McLain v. Mercantile Trust Co.

• Decision Date: 18 February 1922
• Docket Number: No. 22389.,22389.
• Citation: 237 S.W. 506,292 Mo. 114
• Parties: McLAIN v. MERCANTILE TRUST CO. et al.
• Court: Missouri Supreme Court

237 S.W. 506

292 Mo. 114

McLAIN v. MERCANTILE TRUST CO. et al.

No. 22389.

Supreme Court of Missouri, Division No. 2.

February 18, 1922.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Suit by Florence O. McLain against the Mercantile Trust Company and others. Petition dismissed, and plaintiff appeals. Affirmed.

Suit in partition of a certain lot or parcel of land in the city of St. Louis. At the conclusion of the testimony the court nisi dismissed plaintiff's petition, and she appeals.

The petition was in the usual form, alleging:

That J. T. McLain, deceased, by his last will and testament duly admitted to probate on the 8th day of November, 1916, devised and bequeathed said property to the Mercantile Trust Company, as trustee, for the benefit of plaintiff, Margaret Merle Schierbaum, her daughter, and Girard D. Schierbaum, her grandson, to enjoy the income therefrom in the following proportions: One-half to plaintiff, one-fourth to her daughter, Margaret Merle Schierbaum, and one-fourth to her grandson, Girard D. Schierbaum; that on the 2d day of January, 1917, plaintiff filed her renouncement of said will as the widow of said J. T. McLain, deceased: "that at the time of said renouncement she intended to take a one-half interest in said estate, and ever after that did take a one-half interest in said estate; that in making her settlements with said court a one-half interest in the rents of said property and said estate were given and awarded to her, and after the administration of said estate a one-half interest in said rents and profits of said estate were paid to her by consent of all the parties, recognizing that she was the owner of a one-half interest in said estate by virtue of said renunciation so made as above."

It was further alleged:

That appellant paid one half of the debts of the estate and one half of the taxes due on said estate and that the Mercantile Trust Company paid the other half, and "that at the time of renouncing under said will the probate court of the city of St. Louis made an order that she take a one-half interest in said estate, and she has relied upon said renouncement and said conduct of the parties hereto as giving her an undivided one-half interest in said above property in fee-simple right."

Other immaterial allegations were contained in the petition, and there was the usual prayer for partition of said real estate.

Defendants answered, admitting the death of J. T. McLain and due proof of his will, and the devise of said property to respondent Mercantile Trust Company, as trustee, and that appellant renounced said will at the time alleged in her petition, and then specifically denied that by such renunciation, by election, or by any other means or medium, plaintiff became entitled to a one-half interest in the said premises.

The case was tried below upon an agreed statement of facts, which tended to support the allegations of appellant's petition in so far as the terms of the will were concerned, and it appeared that the Mercantile Trust Company, as trustee, had declined to take charge of the property devised, but it further appeared that it was otherwise performing its duty under the trusteeship created by the will.

Clauses 5 and 6 of the will are pertinent here, and are as follows:

"Fifth. I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal, or mixed, wheresoever situated of which I may be seized or possessed, or to which I may be in any manner entitled, or in which I may be interested at the time of my death, unto the Mercantile Trust Company of St. Louis, Missouri, a corporation organized and existing under the laws of the state of Missouri, its successor or successors: In trust, nevertheless, for the following purposes.

"Sixth. It is my further will and desire that all of my estate, real, personal, or mixed, wheresoever situated, shall be turned over to and taken possession of by my said trustee, to collect the rents from my real estate and the interest and income from my personal estate, and on the first days of December—Page 1 of my Will. J. T. McLain—and May of each year, divide the net income from my estate into three parts, one-half thereof to be paid to my wife, Florence O., one-fourth thereof to be retained and invested for the benefit of my grandson, Gerard D., son of Margaret Merle and Dan Schierbaum, to be used, together with interest therefrom, by my said trustee, for the purpose of educating my said grandson, Gerard D. Schierbaum, so as to fit him for any vocation which he may select. And to this end, I hereby empower and authorize my trustee to sell and convey, and to execute deed or deeds therefor, at such times and upon such terms as it may deem advisable, any of the property which may come to its hands, and I empower it to invest and reinvest the proceeds of my property real or personal, hereby vesting my trustee with all the power in respect to investments and reinvestments of my estate and the proceeds thereof, which I might personally exercise if living, specially intending and directing that my trustee shall not be restricted from continuing any of my investments in their present form, or from changing the same to any other form which it may deem wise."

Appellant's renunciation of the will was as follows:

"In the Probate Court of the City of St. Louis, Mo., December Term, 1916. No. 47103. In the Matter of the Will of the Estate of J. T. McLain, Late of the City of St. Louis, State of Missouri, Deceased.

"I, Florence O. McLain, widow of the said J. T. McLain, do by this act and deed renounce and refuse to accept the provisions made for me by the will of said J. T. McLain, dated the 29th day of April, 1912, and probated in the office of the probate court of the city of St. Louis, Mo., on the 8th day of November, 1916.

"Witness my hand and seal this 2d day of January, 1917.

                            "Florence O. McLain. [Seal.]
                

"State of Missouri, City of St. Louis—ss.:

"On this 2d day of January, 1917, before me personally appeared Florence O. McLain, to me known to be the person described in and who executed the foregoing...