Cornet v. Cornet

• Decision Date: 24 December 1912
• Citation: 154 S.W. 121,248 Mo. 184
• Parties: CORNET et al. v. CORNET et al.
• Court: Missouri Supreme Court

154 S.W. 121

248 Mo. 184

CORNET et al. v. CORNET et al.

Supreme Court of Missouri, Division No. 1.

December 24, 1912.

Rehearing and Transfer to Court In Banc Denied February 28, 1913.

1. PLEADING (§ 34) — SUFFICIENCY — PRAYER.

The prayer of a bill, though no part of the bill proper, may be resorted to for light upon the pleader's intention, and hence where the bill, including the prayer, stated a good cause of action for the construction of a will and the cancellation of a deed, it was sufficient.

2. PLEADING (§ 245) — TRIAL AMENDMENT.

Under Rev. St. 1909, § 1848, authorizing amendments before final judgment, the court should permit a bill to be amended at the close of the evidence, which defectively states the facts relied upon to warrant the construction of a will and the cancellation of a deed.

3. WILLS (§ 601) — CONSTRUCTION.

One paragraph of a will construed alone gave the testator's property in fee simple to his wife and six children "in equal shares" to be divided among them "in kind" or sold "as they may deem most advantageous" or "as may be agreed upon by them," and appointed his son H. as trustee for preservation of the estate pending division. A subsequent paragraph provided that "the shares going to my son G. * * * be placed in the hands of * * * H. in trust for the benefit of G." to "manage such trust fund and make the same productive" and

pay the net "income thereof" to G. or "lay it out in such manner as he may deem most beneficial to said G., * * * and after the decease of G. said trust fund shall go to his heirs in law and thereupon the trust shall cease." Held, that the latter paragraph did not destroy the fee-simple estate created by the former, and that the will gave G. a fee-simple alienable title in an undivided one-seventh interest of his father's estate in trust during his life, and after his death to descend to his heirs at law, and did not create a mere spendthrift trust for life.

4. WILLS (§§ 441, 470) — CONSTRUCTION — INTENTION.

In contruing a will, the intention of the testator will be determined from reading the entire will in the light of the circumstances surrounding him at the time of its execution.

5. WILLS (§ 470) — CONSTRUCTION.

A will should be construed, if possible, so as to give full force and effect to every paragraph.

6. WILLS (§ 597) — CONSTRUCTION.

Where the words at the beginning of a will clearly show an intention of the testator to devise the entire estate absolutely to the first donee, the estate will not be cut down by subsequent ambiguous words.

7. DEEDS (§ 70) — VALIDITY — FRAUD.

Where it clearly appeared that defendant, while plaintiff was in a weakened condition, both mental and physical, from the use of intoxicants, procured from him without consideration, and by undue influence and fraudulent representations as to its contents, a deed to property to which the grantor had title in fee simple, and to all other estate which the grantor might acquire from the same original source, which deed created a spendthrift trust for the grantor, the court should set the deed aside and declare it void.

8. DEEDS (§ 196) — VALIDITY — UNDUE INFLUENCE — FIDUCIARY RELATIONS.

Where by will testator ordered a division of his property among his children and appointed one of his sons trustee to manage the property till division was made, and also attempted, by an ineffective provision, to make the trustee son also the trustee of the share of G., another son, and the trustee obtained from G. a deed creating a spendthrift trust for him for life, remainder to his heirs at law, the burden was on the trustee, in an attack on the deed, to prove the absence of fraud or undue influence.

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

Bill by George A. Cornet and another against Henry L. Cornet, trustee, and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded, with directions.

This is a bill in equity, asking for a construction of the will of Francis Cornet, deceased, and for the cancellation of a certain deed executed January 14, 1892, by the plaintiff George A. Cornet to the defendant Henry L. Cornet. Since the bill is quite lengthy, covering 14 printed pages, we will content ourselves by briefly stating the substance of it.

The bill, in substance, charges: That Francis Cornet died testate in the city of St. Louis on December 20, 1891, seised and possessed of certain real estate and personal property worth about $235,000. That said will was duly probated in the probate court of the city of St. Louis, Mo. That the deceased left, surviving him, his widow, Julia Cornet, and the following six children: George A. and Henry L. Cornet, the plaintiff and defendant, John Fred, Ida, William, and Isabella Cornet, now the wife of Alexander Henneman. That since the death of the testator, Ida, William, and John Fred Cornet have departed this life. That by item 1 of the will the widow was given certain personal property together with a life estate in certain real estate described, in lieu of dower, and upon her death the same was given to the testator's children or their heirs in equal parts. That item 2 made certain bequests to certain charitable institutions, which are unimportant in this case. That items three, four, and five of the will are in the following words and figures:

"Item 3. All balance and residue of my property, be it real, personal, or mixed, stocks, bonds and chattels, I will, give, bequeath and devise to my said beloved wife and aforenamed children in equal shares, to be divided among them in kind or the same may be sold as they may deem most advantageous or as may be agreed upon by them, and for the purpose of preservation of the property until a division is made, I appoint my said son Henry L. Cornet, trustee; he shall take charge of all my real estate except that as described in item 1, until a division is had; he shall account for all income and disbursements for keeping in repair the same and pay over from the net proceeds after charging a reasonable compensation, for his services, to my said wife and aforenamed children in equal shares, quarterly.

"Item 4. All my personal property, stocks and bonds, except as in Item 1, after all my debts and legacies are paid, shall as soon as can be conveniently done, be divided among my wife and children in kind, as nearly as can be, in equal shares, until such division is made, my said trustee shall account for the income thereof, as hereinbefore stated and my said trustee shall give no bond as such.

"Item 5. The share going to my said son, George A. Cornet, be it real or personal property, shall be placed in the hands of my said son Henry L. Cornet, in trust for the benefit of said George A. Cornet, he, the said Henry L. Cornet, as such trustee, to manage such trust fund, and to make the same productive in such manner as he may deem most safe and advantageous, and the income thereof, after deducting the necessary expenses and a reasonable compensation for his services to either pay over to the said George A. Cornet in quarterly installments, or at his, said trustee's option, to lay it out in such manner as he deem most beneficial to said George A. Cornet, and after the decease of George A. Cornet, said trust fund shall go to his heirs in law and thereupon the trust shall cease. My son Henry L. Cornet shall not be required to give security for the faithful execution of the trust. If any of my children die leaving issue, such issue shall inherit their parent's part. I nominate, constitute and appoint my beloved wife, Julia Cornet, and my son Henry L. Cornet, executors of this will, without giving bond.

"Witness my hand and seal this thirty-first day of January, 1891."

The bill further states: That under the will the plaintiff is entitled to one-seventh part of the testator's estate, and that Henry L. Cornet, the defendant, a brother of the plaintiff, was the active executor as well as trustee ad interim, under the will, and that he had and entertained the fullest and most complete fraternal trust and confidence of the plaintiff, who was in a weakened and depleted physical and mental condition. That under those conditions and circumstances, in order to obtain for himself and the other children of Francis Cornet the title to the real and personal property devised and bequeathed to the plaintiff Henry L. Cornet, the defendant designedly appeared to take an unusual interest in the welfare of George and represented to him that he (George) was disinherited by his father's will except a living and only such as he (Henry) saw fit and proper to give him, and that, in order to further protect his slender interest in his father's estate, he (George) should sign a paper which he (Henry) had caused to be drawn by his lawyer, without the knowledge of the plaintiff. That on January 14, 1892, Henry procured the signature and acknowledgment of George to said paper without giving him an opportunity to obtain legal advice, upon the false representations the defendant made to him regarding his interest in the estate under his father's will, namely, that he (Henry) was vested with the estate in trust which was willed to George with remainder over to George's heirs by blood or per stirpes, and that he (George) had no rights under the will that he could alienate or control. The petition then states that said deed of January 14, 1892, was without consideration, was fraudulently obtained, and was void. Then follows a statement of the substantial provisions of said deed.

For convenience we here copy said deed in full, which is as follows, omitting formal parts: "This indenture made and entered into this 14th day of January eighteen hundred and ninety-two (1892) by and between George A. Cornet (single) of the city of St. Louis, state of Missouri, party of the first part, and Henry L. Cornet as trustee, for the purposes hereinafter mentioned, of the same place, party of the second part,...