Creek v. Union Nat. Bank in Kansas City, 43239

Citation266 S.W.2d 737
Decision Date08 February 1954
Docket NumberNo. 43239,No. 2,43239,2
PartiesCREEK et al. v. UNION NAT. BANK IN KANSAS CITY et al
CourtUnited States State Supreme Court of Missouri

J.M. Loomis, Omar Robinson, Hall DeWeese, Kansas City, for appellants Hortense A. Bloch and others.

Daniel S. Millman, Daniel L. Brenner, Kansas City, for appellants Helen B. Goldsmith and others.

Brenner, Van Valkenburgh & Wimmell, of counsel, for appellants.

Richard S. Righter, J. W. R. Headley, Kansas City, Lathrop, Woodson, Righter Blackwell & Parker, Kansas City, of counsel, for plaintiffs-respondents.

H. M. Langworthy, Clyde J. Linde, R. B. Langworthy, Billy S. Sparks, Kansas City, Langworthy, Matz & Linde, Kansas City, of counsel, for respondent Union Nat. Bank in Kansas City, successor trustee.

Howard A. Crawford, Kansas City, for defendants-respondents John H. Lathrop, executor of the estate of Cyrus Crane, deceased, Carrye Henrietta Hart and Theodore S. Cady.

BOHLING, Commissioner.

Robert V. Creek and Douglas W. Creek sued the Union National Bank in Kansas City, the trustee, and the other beneficiaries (hereinafter designated 'other defendants') in equity to decree the termination (except as to provisions for certain charitable institutions) of a trust agreement and ammendments executed by Helena Reicher, Helena Reicher, trustee for Rosa Reicher, and Rosa Reicher, under which the bencficiaries receive a trust estate of approximately $330,000 to the exclusion of trustors' heirs at law, and for distribution. The trustee, having been notified that the heirs at law claimed the trust estate, had refused to make distribution.

The other defendants took the same position as the plaintiffs. The heirs at law were brought in under appropriate proceedings by the trustee, and the trustee by its pleadings sought, briefly stated, a decree that the trust agreement and amendments were valid and the approval of the administration of the trust.

The trustor's heirs at law (second and further removed cousins of trustors, with the exception of a first cousin, and herein designated claimants) attacked the trust agreement and amendments mainly on the grounds of alleged mental incompetency of and alleged undue influence exercised upon the trustors by the grandmother, Mrs. Cora Bower, and the mother, Mrs. Helen Creek, of the plaintiffs. They also claim an interest in some of the trust assets under testamentary trusts in the will of the father and in the will of the brother of the trustors. Claimants state voluminous pleadings gave the court full jurisdiction.

The decree, final so far as here involved, sustained the trust agreement and amendments and its administration. Claimants have appealed.

The record, replete with a detail of facts, is lengthy, as are the briefs. The testimony is frequently partisan, contains statements later disclosed as hearsay or conclusions, and irreconcilable. We shall endeavor to give the facts essential to a determination.

Mr. and Mrs. Morris Reicher had three children--Solomon (known in the record as Sol), Rosa and Helena. None of the children ever married. They were natives of Poland, resided for a time in Leavenworth, Kansas, and lived at 1317 Cherry Street, Kansas City, in the 1890s, and 3219 Campbell Street in the early 1900s. Morris Reicher operated a wholesale drygoods business. He made Sol a full partner. The business was known as 'M. Reicher & Son.' Mrs. Reicher predeceased her husband. Morris Reicher died January 15, 1913. Solomon Reicher continued the business. He died September 29, 1927. Rosa and Helena had an apartment in the St. Regis Hotel from 1931 until 1939. They then lived at 7236 Jarboe, and about a year later purchased a home at 601 West 57th Street Terrace.

Mrs. Cora Bower, who had nursed Morris Reicher, continued in the employ of the Reicher family for twenty-seven years as housekeeper and companion until her death, due to cancer, about November, 1940.

Mrs. Creek followed her mother, Mrs. Bower, as housekeeper and companion under the directions of the sisters. She died suddenly March 1, 1942. Mrs. Grace R. Buck followed Mrs. Creek.

Helena Reicher, who was a few years younger than Rosa, died November 11, 1941, the result of burns sustained when her gown caught fire from a gas heater. Mrs. Creek was severely burned at the time.

Rosa Reicher, about 85 or 86, died November 11, 1950.

The original trust agreement was executed December 7, 1927, and signed: 'Helena L. Reicher; Helena L. Reicher, Trustee for Rosa Reicher; Rosa Reicher, Trustors. New England National Bank and trust Company in Kansas City by Thad B. Landon, Vice president and Trust Officer, Trustee.' It provided, among other things, for the payment of the income to the trustors or the surviving trustor, and, upon the death of the survivor, for the distribution of the trust estate to named employees of M. Reicher & Son, plaintiffs and named charitable institutions. The trustors or the surviving trustor could 'modify, alter, terminate or revoke' (herein referred to as amendments) the trust agreement in whole or in part.

The New England National Bank and Trust Company (herein referred to as the New England Bank) merged with the Fidelity National Bank and Trust Company of Kansas City (referred to as the Fidelity Bank) January 1, 1929. The Fidelity Bank went into liquidation in 1933. The Union National Bank in Kansas City (referred to as the Union Bank) was organized in July, 1933.

A. R. Strother was trust officer for the Fidelity Bank. R. B. Hewitt became vicepresident and assistant trust officer of the Fidelity Bank in 1929, succeeded Mr. Strother in about two years, became vicepresident and trust officer and in 1951 president of the Union Bank. William E. Estes, an assistant trust officer of the New England, Fidelity and Union banks, administered the Reicher trust until he resigned in 1935 or 1936; and Whitney Ogden, with the trust departments of the Fidelity and the Union banks since 1922, administered it thereafter under Mr. Hrwitt.

The trustors' first amendment of the trust agreement appointed the Union Bank as successor trustee on December 22, 1933.

Soon after Sol's death, F. W. Everest, and perhaps Matt McCormack (who died in 1929), employees, managed M. Reicher & Son, with the advice of Alfred Hart, a cotton goods broker and a close friend and business advisor of the Reicher family prior and subsequent to Sol's death. Helena Reicher and Rosa Reicher contracted on April 13, 1929, with F. W. Everest, C. W. Smith, O. P. Berger, John McCormack (employees named as beneficiaries in the original trust agreement), John F. Chappell, Morris Katz, P. E. Coleman, and other employees of M. Reicher & Son to transfer all assets, except cash, to a corporation to be known as M. Reicher & Son, Incorporated, with a capital of $120,000, represented by 1,200 shares of stock. The sisters agreed to and gave between 17 1/2 and 5 shares of the stock to individual employees in recognition of services rendered, and agreed to permit any employee to purchase up to 50 shares of said stock and give a 4-year note therefor. M. Reicher & Son, Inc., was incorporated May 7, 1929. Mr. Everest was president, Mr. Chappell was vice-president, and Mr. Smith was secretary-treasurer. The corporation lost money, and Helena, who had been connected with the business, complained that the store was being badly managed. In April, 1940, Mrs. Creek telephoned Morris Katz about finding a buyer for the stock. Mr. Katz went to the home, talked with Mrs. Creek and Mrs. Bower in the presence of Helena and Rosa, and according to Mr. Katz, after Mrs. Creek sent the sisters upstairs, told them he could 'get $25,000 for it'; and Mrs. Creek and Mrs. Bower stated they would see.

Hyman and Jake Denowitz (Katz had talked to Hyman before seeing the sisters) purchased M. Reicher & Son in May, 1940. Mr. Smith testified the sisters gave the employees a week to meet the offer but Mr. Katz denied this. The purchasers soon liquidated the business for more than $43,000, realizing a net profit of $18,000 on which the Denowitzes 'cut in' Mr. Katz for $6,000.

By an amendment of May 28, 1940, the trustors provided for, after the death of both trustors, three charitable trusts of $20,000 each; and for the distribution of the remaining assets to Robert V. Creek, Douglas W. Creek and Helen Creek in equal shares, or their children per stirpes. Other provisions of this amendment will be mentioned later.

By an amendment of November 19, 1941, Rosa Reicher, the surviving trustor, provided, so far as material, for the distribution of the trust assets upon her death, first, $200,000 to Robert V. Creek, Douglas W. Creek and Helen Creek, share and share alike, or the survivor or survivors of them; next, $10,000 to Cyrus Crane or, if deceased, his children; next, $5,000 to Alfred Hart or, if deceased, his children; next, $2,000 to Theodore S. Cady; next, $10,000 (to be held and administered in two equal trusts) for The Children's Mercy Hospital and the Mosahav Zkeinim Home for Aged Jews (Appleman Home for Aged Jews); and the residue, if any, to Robert V. Creek, Douglas W. Creek and Helen Creek, as aforesaid. (There was testimony that the trustors had discussed the changes prior to the death of Helena.) This amendment recited that Mr. Crane was named in appreciation of his long friendship and as legal advisor to Sol and the trustors; that Mr. Hart was named in appreciation of his loyal services to Sol, to M. Reicher & Son and to the trustors, and that Mr. Cady was named in appreciation of his personal interests and services; and, as did the amendment of May 28, 1940, that the Creeks were named as beneficiaries 'in grateful appreciation of the services of more than twenty-five years rendered to the Trustors' by their mother and grandmother and by them. Whitney Ogden witnessed this amendment.

Hortense Bloch, a claimant, testified that she was a second...

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