Bernheimer v. First Nat. Bank of Kansas City

Decision Date12 December 1949
Docket NumberNo. 40443,40443
Citation225 S.W.2d 745,359 Mo. 1119
PartiesBERNHEIMER v. FIRST NAT. BANK OF KANSAS CITY et al.
CourtMissouri Supreme Court

Walter A. Raymond, Daniel S. Millman, Kansas City, and Gold & Needleman, Beverly Hills, Cal., for appellant.

John W. Oliver, Kansas City, for respondent Robert M. Zehring, Guardian Ad Litem for Unborn Lawful Issue.

Butler Disman, Kansas City, Irvin Fane, James H. Ottman, Kansas City, Johnson, Lucas, Graves & Fane, Kansas City, of counsel, for respondent-appellant Congregation B'Nai Jehudah.

Paul R. Stinson, Dick H. Woods, Albert Thomson, Kansas City, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, of counsel, for respondent-appellant Jewish Memorial Hospital Assn Samuel W. Sawyer, James F. Walsh, Horace F. Blackwell, Jr., Kansas City, for First Nat. Bank of Kansas City and George K. Baum, trustees.

ELLISON, Judge.

This is a proceeding under the Declaratory Judgment Act, Secs. 1126-1140, R.S.1939, Mo.R.S.A., brought by the plaintiff-appellant Earle J. Bernheimer, Jr., a minor now about eight years old, through his father, Earle J. Bernheimer, Sr. as next friend, to establish plaintiff's status as the 'lawful issue of the body' of his said father, within the meaning of the will of the latter's mother, Bertha C. Bernheimer, deceased. The suit involves personalty worth about $750,000 in a testamentary trust in favor of the father for life, remainder to his said issue.

The plaintiff is an only child, and the principal question in the case turns on whether he was born in lawful wedlock, or is illegitimate because of an alleged void divorce obtained by his father from a former wife before he married the plaintiff's mother. [In fact two divorces and two marriages are involved.] Other questions presented are: (1) whether plaintiff has any present interest in the testamentary trust which entitles him to maintain this declaratory judgment suit; (2) whether the testimony of the scrivener was admissible, as to what Mrs. Bernheimer said her objectives were in making the will; (3) whether the case should be adjudged under the law of California, where plaintiff's parents resided when he was born, or under the law of Missouri where the testatrix lived and died and made her will; (4) and whether attorney fees should be paid out of the trust fund to the counsel for the several parties.

On the facts. Mrs. Bernheimer's will was dated September 7, 1937. The Bernheimer family had lived in Kansas City, Missouri, for many years. The testatrix died there on December 18, 1937. The father, her son, had previously been twice married and divorced, and after the will was drawn but before the testatrix' death he had married a third wife, called Sally, on December 1, 1937. No living children were born of that and his two preceding marriages. He and Sally separated in April, 1941, and he went to Los Angeles, California, where he has ever since resided.

The latter part of April the father met Earle's mother, Verone Odegard, a night club singer. They became engaged in May, 1941, and Earle was begotten during that month. Verone knew of the father's previous marriage to Sally and of their separation. She learned of her pregnancy in June. The father brought a divorce suit against his wife Sally in Kansas City in September, 1941. But he could not obtain an early hearing therein, and the time for the birth of Verone's child was approaching. So he dismissed the Kansas City divorce suit against Sally on December 19, 1941, and brought another on the same day in Juarez, Republic of Mexico.

During its pendency Sally brought a suit in California against the father (and he appeared therein) to enjoin his prosecution of the Mexico divorce suit. But he nevertheless proceeded therewith and obtained an interlocutory decree of divorce from Sally on January 26, 1942. The father and Verone were married on February 5, 1942, in Las Vegas, Nevada, thereby making her his fourth wife, and four days later Earle was born on February 9. Later, on April 22, 1942, the California court granted a preliminary injunction against the father restraining him from prosecuting the Mexican divorce suit.

During the next eighteen months litigation ensued between Sally and the father over property rights and separate maintenance. A settlement of these was made in California in July, 1943, and Sally returned to Kansas City and brought a divorce suit in which she obtained a decree of divorce from the father on August 21. Her sojourn there lasted only a few days. About two weeks later on September 4, 1943, the father and Verone were remarried in Reno, Nevada. Thereafter Sally married a Mr. Cobb in February, 1945. So much for the underlying facts.

The instant suit was brought in April, 1944, and tried two years later. The trial court in a written opinion adjudged Earle was not the 'lawful issue' of his father within the meaning of the will; that his rights thereunder must be determined by the law of Missouri, the domicile of the testatrix; that her intent must be ascertained from her will and not from extrinsic evidence, since the will is not ambiguous; that the Mexican divorce obtained by the father from his preceding wife Sally was void; and that the Kansas City divorce subsequently obtained by Sally from the father also was illegal and void, because she was not then a bona fide resident of this State, as required by Secs. 1515, 1517, R.S.1939, Mo.R.S.A. The conclusion of the trial court therefore was that since both divorces were void the father was still Sally's husband, in consequence of which his two Nevada marriages to Verone both were necessarily void under Sec. 3362, R.S.1939, Mo.R.S.A., he having a living spouse, with the result that Earle is an illegitimate child and not the lawful issue of his father. And the court further held Earle's legitimation by his father under the law of California was immaterial, since his rights under the will must be governed by the law of Missouri, the domicile of the testatrix.

In a supplemental opinion, filed three months later, the court stated that if the defendant trustees had demurred at the beginning of the case, the ruling would have been that the proceeding 'only decides issues which might be moot' at the time of the father's death--this because if either he or Sally (now Mrs. Cobb) should in the future obtain a valid divorce from the other, and the father should remarry Verone and they should acknowledge Earle as their son, then he might be lawful issue of the father under the will in view of Sec. 315, infra. Or the father might obtain a divorce (from Verone?) and marry again and be survived by issue of that wife. But nevertheless, the court ruled in the exercise of its discretion, that since the case had been tried on the merits, and much time and money had been spent in taking depositions, the holding would be merely that 'at this time' Earle is not the 'lawful issue' of his father.

However, the court found in response to plaintiff-appellant's requested findings of fact: that Earle is the natural son and issue of the body of the father and mother, Verone; that ever since Earle's birth on February 9, 1942, his parents have lived and maintained their home together as a family unit in Los Angeles, California, believing in good faith that they are husband and wife in the eyes of the law; and that at all times since Earle's birth the father has claimed and publicly acknowledged him as his own natural son born of Verone. And the court further found that the second marriage of the father and Verone at Reno, Nevada, on September 4, 1943, [after Sally had obtained the Kansas City divorce] was entered into by them in good faith, in the belief that the father was legally divorced from Sally and free to intermarry with Verone.

On the first question, as to whether the infant plaintiff has sufficient present interest in the trust estate to maintain this suit. Counsel for the trustees maintain he does not, because he may not survive his father and at best is now only prospective issue, or heir apparent of his father, whom he may predecease, citing a number of texts and decisions, with which we do not disagree, on their facts. But Part VII, par. 1 of Mrs. Bernheimer's will provides as follows (italics ours):

'During the trust period, all the net income of the trust shall be paid monthly so far as practicable and in any event each three (3) months (from date of my death) to my son, if and so long as he shall live,--and otherwise, or thereafter, to his issue, or so far as deemed by the Trustees proper, for the maintenance, education, welfare and advantage of my son's issue, in equal proportions,--provided that if the same, in the judgment of the Trustees, be deemed approximately fair expenditures to or for such issue or their maintenance, education, welfare and advantage during the minority of all of said issue, need not by the Trustees be charged against such issue separately but may be charged against such issue collectively. And in making distribution of net income, the Trustees may distribute on the basis of income actually on hand or prospective, according to their judgment.'

Counsel for the trustees argue that the words 'otherwise or thereafter,' first italicized above can only mean after the death of the father. We think the word 'afterward' does refer to that time, but not so of the word 'otherwise.' The two words are in the disjunctive and the preceding lines of the paragraph have just provided for the payment of all the net income to the father during his life. But the provisions we have quoted say it may be otherwise, and that income may be paid 'for the maintenance, education, welfare and advantage' of the father's issue in equal proportions; and that during the minority of the issue such payments may be made and charged to them collectively.

Furthermore, paragraph 4 of the same Part VII of the will continues (italics ours)...

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