Bates v. Bates

• Citation: 124 S.W.2d 1117,343 Mo. 1013
• Decision Date: 08 February 1939
• Docket Number: 34631
• Parties: W. Scott Bates and Union National Bank in Kansas City, as Successor Trustee Under the Will of Lee Clark, v. Carolyne M. Bates, W. Scott Bates and George E. Bates, Defendants, George E. Bates, Appellant, Carolyne M. Bates, Respondent
• Court: Missouri Supreme Court

124 S.W.2d 1117

343 Mo. 1013

W. Scott Bates and Union National Bank in Kansas City, as Successor Trustee Under the Will of Lee Clark, v. Carolyne M. Bates, W. Scott Bates and George E. Bates, Defendants, George E. Bates, Appellant, Carolyne M. Bates, Respondent

No. 34631

Supreme Court of Missouri

February 8, 1939

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Reversed and remanded (with directions.)

H L. McCune, Blatchford Downing and McCune, Caldwell & Downing for appellant.

(1) Only such persons named in clause eight of the will as survived testator's widow, Helen E. Clark, could take under clause second of the will. Dickerson v Dickerson, 211 Mo. 494; DeLassus v. Gatewood, 71 Mo. 381; Sullivan v. Garesche, 229 Mo. 506; Gardner v. Vanlandingham, 334 Mo. 1054. (2) Applicable cases. DeLassus v. Gatewood, 71 Mo. 371; Olney v. Hull, 21 Pick. 311; Dickerson v. Dickerson, 211 Mo. 483; Dwyer v. St. Louis Union Trust Co., 286 Mo. 481; Ringquist v. Young, 112 Mo. 25; Gardner v. Vanlandingham, 334 Mo. 1054; Grenzebach v. Franke, 315 Mo. 399; Green v. Irvin, 309 Mo. 302. (3) Florence E. Bates's interest was in any event to be only a life estate, and could not descend to her son Albert. Blumer v. Gillespie, 93 S.W.2d 939; Ringquist v. Young, 112 Mo. 25; Bredell v. Collier, 40 Mo. 325; Carter v. Boone County Trust Co., 92 S.W.2d 647; Dickerson v. Dickerson, 211 Mo. 489; Sullivan v. Garesche, 229 Mo. 496. (4) Possible view that Albert B. Bates took one-third of the 3/11ths, because he survived Florence E. Bates, is not sound. Dickerson v. Dickerson, 211 Mo. 494; Sullivan v. Garesche, 229 Mo. 496. (5) Albert B. Bates could not take as a child of Florence E. Bates, deceased, under the designation in clause second of the will, to the exclusion of George E. Bates. Warne v. Sorge, 258 Mo. 162; Dickerson v. Dickerson, 211 Mo. 483; Sullivan v. Garesche, 29 Mo. 496; Ringquist v. Young, 112 Mo. 25; DeLassus v. Gatewood, 71 Mo. 371. (6) The will viewed as a whole shows a clearly expressed intent that appellant George E. Bates should take a share in the estate.

Rees Turpin and Turpin, Behrendt & Searing for respondent.

(1) Those entitled to remainder after life estate of testator's wife received their portions directly by the will and not by appointment under any power contained in the will. St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685; Bredell v. Collier, 40 Mo. 287; Pollack v. Pollack, 212 Mo.App. 233, 251 S.W. 715; McFarland v. Bishop, 282 Mo. 534; State ex rel. v. Welch, 175 Mo.App. 303; Deacon v. Trust Co., 271 Mo. 688; Landers v. Brown, 300 Mo. 348, 254 S.W. 14; 23 R. C. L., p. 491. (2) Testator is presumed to have known law governing provision of his will and to have prepared his will in light of it. St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685; Trautz v. Lemp, 329 Mo. 580; Bredell v. Collier, 40 Mo. 287; Chew v. Keller, 100 Mo. 362; Tindall v. Tindall, 167 Mo. 218; Deacon v. Trust Co., 271 Mo. 669; Hamner v. Edmonds, 327 Mo. 281, 36 S.W.2d 929; Underhill on Wills; Dunbar v. Sims, 283 Mo. 356. (3) Every share in the remainder created by the second paragraph of Lee Clark's will vested at his death. Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947; Dunbar v. Sims, 283 Mo. 356; Chew v. Keller, 100 Mo. 362; Bredell v. Collier, 40 Mo. 287; Deacon v. Trust Co., 271 Mo. 669; Underhill on Wills; Hamner v. Edmonds, 327 Mo. 281, 36 S.W.2d 929. (4) Application of decisions of this court to the case at bar. Buxton v. Kroeger, 219 Mo. 224; Eckle v. Ryland, 256 Mo. 424; Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947; Tindall v. Tindall, 167 Mo. 218; Hamner v. Edmonds, 327 Mo. 281, 36 S.W.2d 929; Chew v. Keller, 100 Mo. 362. (5) It was not Lee Clark's intention that the trusts and conditions of the eighth paragraph of his will should be read into the gift made to Florence E. Bates by the second paragraph. (6) Lee Clark indicated no intention to exclude Albert B. Bates' widow and to give to W. Scott Bates' son the share that otherwise would go to her. The judgment of the Circuit Court of Jackson County, at Kansas City, construing the effect of Lee Clark's will to be that respondent Carolyne M. Bates is now entitled to one-half of 3/11ths of the remainder created by said will should be affirmed.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

Rehearing was granted in this cause and it was reargued. The action is to construe the will of Lee Clark, deceased. Plaintiffs are the successor trustees under the will, and the controversy is between defendants, George E. Bates, grandnephew of the testator, and Carolyne M. Bates, widow of Albert B. Bates, nephew of testator. The trial court rendered a decree construing the will as contended for by Carolyne M. Bates and George E. appealed.

The will was executed December 7, 1916. Testator died April 16, 1917, and the will was duly probated in the probate court of Jackson County, at Kansas City. The entire estate was appraised at $ 1,088,046.11.

Testator died childless at the age of sixty-seven. He left surviving him, his widow, Helen E. Clark, and three brothers, W. J., Edgar W., and R. Bruce Clark; and two sisters, Florence E. Bates and Ella C. Loose. Florence E. had two sons, Albert B. and W. Scott Bates. Florence E. Bates died August 6, 1922, and left surviving her two sons, Albert B. and W. Scott Bates. Testator's widow, Helen E. Clark, died July 18, 1934. Albert B. Bates, son of Florence E., married June 1, 1904, and died January 29, 1932, and by his will, after some nominal bequests, bequeathed to his wife, defendant, Carolyne M. Bates, the residue of his estate, which residue included whatever interest, if any, he had in the estate of his uncle, Lee Clark, testator.

The Clark will consisted of several clauses. The first clause directed the payment of debts. The second clause is as follows: "Second: I give and bequeath unto the trustees hereinafter named, to be paid before any other distribution of my estate shall be made, the sum of three hundred thousand dollars ($ 300,000) to be held by them in trust, to manage, invest and reinvest, for the benefit of my beloved wife, Helen E. Clark, during her natural life, the income from said sum of $ 300,000.00 to be paid to my said wife either in monthly or semiannual payments as she may request. If for any reason the said $ 300,000.00 fail to produce an income of $ 15,000.00 each year, then my said trustees, if my wife shall so request, are authorized and directed to pay to my wife out of said principal sum of $ 300,000.00 such an amount as, added to the income, will make $ 15,000.00 for her use each year, as long as she may live. At the death of my wife said $ 300,000.00 or such sum as is remaining, shall be, by my trustee, given to and divided among such of the parties named in paragraph (8) as may then be living and the children, if any, of such as may not then be living, in the proportion named in said paragraph eight (8)." (Italics ours.)

The third clause devised to the wife, Helen E. Clark, all real estate and furniture; the fourth bequeathed $ 75,000 to Edgar J. Clark (son of Edgar W.); the fifth gave $ 40,000 to the trustees, the income from which was to be paid to the nephew, Albert B. Bates, "as long as he may live," and if he should die before testator, then such sum was to remain a part of the estate. The trust provision as to the $ 40,000 could be terminated, and after the death of testator it was terminated and the $ 40,000 was paid to Albert B. Bates. By the sixth clause, testator bequeathed to his brother, W. J. Clark of Warrensburg, Missouri, "anything he may be owing me, and also my stock in the Clark Lumber Company of Warrensburg, Missouri." The seventh clause recites that testator's sister, Ella C. Loose, "was amply provided for," but bequeathed to her $ 100 to "purchase something in remembrance of" the testator.

The eighth clause follows: "Eighth: The residue of my estate I give and bequeath to the following, to be divided among such of the parties as may then be living and the children, if any, of such as may not then be living, in the following proportions, to wit:

"To Edgar W. Clark, brother, four-elevenths (4/11);

"To W. J. Clark, brother, two-elevenths (2/11);

"To my trustees for the benefit of Florence E. Bates, sister, as hereinafter set forth, three-elevenths (3/11);

"To my trustees for the benefit of R. Bruce Clark, brother, as hereinafter set forth, two-elevenths (2/11);

"I request my brother, Edgar W. Clark, to see that his three children receive such proportion of the four-elevenths (4/11) given him as his judgment dictates.

"I request my brother, W. J. Clark, to see that his daughter Leta, receive such portion of the two-elevenths (2/11) as his judgment dictates.

"The three-elevenths (3/11) left to my trustees for the benefit of my sister, Florence E. Bates, shall be by them invested and reinvested, the income from same to be paid said Florence E. Bates, during her lifetime, and at her death, the said 3/11 to be equally divided between her sons, W. Scott Bates, Albert B. Bates and her grandson, George E. Bates, son of said W. Scott Bates. In case of the death of any of the above, then to the survivor of them.

"The two-elevenths (2/11) left to my trustees for the benefit of R. Bruce Clark, shall be by them invested and reinvested, the income from same to be paid to R. Bruce Clark, or his wife Celia L. Clark, to be by them used for the education and support of their son, Daniel T. Clark. In case of the death of either, then to the survivor and in the case of the death of both R. Bruce Clark and Celia L. Clark, then the trustees shall see that said Daniel T. Clark is cared for and educated out of the income of said 2/11, in case of...