Burr v. Burr

• Citation: 143 S.W. 1096,163 Mo.App. 395
• Parties: EDWARD BURR et al., Appellants, v. BENJAMIN S. BURR et al., Respondents, and KATHRYN M. BURR, Appellant
• Decision Date: 06 February 1912
• Court: Court of Appeal of Missouri (US)

143 S.W. 1096

163 Mo.App. 395

EDWARD BURR et al., Appellants, v. BENJAMIN S. BURR et al., Respondents, and KATHRYN M. BURR, Appellant

Court of Appeals of Missouri, St. Louis

February 6, 1912

Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Judson & Green for plaintiffs, appellants.

(1) This being a proceeding in equity to construe a deed which created a trust estate and to obtain directions of court to enable the trustees to properly administer their trust and protect them from possible claims of the beneficiaries, the court had full power and authority to construe said deed and render a decree in said cause which should be binding and conclusive upon all the parties thereto whether trustees or beneficiaries. Pomeroy Eq. Jur., sec. 1064; Hayden's Executors v. Marmaduke, 19 Mo. 4003; Mersman v Mersman, 136 Mo. 244. (2) The interest or estate of the several beneficiaries is not an estate of inheritance because the language of the deed makes it clear that the heirs at law of any deceased beneficiary are to take as a new class, or as substitutes of the original beneficiaries, and not by inheritance as an heir at law of the deceased, the original beneficiary. Chew v. Keller, 100 Mo. 362; Buck v. Payne, 75 Me. 583; Tillman v. Davis, 95 N.Y. 17; Jarboe v. Hey, 122 Mo. 341; Ebey v. Adams, 135 Ill. 80; Weyman v. Johnson, 68 Ark. 369; Colley v. Bunn, 46 N.J.Eq. 131; Clark v. Cordis, 86 Mass. 466; Bishop v. Tinsley, 64 S.C. 180; McCauley v. Buckner, 87 Ky. 191; Durbin v. Redman, 140 Ind. 69; Wettach v. Horn, 201 Pa. 201; Tesson v. Newman, 62 Mo. 198; Emerson v. Hough, 110 Mo. 627. (3) Kathryn M. Burr, the widow of William Burr, deceased, is not technically an "heir" at law of her deceased husband. This deed being a conveyance of personal property, the word "heir," as used therein, must be given the same meaning as if the grantor had said that the share of William E. Burr, deceased, should go to those persons who are designated to take under the Statutes of Descent and Distribution of the state of Missouri. Jarboe v. Hey, 122 Mo. 341; Kendal v. Kleason (Mass.), 9 L.R.A. 509; 4 Words and Phrases, Colmn. 3253; Johnson v. Knights of Honor, 53 Ark. 255, 8 L.R.A. 732; Welch v. Crater, 32 N.J.Eq. 177; Lee v. Baird, 132 N.C. 755; In re Gilmore Est., 154 Pa. 523; Clay v. Clay, 63 Ky. 295; In re Fidelity Trust & G. Co., 68 N.Y.S. 257; Chew v. Keller, 100 Mo. 362. (4) The said William E. Burr not having an estate of inheritance, his widow cannot claim dower. R. S. 1899, sec. 2933; Jarboe v. Hey, 122 Mo. 341; Tillman v. Davis, 95 N.Y. 17; Buck v. Payne, 75 Me. 583; Warren v. Williams, 25 Mo.App. 23; Crecilius v. Horst, 89 Mo. 356; Garrison v. Young, 135 Mo. 203. (5) Unless circumstances are such that the widow takes under one of the three clauses of the statute concerning descent and distribution, that is to say, unless there are no children, and no brothers, sisters, father or mother, the widow can never take anything as an heir of her husband. Jarboe v. Hey, 122 Mo. 341; Johnson v. Knights of Honor, 53 Ark. 255; Kendal v. Gleason, 152 Mass. 457; Buck v. Payne, 75 Me. 583; Tillman v. Davis, 95 N.Y. 17.

Dickson & Dickson for defendant, appellant, Kathryn M. Burr.

(1) By the deed of conveyance executed by Harriet H. Burr, there was created a trust estate in property entirely personal, to-wit, corporate stock and bonds. By this instrument the grantor, after reserving to herself a life interest in the property, conveyed to her children, as beneficiaries, the entire equitable title thereto. The beneficiaries took an equitable estate of inheritance; the word "heirs" being used entirely as a word of limitation. (2) The interest of William E. Burr, one of the children of Harriet H. Burr, and one of the beneficiaries, being an estate of inheritance, was subject to all of the incidents thereof save where restrictions thereon were imposed in express terms by the trust instrument. At his death the widow of the said beneficiary became entitled to her dower right in his interest as provided by the statutes of the state of Missouri. R. S. 1899, sec. 2939; Brown v. Tucker Estate, 135 Mo.App. 598. (3) The appellant, Kathryn M. Burr, as sole legatee of her deceased husband, William E. Burr, became entitled to his interest in said trust fund at his death. There was no prohibition in the conveyance in trust against the bequest of this interest by the beneficiary, William E. Burr. (4) The words "heirs" when used in any instrument conveying personalty means the individuals designated to take under the Statutes of Distribution. Pleimann v. Hartung, 84 Mo.App. 283; Brown v. Bank, 6 Mo.App. 427; Gauch v. Ins. Co., 88 Ill. 25; Appeal of McKee, 104 Pa. 571, 575; Kendall v. Gleason, 152 Mass. 457; In re Gilmore Estate, 154 Pa. 523. (5) The word "heirs" is also applied to legatees. Graham v. Devambrot, 106 Ala. 279; Greenwood v. Murray, 28 Minn. 120. (6) While decisions are conflicting, there is ample authority to support the contention of appellant, Kathryn M. Burr, that the widow is the heir of her husband. Travelers' Assn. v. Tennent, 128 Mo.App. 541; Pleiman v. Hartung, 84 Mo.App. 283; Lawrence v. Crane, 158 Mass. 392; In re Conley's Estate, 136 Pa. 159; Seabrook v. Seabrook, 10 Rich. Eq. 495; Weston v. Weston, 38 Ohio St. 473; Winfred v. Heberer, 63 Ind. 72. (7) The paramount rules for the construction of deeds and to which all others must yield require that due regard shall be given to the directions in the deed and to the true intent of the grantor when not inconsistent with the positive rules of law. R. S. 1899, sec. 4650; Jarboe v. Hey, 122 Mo. 341; Yocum v. Siler, 166 Mo. 281; Peters v. Carr, 16 Mo. 54; Lampert v. Haydel, 96 Mo. 441. (8) The interest of William E. Burr, the deceased husband of the appellant, Kathryn M. Burr, descends to her, subject to all the limitations and conditions set forth in the said trust instrument for the purpose of protecting said interest against liability for any indebtedness heretofore incurred by said William E. Burr or to be hereafter incurred by said Kathryn M. Burr until after the expiration of the trust. Lampert v. Haydel, 96 Mo. 44; Jarboe v. Hey, 122 Mo. 341.

NORTONI, J. Reynolds, P. J., and Caulfield, J., concur.

OPINION

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, Sec. 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 23rd 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, Missouri, 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...