Alexander v. UMB Bank, N.A.
| Decision Date | 20 July 2021 |
| Docket Number | WD 83907 |
| Citation | 632 S.W.3d 385 |
| Parties | Kelsey ALEXANDER, Appellant, v. UMB BANK, N.A. as Trustee, et al., Respondents. |
| Court | Missouri Court of Appeals |
Hugh L. Marshall, Kansas City, for appellant.
Angela Nichols, Kansas City, for UMB, Bank, NA.
Joel B. Lanier, for Respondent Stodder.
Frederick McEwen, Augustus Dizerega, Gere Dizerega, Paul Dizerega, Jeanie Wakefield, Randal Evans, Rita Elkins, Chelsey Elkins, respondents acting Pro Se.
Before Division Four, Cynthia L. Martin, Chief Judge, Presiding, Lisa White Hardwick and Thomas N. Chapman, Judges
Kelsey Alexander appeals the probate court's judgment awarding her attorney's fees and expenses from a trust of which she is one of several beneficiaries in four beneficiary lines. She contends the court abused its discretion by not awarding her the full amount of attorney's fees she requested and by denying her request for an award of her travel expenses. For reasons explained herein, we affirm.
In March 1947, Darthea Stodder Harrison ("Darthea") executed a trust agreement to create an irrevocable trust ("DSH Trust"). UMB Bank, N.A., ("UMB") is the trustee. Pursuant to the DSH Trust, Darthea received the trust's net income monthly during her lifetime. Upon her death, the DSH Trust was to provide the income monthly to her only son, William Stodder Harrison, Jr., ("William"), during his lifetime. Upon the death of both Darthea and William, the trust was to terminate and the proceeds were to be distributed to William's bodily issue, if any, and, if none, to Darthea's brothers, R.H. Stodder ("R.H.") and F.G. Stodder ("F.G."). In the event Darthea's brothers were deceased, the trust was to be distributed to R.H.’s and F.G.’s children.
Darthea died in 1964. William died in 2013, without bodily issue. R.H. died in 1950 and had two children, both of whom predeceased William. F.G. died in 1948 and had three children, all of whom also predeceased William. However, R.H. and F.G. had grandchildren who survived William. Alexander is one of F.G.’s grandchildren.
Because the DSH Trust did not expressly state Darthea's intent if all of her brothers’ children predeceased the trust's termination, UMB petitioned the probate court for instructions on how to distribute the trust's assets. UMB did not take a position with respect to the proper recipients of the trust assets but did name F.G.’s and R.H.’s known grandchildren in the petition. The probate court refused to consider UMB's petition after finding that it did not present a justiciable controversy. The probate court concluded that the trust provided only for R.H.’s and F.G.’s children and not their "more remote descendants"; therefore, the probate court believed that the trust failed because there were no designated beneficiaries.
After the probate court refused to consider its petition, UMB filed a petition to reopen Darthea's probate estate in Johnson County, Kansas, to distribute the assets from the DSH Trust through Darthea's estate. The Kansas probate court scheduled a hearing on UMB's petition and authorized delivery of notice to interested persons, which included Alexander. Alexander objected to the petition and moved to stay the Kansas proceeding to allow the Missouri probate court to entertain a suit she filed concerning distribution of assets from the DSH Trust. The Kansas probate court stayed its proceedings.
Alexander's petition in the Missouri probate court sought to terminate the DSH Trust and distribute the assets per its terms or, alternatively, to modify the trust. Alexander alleged that the remainder interest held by R.H.’s and F.G.’s children passed through their respective estates upon their death and, therefore, the heirs and devisees of R.H. and F.G. have a direct, vested property interest in the DSH Trust estate. Alexander asserted that the DSH Trust did not fail and that its assets should be distributed to the heirs and devisees of R.H.’s and F.G.’s children.
At Alexander's request, summonses were issued and service was had on each of the individuals identified as descendants of R.H. and F.G. The identified descendants did not oppose Alexander's petition. UMB requested only that the court enter a judgment consistent with the terms of the DSH Trust and Darthea's intent and expressed no position about Alexander's proposed construction of the trust.
On January 14, 2016, the probate court entered a judgment denying Alexander's petition. The court found that the DSH Trust terminated by its terms upon William's death in 2013. The court further found that Alexander's request for an order construing the trust to provide for the distribution of the trust assets to R.H.’s and F.G.’s descendants was inconsistent with the court's understanding of Darthea's intent. Alexander appealed to this court.
On appeal, we reversed the probate court's judgment in Alexander v. UMB Bank, NA , 497 S.W.3d 323 (Mo. App. 2016). We concluded "that the remainder interest in favor of" R.H.’s and F.G.’s children "was not conditioned on survival"; therefore, the interest in favor of their children "was descendible by estate or intestacy." Id. at 334. We remanded the case to the probate court for further proceedings to determine the members of the class of R.H.’s and F.G.’s children and "to distribute the Trust assets to the members of said class pursuant to the laws of testate or intestate descent as applicable." Id.
On remand, UMB moved to dismiss the Kansas petition to reopen Darthea's estate, and the Kansas probate court granted the motion. In the Missouri proceedings, Alexander's counsel and UMB's counsel worked together to identify the beneficiaries of the DSH Trust consistent with this court's opinion in the appeal.
Alexander then submitted to the probate commissioner a 15-page proposed consent judgment, which she also circulated to UMB. Alexander's consent judgment proposed distributions to beneficiaries in four lines, specifically, through two children of R.H. and two children of F.G.2 One of these lines was through F.G.’s daughter, Anne Stodder McEwen ("Anne"), who was Alexander's mother. Alexander proposed that Anne's one-quarter share of the DSH Trust be distributed to Anne's trust ("ASM Trust"). In response to Alexander's proposed consent judgment, UMB raised concerns about whether Anne's pour-over will had been probated and suggested that distribution of her share of the DSH Trust to Anne's estate, instead of to the ASM Trust, might be necessary. If Anne's share of the DSH Trust were distributed to Anne's estate, and it was determined that Anne's will was not effective because it had never been probated, Anne's share would pass to Alexander and her brother in equal shares as Anne's only surviving children and heirs at law. If, however, Anne's share of the DSH Trust were distributed directly to ASM's Trust, of which Alexander was trustee, Alexander would receive a two-thirds share, while her brother would receive only a one-third share. The takers and the proportions of the remaining three lines besides Anne's were clear, as R.H.’s and F.G.’s other children all had wills that had been probated.
At a status conference in April 2017, the probate commissioner instructed UMB and Alexander to continue their efforts to arrive at a judgment, including by seeking consent of the beneficiaries if possible. Alexander, however, decided to hire an attorney in Arkansas to locate and secure the affidavit of the retired Arkansas attorney who had drafted Anne's estate planning documents. Anne's retired attorney affied that Anne had transferred all of her estate assets, including any assets potentially subject to probate, to the ASM Trust. Alexander gave the affidavit to UMB, but UMB prepared a proposed consent judgment that provided for the distribution to Anne's line by intestacy rather than to the ASM Trust.
Alexander then filed a petition for distribution of the DSH Trust assets. In its answer to the petition, UMB again expressed its hesitation to agree to distribute Anne's share to the ASM Trust because Anne's will was never probated. Also, UMB noted that the ASM Trust stated, with regard to the trust's assets, that Anne had delivered to the trustee "the properties described in Schedule A annexed hereto," but that Schedule A referenced only categories of documents and was written in a way to suggest that further itemization of the documents was required or anticipated. Alexander's petition for distribution did not allege that Anne had any knowledge about the DSH Trust at any time. In its answer, UMB requested a judgment consistent with the terms of the DSH Trust agreement, Darthea's intent, and our opinion in Alexander , 497 S.W.3d 323. Alexander filed a reply in support of her petition for distribution of the DSH Trust assets. Alexander attached as an exhibit to her reply a redline version of UMB's proposed consent judgment on which she made "corrections," which included proposed findings consisting of statements from Anne's retired Arkansas attorney regarding Anne's intent to transfer all of her probate assets, and any assets potentially subject to probate, to the ASM Trust during her lifetime. Additionally, Alexander corrected UMB's misidentification of the trustee of a beneficiary in another line.
In January 2018, the probate commissioner held a status conference during which he ordered Alexander to serve her petition for distribution on all respondents and potentially interested persons. UMB subsequently sent a letter to the probate commissioner with an updated family tree of interested parties. Alexander obtained service of process throughout the country on 11 interested parties and a waiver of service from UMB. No respondent or interested party, with the exception of UMB, filed an answer or objection to her petition for distribution. In June 2018,...
To continue reading
Request your trial