Deacon v. St. Louis Union Trust Co.

• Decision Date: 16 July 1917
• Docket Number: No. 18165.,18165.
• Parties: DEACON et al. v. ST. LOUIS UNION TRUST CO. et al.
• Court: Missouri Supreme Court

197 S.W. 261

271 Mo. 669

DEACON et al. v. ST. LOUIS UNION TRUST CO. et al.

No. 18165.

Supreme Court of Missouri, Division No. 2.

July 16, 1917.

Motion for Rehearing or to Transfer to Court in Banc Overruled July 27, 1917.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Suit by Arthur R. Deacon and another, trustees, and others, against the St. Louis Union Trust Company and others, to construe the will of Mrs. Lily Lambert, deceased. Decree for plaintiffs, and defendants appeal. Affirmed.

Taylor & Chasnoff, of St. Louis, and Manley O. Hudson, of Columbia, for appellants Lambert. Charles S. Reber, of St. Louis, for appellants St. Louis Union Trust Co. and Walker. Samuel A. Mitchell and George Murray, both of St. Louis, for respondent Mercantile Trust Co.

WALKER, P. J.

This is a suit to construe the will of Mrs. Lily Lambert, who died in the city of St. Louis in March, 1889. The particular matter for determination is whether the trust created by the will violates the rule against perpetuities. Omitting the formal opening and closing paragraphs, this will is as follows:

"First. I give, devise and bequeath all my property, real, personal and mixed, and whereever situate, to my brother, John D. Winn, as trustee, for the following purposes:

"(1) To pay all my debts, and all unpaid debts of my late husband, Jordan W. Lambert.

"(2) To collect all rents of real estate, sell and dispose of real estate, or any part thereof, and reinvest the proceeds in real or other property in his discretion.

"(3) To carry on the business of the Lambert Pharmacal Company for the period of thirty years from my death.

"(4) To make division of all my property and the increase thereof at the expiration of thirty years from death amongst my children hereinafter named. Such division may be made in kind, if practicable, or the trustee may sell the whole or any portion thereof, if necessary or convenient in making such distribution.

"(5) The net income of my estate shall be divided equally amongst my said children till the time fixed as above for distribution; and until then no partition of real estate shall be made, but realty and personalty shall alike remain in the hands of the trustee under the trusts hereby created.

"(6) The children for whom provision is made herein are the children of my late husband, Jordan W. Lambert and myself, to wit, Albert, Jordan, Marion, Lily, Gerard, and an unborn child of which I am now enceinte. In the distribution of the income of my estate all my said children shall share alike till the time for division and distribution as aforesaid; but when such distribution is to be made, said unborn child shall be charged with all it shall have inherited from its father, so as to make the other children equal with it.

"(7) The said trustee may by will, or other writing acknowledged and recorded, appoint a trustee or trustees in lieu of, or to be associated with himself, as co-trustees; and such substituted trustees may exercise like power of appointment and substitution, so that the trust shall never fail or be embarrassed for want of a trustee.

"(8) In case any child or children shall die before final distribution, the issue of such child shall have all the rights of the parent, taking per stirpes; but if no issue survive the share of such deceased child or children shall pass to the survivors of my said children, or their issue, the issue in all cases taking per stirpes.

"Second. I nominate and appoint my said brother John D. Winn executor of this my will, and direct that he be not required to give bond as such; nor shall he or any other trustee hereunder be required to give bond. Any trustee acting hereunder shall be allowed reasonable compensation for his services.

"Third. During the minority of my children and each of them, no greater sum shall be paid over by the trustee to or for any child, than shall be reasonably necessary or proper for its support, education and maintenance, according to its estate and condition in life. The excess, if any, of any child's income shall be invested and accumulate till it becomes of age and then be paid over to it."

Testatrix left surviving her five sons and one daughter, named and aged, respectively, in years, except the last, as follows: Albert, 14; Jordan, 11; Marion, 8; Lily, 4; Gerard, 3; and Wooster, 1½ months—the last-named being the child of which she states she was enceinte at the time of the making of the will. Lily, the daughter, upon reaching womanhood, first married one James T. Walker, by whom she had one child, James T. Walker, Jr., who is one of the plaintiffs here. Upon the death of her first husband, she married one Malvern B. Clopton, one of the defendants, and by whom she had no children. She died November 11, 1911, testate. The fifth paragraph of her will, the terms of which provoked this controversy, which accounts for the setting out of the paragraph here, is as follows:

"Fifth. Of the rest, residue and remainder of my property and estate, real, personal and mixed, and wherever situated, including therein the funds and securities held by the St. Louis Union Trust Company in trust under a certain trust deed executed between said Trust Company and myself, dated the 21st day of November, 1909, (the disposition of which by me by last will and testament is provided for by said trust deed); and also including therein all my right, title, interest and estate, being the one-sixth thereof, in and to the principal and income of the property and estate of my deceased mother, Lily Lambert, said share arising and coming to me under the last will and testament of the said Lily Lambert, deceased, and now held in trust for me by the trustees under said will, I give and devise as follows:

"1. Unto my husband, Malvern B. Clopton, the one-third (1/3) thereof, to be his absolutely.

"2. Unto the St. Louis Union Trust Company and George H. Walker, as trustees, the remaining two-thirds (2/3) thereof, in trust for my said son, James T. Walker, and for any other child or children who may be born to me, and upon the trusts hereinafter mentioned, viz."

Upon the probating of Mrs. Clopton's will the probate court of the city of St. Louis appointed D. D. Walker, Jr., as the guardian of the person and the Mercantile Trust Company as curator of the estate of testatrix's child, James T. Walker. Arthur R. Deacon and Arthur W. Lambert were appointed by the probate court in 1895 as cotrustees with John D. Winn, the original trustee named in the will of Mrs. Lily Lambert. Winn resigned in 1895, since which time said Deacon and Lambert have been in the possession and active management of the estate, and have controlled and directed the administration of the trust created by the will of Mrs. Lily Lambert. The estate of Mrs. Lily Lambert consisted of residence property in Vandeventer Place in the city of St. Louis, which she had occupied as a home, a lot on St. Charles street, also in said city, and five-sixths of the stock of the Lambert Pharmacal Company, the principal business of which was the manufacture and sale of listerine, a proprietary preparation. The pleadings are in substance as follows:

After defining the relation sustained by the several parties to this proceeding and setting forth the will of Mrs. Lily Lambert and the fifth paragraph of the will of Mrs. Lily Lambert Clopton, the plaintiffs state that conflicting claims and demands are made against them as trustees under the will of said Lily Lambert, deceased, for and on account of one of the shares of the corpus or trust estate, and its accrued income, now in their hands, which share has heretofore been held by them in trust under the will of Lily Lambert, deceased, for Lily Lambert Clopton, deceased, during her lifetime; that the defendants St. Louis Union Trust Company and George H. Walker, joint trustees and executors under the said will of Lily Lambert Clopton, deceased, claim that the trust created by the will of the said Lily Lambert, deceased, is void, and demand that the plaintiffs turn over and deliver the share of the corpus or trust estate, heretofore and during the lifetime of the said Lily Lambert Clopton held by plaintiffs for her use and benefit, to said St. Louis Union Trust Company and George H. Walker, executors aforesaid, to be held and distributed as a part of the estate of said Lily Lambert Clopton, deceased, under the provision of her will aforesaid; that, on the other hand, the defendant Mercantile Trust Company, as curator of the minor defendant James T. Walker, claims that the estate created and vested in plaintiffs by the said will of said Lily Lambert, deceased, is lawful and valid; that the share held by plaintiffs during the lifetime of the said Lily Lambert Clopton for her use and benefit passed, under the will of the said Lily Lambert, deceased, and does not constitute a part of the estate of the said Lily Lambert Clopton, deceased, and is not subject to the disposition attempted to be made thereof under her said will; that they have refused to comply with the request and demand of the defendants St. Louis Union Trust Company and George H. Walker, executors and trustees aforesaid, or of the Mercantile Trust Company, curator of the estate of said minor defendant, to turn over to said executors, or said curator, any portion of the corpus or trust estate mentioned, or the income thereof, now held by plaintiffs as trustees aforesaid, for the reason that they cannot determine, without the decree of a court, the conflicting claims made to said trust estate, and for the further reason that one of the defendants, interested directly in the particular share of the trust estate, is a minor, and can only be bound in the matter of the conflicting claims thereto by a proceeding in which he is made a party, and in which he is represented by some person appointed by the court for that purpose. Petitioners state that the corpus or principal of the trust estate so held by...