918 statute, case, By
958.
thе terms of the
the court
where visitation is denied
ordering
grandparents’
However,
grandparent
has wide latitude in
child.
the section
By
language
was not so limited.
its literal
tailoring
and in
orders
visitation
for en-
previously
452.402either as
enacted or in
§
supra
forcement
Barry,
of its decree.
598
present
apply
its
form
here.
would
We
at 581. Generally,
grandpar-
S.W.2d
on
apply it
appellants
as written and hold that
rights,
ents’ visitation
see Annot. Grand-
requested
be entitled to the relief
un-
parents’
Rights
Visitation
legislation.” Poling v. (Mo. 1986). banc course,
Of a con law favors
struction of statutes which tend to avert results,
unreasonable and Ray, absurd su
pra 602 say S.W.2d at but we cannot appellants
that the result seek is unreason
able. What does seem unusual is re might granted
lief here under former SCHUPBACH, Marjorie Rep L. Personal dead, spouse 452.402 because § resentative of the Estate Paul R. might granted spous not have been if both Deceased, Schupbach, and Estate of However, es were alive. we need not con Schup Schupbach, sider the latter circumstances as arewe bach, individually, and the Boatmen’s ap limited to this factual situation аnd it Bank, Respondents, National have, pears 1988 amendment part, provided at least for visitation to v. grandparents spouses when both are alive. Elizabeth A. SCHUPBACH and John 452.402.1(3)appears pro As amended § minors, Appellants. Eric regard vide for visitation without spouses death of either or both No. grandparent unreasonably denied visita Appeals, Missouri Court period exceeding days.4 tion for a District, Southern originally enacting legis- 452.402the § Division One. might contemplated
lature have situations 28, Nov. where, child, grand- after the death of their parents denied of their visitation
grandchild by surviving spouse. This
may be the circumstance where denial of frequent
visitation would be more
than this
appellants’ request
given
4. As we believe that
for relief
the 1988 amendment
is to be
retroactive
Dripps
Dripps,
originally adopted
is within the statute both as
effect. See
Richard P.C., respondents. Springfield, for Turner, Duncan, Patton, Reid,
Michael J. Patton, P.C., ap- Springfield, for Loomer & pellants.
GREENE, Judge. the trial court’s to determine it was plain based on error affect- court-appointed guardian The ad litem rights substantial the children (guardian) Schupbach for Elizabeth A. injustice resulted in manifest miscar- or a Eric John minor children of riage justice. 84.13(c). Rule Schupbach (Paul), deceased, argument portion guardian’s appeals (Marjorie), *3 complaint brief seems to indicate is that the the judgment declaring from trial court’s admitting that the trial court erred in into family the portion that trust of a trust evidence, objection, over extrinsic evidence agreement prior executed to Paul his regarding as to Paul’s intent what was how death, in be funded from his estate the trust, family the the established under $325,000, amount with the balance of the his agreement, terms of will and trust widow, estate to be Paul’s distributed to interpret should funded. If the ar- be we Marjorie. gument correсtly, guardian the is contend- court-tried, the it is Since case was our ing that such evidence was inadmissible to affirm duty judgment sup the it is ambiguous the will not as to because was evidence, ported by if it substantial is not funded, how the trust should and be evidence, against weight of the and if it ambiguity, that such an extrin- absent any is based on declaration not erroneous concerning in- sic evidence the testator’s Carron, application of Murрhy or law. Apparently, tent inadmissible. was (Mo. 1976). banc guardian trying is trial say to that misapplied the law when it admitted on, point In his sole relied so, and, doing the extrinsic evidence in guardian asserts that: committed error. holding The trial court erred in that facts On The relevant are as follows. (the Article ‘Family Three of the trust 4, 1984, April executed Trust’) only should to be funded the ex- separate agreement. a will and trust tent rather than fund- preрared by Both his at- documents by all of the ed assets distributed under directing torney, Harold F. Glass. After will, III Article of the the will because personal representative pay of his all ambiguous clearly trust are and and debts, bequeathing tangible and all of his provide all that of the assets distributed wife, Marjorie, personal property to his Article III are to under of the will III, in as provided Article fol- Paul’s distributed to the trustee of lows: trust estаblished Article Three of the my residuary give All I and agreement. devise BOATMEN’S NATIONAL language cannot tell from the of the We BANK, Missouri, Springfield, guardian point relied on in Family named trustee Trust claiming judgment the trial court’s Agreement April 4, Trust dated evidentiary support, or lacked substantial Grantor, myself, as and BOAT- between judgment upon an was erro- trustee, based NATIONAL MEN’S BANK as application declaration or of law. neous acting or if shall not then trustee it holding justified Trust, in that the Family acting We would then to the said trustee, point properly preserved trust, has not for been of said such trustee as its failure to appellate review because of estate to residuary become explain why the adequately parcel Family wherein and the said Trust and erroneous, held, pursu- court’s Rule trial was administered distributed 84.04(d).1 However, interests terms thereof. If time because thе ant to the at the involved, death my we review under the circumstances of minor children are Court, Rules of 1. Missouri V.A.M.R. the remainder my III and free of
contemplated by this Article disposed of not otherwise in trust estate Family aforesaid Trust shall not be effect, hereunder. my force and then said residu- full ary shall and distribut- be divided not survive If Grantor’s wife does outright my trust to chil- ed and free of portion marital distribution him then this shares, me, dren survive who held, managed and distributed shall be per stirpes. the ARTI- provisions of accordance with Family THREE Trust. CLE agreement portions Relevant of the trust Three Four of are contained Articles 6, 1984, July death on After Paul’s agreement. pertinent portion interpretation of the dispute arose Three Article reads follows: and trust provisions of the will him the If the Grantor’s wife survives Mag- Thomas regarding the trust. immediately out of accountant, trustee shall set aside nan, prepared who was Paul’s *4 separate the trust estate as a trust to be tax return filed a federal estate which Trust”, “Family pecuni- as the known in the trust showed amount, largest if ary sum $325,000 (the exemp- maximum amount of any, pass free of federal estate that can the equivalent allowed under tion amount the by under this trust reason of 1984), tax tax laws with federal estate Death Tax Unified Credit and the State estate, inwas balance of the trust which (provided that the State Death Credit $600,000, Marjorie under going to excess of used if use of Tax Credit shall not be Article Four of the trust of credit state death filed, such will increase the agreement. the return was After payable), but no other taxes otherwise (I.R.S.) disagreed Internal Revenue Service credit, taking disposi- of after account interpretation of the mean- Magnan’s with trust, tions undеr other Articles of this agreement, trust con- of the will and trust, property passing outside of this intent of those documents tending that the charges principal to by and all that are family trust be funded required that the computing deducted in the Grantor’s fed- Article passing under property all of the recognizes property eral estate tax. The Grantor was of the III of the $925,000, part no dis- instead of approximately be value of by posed by this Article and that the as contended in the amount disposed Magnan’s interpretation, by Magnan. of his estate this Article in no federal estate by adopted, be affected the action of the would result taxes, interpretation would exercising elec- the I.R.S. trustee certain tax while $179,000in es- federal approximately cause tions. Such elections the trustee shall final, to be due. binding all tax conclusive and for tate purposes. dispute, Marjorie, In to resolve the order pur- The Grantor directs that for estate, Paul’s personal representative of as pose establishing the sum hereinabove Court of petition the Circuit filed a of, shall use the disposed the trustee Missouri, requesting a County, Christian finally determined for federal values to declaratory judgment as purposes, tax or if no federal es- оf the trust portion trust respect required tate tax return is with only to the extent of funded was to be estate, the trustee shall to the Grantor’s $325,000, of the estate to the balance used, determine the values which shall be her, it to or whether was distributed to final, shall be and such determination of the residu- the full extent funded to binding. conclusive and in Article III of the referred to ary estate will. states: Article Four guardian, trial, objection of thе him, over At
If the Grantor’s wife survives Mangan, and Mr. Glass testi- outright Marjorie, Mr. to her trustee shall distribute regarding the re- fied Paul’s intent to how the maximum marital deduction with go objec- property was to be funded. The mainder of the estate into tion was to the effect that there was no a trust. ambiguity in the terms of the will or the regard to the 11. The law with agreement and, therefore, because had amount of the marital deduction subject, Missouri lаw on the extrinsic evi- changed deduc- to an unlimited marital dence of the testator’s intent was inadmis- tion 1982. objection sible. The court took the trial Attorney, Harold F. dis- Glass permitted under advisement and the testi- change in the Paul cussed this law with mony, stating that if it later decided to discussing Schupbach they R. while objection, testimony sustain would planning. his estate ordered stricken. After examination of planning, 14. At the time of his estate agreement, and trust and consider- will Paul R. stated and indicated testimony Mangan, Marjo- ation he taxes. desired avoid rie, Glass, the trial court made written planning, 15. At the time of his estate law, findings of fact and conclusions of Schupbach stated his desire for judgment previously entered stated. Schup- everything go Marjorie fact, findings its the trial of a trust instru- bach without the use separately, stated that read will ment. agreement do not cоntain and trust sug- F. Attorney, Harold Glass *5 ambiguities, “[a]ny ambiguity and between ‘credit gested family the use of a trust or (Exhibits 1 the Trust and instruments Will plan- of an estate shelter’ trust as 2), or when said instruments are read to- ning device. gether, ambiguity.” is a latent While this Marjorie Paul and 17. At the time R. specifically say statement does that the attorney, Schupbach L. met with Harold ambiguity
trial court found a latent when planning, discuss their estate F. Glass to instruments, comparing the аn exami- two exemption estate tax the use of the fact, remaining findings nation the family equivalent to fund the amount law, conclusions of and conclu- trust was discussed. court, sively by indicates that the trial find- ing that it was Paul’s intent to limit the planning of the estate 19. At the time funding to the maxi- the discussions, attorney, Harold F. Glass exemption equivalent, mum found that suggested of a second trust to the use ambiguity. there was a latent The property Marjorie L. hold for finding could not have made a as to Paul’s however, Schupbach rejected R. Paul solely by of the doc- intent an examination property passing for the use of a trust uments, but would have had to have con- Marjorie Schupbach. L. testimony sidered the of the three witness- attorney, Harold F. 28. The intent a conclusion. es to arrive at such and Trust preparing Glass in the Will the desire to avoid findings regard are instruments included Our this but- taxes, exemption maximum by findings of fact made utilize the tressed additional trial, equivalent, advantage fol- take examples of which are as and for unlimited marital deduction lows: equivalent. exemption amount over Schupbach Paul R. dis- 6. planning attorney, his estate with cussed The intent of Harold F. Glass 29. F. fund- Schupbach Harold Glass. was to limit the to the maximum ing Schupbach previous had a 9. Paul R. exemption equivalent. (Exhibit 4). 11, 1974 Will dated June 11,1974, by the follow- They are further buttressed 10. The dated June con- Will by the trial court: provided for the conclusions of law tained which objective, op- sidered, extrinsic evidence ambiguity the Trust Any 1. between concerning in the testa- ambiguity. events is latent erative facts and Will instruments introduced in evidence life tor’s testator, Paul R. 2. The intent of the intent, and to his exact order to ascertain purposes of Schupbаch, is admissible for explicit meaning to the give precise and and Trust instru- of the Will construction In the language in the instrument. ments. used ambiguity patent of a “where case Testimony of 3. the Scrivener exists, evidence is admissible extrinsic instruments is admissible. Trust Will amount, nature, extent and determine the The Will and Trust instruments 4. rela- property, his condition of a testator’s together interpreted must be read having persons possi- tion to or association instruments give effect to both any property, in his motives an interest ble. testator, and actuated the could have which The maximum amount 5. objects the natural persons who were in Arti- provided for for the trusts Prestwood, $325,- bounty.” is of his Breckner cle III of the Trust instrument (Mo.App.1980). This not include evidence type of evidence does residuary estate The balance intent; the testator of his of declarations is to be distributed in excess of generally under inadmissible. outright to is such evidence the Trust instrument. However, ambiguity Article IV of is in cases where latent, declaration of intent a testator’s question facing us is only The ambiguity. explain admissible holding justified in trial court was evidentiary rule is supporting rationale con- the trust will and of the testa- together ambiguity of declarations created a latent that evidence sidered replace tо re- an required extrinsic evidence not add to or intent does tor’s solve. as to designation in instrument explicit “ property or what are who the beneficiaries ‘[Ajmbiguity’ ‘duplicity, means described, which or instrument meaning uncertainty of indistinctness or *6 trust, merely gives family but here was used in a instru expression an written ” meaning in- precise designation the to the Tenney ment.’ v. American Life In at 56. cases by the testator. Id. 370, tended Co., 371 Ins. 338 S.W.2d Accident еxists, only is ambiguity not Briska, (Mo.App.1960)(quoting v. where a latent Peters 993, An and circum- (Mo.App.1946)). surrounding 996 facts 191 S.W.2d of evidence but, addition, in either ambiguity admissible; a will or trust testi- in stances ambiguity oc patent latent. A patent or by the made mony regarding declarations indistinctness, duplicity, or curs when as the concerning such matters testator face uncertainty meaning appears of on the identity of beneficiary, the identity aof considered, which, being instrument of the or to re- property, ambiguously described case, of the in would be on the face presumption is also equity or some but agreement. of the trust or on the face will Streicher, 365 Mo. v. admissible. Winkel instru ambiguity occurs when the A latent (banc 1956). 1170, 56, Such 59 295 S.W.2d unambiguous on ment considered testimony of the may include evidence one open to more than its face but becomes inten- regarding the testator’s scrivener applied to the factual interpretation when Katich, 565 Matter Estate tions. of issue, a in which here would be situation Applying 468, (Mo.App.1978). 469 S.W.2d and the comparison of the terms will law, we are of Missouri principles these agreement. Nat. trust Boatmen’s Union agree- if the and trust opinion that will (Mo. Welton, 497, 502 640 S.W.2d Bank v. consideration, read and when ment under App.1982). latent ambi- together, reveal a considerеd accountant, testimony of the guity, the patent ambiguity If is found on a widow, Mangan, being con- the instrument the face of 924 scrivener, Glass, provisions, when, here,
and the
Harold
ad-
ous
... and
missible.
agreement
parts
trust
and a
form
will
plan,
the same
the documents must be
Article III of the will directs that
together.
construed
residuary
placed
all of the
in the
Company
Starling,
Commerce Trust
held,
administered,
trust
to be
(Mo.1965) (citations
393
494
S.W.2d
according
distributed
to the terms of the
omitted). Also see Love v. St. Louis Un
agreement.
Article III of the trust
(Mo.
154
Company,
ion Trust
agreement provides
if Marjorie
sur
1973);
banc
Estate
Fleischmann v.
Paul,
did,
vives
which she
there should be
Fleischmann,
(Mo.App.
MAUS, Judge, concurring.
(1906)
added).
(emphasis
877
Those cir-
“any motives which
cumstances include
I concur in the result. The will and the
reasonably could have actuated testator in
contemporaneously
instrument were
disposition
property.”
of his
Lehmann
part
single testamentary
executеd as a
Janes,
(Mo.1966).
654
v.
plan.
general
It is our
to find the
instruments must be construed to
task here
[T]he
testator,
avoid, possible, repugnancy
purpose
in the
to reconcile and
vari-
upon
husband
may appear
imposed
the death
both
co-ordinate
which
to be defeated
wife. This intent
and
reconciliation
to
in conflict when such
language.
by an inadvertent misuse
reasonably be
and co-ordination cаn
Garrison,
665, 52 S.W.
150 Mo.
Briant v.
pur-
general
made consistent with
(1899);
and
5 Missouri Probate Law
and,
in
if the
confused
pose,
testator was
Practice,
con-
364. The will should be
§
desires,
pierce
expression
his
to
if need
this intent and
strued to effectuate
through
and reduce to
such confusion
be,
supplied and omitted and
may be
words
underlying
intent.
articulate terms
residuary
transposed.
sentences
Haworth,
852, 8
320 Mo.
S.W.
Coleman v.
construed to
should bе
clause
will
(1928),
with an amount “pass
amount that could free of federal
estate tax under this trust reason of the
Unified Credit and the State Death Tax Credit_” Article IV of the trust instru- provides grantor’s
ment if the wife
survived him “the trustee shall distribute outright free the re-
to her of trust
mаinder of the trust estate not otherwise OWENS, Appellant, Wayne noted, Article Donald
disposed of hereunder.” As residuary III testator’s of the will devised adding named trustee Missouri, Respondent. STATE residuary “such become *8 parcel Family Trust.” The of the said No. WD is in direct conflict provision latter Appeals, Court of Missouri residuary clause of the trust instrument. District. Western Considering surrounding circum- stances, intent of testator the obvious Nov. only fund the is to extent the creation of that trust will result
in the minimum federal estate tax