*1 Ellroy v. Nelson Appellants, V. Selleck, Bessie Selleck Renick King, Henrietta Albe J. (2d) 56 S. 387. Reni c k. W. Mark Two, 1932. December Division *2 HayM. Ellroy Charles appellants. V. Selleah *3 Blair, Jr., Loevy James T. H. A. Matt. respond- J. Scherer for ents. *5 appel
WESTHUES, day February, 1928, C . tenth On the lants, plaintiffs below, filed their fifth in this ease amended in the Circuit Court City Respondents, of St. Missouri. Louis, below, demurrer, defendants filed a Plain court sustained. Judgment tiffs plead declined to further. against plain was rendered seventy-nine tiffs and they appealed. covers printed pages of thirty-six the abstract of pages. the record and the demurrer presented sufficiency petition. In order properly understand the pleadings, issues raised it will be necessary make, if possible, short, concise statement facts alleged petition. We will giving undertake do this first general parties outline of the their relation each other with subject reference matter in this We will suit. attempt then *6 dispose of them classify charges petition and the various accordingly. arose petition controversy in this case
We learn from the that the this departed who Henry King, of the last will and testament of out King preceded a and son March, Henry in 1915. The wife of life King, and son, Henry L. named him in death. There survived one al- King. L. The King Harry grandsons, Albe and two plaintiff, Bessie Henry King mother of leges that contracted with the adopt years old, to plaintiff King Selleek, when the named was three plaintiff Henry King’s daughter. child Later Bessie his, own and as daughter King Hawley which union a Selleek married Nelson J. born, with one mark Renick Henrietta, named who intermarried was Renick. Henrietta was a under the name of and named as defendant Hawley Nelson J. Plaintiff, King Selleek, Bessie was divorced in Selleek, Y. other Ellroy later and intermarried one Selleek, (Hawley) King are Bessie case. Plaintiffs in this case Henry King, daughter testator, alleged adopted and J. present husband, Ellroy are Nelson Y. Selleek. The defendants L. Selleek; Hawley, King Harry plaintiff, first husband of Bessie Henry King; testator, King grandsons King, and Albe W. of the King Sel- (Hawley) Renick, daughter plaintiff, Bessie Henrietta Hawley; Renick, husband defendant, Mark leek and Nelson J. and (Plawley) in the Henry King, L. mentioned of Henrietta Renick. KingW. of Albe will, was the father son testator and the Kotany July, King. Henry King L. in 1926. Max Harry L. died to act. The circuit will, as a but refused was named trustee 15, 1917, in Harry King March appointed trustee, court L. a on Plawley accepted the Kotany. King L. J. lieu of James and Nelson Nelson King 22, 1919, and trusteeship. L. died on November James Hawley claiming will, ap- Harry King, J. L. to act under the in King as trustee pointed, plaintiff, Albe W. protest over the acting trustee, L. time amended place King. at the James plain- filed, husband of were: Nelson J. first was King King and Albe W. tiff, Selleek; Bessie grandsons grandsons two are remaindermen of the testator. These two King. any Henry given will of No bond under the opinion in we will speaking When trustees named. King only. reference to Bessie Selleek very It is King copied petition. full in the Henry good purpose copy in full lenu'thy it it will serve no quoted parts will be opinion. pertinent the issues we deem and read as follows: my Henry bequeath $1.00 I give III. son
“Article my King Hawley, who with me Bessie lived $1.00 to Mrs. home daughter and in whose during latter’s lifetime as our wife adopted although was never my she death, I have lived since wife’s with the law. daughter ús as accordance either of *7 real, my estate, remainder of rest, IV. The and “Article residue L.-King bequeath give, and to James mixed, I devise personal and Kotany, the Hawley Max two Kansas, and Dr. Nelson J. Topeka, of in trust to Louis, latter both of as Trustees and their' successors St. grand- my said and not and benefit of otherwise trust for use Henryetta Hawley King King Albe of sons W. and and alike, and share (daughter King Hawley), Bessie share of said Mrs. upon only upon following conditions: and terms and power of to and
“Said Trustees are have absolute control to manage dispose necessary, to and of property, sell said if are and hereof, subject only provisions discretion, their same in . . : only by upon all three therein. but and concurrence of semiannually to the beneficiaries of shall render “Said Trustees of of the report written the transactions said trust a statement and year. half Said during preceding then and trust estate fund they for are, it, compensation jointly Trustees if claim to allowed (5%) exceeding management trust five their not services of fund, paid out to be per of estate and cent the income of trust con- (5%) per cent income, exceeding five оn and not delivery estate, véyanee, 'and of to be deducted transfer principal. the' customary usual and
“The Trustees to incur the said are authorized true, management keep a correct and expenses property, for shall money by them as faithful account of all received and disbursed account, book and keep such and shall correct and faithful true, subject (with) open which and disbursements, vouchers shall be agents attorneys inspection by the herein ór or to beneficiaries their right- power part during hours with the on their usual business copies to take thereof. ' ‘1 provide V. I the death of Article further direct and grandsons Henryetta Hawley, my said before either said my to he probate hereof, his or she would or her share estate otherwise shall vest hereby pass become entitled equal'shares if of them in property becоme the of the survivors any probate hereof, the same two them shall have died before the pass survivor property shall and vest in and become the of the sole my them, event, son payment but nevertheless and to' either Mary King provided, his wife “W. as herein shall be' made and my the net income one-third estate shall be to said Mrs. Hawley King provided. words, Bessie as herein In other the death grandsons my Henryetta of either said or said Hawley, shall not my to said son and bequests herein made to said affect or cancel the my Mary King, wife of said Hawley and to Mrs. Bessie they living probate hereof. son, if at time income from provide VI. I that out the net “Article direct bequeathed hereby given and herein and property and estate Henryetta Trustees shall grandsons Hawley, said my and to said said living Henry King, if annually my pay son reserve for and ($600) hereof, probate the sum of six hundrеd the date of at annum, during ($200) lifetime. Two hundred dollars per dollars his grand- each of them said legacy (my shall be of which hereby Henryetta Hawley). to be Same is declared sons and said Upon during his lifetime. charge all said shares and lien on their bequest shall be payments shall cease and his death all such null and void. thenceforth 1‘ property provide I net from the out income direct and bequeathed my grand hereby said given and and estate herein and *8 King, pay Mary W. sons, .shall to Mrs. Trustees reserve for arid said ($960) sixty my Henry King, L. sum of nine hundred of son wife semi-annually, possible, if during lifetime, per dollars annum her legacy my of said one-half shall to each them of grandsons. Upon payments shall cease and this death all such hereby bequest legacy shall be thenceforth null and void. Said charge during declared a and lien on their said shares her lifetime. ‘‘ profit I provide further net incomе and direct and that entire hereby given bequeathed my and of the one-third share of estate Henryetta Hawley said Trustees herein named shall be living mother, King Mrs. if at the time to her said .Bessie probate hereof, during of of the latter less one-third the lifetime ($600) (namely), of said six the sum of two hundred hundred dollars my ($200) dollars, payable provided which is as hereinbefore said Henry King. hereby charge lien son L. Same is declared be a and King Haw- during her, on lifetime said Bessie her said share of ley. . . . any probate die IX. Should Trustees before
“Article said Trusteeship, survivor expiration of the survivors or hereof or the said shall, writing trustees who them, appoint a successor trustee or shall become successor or successors forthwith to and of the be and hereby trustee title to said trust estate vested in deceased or successors, always shall be three his or their so that there trustees or hereby . . trust created. . trustees of the during shall herein created continue “Article XI. King my Mary ~W. and of said Bessie lives said son and of said probate King Hawley, if all of them shall have died before the but pro- all hereof, into at and all the then it shall not com? existence visions herein concerning contained same are shall and be ineffective my void, and and estate shall at once be distributed accordance with laws of the State of Missouri. my grandsons XII. I appoint
“Article nominate and said Albe King Harry King W. King Hawley, and Mrs. and Bessie executors respectively my and executrix of this last will with testament, request they as such L. King, that and that said James Dr. Nelson Hawley Kotany .J. Max hereunder, required Trustees be not give bond. But this apply any waiver of bond shall not other person persons.” or charges then bequeathed that was one-third estate; net profit incomе and of the trust that profit
entitled to the net income and from the date of the death of testator, finally March 1915. The estate was closed on the day alleges April, fourth 1917. Plaintiff during period that profit $30,000, administration there was a net income and of over and claims she was entitled to one-third this amount. Plaintiff alleges as executors, Albe and the pay any trustees part have refused to to her net income and profit during period administration; that accumulated knew withholding trustees that the executors were more ten than plaintiff; thousand wrongfully dollars the trustees cheat, wrong intent defraud her failed and refused to exceptions, trustees, file as her final settlement made charges executors. The petition wrongfully paid that the executors $1,975.20, alleged to the State of Missouri the sum of as an inheritance tax; wrongfully stock paid, by $236.28 transfer was so trustees, Jersey to the State of New in like manner the sum of *9 paid $161.38 was applicable Minnesota. The State of statutes and laws of New Jersey pleaded petition. and Minnesota are plaintiff’s alleged The basis of contention, that these inheritance wrongfully taxes paid, were was that the laws of these three named require states payment did not of an inheritance or stock transfer tax in property by case the was inherited a that child and for all intents purposes plaintiff, King Selleck, adopted Bessie was the and, child of the therefore, exempt from the tax. Plaintiffs plead also that the amount of the tax was to her and de- from income, ducted when fact it should not have been portion out of her of income.
Quoting plaintiff’s alleges: from it further “13. Plaintiffs further state that since the creation of said trust estate, by profits, there have been declared out of the net earned corporations mentioned, three different hereinafter after the creation of day March, 1915, eight said estate on 15th upon trust of differ-
1048 trustees by the occasions, upon stock beld stock dividends certain ent stock all of said out, set that hereinafter of said trust estate as corporations, three dividends, representing profits of said net J. Nelson supervision of come under the control and said acting such trustees of King, whilst and Albe deceased; Henry King, by will of the said estate, trust created organized corporations by stock were declared that said dividends Jersey, of New existing the States New. by the laws of virtue of states, all of said Pennsylvania; by statute laws York and laws, can declare dividends existing said by virtue of corporations earnings of said profits and only surplus or out of the net its corporations. ‘‘ tо the issues that, far is material 14. Plaintiffs state in so as same Jersey corpo- relative to case, State of New in this the laws above, were in full and which declaring referred to rations dividends Reynolds R. J. times the stock dividends force and effect at the to, declared, provide referred Company, hereinafter Tobacco as follows:” New Jersey, in full statutes of New then recites peti- Pennsylvania reference stock dividends.
York and proceeds: tion then by dividends, declared
“Plaintiffs further state that said stock hereby designated aforesaid, as follows: corporations said 200 per cent Being No. 1. a stock dividend of “Stock Dividend Rey- 272 R. J. August 16, 1920, upon stock of the declared shares of the aforesaid laws Company, incorporated under nolds Tobacco rep- time, and Jersey, by trustees said the State of New held said at creation resenting by it after the portion profits, of the net earned being $25 value of estate, par said shares stock said by Henry King at share; 136 272 per of said shares were held originally 15, 1915, which consisted the time his death on March each, shares, which $100 34 but some- par shares of the value of estate had been converted into time after the creation of said trust each; pur- 136 par $25 value shares were shares of the year 1918; $3,400 during par chased at the trustees profits represented portion of net said stock dividend Reynolds upon, declared Company, R. J. Tobacco earned profits were so received said said shares of stock said trustees, dividend and amounted to the form of said stock $13,600. share, $25 . . . par per shares of the value of declaration, *10 “22. Plaintiffs further state that at the time by surplus profits, net earned the payment distribution of the and by them, corporations each of and distributed above mentioned and trustees, in form by the of stock divi- them, and received said each of dends, and which were declared certain shares of stock held by Hawley, Harry King the said Nelson J. L. W. King, and Albe as acting trustees, King, under will Henry aforesaid, the said as and representing portion surplus the profits, by or-net earned said trust, corporations, them, each estate, after the creation of said out, paid as above set were in shares to them, said of stock such as acting trustees, profits as income and of said trust estate since earned creation; its the surplus profits represented that whole of the or net by by corporations said stock dividends and said earned after the estate, out, creation of said trust as above set said shares them, acting trustees, of stock to by as such and was so received said trustees, profits estate; 'as income and of said trust thаt the whole surplus profits represented by or net said stock dividends and by corporations, them, earned said and each of after creation of estate, distributed, said trust corporations so and delivered by said acting trustees, by to said trustees, and so received said as aforesaid was, by trustees, willfully, wrongfully, said di- knowingly applied them corpus verted and credited and to the of said trust estate, thereby wrongfully depriving plaintiff, King Selleck, Bessie portion of her one-third of the entire profits net income and of said estate, provided by will, said which she was and justly entitled.” petition sets forth in detail the various with transactions ref-
erence to corporations the stock dividends declared which stock, corpus the trustees held which constituted of the estate. courts, alleges Plaintiff then according that decisions under laws Pennsylvania York, states of New New Jersey, stock dividends are declared to be net profit; income and corporations, which ques- declared stock dividends here tion, corporations are of the three named states. charges then unfriendly, the trustees hostile
and unfair plaintiff; toward willfully the trustees knowingly misappropriated corpus and diverted to the of the estate large portion of the one-third share of the net pro- income and plaintiff by ceeds'due the will, corrupt terms of purpose of benefiting Harry King King, and Albe W. remaindermen and daughter trustees and Eenick, the remainderman Henrietta Nelson J. third trustee. The then enumerates alleged and details numerous instances wherein it is actions contrary the trustees were provisions antag- plaintiff’s onistic charges interests. The are in the detailed main the same example, as those above referred to. For it is trustees, Harry and Albe were also ex- ecutors of the estate and that the profit, one-third income and *11 period administration and to about during tbe amounted
accrued corpus was diverted into the plaintiff entitled, $13,000 which to being resulting remaindermen, the in a benefit to the estate, the daughter Another named third trustee. two trustees and the the interests, transaction, alleged antagonistic plaintiff’s to to have been is also or transfer tax. It payment was the inheritance stock the Harry L. Albe "W. alleged paid King and that the trustees have to equal King cash income of the each a one-third of the net sum to September, estate, April, trust which had between and accrued were made con- 1927, amounting payments that these to about $60,000, trary will, in breach of the trust constituted to the terms of the and Renick, daughter upon plaintiff and Henrietta willful fraud charges will one of If other made necessary the three remaindеrmen. opinion. be to in the referred long petition substance prayer relief, concludes with a the plaintiff to be the
of which is as follows: That the court decree testator; be removed as adopted daughter of that the trustees places; that appoint persons the court suitable their trustees with to the provisions reference court construe plaintiff is entitled profit to net income and of the estate profits surplus and to as to mean and so construe the same include estate stock disi by corporations earned in which owned the trust dividends; be ordered tributed in the form stock that trustees pos- trustees’ pay plaintiff cash income all undistributed monthly session; to make certain that the court the trustees order Plaintiffs payments income received them. out of the held and prayed accounting also an and the trusteеs be that had any interest, with found to be required pay sum sums will; according trustee’s be due her to the terms of the corpus wrongfully paid required of the sums restore to estate King attorneys’ alleged Harry out as fees and sums any making fur- King; Albe W. that the be restrained'from trustees King income until Albe W. payments ther as prayed the court final Plaintiffs also disposition of the case. Jersey be followed in Minnesota decree the laws of New laws of inheritance tax the matter of the transfer and followed Jersey New York be Pennsylvania, New States of profit income and determining to what constitutes dividends. reference stock speaking is denominated petition To filed what defendants thirty-five abstract pages covers demurrer. The demurrer the record. general as a find it sufficient
Upon demurrer we examination special is a general there demurrer In addition to the dеmurrer. separate petition. allegations demurrer to each item of the be, purpose demurrer, must for the of a taken as true. The order court, sustaining demurrer, after reads: “ day plaintiffs attorneys ‘Now at this come open and in they court state that stand the fifth amended and de- *12 plead further; cline to appearing and it to the satisfaction of the general court that a demurrer petition was sustained on the first and petition adjudged wholly said day insufficient on the 27th of Decem- ber, 1921; day that on 9th May, 1927, the motion defendant the plaintiffs’ make amended definite more and certain was sustained, day and that September, 1927, plaintiffs on the 26th granted were leave to withdraw petition; their third amended and general that a demurrer of defendants to the fifth amended sustained, petition adjudged and wholly said insufficient on the day 8th of October, 1928, during term, October 1928. It therе- is adjudged by fore the court that be this suit dismissed as to defendants and plaintiffs that said defendants recover from their costs in this ” expended by behalf they them and that have execution therefor.’ major portion briefs, case, of the elaborate filed in this question is devoted to the as to what should be included in term profit,” “income and employed by as that term was the testator V VI Articles and of the will. It will be noted that in Article five following language is used: “And the net income one-third my shall estate be Mrs. said Bessie as herein ’’ “ provided. In Article VI we read I as follows: further direct and provide that the net income profit entire and of the one-third share my hereby given bequeathed Hawley estate and to said Henrietta shall paid by be the trustees herein mother, named to her said Mrs. King Hawley.” Bessie appellant’s according It is that, contention language to the used, clеarly it was the intention of the testator stock profit go dividends are income and and should and not corpus to the Respondents of the estate. on the other hand con that, by tend will, terms of belong stock dividends to the corpus of the estate and the trustees should treat it as such and not deliver stock dividends derived the stock held the trust estate.
This presented was first to this court the case of Hayes Co., v. St. Louis Trust 298 W. Mo. S. 91. Division One of this opinion, court in an prepared by C., exhaustive Ellison, held that the term “income” did not include stock In dividends. employed case the following language: “ ‘Said trustees charge shall possession take and of said rest and collect, my estate, residue of income, rents, profits issues there- of and therefrom, deducting proper legal charges and after all property and management of expenses said incident net dispоse hereby created, execution herein of the trusts ’ ” . . . property
income from said trust as follows: length Hayes considered at opinion In this court reviewed and Three land. throughout the subject, decisions of the on this courts diversity different.rules reason of seem to have come to life Pennsylvania opinions. stock dividends rule treats alike earnings rule', But, from which dividends. under this cash dividend, the creation must have- accrued since is declared may entitled thereto. tenant trust estate order the life stock and cash Kentucky rule also makes between no distinction earnings when the this rule it not matter dividends under does the creation accumulated. All dividends declared after rule treats as income. The Massachusetts estate treated corpus cash dividends part of the estate and stock dividends as Hajres rule in the as income. This court followed the Massachusetts Hayes apply not Appellants case. insist that case does *13 Hayes They point testator in the case used case at bar. out that the “income,” while in ease now us the testator.used the before the.term broader profit,” appellants term “income which insist is a the seeing however, plainly Appellants, term and stock dividends. includes Hayes sound opinion the of insist that it is not force and the effect Pennsylvania Kentucky principle in the more rules are justice.' relatively is, speaking, Since this a new harmony in again spent time and labor this State we much examining upholding authorities the different or the so- the theories , opinion Pennsylvania, rules. The Kentucky Massachusetts called fully every argument against Hayes in the. answers made the case again theory unnecessary rule. We it to write Massachusetts or think at.length question-and rеaffirming on content ourselves with the Hayes Hayes later holding reasoning in the case. case was by O’Day, this court v. Division One of Macdonald followed 857, (2d) 374; Co., 324 5 W. Robert v. Mercantile Trust Mo. Mo. S. (2d) 23 S. W. 32.
Turning our attention now to the case we before us do so thought para in mind that the intention of the testator is with the intention, speak, gathered This to must be from four mount. so the will, residue, will IY of the By corners of the itself. Article the which, estate, given is the bulk the to three trustees this case of grandsons for use testator’s two and Henrietta and benefit of the daughter plaintiff, and share share alike certain n provision Y In Article the testator made a conditions. death of one or two of three named beneficiaries event of the be will, pass probate the estate should to the fore the survivors by the for survivor, any payments," provided but that in event tbe the net will, be made and to testator’s son and his wife should In plaintiff. paid to income of one-third the estate should be his pay VI Article the testator directed the trustees to year during per year $960 per $600 sum of lifetime and son the his VI during provides to wife also his son’s her lifetime. Article given to Henrietta profit the entire income share the one-third Hawley during her life- paid mother, plaintiff herein, shall be to her being time, $200, son, which one- paid less was to be to the testator’s given $600 third of the him the will.. Direction is made that to grandsons given out 'the net property income to pay son, Mary trustees shall wife of testator’s Mrs. grandson’s $960 share’ $200 sum and also the sum out of each intention, the testator’s son. asSo we view it the testator’s expressed-, given us is clearly was that the estate to the trustees for the persons use and benefit of the named. The testator bur- three Hawley dened the one-third share of Henrietta with thе sum year per during $200 son, the life of the testator’s and further bur- n it in dened that the entire income from this share less the one-third $200 mentioned paid grandsons’ should be her mother. The two during shares each per $200 burdened with sum of annum -the life of the son, per year $960 testator’s and a further was sum of against one-half each share of the to be the wife will, clearly testator’s son. whole, when as a considered indicates that it corpus was the intention of testator that of the estate go named, should in all events the three of the beneficiaries only provide trust. reason that a all created at was to payment expressly provided annuities. The testator death, that in prior probate will, case of the of the three named, annuities, who were to receive life trust created *14 not should come into existence. provided The testator also that the trust should cease with the death of the three life annuitants. nothing
There is in the will to indicate an part, intention on the Hawley the testator that equally Henrietta should not share grandsons. contrary testator’s "Rather appears. Provision made is in the’ will in that case of death grandsons of one of his such - go share should to the survivors share and share alike. petition alleges that the son, testator’s one of the annuitants, died :sinee the trust It, therefore, was created. happens so that the Hawley greatest share of Henrietta carrying is burden that the entire income her derived from share must be mother. However, plaintiff, had Divine Providence so willed that the mother Henrietta should have been the first to answer the Eternal Summons, the share Hawley of Henrietta would have been relieved
1054 anything will that tends this burden. Neither do we find
to show that the of the stock divi intended onе-third de dends, estate, should be derived from the stock held harmony entirely out of Such would be plaintiff. livered to a course will. It general scheme of the testator’s and inconsistent with the grand equally with the Hawley to permit would Henrietta share not thoroughly ac testator was The will itself discloses that sons. quainted'with corporations transacted business. manner in which dividends he Had he intended that receive stock should The will express provision made an therefor. would no doubt have with ref lengthy gives to the trustees detailed instructions is management yet estate, erence to not a word to indicate of the following go plaintiff.' state the stock dividends should 559, appro 136 Mahon, ment v. U. S. l. c. of the court in Gibbons priate to the occasion: ascertaining rights persons, “In such the intention of asp control; but
testator, by him, far must of course so manifested what given question as special no when he has direction presumed income, he must be principal and what shall considered over the power corporation of the to have had in view the lawful intended that the apportionment earnings, and to have use its regular depend upon action of that should determination regard all Ye hold corporation with its shares.” the testator his will profit,” of the term “income and use [Hayes Union v. St. Louis not intend to include stock dividends. did 94, 95(2) ; c. Macdonald v. Co., 1028, Mo. 298 S. W. l. Trust 317 23 Co., 314, 324 S. O’Day, supra; v. Trust Mo. Robert Mercantile (7, 114 (2d) (4) (2d) 113, 27 c. ; Franz, l. c. 41 Fed. l. Buder v. 8) 131; 124 l. c. v. (9) (10); Long Rike, (2d) Fed. Chase v. 50 (4-6).] 508 Lowell, (Mass.) Bank 176 N. l. c. 510 Union Natl. E. interchangeably “profit” “income” are often used The terms 5, meaning. 400, C. J. sec. great and to extent the same [31 also, Natl. Bank See, 18. Chase v. Union and cases under note cited Lowell, supra.] corporations Plaintiffs insist that the laws of the domicile determining govern in in which stock should the trust estate owns meaning of words with reference to intention of the testator plaintiffs in error. “profit.” In this think “income” we must be general that the -laws of the testator’s domicile rule is apparent determining the testator.- It is applied the intention of . Park, any result confusion other rule would [Jones v. 610; Riesenberg’s Estate, 90 W. 1018, In re S. S. W. Mo. (2d) 673; Long 308; Schilling, S. W. v. 116 Mo. Freund v. App. *15 supra; Cyc. 1382, 40 Rike, 1383.]
1055 wrongfully have Plaintiff’s asserts that the trustees contrary paid to the will to the terms of will, two-thirds of Albe two of the beneficiaries under the with annuities which the cash net income of trust estate less the the this net income charged. shares Plaintiffs their contend corpus until such have been the the estate time should added to of trust is should be divided ended, the when the whole of the estate pay these plead by the three remaindermen. Plaintiffs between been plaintiff’s daughter, Henrietta have ments large money they of which are entitled. defrauded of to sums entirely depends upon the in The determination of this construing In wills expressed in the will. tention the testator as every possible give provision courts should if made the effect (2d) (1, l. c. 1012 Ferril, testator. v. Mo. S. W. [Snow In three case the testator his estate to beneficiaries. 2).] devised testator, by corpus will, The his created a trust estate so as to hold the payments of the estate certain life intact to insure the annuities. charged One By parts. part the estate is divided into three during person. The other with life of a certain entire income charged separate during certain two shares are with amounts the lives of two annuitants. If be the will should so construed intended that retain the trustees should all net income derived necessary pay the trust estate in excess of the amounts life an and at nuities the end of the trust be divided into three the estate entirely equal parts, destroy provisions it would of the will that those against specify charged. the share annuities shall the life especially provided The testator in his will life annuities charge designated, during should be a created and lien on shares the-life the annuitants. It seems clear that the testator desired bequeath Hawley property his one-third to Henrietta re maining grandsons. two-thirds of Henrietta Haw- to his The mother ley daughter receive the one-third less income devised to year per Henry King. $200 devised to two-thirds devised to year grandsons $1,360 per a total of to be parents grandsons. IV By the will, Article expressly grandsons trust is declared to be for the benefit of the Hawley, subject Henrietta to certain Those conditions. conditions payments payments the life annuities. Those have been charge lien, against and the grand made crеated the will shares, discharged. sons’ post been law not favor does enjoyment ponement a beneficial interest in an estate. [Ham Lewis, grandsons v. payments ilton Mo. 184.] was, net income derived from therefore, their shares estate *16 1056 by bis expressed as of
entire with the intention- the accord last and testament. there administration during period of alleges the Plaintiff that pay to refused have $30,000; trustees income of that the was net rightfully entitled to which she plaintiff one-third of sum By the corpus of the estate. wrongfully that sum to the added and re residue consisted testator, will of the trust estate the testator’s the estate, payment of mainder the testator’s after the du The trustees’ specific bequests. payment debts and the of certain over to paid residue the the ties did commence until executors not accounting and to make an duty the of the trustees them. It was not during the might havе accrued income, any, if that ascertain the net concerned, what period as trustees So far the of administration. corpus the es the they ever executors constituted received the ’ Estate, 328 recently In re Holmes tate, as a similar case. was said in for provided could 143, (2d) 618; Mo. 40 c. estate S. W. l. “The trust adminis until the not be come into existence determined did not not mean made.” We do completed tration and final settlement say plaintiff that under the of the will was not entitled terms Plain accruing during net administration. one-third of the income amounts, pay her alleges tiff the certain executors fact did If only part to her them. but a small of her share was to she pay the in fact not all she was entitled executors did exceptions filed to the settlements made the executors should have probate in the court. complaint paymеnt
Plaintiff’s the executors’ reference to $1,975.20 litigated pro to the Missouri cannot be in this State of ceeding. years discharged prior four to the The executors had been object filing payment plaintiff’s suit. If desired to exceptions this sum she should have filed the final settlement probate Estate, court. re Holmes’ executors Mo. [In (2d) duty S. W. trustees were under no to file 616.] The ex ceptions began when they accepted for her. trustees’ duties corpiis trust and received the of the estate from the executors. One will, Kotany, accept trustees named in not did the trust. How, law, responsible under the could he be for acts held trustees, accepted trust, executors? Neither can the be who held responsible for the actions of the executors. management charged anof are with the
Trustees estate there many respects they In must necessity of. their discretion exercise pursue for the as to what course best interest of It is the estate. duty against all pay of the trustees to and assessments taxes Cyc. By petition, estate. trustees 337.] [39 having wrongfully paid Jersey New this ease with State of $236.28 an inheritance or tax sum stock transfer tax like Considering only $161.38. the State of Minnesota the sum of argument purpose of this of the tax was a de- validity question, litigated questions proba- in all batable to have these would bility more estate, successful, have cost the trust even if than ought not, pleaded, amount of tax. trustees under facts paid. petition charges made for the to account taxes so wrong- payments corrupt purpose cheating, *17 these were made for the ing defrauding plaintiff. allegations, plead- These without ing facts, any do not the petition. lend force to requested
With referenсe to the bond of will the trustees the that executors, executors, as such and the named not trustees be “¡But required give to The will provided: bond. further this any waiver apply person of bond shall not persons.” other or De King fendants, Harry King, Albe W. were named as executors. They appointed discharge trustees after their as executors in lieu of two of the trustees in will. named Plaintiffs contend that the waiver of bond in will applied contained to the defendants as executors but not as trustees. In we plaintiffs this think are cor By plainly rect. the terms of the will the testator indicated that only the named trustees should act without bond. trustees, The two and Albe W. required should give be bond if they are to 'continue as trustees. The circuit fix court should require amount of the bond and the trustees reports to make annual to the court. v. 20 Gartside, S. W. 113 Mo. [Gartside 348.] prayed
Plaintiff also the court tо decree she be declared adopted daughter of the testator. petition alleges that the agreed adopt plaintiff testator daughter. as his The will of the testator plaintiff stated that my “lived me and during wife latter’s daughter lifetime as our and in I whose home have since lived my death, although wife’s adopted by she was never either of as us daughter a in accordance with the law.” Defendants contend that by quoted clause expressly the testator declared plaintiff was adopted never she be not considered as a child. Plaintiff by contends that this expressly clause the testator plain declared that tiff should adopted have been and construed the words testator apology an having for not done so. It is evident from the terms will plaintiff the testator held high in esteem. His affection and for by love her are provisions revealed will daughter wherein placed par on a with his own equitable However, children. an adoption decree of plaintiff’s plaintiff’s rights. favor could not affect Plaintiff accepted the terms of the will. We held that the trustees did not abuse their by paying discretion the stock transfer or inheritance tax without litigating first of their legality, which depended
1058 No of the testator. child question of whether adoption an decree. plaintiff by gained rights be could substantial 138, we read: 157, section Juris, page Corpus 21 In simply to vindicate a bill entertain an equity will not “A court to be actual benefit is derived justice, no where principle abstract by injury suffered right, nor to exercise such seeks party who injured wrong of, or where complained the commission justify damages. To most, only nominal entitled, be at party would right a substantial sought good protect faith it must relief wrong.” prevent appreciable an and redress (6-8); 213 (Wis.) 220 N. l. c. Zetley, W. v. See, also, Bouchard (2-4); (2d) 939, 940 Madson l. Mortg. Co., 45 Fed. c. In re Hawkins 6) (8) Martin, (5, (7) ; Collins v. l. (2d) 4 Pac. c. Madson, v. question would entail (2,3). litigate To l. (Mo.) c. S. any plain event inure to long No benefit could trial. substantial jurisdiction. should, equity therefore, not take A court of tiff. appointed de his Removal trustees: The plaintiff, as one of husband of fendant, Nelson J. the then Kotany trustee, as a but refused trustees. was also named *18 petition discloses, had no interest what Kotany, act. so far as the King Topeka, Kansas, in L. other estate. James the ever the in no the The by testator, named the had interest estate. trustee should administered it intended that the trust estate be seems opportunity had did by trustees. The testator the but disinterested beneficiary will, son, Henry King, his own under the not name grandsons, his two who appoint as a Nor he as trustees trustee. did in as will. So the trust estatе so far were beneficiaries under the concerned, by will, was plaintiff was be adminis as created to in or trustees, who were either disinterested the estate tered Subsequent friendly changed plaintiff. rapidly events this situa to petition tion. the time the fifth was filed the trustees At amended J. was the divorced of plain were Nelson who then husband King Harry King principal W. two tiff Albe beneficiaries alleges grandsons testator, petition of the estate. of the trustees, referring now rebuked for testator as alleges Albe petition appointed also father. was protest. alleged that plaintiff’s It the trustees re trustee over attorneys’ fees, plaintiff’s $500 tained out of income for when in fact attorneys’ petition no fees had been allowed court. The also large attorneys’ charges sums as that the trustees have fees charges wrongfully such net of plain deduсted income petition in that the trustees tiff’s It is have re share. inspect the accounts of the permit plaintiff trustees, to to con fused trary provisions of the will. It will be noted that will right inspection Many beneficiaries. tbe grants expressly being charging the un- petition, trustees allegations these standing alone, imply but they serious nature not of a friendly, are unfriendly plaintiff. The hostile and toward are trustees antagonistic are interests in the the trustees estate interests of plaintiff. appointed plain- as trustee over alleged, it is Albe W. having a beneficial interest a trust estate Persons protests. tiff’s vacancy fill a there appointed especially be where not should person que the cestm trust. conflicting between such interests Considering feeling Cyc. that existed between pp. 283.] [39 grandsons testator, alleged petition, and the as in the grandsons appоinted should not been as trustees. asks that the trustees be removed and that suita- places. persons appointed equity
ble their Courts of are reluctant manifestly if However, remove a trustee. it is for the interests que power cestui estate of the trust a court should exercise that Cyc. and remove page 263, the trustee. In we read: occupies antagonistic “Where the trustee relations the trust property personal of his therein, because or interest where inharmon unfriendly ious or trustee, relations between the exist between que them trust, may and the cestui there be sufficient for re reason ! moval.” usually just It is of fact whether or not cause exists Taking allegations the removal of a trustee. as true, which must purpose we do for the demurrer, a court would be authorized to remove the trustees in this case. Had parties circumstances of the and their relations other, to each as revealed from the pleaded petition, facts been such at the time the they testator executed his stood when the amended petition was filed certainly case the testator would not have *19 present named the trustees administer the trust estate. The testator would placed not have embarrassing in such position. an presume We must enjoy intended the in its fullest extent the net income one-third share of estate. Peace of mind enjoyment is more value of life property money. than existing The relations between the trustees plaintiff, and the que as the cestui tr*ust in case, pleaded petition, destroy tend peace great mind and defeat to a extent the intention of the testator when he created the trust estate.
The trial court evidence, should have heard the аny, plain if tiff had to allegations sustain the part petition alleging that the unfriendly trustees and hostile and that their interests were antagonistic plaintiff’s. 1276, R. C. sec. [26 The 126.]
1060 court
circuit require should case the trustees are not removed Albe W. Harry .L. King, give trustees, to bond as trustees. alleges The facts sufficient to state a cause of author action izing the court hearing to determine whether or not the 263; trustees should be removed. Cyc. Gartside v. 113 Gartside, [39 Mo. 20 348, 669; S. W. Mary 8 Ronald McDonald O’Donnell, v. (2d) 792, Fed. A. 328; L. R. In re Dreier’s 235 N. W. Estate, (Wis.) (6); l. c. Overell, Overell (Cal.) May v. Pac. 310; ] . v. 167 U. S. May, 310 general demurrer should not have been sustained. We have indicated, guidance for the court, the trial wherein and as to what items not does state a cause action. judgment the circuit court should be reversed
cause remanded for It is Cooley so ordered. trial. and Fitzsimmons, (7(7.,concur. The foregoingopinion by
PER CURI A M: C'.,' is Westhües, adopted opinion All judges as the court. concur. 975. (2d)W. 55 S. Dowell, Appella v. State Rose n t. Two, 1932.
Division December