Decedent, owning all the capital stock and bonded indebtedness of a corporation, executed a deed of trust, conveying all but two shares to trustees in trust for her children, to continue for 20 years, or until decedent's death, if she should live longer than 20 years, during which time the profits should be paid to her, and, in the event she should die before the expiration of that time, the profits should be paid to her children or to their respective heirs at law, when not otherwise provided for in the deed. She specially provided for the interest in the trust to ultimately go to one of her daughters, and then declared that in case of the death of any of the other children before the expiration of the trust their interest should vest in his or her heirs at law; but that neither the children nor their heirs, during the continuance of the trust, should be authorized to sell their respective interests, etc. Held, that the word "heirs," or "heirs at law," was not used in such deed in its technical sense; and hence the interest of the children under the deed was not one of inheritance, which they could transfer by will.
2. TRUSTS (§ 140)—TRUST DEED—CONSTRUCTION—"HEIRS AT LAW."
The words "heirs at law," as used in such deed, were intended only as a designation of the parties who would stand in the place of a deceased beneficiary, or one who would be entitled to inherit personal property in case of the beneficiary's death intestate; and hence, on the death of one of the children beneficiaries, leaving a widow but no children, one half of the beneficiary's interest passed to his widow and the other half to his brothers and sisters, and no part of it passed to his estate.
Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.
Action by Edward Burr and others against Benjamin S. Burr and others for the construction of a trust deed. From a portion of the decree rendered, plaintiffs and defendant Kathryn M. Burr appeal. Reversed and remanded.
Judson & Green and Douglass & Watson, for appellants Edward Burr and others. Dickson & Dickson, for appellant Kathryn M. Burr.
NORTONI, J.
The cross-appeals in this case were prosecuted to this court, but were transferred to the Springfield Court of Appeals under the provisions of an act of the Legislature, approved June 12, 1909. See Laws of Missouri 1909, p. 396. See, also, section 3939, R. S. 1909. Afterwards, the Springfield Court of Appeals disposed of the case through the subjoined opinion prepared by Judge Cox of that court, but its opinion was ordered not to be published in the official reports, for the reason that about the same time the Supreme Court declared the legislative act, which purported to authorize the transfer of cases from one court of appeals to another for hearing and determination, to be unconstitutional, as will appear by reference to the cases of State ex rel. Dressed Beef, etc., Co. v. Nixon, 232 Mo. 496, 134 S. W. 538; State ex rel. O'Malley v. Nixon, 233 Mo. 345, 138 S. W. 342; State ex rel. Dunham v. Nixon, 232 Mo. 98, 133 S. W. 336. Because of such ruling of the Supreme Court, the case was thereafter transferred by the Springfield Court of Appeals to this court, on the theory that the jurisdiction of the appeal continued to reside here, and the proceedings had in the Springfield court with reference thereto were coram non judice.
The case has been argued and submitted here and duly considered. On an examination of the several arguments advanced, we are prepared to concur in the views expressed by the Springfield court in the unpublished opinion of Judge Cox, which we find in the files. Besides clearly stating the subject-matter of the controversy and the questions in dispute, the opinion referred to determines them according to our view of the law. The opinion of the Springfield court in the same case is therefore adopted as the opinion of this court, and is as follows:
"This is an action brought by plaintiffs, who are trustees in a certain trust deed, for the purpose of having the deed construed, and to secure directions from the court as to their duties under the deed. The defendants are the children of Harriet H. Burr and the widow of William E. Burr, who was the son of said Harriet H. Burr, living at the time the trust deed was executed, and who has since died, and the Mississippi Valley Trust Company is the executor of the last will of William E. Burr, deceased. Trial was had and a decree rendered which appears to be satisfactory, except in two particulars, and from the judgment the plaintiffs (trustees) and defendant Kathryn M. Burr, who is the widow of William E. Burr, have appealed. The other parties to the suit have not appealed.
"The trust deed referred to was executed on the 23d day of April, 1900, by Harriet H. Burr, in which it is recited that she is the owner of all the capital stock and bonded indebtedness of the Carterville Coal Company, a corporation organized under the laws of the state of Illinois, with a business office in the city of St. Louis, Mo., and owning, leasing, and operating coal lands in the county of Williamson in the state of Illinois, as well as other valuable rights and interests. By this deed, she conveys this property to William E. Burr, Lemuel G. Burr, and Edward Burr of the city of St. Louis and Egbert H. Chapman and Shannon C. Douglass of Kansas City, as trustees. The beneficiaries in the deed of trust, aside from herself, are her nine children, consisting of the three sons aforementioned, the wives of the other two trustees, and four other children, who are named therein. The deed then further provides as follows:
"`Whereas, it is the desire of the said first party that, subject to the reservation of a life interest or estate on her part in the net income and profits to be derived from the management and operation of said coal lands and all other properties, whether real, personal, or mixed, now or hereafter belonging to said company, her children, the said parties of the third part, shall own and be entitled to, in the manner herein provided and not otherwise, all of the stock and bonds of said company and all other properties, if any, which may be hereafter acquired in lieu thereof as provided in this instrument, but the ownership of said third parties therein shall be subject to terms, conditions and provisions of this trust instrument: Now, therefore, in order to more effectually carry out such desire and intention on her part and for the purpose of placing in the hands and under the control of said second parties and their successors in this trust, as trustees, all of her interest in and right to said stock and
bonds, and thereby in all the present and future properties and assets of said company, subject to the terms and conditions hereinafter mentioned, she, the said first party, does hereby for and in consideration of the premises and the sum of five dollars to her in hand paid by said parties of the second and third parts, the receipt of which is hereby acknowledged, give, grant, sell, assign, and transfer unto the said party of the second part and their successors as herein provided, as trustees, for the use, benefit, and behoof of said parties of the third part, all of the capital stock of said company except two shares thereof and all the bonds heretofore issued by said company, and now a lien upon its properties and assets, and also all the rights and interests in and to all the assets and properties, real, personal and mixed, now or hereafter belonging to said company, and all the rights, privileges and appurtenances thereunto belonging or in any wise appertaining, in trust, however, on the condition and for the purposes hereinafter mentioned.'"
Then follows conditions and provisions, as follows:
"`First.—The trustees shall be possessed of plenary powers in the management of the property, each trustee shall vote one-fifth of the capital stock, and, at least three of the trustees are required to be elected directors from time to time in said corporation, and in case a trustee should die, or resign, his place is to be filled by the others so that the whole number of five trustees shall be kept intact during the life of the trust.
"`Second.—This trust shall, except as hereinafter provided, continue for the term of twenty years from the date hereof, or until the death of the first party if she shall live longer than twenty years, and during which time all the net profits which shall be derived from the management, operations or control of the property and assets of the company, shall be paid to the party of the first part on account of her said reserved life interest. In the event she should die before the expiration of said term of twenty years then such net profits shall be paid to the parties of the third part, or to their respective heirs at law, when not otherwise provided for in this instrument.' (Italics are ours.)
"`Fourth.—The two shares of said capital stock retained as aforesaid by the first party shall only be used by her for the purpose of qualifying herself and another person in her discretion as directors of said company. For all other purposes said shares shall pass under this instrument to the trustees, to be held in same manner and for same purposes as the other stock of the company.
"`Fifth.—The interests hereunder of each and all of said third parties and their respective heirs at law shall be exempt from and not be held liable for any indebtedness now incurred or which shall hereafter be incurred by any of them.
"`Sixth.—The interest and estate under this trust of the said Amanda Florence Bailey, subject to the life interest as above stated of said first party, shall be held in trust for her use and benefit during...
