Clark v. Mississippi Valley Trust Co.

• Decision Date: 12 April 1948
• Docket Number: 40573
• Citation: 211 S.W.2d 10,357 Mo. 785
• Parties: Louis Vaughan McLure Clark v. Mississippi Valley Trust Company, a Corporation, Trustee Under the Will of Charles Clark, Deceased, Grace Wilson Clark and Mary Denman Wetmore, Appellants
• Court: Missouri Supreme Court

211 S.W.2d 10

357 Mo. 785

Louis Vaughan McLure Clark v. Mississippi Valley Trust Company, a Corporation, Trustee Under the Will of Charles Clark, Deceased, Grace Wilson Clark and Mary Denman Wetmore, Appellants

No. 40573

Supreme Court of Missouri

April 12, 1948

Motion for Rehearing and to Modify Opinion and Judgment Overruled May 10, 1948.

Appeal from Circuit Court of City of St. Louis; Hon. Eugene J Sartorius, Judge.

Reversed and remanded.

Jacob M. Lashly, George S. Roudebush, and Lashly Lashly, Clifford & Miller for appellants.

(1) The circuit court erred in failing to find that respondent's claim was extinguished by his death. Smith v. Smith, 194 Mo.App. 309, 188 S.W. 1111; Restatement of Trusts, sec 128, comment (e); Krause v. Jeanette Inv. Co., 333 Mo. 509, 62 S.W.2d 890; 1 Scott, Law of Trusts, p. 674; Thurber v. Thurber, 43 R.I. 504, 112 A. 209; Gray v. Corbit, 4 Del. Ch. 135; Demeritt v. Young, 72 N.H. 202, 55 A. 1047. (2) The circuit court erred in its order, judgment and decree directing appellant to pay the sum of $ 130,500 to respondent as an amount that should have been paid to respondent from the Charles Clark trust. Kerens v. St. Louis Union Trust Co., 283 Mo. 601, 223 S.W. 645; Easton v. Demuth, 179 Mo.App. 722, 162 S.W. 294; Sweeney v. Security Trust Co., 116 W.Va. 344, 180 S.E. 897; Smith v. Smith, 194 Mo.App. 309, 188 S.W. 1111. (3) The circuit court erred in its order, judgment and decree directing appellant to pay the sum of $ 20,000 for medical expenses to respondent. (4) The circuit court erred in its order, judgment and decree directing appellant to reimburse respondent in the sum of $ 7,721.07 for income taxes paid by appellant on behalf of respondent. Internal Revenue Code, Sec. 161 (b); Duffley v. McCaskey, 345 Mo. 550, 134 S.W.2d 62; In re Holmes' Estate, 328 Mo. 143, 40 S.W.2d 616. (5) The circuit court erred in directing appellant to pay respondent $ 38,768.73 representing interest. 65 C.J., sec. 707, p. 825; Albert v. Sanford, 201 Mo. 117, 99 S.W. 1068. (6) The circuit court erred in retaining jurisdiction of the cause for the purpose of passing upon applications that may be made for counsel fees. City of St. Louis v. Crow, 171 Mo. 272, 71 S.W. 132; State ex rel. O'Briant, etc., v. Keokuk, etc., 176 Mo. 443, 75 S.W. 636; In re Thomasson, 119 S.W.2d 433, affirmed 159 S.W.2d 626; St. Louis Union Trust Co. v. Kaltenbach, 353 Mo. 1114, 186 S.W.2d 578; In re Thomasson's Estate, 350 Mo. 1157, 171 S.W.2d 553; St. Louis Union Trust Co. v. Kern, 346 Mo. 643, 142 S.W.2d 493; Fleming v. Casady, 211 N.W. 488. (7) The circuit court misconceived the function of a nunc pro tunc order and erred in entering its order, judgment and decree on April 25, 1947 nunc pro tunc as of July 8, 1946. Clancy v. Herman C. G. Luyties Realty Co., 321 Mo. 282, 10 S.W.2d 914; Freeman v. Joplin Water Works, 154 S.W.2d 744; Gibson v. Chouteau, 45 Mo. 71; Wiggins v. Perry, 343 Mo. 40, 119 S.W.2d 839; State ex rel. Holtkamp v. Hartmann, 330 Mo. 386, 51 S.W.2d 22; Doerschuk v. Locke, 330 Mo. 819, 51 S.W.2d 62; 126 A.L.R. 956, 977, 993, 978; Burton v. Burton, 288 Mo. 531, 232 S.W. 476; Hyde v. Curling and Robertson, 10 Mo. 359; Young v. Young, 165 Mo. 624, 65 S.W. 1016; Cross v. Greenaway, 347 Mo. 1103, 152 S.W.2d 43; R.S. 1939, sec. 847.22 (a) (1) and (3); Supreme Court Rule 3.08.

Leahy & Leahy for respondent.

(1) It was the duty of the court to enter judgment as of the date of the submission of the cause, July 8, 1946; when plaintiff died August 5, 1946, while the case was under submission. Mitchell v. Overman, Admr. of Stutzman, 103 U.S. 369; Bell v. Bell, 181 U.S. 175, 45 L.Ed. 804; Martin v. Baltimore & Ohio Ry., 151 U.S. 673, 38 L.Ed. 311; Hilker v. Kelley, 130 Ind. 356, 15 L.R.A. 622; Buchanan v. Rechner, 333 Mo. 634; Central Savs. Bank v. Shine, 48 Mo. 456; Sargent v. St. Louis & S.F. Ry. Co., 114 Mo. 348, 21 S.W. 823; Patson v. Peters, 89 S.W.2d 46; McReynolds v. Brown, 121 Ill.App. 261; Coulter v. Phoenix Brick & Construction Co., 110 S.W. 655; Lively v. Griffith, 84 W.Va. 393, 99 S.E. 512; Hominy Creek Land Co. v. Gauley Coal Land Co., 103 W.Va. 477, 138 S.W. 95; Hopkins v. Curtis, 43 R.I. 19, 101 A. 711; Arredonodo v. Arredono, 56 L.Ed. 476. (2) It is an established rule in trust estates that on the death of the beneficiary, his estate is entitled to the accumulated income that should have been paid the beneficiary during his lifetime, which income accrued prior to his death. Draper v. Palmer, 54 Hun, 637, 7 N.Y.S. 614; Curtis v. Curtis, 185 A.D. 391, 173 N.Y.S. 103; In re Kirby, 133 Misc. 152, 231 N.Y.S. 408; Rhode Island Hospital Trust Co. v. Noyes, 26 R.I. 323, 58 A. 999; Cromwell v. Converse, 108 Conn. 412, 143 A. 416, 61 A.L.R. 663. (3) The decree of the Circuit Court of St. Louis County in construing the will of Charles Clark, where the identical parties were parties to that and this suit is res adjudicata that the first codicil to the will is null and void. State ex rel. Gott v. Fidelity & Deposit Co., 298 S.W. 83, 317 Mo. 1087; Kansas City to the use of Mo. Pacific Ry. Co. v. Southern Surety Co., 51 S.W.2d 221; Norwood v. Norwood, 183 S.W.2d 118, 353 Mo. 548; Bushman v. Barlow, 15 S.W.2d 329, 321 Mo. 1052; Autenrieth v. Bartley, 178 S.W.2d 546; Adams v. Met. Life Ins. Co., 139 S.W.2d 1098; State ex rel. Met. Life Ins. Co. v. Hughes, 148 S.W.2d 576, 347 Mo. 549; In re Flynn's Estate, 95 S.W.2d 1208; State ex rel. Kenealy v. Hostetter, 104 S.W.2d 303, 340 Mo. 965; Irving Natl. Bank v. Law, 10 F.2d 721; Katz v. Berkos, 316 Ill.App. 569. (4) The court will take judicial knowledge of the fact that there has been a constant increase in the cost of living and a constant decrease in the purchasing power of the dollar since 1937, up to the present time. Petty v. Kansas City Pub. Serv. Co., 191 S.W.2d 652; Young v. Terminal Railroad Assn., 192 S.W.2d 402; Marshall v. St. Louis Union Trust Co., 196 S.W.2d 435. (5) Duty of trustee to determine from time to time under power given by will to determine amount of income necessary to afford respondent comforts and necessities, consonant with his station in life, and this power could not be delegated. Continental Natl. Bank v. Severs, 393 Ill. 81; Martin v. McCune, 318 Ill. 590; Fischer v. Butz, 224 Ill.App. 379; Story v. Palmer, 46 N.J.Eq. 1.

Van Osdol, C. Bradley and Dalton, CC. , concur.

OPINION

Van Osdol, C.

Appeal from a decree and judgment for $ 196,989.80 in favor of Louis Vaughan McLure Clark (now deceased), hereinafter referred to as Lewis Vaughan Clark, a life beneficiary; and against defendant Mississippi Valley Trust Company, trustee of a testamentary trust created by Charles Clark, deceased. Lewis Vaughan Clark as plaintiff had alleged defendant trustee had not paid to him as beneficiary allowances in amounts as the settlor-testator had intended. July 14, 1947, the trial court sustained the motion of John J. Nangle, as administrator of the estate of Lewis Vaughan Clark, to be substituted as party plaintiff. Defendant, the trustee; defendant, Grace Wilson Clark, a life beneficiary; and defendant, Mary Denman Wetmore, a daughter of the deceased brother of Lewis Vaughan Clark, have appealed from the decree and from the order substituting the administrator Nangle as party plaintiff.

The award of the judgment, $ 196,989.80, includes the items (1) $ 130,500 found by the trial court to be the difference between the sums which had actually been paid by the trustee to Lewis Vaughan Clark in his lifetime as a beneficiary out of the income derived from the trust and the amount, being one half of the net income derived from the trust, to which the trial court determined he was entitled, and $ 38,768.73 interest; (2) reimbursement of $ 20,000 for medical expenses found by the trial court to have been incurred by Lewis Vaughan Clark; and (3) $ 7721.07 income tax paid by the trustee upon and out of the annual allowance paid to Lewis Vaughan Clark.

The cause was submitted in the trial court July 8, 1946; and August 12, 1946, defendant trustee suggested the death of Lewis Vaughan Clark, which had occurred on August 5th. On October 30, 1946, John J. Nangle, as administrator of the estate of Lewis Vaughan Clark, moved to be substituted as plaintiff. Defendants resisted the motion on the ground the claim did not survive but was extinguished by the death of Lewis. November 20, 1946, counsel for plaintiff requested the trial court to enter a decree "nunc pro tunc during plaintiff's lifetime"; and on March 28, 1947, a decree was entered as of July 8, 1946. On April 25, 1947, the trial court on its own motion set aside the decree and entered an amended decree as of the date of the original decree, July 8, 1946. (Appellants-defendants challenge the propriety of the nunc pro tunc entry of judgment.) As stated, July 14, 1947, the trial court sustained the motion of John J. Nangle as administrator of the estate of deceased to be substituted as plaintiff; but it seems that July 8, 1947, the Probate Court of the City of St. Louis had appointed John J. Nangle executor of the will of deceased Lewis Vaughan Clark, and John J. Nangle has filed a motion in this court to be substituted as executor instead of administrator, which motion was on October 13, 1947, by this court ordered taken with the case. And now the motion is sustained, in order to make the personal representative party plaintiff in his true capacity as executor.

We hold the trial court was right in ordering the substitution of the personal representative as plaintiff. Section 1281 R.S. 1939 Mo. R.S.A. sec. 1281; Section 22 (3) Civil Code of Missouri, Laws of Missouri, 1943, p. 364, Mo. R.S.A. sec. 847.22. The nunc pro tunc entry of judgment, if proper, had the legal effect of a rendition of a judgment in Lewis Vaughan Clark's...