Buck v. St. Louis Union Trust Co.

• Decision Date: 15 February 1916
• Docket Number: No. 17557.,17557.
• Citation: Buck v. St. Louis Union Trust Co., 267 Mo. 644, 185 S.W. 208 (Mo. 1916)
• Parties: BUCK v. ST. LOUIS UNION TRUST CO. et al.
• Court: Missouri Supreme Court

185 S.W. 208

267 Mo. 644

BUCK v. ST. LOUIS UNION TRUST CO. et al.

No. 17557.

Supreme Court of Missouri, Division No. 2.

February 15, 1916.

Motion to Transfer to Court in Banc Denied April 10, 1916.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Stephen B. Buck against the St. Louis Union Trust Company and others. Judgment was for defendants, and pending a motion for a new trial plaintiff died, and the action was revived in the name of Marie V. Buck, his executrix, who appeals. Affirmed.

W. B. & Ford W. Thompson and Claud D. Hall, all of St. Louis, for appellant. Charles M. Polk, of St. Louis, for respondents.

WALKER, J.

This was an action instituted in the circuit court of the city of St. Louis by Stephen B. Buck to contest the will of his brother, Ralph S. Buck, on the ground of the mental incapacity of the latter and that undue influence had been exerted upon him to induce him to make the will. Upon a trial a judgment was rendered for defendants, from which plaintiff appealed. Pending the motion for a new trial the original plaintiff, Stephen B. Buck, died, and the suit was revived in the name of the executrix of his estate, Marie V. Buck, who is the appellant here. The judge of the circuit court refused to sign the bill of exceptions submitted by appellant on the ground that the same was untrue, in that it failed to insert in the testimony of the contestant, Stephen B. Buck, an answer alleged by the judge to have been made by the contestant while on the witness stand to this question, "I will ask you what those dates are," to which the witness replied "he would not answer such a fool question." Upon the refusal of the trial judge to sign the bill appellant secured the signatures of three bystanders thereto, and again submitted same to the judge, who refused to sign it, on the ground that it was untrue, as above stated, and for the further reason that the so-called bystanders stated that they were not present at the trial, and did not know what transpired during its progress. Appellant thereupon secured the signatures of three of the jurors who had participated in the trial of said cause and had rendered the verdict adverse to appellant, and submitted the bill thus signed to the judge for his signature. He refused to sign same, on the ground that it was untrue, as before stated, and, said bill having been deposited with the clerk as originally signed, that appellant was not authorized in withdrawing same and having other signatures attached thereto, and for the further reason that said jurors were not bystanders within the meaning of the statute (section 2031, R. S. 1909), and hence said bill had not been signed as required by law. Appellant filed said bill signed by said jurors with the clerk of the circuit court, and proceeded under the authority of section 2034, R. S. 1909, to procure and file the affidavits of five persons to support the truth of said bill, and respondents procured and filed counter affidavits of five persons against the truth of same.

The testator died in the city of St. Louis November 11, 1910. His will, made in said city February 27, 1909, omitting formal introductory paragraph, closing testimonial, his signature, and the certificate and signatures of attesting witnesses, is as follows:

"Item 1. I desire that all my just debts, should I leave any, shall be paid by my executors hereinafter named as soon as may be practicable after my decease.

"Item 2. I make no provision in this, my will, for my brothers, Stephen B. Buck and Charles H. Buck, but it is my will and I direct that under no circumstances shall any claim be asserted or brought by my estate against them, or either of them, for moneys I have lent to them, or either of them, during my lifetime, and any and all evidences of debt held by me, or my estate against them or either of them at the time of my death, shall be canceled.

"Item 3. I give and bequeath to my mother, if she survives me, or if she predecease me, then to my sister, Carrie L. Buck, all my wearing apparel, watch and other jewelry, all my books, household furniture, plate, glass and chinaware, pictures and bric-a-brac, absolutely.

"Item 4. I give and bequeath to my nephew and namesake, Ralph B. Buck, the sum of two thousand dollars ($2,000.00), which I desire my executors shall pay over to the St. Louis Union Trust Company, to be invested, managed and controlled by that company during the minority of my said nephew, and during his said minority the net income or profits arising from said principal sum of two thousand dollars ($2,000.00) shall be added to the principal, and the whole amount of principal and accumulated income shall be paid over to my said nephew by said trust company when he reaches the age of twenty-one (21) years, to be his absolutely.

"Item 5. I give, devise and bequeath to the said St. Louis Union Trust Company all the rest and remainder of the property, real, personal or mixed, of which I may be possessed, or in which I may have any interest, or over which I may have any power of appointment or disposition at the time of my death, upon trust, however, that the said company will hold, manage, control, invest and reinvest the same in such manner as it may deem best, and after deducting all proper expenses connected with the management and preservation of said trust estate, including a proper commission to said trustee for its services, it shall pay over the net income arising therefrom equally to my dearly beloved mother, Caroline M. Buck, and my said sister, Carrie L. Buck, as long as they shall both live and my said sister, Carrie, is unmarried, and after the death of one of them, or if one of them predeceases me, then from my death until the death of the survivor, all of said net income shall be paid over to such survivor; provided, however, that if my said sister, Carrie, should at any time be married when otherwise under this clause she would be entitled to any income, all of such income shall be payable to my mother so long as she shall live. At any time after my death when my mother is dead, and my said sister, Carrie, is married, or a widow, I desire that the net income arising under this clause shall be paid equally to my said sister, Carrie, and my sister, Lillie B. Avis, so long as they both shall be alive, and upon the death of one of them, the whole of said net income shall be payable to the survivor until she dies, and upon the death of the survivor, the body of said trust fund shall be divided among the descendants of my said sisters, should they both leave descendants, or among the descendants of the sister leaving descendants if but one leaves descendants, such descendants taking per stirpes the share his, her or their parents would have received if then living.

"I desire that there shall be no sale of any property of my estate or reinvestment of the proceeds thereof without the consent of either one or the other of my two friends, John F. Lee, and Dr. Josephus R. Lemen, both of said city of St. Louis, so long as either of them may reside in said city.

"If my mother should survive me and survive my two sisters, I desire that my estate shall be distributed according to the terms of her last will and testament, should she leave one, and all prior clauses in this, my will, are to be construed with reference to this provision.

"I appoint my said sister, Carrie, and the St. Louis Union Trust Company the executors of this, my will, and desire that neither shall be required to give any bond for the performance of her or its duties as executor hereunder and I authorize my executors during the administration upon my estate to sell, invest and reinvest any portion of my property with the consent of either one of my said friends as above provided."

I. Bill of Exceptions. — Upon the refusal of the trial judge to sign the bill of exceptions on the ground that it was not true, the procuring of the signatures thereto as bystanders of three persons who had not been present during the trial was not a compliance with the literal meaning or intendment of the statute, which provides that, if a judge refuse to sign a bill of exceptions, it may be signed by three bystanders who are respectable inhabitants of the state, and the court or judge in vacation shall permit every such bill, if true, to be filed in court or in the clerk's office if ordered in vacation, within the time specified in the order of the court. Section 2031, R. S. 1909. Bystanders, as used in this statute, mean disinterested spectators (State v. Jones, 102 Mo. 305, 14 S. W. 946, 15 S. W. 556), and persons not present cannot properly be so classified.

The correctness of this definition is rendered more evident when we seek to ascertain the purpose of the statute. The signing of the bill by the trial judge gives a badge of verity to the proceedings when transmitted to the appellate court. Failing to secure this, the law, in its wisdom, does not leave the appellant without remedy in perfecting his appeal, but provides, when reasonably construed, that the truth of the bill may be attested by three disinterested persons who were present during that part of the trial the transcript of the proceedings of which are alleged to be untrue by the trial judge. In the instant case, therefore, the requirement of the statute, whether measured by its words or the purpose it was intended to effect, was not met by the securing of signatures to the bill of persons unfamiliar with the proceedings of the trial alleged by the judge to be untrue as shown by the transcript. This being true, the ruling of the trial court in this regard was not error.

However, within the time granted for the filing of the bill the appellant withdrew the same from the clerk's office and procured the signatures thereto of three of the jurors who had sat in the trial and had joined in a verdict adverse to the appellant. As stated, the bill thus signed was submitted to the trial...