Commerce Trust Co. v. Weed, No. 46545

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPER CURIAM
Citation318 S.W.2d 289
PartiesCOMMERCE TRUST COMPANY, a Corporation, Trustee under the Last Will and Testament of James W. Weed, Deceased, Plaintiff-Respondent, v. Mahlon S. WEED, James W. Weed, Mrs. Blanche Weed Olson, Mrs. Sarah Weed Lewis, Mrs. Helen Weed Gerhard, and Mrs. Dorothy McLaughlin Mitchell, Defendants-Respondents, Allan Weed McLaughlin, Defendant-Appellant and Respondent, Mrs. Verle McLaughlin Smith, Sidney M. Weed and Mrs. Grace Weed Tedrick, Defendants-Appellants
Decision Date10 November 1958
Docket NumberNo. 46545,No. 1

Page 289

318 S.W.2d 289
COMMERCE TRUST COMPANY, a Corporation, Trustee under the
Last Will and Testament of James W. Weed,
Deceased, Plaintiff-Respondent,
v.
Mahlon S. WEED, James W. Weed, Mrs. Blanche Weed Olson, Mrs.
Sarah Weed Lewis, Mrs. Helen Weed Gerhard, and
Mrs. Dorothy McLaughlin Mitchell,
Defendants-Respondents,
Allan Weed McLaughlin, Defendant-Appellant and Respondent,
Mrs. Verle McLaughlin Smith, Sidney M. Weed and Mrs. Grace
Weed Tedrick, Defendants-Appellants.
No. 46545.
Supreme Court of Missouri, Division No. 1.
Nov. 10, 1958.
Motions to Set Aside Decision, for Rehearing or to Transfer
to Court en Banc Denied Dec. 8, 1958.

Page 290

Frank C. Rayburn and John A. Weiss, Howell, Rayburn & Sanders, Kansas City,

Page 291

Paul E. Basye, Burlingame, Cal., of counsel, for appellant, Verle McLaughlin Smith.

Richard H. Beeson, David P. Dabbs, Dean F. Arnold, Paul E. Vardeman, Jr., Kansas City, for appellants Sidney M. Weed and Grace Weed Tedrick.

Lathrop, Righter, Blackwell, Gordon & Parker, William M. Stapleton, Kansas City, Fitzgerald, Selleck & Sinclair, Willard M. Sinclair, San Diego, Cal., for Allan Weed McLaughlin, defendant-respondent.

Barnett & Skeer, Paul Barnett, Kansas City, Wash H. Brown, Kansas City, Kan., for respondents McLaughlin et al.

HOLMAN, Commissioner.

In this action for a declaratory judgment, Commerce Trust Company, as testamentary trustee of the trust estate created by the last will and testament of James W. Weed, deceased, sought a construction of said will and a determination of the persons to whom the corpus of said estate should be distributed and the share each should receive. On June 24, 1957, a judgment was entered herein and four of the defendants have appealed therefrom. Since it appears that the 'amount in dispute' exceeds $7,500, we have appellate jurisdiction. Article V, Section 3, Constitution of Missouri 1945. V.A.M.S.

On July 22, 1927, James W. Weed, a widower, made his last will. At that time he was 74 years old and had been in failing health for 1 1/2 years. He was ill and confined to his bed when he signed the will and died six days thereafter. Testator was survived by three children and eleven grandchildren (one by adoption).

For many years prior to his death testator operated a business called 'Bankers Law Publishing Company.' In conducting that business he called upon banks over a wide area and endeavored to sell them advertising pamphlets to be distributed to their customers. During the last twenty years or more of his life he did not maintain a home of his own (nor any separate office) but would establish headquarters from time to time with one of his children. He traveled almost continuously and would be at his 'home' or 'headquarters' only two or three days out of every two months.

The will made certain specific bequests, including a gift of one hundred dollars to testator's son James 'if he be living, whose address is unknown to me, but who was born in Jewell County, Kansas, about the year 1870; but should my executor be not able to locate my said son within one year after my death, then this bequest shall be null and void * * *.'

The residue of the estate was given to Commerce Trust Company in trust for the following purposes: (a) The net income from three houses in Kansas City, Missouri, or the income from the proceeds of the sale of any one more of them, should be paid to testator's daughter Helen S. Estey for life, with the privilege to such daughter to use one of the houses for a home. (b) The remainder of the income should be divided equally in three parts and paid to his two daughters Blanche McLaughlin and Helen S. Estey, and to his daughter-in-law Rena Weed. '(c) In case of the death of either of my said daughters or my said daughter-in-law, the share of the income to which they or either of them would be entitled, if living, shall be used by the Trustee to support, educate, maintain and care for the lineal descendants of such deceased daughter or daughter-in-law; and in case such deceased daughter or daughter-in-law is not survived by any lineal descendants, then the share of the income to which such deceased daughter or daughter-in-law would be entitled, if living, shall be divided equally among my surviving daughter or daughters and/or daughter-in-law and/or the lineal descendants of any deceased daughter or daughter-in-law and paid to them or used for them as hereinabove provided.

'(d) When both of my said daughters and my said daughter-in-law shall die and

Page 292

all of the children of my said daughters and daughter-in-law have reached the age of twenty-one (21) years, then this trust shall terminate and the entire trust estate remaining in the hands of the Trustee at that time, whether the same be principal or accumulated income, shall be divided, distributed, and paid over to my lineal descendants, per stirpes.

'(e) In case ot he death of both my said daughters and my said daughter-in-law and all of my lineal descendants prior to the final termination of this trust estate, or in case I be not survived by any of said beneficiaries, then upon my death or upon the death of the last of said beneficiaries (whichever even [event] happens last) this trust estate shall immediately terminate and the entire trust estate whether the same be principal or accumulated income, shall be divided, distributed and paid over to my heirs at law, whoever they may be at the time of such termination, according to the laws of the State of Missouri then in force.'

The will also provided that 'If any person or persons who are beneficiaries under this my Last Will and Testament shall at any time attempt or aid in an attempt to oppose the administration of this will to probate or to have the same set aside or declared invalid, then and in that event, such beneficiary or beneficiaries shall by that act forfeit all right or title to any part of my estate and any and all bequests I have made to them or their descendants under this will, shall be null and void and my estate shall be distributed in the same manner as it would be distributed under the terms hereof if that person or persons had died prior to my death without leaving lineal descendants.'

After testator's death, one of his daughters, Helen Weed Estey, married George T. Carver and died on February 28, 1934, without issue. Carver subsequently married Leola Carver and died on January 11, 1953, without issue. Leola survived and is a defendant herein.

Another daughter, Blanche Weed McLaughlin, died on April 18, 1939, and left surviving her husband, A. B. McLaughlin, two sons, Allan and George, and an adopted daughter, Dorothy McLaughlin Mitchell. George McLaughlin died October 6, 1944, without issue, but was survived by his widow, now Verle McLaughlin Smith.

Testator's son, James H. Weed, died February 13, 1942, and left surviving his wife Emma Weed, and three children, Sidney M. Weed, Hazel Weed Ellis, and Grace Weed Tedrick. Hazel died on June 25, 1945, without issue but was survived by her husband, George Ellis.

Another son, Fred Weed, died prior to testator's death and was survived by his widow, Rena Weed, two sons, Mahlon S. and James W., and three daughters, Blanche Olson, Sarah Lewis, and Helen Gerhard.

All of the persons heretofore named (who were alive on February 1, 1956, the date this suit was instituted) were made defendants herein. Emma Weed and George Ellis defaulted. All of the other parties appeared in the trial court and claimed a share of the trust assets.

James H. Weed was born of testator's first marriage. The record does not disclose how that marriage terminated but in 1875 testator married Maggie A. Jones and the three other children heretofore named were born of that marriage. Maggie died in 1910. Testator had not been in contact with his son James for a long time and (according to the will) was not sure that he was alive. None of the other children or grandchildren had ever heard of James until the testator's will was read. Actually, in 1927, James resided in Springfield, Missouri, where he held a responsible position with the Frisco railroad. He learned of his father's death from an item that appeared in a Kansas City newspaper.

On May 18, 1928, James H. Weed filed a suit to contest testator's will, alleging therein that testator was of unsound mind

Page 293

and was also subjected to undue influence at the time of signing the alleged will. That case was thereafter settled by the payment to James H. Weed of $5,000 from the assets of the estate and the will was thereafter established by a judgment of the Circuit Court of Jackson County, Missouri, in the said will contest action.

It is agreed by all parties that the trust estate terminated on October 25, 1955, the date of the death of Rena Weed. At that time the assets in the trust totaled approximately $110,000.

The questions presented for determination in the trial court were: (1) Was the remainder contingent or did it vest at the death of testator? (2) Is the adopted child, Dorothy McLaughlin Mitchell, a lineal descendant of testator? and (3) Did the action of James H. Weed in contesting the will preclude his children (admittedly lineal descendants) from sharing in the distribution of the trust assets?

The findings and conclusions of the trial court were:

1. That 'the remainders created by Paragraph Sixth (d) of testator's Last Will and Testament were contingent and not vested until October 25, 1955, when such remainders vested in testator's lineal descendants surviving at the termination of the trust.

2. 'According to the law and to the intention of the testator Dorothy McLaughlin Mitchell, the adopted daughter of Blanche Weed McLaughlin, is entitled to inherit as a lineal descendant of testator.'

3. That James H. Weed had reasonable and probable cause to believe that his father's will was invalid and hence had probable cause to file the will contest action, but, nevertheless, 'under the terms...

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24 practice notes
  • Haynes v. First Nat. State Bank of New Jersey
    • United States
    • United States State Supreme Court (New Jersey)
    • July 22, 1981
    ...In re Hite's Estate, 155 Cal. 436, 101 P. 443 (1909); Rudd v. Searles, 262 Mass. 490, 160 N.E. 882 (1928); Commerce Trust Co. v. Weed, 318 S.W.2d 289 (Mo.Sup.Ct.1958); Elder v. Elder, 84 R.I. 13, 120 A.2d 815 (1956). On the other hand, a majority of jurisdictions have declined to enforce in......
  • Midwest Petroleum Co. v. American Petrofina, Inc., No. 83-93C(1).
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • March 5, 1985
    ...detriment, or prejudice." Id. See generally Owens v. Estate of Saville, 409 S.W.2d 660, 664 (Mo.1966); Commerce Trust Co. v. Weed, 318 S.W.2d 289, 303 (Mo.1958); Kind v. Staton, 409 S.W.2d 253, 257-58 (Mo.App.1966); John Hancock Mutual Life Insurance Co. v. Dawson, 278 S.W.2d 57, 60-61 (Mo.......
  • Bookwalter v. Lámar, No. 17337.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 9, 1963
    ...that the intention of the testator shall control unless it contravenes some established rule of law. Commerce Trust Company v. Weed, Mo., 318 S.W.2d 289, 294 (1958). Considering the Missouri law pertinent to will construction in Brittain v. First Trust & Savings Bank, 8 Cir., 42 F.2d 613 (1......
  • Hanna v. Nowell, No. 7801
    • United States
    • Court of Appeal of Missouri (US)
    • December 19, 1959
    ...Mo., 287 S.W.2d 761. 9 31 C.J.S. Estoppel Sec. 72b, p. 275; 19 Am.Jur., Estoppel, sec. 34, p. 634; Commerce Trust Company v. Weed, Mo., 318 S.W.2d 289; Klaar v. Lemperis, Mo., 303 S.W.2d 55; Mills v. Taylor, Mo., 270 S.W.2d 724, and cases cited at loc. cit. 729; State on inf. of McKittrick,......
  • Request a trial to view additional results
35 cases
  • Haynes v. First Nat. State Bank of New Jersey
    • United States
    • United States State Supreme Court (New Jersey)
    • July 22, 1981
    ...In re Hite's Estate, 155 Cal. 436, 101 P. 443 (1909); Rudd v. Searles, 262 Mass. 490, 160 N.E. 882 (1928); Commerce Trust Co. v. Weed, 318 S.W.2d 289 (Mo.Sup.Ct.1958); Elder v. Elder, 84 R.I. 13, 120 A.2d 815 (1956). On the other hand, a majority of jurisdictions have declined to enforce in......
  • Lewis v. Green, No. OO-185
    • United States
    • Court of Appeal of Florida (US)
    • September 24, 1980
    ...Wills § 395 (1957); Carnegie v. First National Bank of Brunswick, 218 Ga. 585, 129 S.E.2d 780 (1963); Commerce Trust Company v. Weed, 318 S.W.2d 289 (Mo.1958); In re Estate of Evans, 31 Ill.App.3d 753, 334 N.E.2d 850 (1975). Annot., 79 A.L.R.2d § 1453 (1961); Annot., 139 A.L.R. § 1111 (1942......
  • Midwest Petroleum Co. v. American Petrofina, Inc., No. 83-93C(1).
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • March 5, 1985
    ...detriment, or prejudice." Id. See generally Owens v. Estate of Saville, 409 S.W.2d 660, 664 (Mo.1966); Commerce Trust Co. v. Weed, 318 S.W.2d 289, 303 (Mo.1958); Kind v. Staton, 409 S.W.2d 253, 257-58 (Mo.App.1966); John Hancock Mutual Life Insurance Co. v. Dawson, 278 S.W.2d 57, 60-61 (Mo.......
  • Bookwalter v. Lámar, No. 17337.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 9, 1963
    ...that the intention of the testator shall control unless it contravenes some established rule of law. Commerce Trust Company v. Weed, Mo., 318 S.W.2d 289, 294 (1958). Considering the Missouri law pertinent to will construction in Brittain v. First Trust & Savings Bank, 8 Cir., 42 F.2d 613 (1......
  • Request a trial to view additional results

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