Dwyer v. St. Louis Union Trust Co.

• Decision Date: 05 March 1921
• Docket Number: No. 22029.,22029.
• Citation: 286 Mo. 481,228 S.W. 1068
• Parties: DWYER et al. v. ST. LOUIS UNION TRUST CO.
• Court: Missouri Supreme Court

228 S.W. 1068

286 Mo. 481

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

No. 22029.

Supreme Court of Missouri, Division No. 1.

March 5, 1921.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

Action by Marie Worrell Dwyer and others against the St. Louis Union Trust Company. Decree for the defendant, and. plaintiffs appeal. Affirmed.

Arthur J. Freund, of St. Louis, and Louis B. Sawyer, of Cincinnati, Ohio, for appellants.

Bryan Williams & Cave, of St. Louts, !.or respondents.

GRAVES, J.

By his will, Peter Conrad created a trust in favor of his daughter, Cornelia M. Worrell. Conrad had but two children, a son and a daughter. At least this seems to be the fact from the face of the will he made. One-half of his property he devised to his son, and the other half was placed in trust to the daughter, Mrs. Worrell. That portion of the will here involved reads:

"The other one part so partitioned and divided and one-half of all other property, goods and moneys, I do give and bequeath to the St. Louis Trust Company of St. Louis, Mo., In Trust, However, For The Under-Mentioned Purpose, to wit:

"To pay over all income, earnings and profits arising from such one-half of my property so bequeathes to my daughter Cornelia, For The Maintenance And Support Of Herself And Her Family; and after her death the said property, and the undisposed of earnings and increase thereof to be divided equally, share and share alike, among the children of my said daughter Cornelia, Living At The Time Of Her Death if the youngest of her said children has reached the age of 21 years, but if the youngest of said children has not reached that age, then this trust shall continue In Favor Of And For The Support Maintenance And Education Or Advancement In Life Until The Youngest Of Said Children Becomes Of That Age, Then To Be Divided Equally Between Those Living At That Date, male and female, share and share alike."

Conrad died in 1900, and the St. Louis Trust Company began the administration of the trust. In 1902 the St. Louis Trust Company changed its name to the St. Louis Union Trust Company, and by that name the trustee has continued its duties to this date. The present suit is one to determine that trust, and the plaintiffs are Mrs. Worrall and her five children, and the defendant the present trustee of the estate. Mrs. Worrall had but five children, and they are all adults and living, and to them she had conveyed (or attempted .to convey) all her interest in the trust property. These conveyances are in this record. The trust property consists of some land in St. Genevieve county, Mo., some land in McCracken county, Ky., and some $8,500 in personal securities and cash, in the hands of defendant, as trustee.

In behalf of plaintiffs it was shown that Mrs. Worrall was 56 years old, and had long since reached and passed that period in a woman's life commonly called the "change of life." By a physician it was shown that she could bear no more children, for this and other physical reasons. No evidence was introduced by defendant, and upon those facts the court entered a judgment or decree in favor of defendant, from which plaintiffs prosecuted this appeal. The case is largely one of law, although it might be added that there is no evidence showing the procreative organs of Mrs. Worrall to be diseased or injured, save and except by the flux of time on the life of a woman as above detailed.

In this case there is urged the interesting question as to whether or not, from a legal standpoint, Mrs. Worrall has passed the child-bearing age, and much legal lore has been called to our attention. With this question we shall not deal, because, in our judgment, the case is, and can be, fully determined upon questions which precede this in the orderly disposition of vital questions. In Blackstone's Commentaries it has been said:

"A possibility of issue is always supposed to exist in law, unless extinguished by the death of the parties, even though the donees be, each of them, a hundred years old." 2 Blackstone's Commentaries, 125.

The later court views upon this question we shall not review. Other matters settle the case, and a review of this question would be a waste of energy.

II. The status of Mrs. Worrall's children under the will of Conrad is one of the material questions. A reading of the will shows that the legal title to the property passed to the St. Louis Trust Company, now the St. Louis Union Trust Company. This title was impressed with a trust "to pay over all income, earnings and...