Chapman v. Chapman

• Citation: 77 S.W.2d 87,336 Mo. 98
• Parties: Benjamin G. Chapman, Jr., Trustee Under the Will of William R. Pye, v. Louisa H. Chapman et al., Elizabeth E. Pulitzer et al., Appellants
• Decision Date: 23 February 1934
• Court: Missouri Supreme Court

77 S.W.2d 87

336 Mo. 98

Benjamin G. Chapman, Jr., Trustee Under the Will of William R. Pye, v. Louisa H. Chapman et al., Elizabeth E. Pulitzer et al., Appellants

Supreme Court of Missouri

February 23, 1934

Appellants' Motion for Rehearing and to Transfer to banc Overruled and Opinion Modified on Court's Own Motion July 9, 1934.

Appellants' Motion for Rehearing on Modified Opinion Overruled December 1, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Claude O Pearcy, Judge; Opinion filed at September Term, 1933 February 23, 1934; motion for rehearing overruled July 9 1934; motion to transfer to Court en Banc overruled July 9, 1934; opinion modified on Court's own motion July 9, 1934; motion for rehearing on modified opinion filed; motion overruled at September Term, December 1, 1934.

Affirmed.

T. M. Pierce, Samuel H. Liberman, John H. Overall and Ragland, Otto & Potter for appellants.

(1) Under the will Fannie Higbee and Louisa Chapman took equitable estates for life only in equal shares. (a) The gift in trust for their "use, benefit and disposal" was a bequest for life. Freeman v. Maxwell, 262 Mo. 13, 170 S.W. 1150; Cross v. Hoch, 149 Mo. 325, 50 S.W. 786; Peugnet v. Berthold, 183 Mo. 61, 81 S.W. 874; Mace v. Hollenbeck, 175 S.W. 876; Reed v. Creamer, 118 Me. 317, 108 A. 82; In re Pounder (Eng. Ch.), 56 Law Journal 113; Brunson v. Martin, 152 Ind. 11, 52 N.E. 599; Bryson v. Hicks, 134 N.E. 874; Elwell v. Stuart, 203 P. 922; Barry v. Austin, 118 Me. 51, 105 A. 806; In re Moors Estate, 163 Mich. 353; In re Nevins Estate, 192 Pa. St. 258; In re Fowlers Estate, 281 Pa. 459, 126 A. 817; Love v. Walker, 59 Ore. 95, 115 P. 296; Hurt v. Hurt, 93 S.E. 672. (b) The will itself negatives the existence of any absolute power of disposition. (c) Under the will and under the law a disposal of the property was limited to a disposal for value and to disposal consistent with the use and enjoyment by the beneficiaries in their lives. Cook v. Higgins, 290 Mo. 402, 235 S.W. 807; Burnet v. Burnet, 244 Mo. 490, 148 S.W. 872; Gibson v. Gibson, 239 Mo. 490, 144 S.W. 770; Garland v. Smith, 164 Mo. 1; Lewis v. Pitman, 101 Mo. 281. (d) The limitation over to Bethel Association or to such other charity as Fannie might designate upon Fannie's death of one-half of the property devised and bequeathed in trust "for the use of" Fannie, or its equivalent in money value, is consistent only with a life estate to Fannie; if it be held that Fannie was given an estate in fee the limitation over is void and the clearly expressed intention of the testator with respect to the gift over to charity is thereby defeated. Freeman v. Maxwell, 262 Mo. 13, 170 S.W. 1150; Gibson v. Gibson, 239 Mo. 490, 144 S.W. 770. (e) The gift to Louisa arising out of the very language containing the gift to Fannie should be similarly construed as an estate for life. Bryant v. Christian, 58 Mo. 98. (f) Where ambiguity exists as to the construction of a will the court may take into consideration the practical construction placed on the will by the interested parties. Dorrance v. Dorrance, 238 F. 324; Guilford v. Gardiner, 180 Iowa 1210, 162 N.W. 261; Smith v. Creech, 186 N.C. 187, 119 S.E. 3. (2) Upon the termination of the respective life estates the property, except as to the gift over to charity, should be distributed to heirs and next of kin of testator. Crowson v. Crowson, 19 S.W.2d 634; Peugnet v. Berthold, 183 Mo. 61, 81 S.W. 874; Stearns v. Stearns, 192 Mass. 144, 72 N.E. 1152; Cavan v. Woodbury, 240 Mass. 125, 133 N.E. 95; Keating v. Smith, 5 Cush. 232; Lewis v. Harrower, 197 Ill. 315; In re Kingsley, 145 N.Y.S. 662; Hiles v. Garrison, 70 N.J.Eq. 605. (a) Under the proof and the Statutes of Descent and Distribution interveners are heirs and next of kin. Sec. 308, R. S. 1929. (3) There should be restored to the corpus of the trust the value of stock dividends and stock rights distributed to the life tenants. (a) Stock dividends and stock rights are not income. Hayes v. St. Louis Union Trust Co., 317 Mo. 1028, 298 S.W. 91; Robert v. Mercantile Trust Co., 23 S.W.2d 32; Buder v. Franz, 27 F.2d 101. (b) The decree of 1918 is binding only on the parties to that suit. Matthews v. Van Cleve, 282 Mo. 19, 221 S.W. 34; Harper v. Hudgins, 211 S.W. 63. (4) Interveners are entitled to an allowance out of the trust fund of their expenses and a reasonable counsel's fees. St. Louis v. McAllister, 302 Mo. 152, 257 S.W. 425; Barry v. Austin, 118 Me. 51, 105 A. 806; Brown v. Wright, 194 Mass. 540; Morse v. Stearns, 131 Mass. 389; Arnold v. Alden, 173 Ill. 229; Scott v. Reeves, 66 Wis. 305; Noe's Admr. v. Miller's Extrs., 41 N.J.Eq. 234.

Bryan, Williams, Cave & McPheeters for respondents.

(1) The record discloses, as an undisputed fact, that Mr. Pye left surviving him at the time of his death a brother, Josiah Pye; a sister, Clarissa L. Wheeler; a great nephew, Charles Weeks, and a niece, Mrs. Dusenberry -- all nonresidents of this State. This being so, the interveners, as heirs of Mr. Pye's wife, could have no interest in any of his estate as to which he might have died intestate, as it vested on his death, and immediately, in his then heirs. Hyde v. Hopkins, 296 S.W. 385; Gillilan v. Gillilan, 278 Mo. 99; Payne v. Payne, 119 Mo. 174; Collins v. Whitman, 283 Mo. 383; Chew v. Keller, 100 Mo. 368; Wyatt v. Stillman Institute, 303 Mo. 456; 23 R. C. L. 518, sec. 56; 18 C. J. 822; 23 C. J. 336; Page on Wills, sec. 816. (2) Even were it, on any possible theory, true that any portion of his estate as to which Mr. Pye might have died intestate, would not have vested in his heirs at the time of his death but would have remained "in the air" until the death of the life tenants, still the burden of proof that he had no heirs at that time to impede the descent from him to interveners -- as heirs of his wife -- rests on the interveners. This burden they have not carried. They are then still nothing more than strangers and their interventions were properly dismissed. Buckhorn v. Greenwood, 208 S.W. 59; Daudt v. Musick, 9 Mo.App. 169; 18 C. J. 872, sec. 126. (a) The statutory presumption of death provided in Section 1709, Revised Statutes 1929, applies only to residents of Missouri who are known to have departed from the State, and has no application here where the heirs of Mr. Pye were never residents of this State. Cobble v. Royal Neighbors of America, 236 S.W. 306; Flood v. Growney, 126 Mo. 262. (b) The common-law presumption requires that the persons who would naturally hear from any absent person have not done so. 17 C. J. 1172; 4 Wigmore on Evidence (2 Ed.), sec. 2531; Flood v. Growney, supra; Cobble v. Royal Neighbors of America, supra. (c) There is no presumption that a man died with or without heirs in this State, although the general rule seems to be that a person is presumed to have heirs. Johnson v. Johnson, 170 Mo. 54; Spurr v. Spurr, 285 Mo. 180. (d) Hearsay evidence in regard to the death, birth or marriage of a person must come from members of the family of the person in question and cannot be heard when it comes from those who are in no way related to the family. Denbo v. Boyd, 194 Mo.App. 125; Penniston v. Schlude, 171 Mo. 141. (e) That the evidence as to the existence or nonexistence of heirs of William R. Pye is wholly insufficient to prove even that he has no such heirs now living cannot be the subject of reasonable question, in the light of the decisions of our Supreme Court and Appellate Court, in the cases of Buckhorn v. Greenwood, supra; Daudt v. Musick, supra. (3) Under all known rules of construction Fannie H. Higbee and Louisa H. Chapman were, under the provisions of this will, given an equitable fee. This for the following reasons: (a) There is here no gift over, and if Fannie H. Higbee and Louisa H. Chapman did not take an equitable fee, then the testator died intestate as to all right in his estate after their respective deaths. Such a construction will not be placed upon the will in the absence of clear evidence of the testator's purpose of intestacy, for our courts and courts generally are unanimous in holding that in the construction of a will a court will always start with the presumption that the testator intended to dispose of his entire estate. Paris v. Erisman, 300 S.W. 487; Bond v. Riley, 317 Mo. 604; St. Louis Union Trust Co. v. Little, 10 S.W.2d 47, 320 Mo. 1073; Tebow v. Dougherty, 205 Mo. 321; Tucker v. Tucker, 308 Ill. 377; Hartford v. Weaver, 137 A. 388; Bransfield v. Wigmore, 66 A. 778; Haley v. Palmer, 78 A. 368; Halcomb v. Palmer, 75 A. 324; Fay v. Phipp, 10 Metc. 341; Menefee v. Sleet, 195 S.W. 92; Clyde v. Lake, 78 N.H. 332; Sec. 551, R. S. 1919; Page on Wills, sec. 815; Dunlap v. Hart, 274 Mo. 600; Allison v. Hitchcock, 274 S.W. 798; Walton v. Drumtra, 152 Mo. 489. (b) Again, the gift to the trustees for Fannie H. Higbee and Louisa H. Chapman is for their "sole use and exclusive benefit and disposal." They are thus given absolute power of disposition without limitation as to manner of exercise and without any attempted gift over. And this constitutes a fee, for it has always been held that an absolute power of disposition over property conferred by will, not controlled by any provisions or limitation, particularly where there is no semblance of a gift over, amounts to an absolute gift of the property. Rubey v. Barnett, 12 Mo. 5; Cook v. Crouch, 100 Mo. 29; Tisdale v. Prather, 210 Mo. 402; Cornwell v. Orton, 136 Mo. 367; Green v. Sutton, 50 Mo. 186; Roth v. Bauschenbusch, 173 Mo. 582; Fries v. Fries, 306 Mo. 101.

OPINION

Tipton, J.

This is an appeal from a decree dismissing the petition of the interveners, wherein the plaintiff, Benjamin G. Chapman Jr., as trustee of a trust created by a will of William R. Pye had instituted a suit in the Circuit...