Noe v. Kern
| Decision Date | 19 December 1887 |
| Citation | 6 S.W. 239,93 Mo. 367 |
| Parties | Noe et al., by Curator, v. Kern, Administrator, etc., Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.
Affirmed.
Martin Laughlin & Kern and Given Campbell for appellant.
The decree should have been in favor of defendants, as, under the law, the will raised no trust in favor of either Paul or Sadie Noe. Corby v. Corby, 85 Mo. 371, 392, 393; Wright v. Adkins, 1 T. & R. 143; Wood v. Cox, 2 My. & Cr. 684; Webb v. Wolls, 2 Sim. [N. S.] 267; Knott v. Colton, 2 Phil. 192; Perry on Trusts sec. 116; 2 Story Eq. Jur., secs. 1069, 1070; 2 Pomeroy Eq., secs. 1015, 1016, 1017; Meredith v. Hineage, 1 Sim. 542, 551; Howard v. Carusi, 109 U.S. 733; Colton v. Colton, 21 F. 595; Campbell v. Beaumont, 91 N.Y. 465; Hess v. Singler, 114 Mass. 59; 1 Jarman on Wills [2 Am. Ed.] 686. If the court should hold that there should have been a decree in favor of the plaintiffs, then the decree was for an excessive amount, and was contrary to the evidence and the law, Paul Noe being above nineteen years and six months old, and Sadie being little more than a month less than sixteen years of age, at the date of the decree.
Collins & Jamison and John Wickham for respondents.
(1) The words in the will are sufficiently imperative to create a precatory trust in favor of Paul and Sadie Noe. Bohan v. Barret, 79 Ky. 383; Erickson v. Williard, 1 N.H. 228; Collins v. Carlisle, 7 B. Monroe, 14; Knox v. Knox, 59 Wis. 172; Perry on Trusts, sec. 112; Brownfield v. Wilson, 78 Ill. 467. (2) The controlling guide in construing a will is to ascertain the intention of the testator. Turner v. Timberlake, 53 Mo. 371; Gaines v. Fender, 57 Mo. 342; Carr v. Dings, 58 Mo. 400; Smith v. Hutchinson, 61 Mo. 83; Allison v. Chaney, 63 Mo. 279. (3) No particular form of expression is required in order to create a binding trust, and words of recommendation, request, entreaty, confidence, wish, desire, or expectation, will impose a binding duty upon the devisee by way of a trust. Schmucker's Estate v. Reel, 61 Mo. 592-596; 1 Jarman on Wills [5 Am. Ed. 1880] 680; 2 Redf. on Wills [3 Ed.] marginal p. 410; Buck v. Ashbrook, 59 Mo. 200-202; Warner v. Bates, 98 Mass. 274-277; Taylor v. Martin, 8 A. 920; Hunter v. Stembridge, 12 Ga. 192; Knox v. Knox, 59 Wis. 183; Hill on Trustees [4 Am. Ed.] marginal p. 71; Bohan v. Barret, 79 Ky. 378-388; McRee v. Means, 34 Ala. 349; VanAmee v. Jackson, 35 Vt. 176; Harrison v. Harrison, 2 Grattan [Va.] 1; Dresser v. Dresser, 46 Me. 48, and other cases. (4) The subject-matter expressed in the will is sufficiently certain. Broom's Legal Maxims, 481; Stoneman v. Pyle, 35 Ind. 103; Nickerson v. Sheldon, 33 Ill. 373; Warner v. Bates, 98 Mass. 278. (5) The objects of the bequest expressed in the will are sufficiently certain. First Baptist Church v. Robertson, 71 Mo. 326; Schmidt v. Hess, 60 Mo. 591; Gillian v. Chancellor, 43 Miss. 437.
This is a proceeding in equity which calls for the construction of the will of Virginia C. Ferguson, wife of Wm. F. Ferguson. She died on the sixth of September, 1883, leaving the following will:
Two days after the death of Mrs. Ferguson, her husband died, leaving a will theretofore made, devising all his property to his wife, the said Virginia, without making any provision for the two children of said Virginia's brother, Simeon, whom they had undertaken to raise and educate, and who are the plaintiffs in this suit; and they claim that, from the precatory words used in her will, a trust was created in their favor. During the two days that said William lived after his wife's death, the evidence showed that he was under the influence of morphine, and not capable of transacting business. The said Virginia, at the time of her death, owned, in St. Louis, personal property worth about ten thousand dollars, and also owned considerable real estate in Virginia. Some time before the death of Mrs. Ferguson, she and her husband, who were childless, took into their family Paul and Sadie Noe (the plaintiffs in this suit), two children of Simeon Noe, the deceased brother of Mrs. Ferguson, who lived with them as their adopted children, and were supported and maintained by them as such, until the death of said Virginia and William Ferguson. No debts were proved up against the estate of said Virginia.
The circuit court held that, by the will of Mrs. Ferguson, her estate passed to her husband charged with a trust in favor of said Paul and Sadie Noe, and that the sum of nine thousand dollars was a reasonable amount for the purpose Mrs. Ferguson had in view; which was adjudged to be paid over to the curator of the plaintiffs, both of whom were minors. The defendant has appealed from this judgment and insists that the will of Mrs. Ferguson does not admit of the construction thus put upon it, and that if it does, the judgment of the court is for too large an amount. In support of the first ground relied upon, it is insisted that the tendency of recent decisions is to restrict rather than enlarge the doctrine applicable to precatory trusts, and we have been cited to a number of authorities stating that proposition generally. While this may be so, it may nevertheless be safely affirmed that they do not overthrow the rule, prevailing both in England and in this country, "that words of recommendation, request, entreaty, wish, or expectation, addressed to a legatee or devisee, will make him a trustee for the person or persons in whose favor such expressions are used; provided, the testator has pointed out, with sufficient clearness and certainty, both the subject-matter and the objects of the intended trust." 1 Jar. on Wills [Ran. & Tal. notes] 680.
The rule upon this subject is stated, in the case of Schmucker's Estate v. Reel, 61 Mo. 592, to be as follows:
In this class of cases, the difficulty is not as to what the rule is but as to its application, and as is said in 1 Perry on Trusts [3 Ed.] section 114: ...
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