Edgar v. Fitzpatrick

Decision Date27 June 1963
Docket NumberNo. 8109,8109
Citation369 S.W.2d 592
PartiesWilliam R. EDGAR, Executor of the Estate of Charles Monroe Fitzpatrick, Deceased, Plaintiff-Respondent, v. Carl FITZPATRICK, Vesta Fitzpatrick, and June Hitt, Defendants, Marvin Fitzpatrick, Opal Williams, and Jessica Rice, Defendants-Appellants, and Faye Varnum, Guardian of the Person and Estate of Jettie Fitzpatrick, Incompetent, Defendant-Respondent.
CourtMissouri Court of Appeals

William H. Wyne, Jr., Ray T. Dreher, Clayton, for defendants appellants.

William R. Edgar, J., Ironton, for plaintiff-respondent.

Dearing, Richeson & Weier, Will B. Dearing, Hillsboro, for defendant respondent.

RUARK, Presiding Judge.

This is a declaratory judgment suit which involves the will and an inter vivos trust executed by Dr. Charles Monroe Fitzpatrick, a resident of Reynolds County, who died on the 13th day of December, 1959, at the age of eighty years.

On July 29, 1957, Dr. Fitzpatrick executed a printed form of instrument entitled 'Revocable Declaration of Trust' as follows:

'REVOCABLE DECLARATION OF TRUST

I, the undersigned declarer, having purchased or declared my intention to purchase certificates of Participation in one or more Series of the Keystone Custodian Funds and/or shares of Keystone Fund of Canada, Ltd., do hereby declare that such certificates or shares, which may be under a Keystone Open Account, are to be in trust upon the following terms:

(1) As trustee, I shall have the right to sell, assign, transfer, invest, reinvest, and otherwise deal in the trust estate or any part thereof, on such terms as I shall deem appropriate; and, as trustee, to receive additional shares of property from whatever source which shall be added to the trust estate.

(2) During my lifetime, the income from the trust estate, including distributions of realized capital gains, or such other payments of income or principal as I shall specify from time to time, shall be payable to me individually, for my own personal use and account.

(3) Upon my death, this trust shall terminate and the then trust assets shall be distributed to the following beneficiaries in the proportions indicated.

                Beneficiaries                   Residence            Proportion
                                                5424 Cabanne Ave
                Mrs. Opal May Williams      of  St. Louis, Missouri     1/3
                --------------------------      -------------------  ----------
                Mrs. Jessica Gertrude Rice  of  Roselle, Missouri       1/3
                --------------------------      -------------------  ----------
                                                2941 Wayne Ave
                Marvin Lowell Fitzpatrick   of  Granite City, Ill.      1/3
                --------------------------      -------------------  ----------
                

(4) In the event a named beneficiary shall predecease me, the indicated proportion of the trust assets to which he would have otherwise been entitled upon my death shall upon termination of the trust be distributed among the surviving beneficiaries as their proportionate interests then appear.

(5) In the event all of the named beneficiaries predecease me, the trust shall terminate and the then trust assets shall revert to me free and clear of the terms of this trust.

(6) I, the undersigned declarer, reserve the right to change the beneficiaries and their respective interests or to revoke this trust in whole or in part at any time prior to termination by a written instrument signed by me, which shall be attached hereto.

Executed under seal this 29th day of July, 19 57.

/s/ Ralph W. Yoder Witness

/s/ Charles Monroe Fitzpatrick Declarer

(Typed) Charles Monroe Fitzpatrick

This Trust shall be known as the CHARLES MONROE FITZPATRICK Trust #1. * * *'- The names, addresses, and proportions of the beneficiaries and the addition as to the name of the trust were filled in by typewriter, as was the date.

The showing of circumstances surrounding the execution of this trust is meager. All we know is that it was executed while the doctor was in a hospital in St. Louis. 'Q. What hospital was Dr. Fitzpatrick confined in? (Objection overruled.) A. Missouri Baptist Hospital.' The executor testified that after his appointment Marvin Fitzpatrick, one of the beneficiaries named in the trust, told him, the executor, 'We got in touch with Mr. Yoder, a broker who had sold Dad all of those Keystone shares, we took him out to see Dad and he told Dad how he could arrange this trust. All we were trying to do was to see to it that Grandma didn't get anymore [sic] out of the estate than we did.' 'Grandma' was Jettie Fitzpatrick, who was Dr. Fitzpatrick's (second) wife for thirteen years and is now his widow.

On February 13, 1958, Dr. Fitzpatrick executed his last will and testament which, so far as here pertinent, provided first for the payment of his debts; second a devise of certain real estate to his daughter, Jessica Rice; third to a daughter, Opal Williams, certain real estate; fourth to the widow and children of a deceased son $5.00 each, and to another grandson $1,000; fifth and sixth to the son, Marvin Fitzpatrick, certain real estate. Paragraph seven was as follows:

'7. To my wife, JETTIE FITZPATRICK, if she survives me, I give and bequeath all of the books, wearing apparel, household electrical appliances, household musical and other amusement instruments, and all household and kitchen furniture, appliances, utensils and implements; together with an allowance in the sum of Twenty-four Hundred Dollars ($2400.00) for her maintenance during the period of one year after my death; and I direct my executor hereinafter named to make payment of said sum to her, in cash, within thirty (30) days after the probate of my will, the same to be in lieu of the family allowance provided for by Section 474.260, R.S.Mo.1949, as amended. And, in addition to all of the above, I give and bequeath to my said wife, if she survives me, a sum equal to one full third of my entire estate, the amount of said sum to be determined by a fair and reasonable appraisal of the clear market value of all of the property of which I die seized, not only the real estate herein specifically devised to my children, but all other property, real and personal, owned by me at the time of my death; and when such appraisal has been made, after deducting from the total thereof, the appraised value of the exempt property herein bequeathed to her and the amount of the family allowance herein set apart to her, and the total of all claims against my said estate, one-third of the balance shall be paid to my said wife as her share of my estate. In making this provision, I have in mind my desire to devise certain specific parcels of my real estate to my children and also my desire to make every provision for my said wife which is contemplated by statute.'

Paragraph eight made Marvin, Opal and Jessica, his son and two daughters, residuary legatees of the will. (These are the same people who were transferees in the transfer of July 29, 1957.) Paragraph nine provided that the beneficiaries should take free of state and federal taxes and that such should be paid out of the general estate.

This will was prepared by an experienced attorney. There is no indication that Dr. Fitzpatrick informed the attorney about the previously executed declaration of trust. After the doctor's death, his executor 'found stock certificates, notes, and so forth, in all parts of the house and office too.' Included in these were the declaration of trust and certificates of stock in the Keystone Custodian Funds issued to Charles Monroe Fitzpatrick, Trustee. The total value of such certificates at the time of death was slightly in excess of $33,000.

The inventory of estate listed real estate of value of $16,190 and personal property at $49,246.42. Separately listed was joint and entirety property of the value of $19,832.98. The evidence shows that some of this jointly owned property was acquired from assets owned by Jettie Fitzpatrick prior to marriage, but we do not know in what amount. The inventory also listed separately the Keystone Fund certificates above mentioned.

The Treasury Department filed a demand against the estate for a total of approximately $120,000 for delinquent income taxes and penalties. After several months' checking of records the executor was successful in getting the claim reduced to $51,000 plus interest. The executor employed an auditor (cost $555). Afterwards, with approval of the probate court, a contract was entered into with attorneys to defend the tax claim with a contingent fee of one-third of whatever amount was saved in reducing the claim. Subsequently, the tax claim was settled for $10,300 including interest; but the estate became liable on its contingent fee contract in the sum of $17,365. (The validity of this liability is not questioned here.) Thus the agents of our government, which both giveth and taketh away, by the insistence upon a claim many times in excess of the amount they eventually, by settlement, agreed to be just, have caused the estate to be greatly depleted.

The executor brought this suit setting up the fact that, in order to pay the amount bequeathed to the widow, Jettie, he may be required to exhaust the residuary estate and all or part of the specific legacies and devises and praying that the court construe the will and determine the manner in which the estate should be distributed, and also praying that the court ascertain and determine whether the Keystone Custodian Fund shares described in the declaration of trust are to be considered as a part of the estate in determining the share to be distributed to the defendant, Jettie; and further that the court determine the order in which legacies and devises shall be abated, and whether the distribution to Jettie shall be made an equitable charge on such legacies and devises and whether the executor has authority to sell the same either to satisfy claims or to make distribution...

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9 cases
  • Mitchell's Estate, Matter of, 40865
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Diciembre 1980
    ...equitable cause of action, in which the aggrieved party normally seeks relief in equity rather than at law. E. g., Edgar v. Fitzpatrick, 369 S.W.2d 592, 599 (Mo.App.1963) modified on other grounds, 377 S.W.2d 314 (Mo.1964). Admittedly, today the probate divisions of our circuit courts appea......
  • Ingram's Estate, In re, 46728
    • United States
    • United States State Supreme Court of Kansas
    • 22 Mayo 1973
    ...to establish a trust in certain mutual fund stock was ineffective (see Edgar v. Fitzpatrick, 377 S.W.2d 314, reversing Edgar v. Fitzpatrick, Mo.App., 369 S.W.2d 592). Appellant Frances asserts Kansas law should apply, pointing out that Pearl, Harold and Frances were all residents of Kansas,......
  • Rose v. St. Louis Union Trust Co., 41783
    • United States
    • Supreme Court of Illinois
    • 26 Noviembre 1969
    ...trusts, where they were a fraud on the widow's marital rights, have long been the subject of equity jurisdiction. (Edgar v. Fitzpatrick (Mo.App.1963), 369 S.W.2d 592, 599, reversed on other grounds 377 S.W.2d 314.) Moreover, that rule was incorporated in the Missouri statute, section 474.15......
  • Estate of Froman, Matter of, 16841
    • United States
    • Court of Appeal of Missouri (US)
    • 4 Febrero 1991
    ...Bernskoetter, 693 S.W.2d at 252; Nelson, 512 S.W.2d at 459, nor in revocable inter vivos trust cases, see, e.g., Edgar v. Fitzpatrick, 369 S.W.2d 592 (Mo.App.1963), modified on other grounds, 377 S.W.2d 314 (Mo. banc 1964). Nevertheless, we believe the decedent in the case before us did ret......
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