Dyas v. Dyas

• Decision Date: 01 July 1942
• Docket Number: No. 37954.,37954.
• Citation: 163 S.W.2d 557
• Parties: DYAS v. DYAS et al.
• Court: Missouri Supreme Court

163 S.W.2d 557

DYAS v. DYAS et al.

No. 37954.

Supreme Court of Missouri, Division No. 1.

July 1, 1942.

Appeal from Circuit Court, City of St. Louis; David J. Murphy, Judge.

Suit in equity by David Richard Dyas against Minnie K. Dyas, executrix of the estate of David L. Dyas, deceased, and others, for relief in the nature of a declaratory judgment construing a will. From a judgment of dismissal, plaintiff appeals.

Case transferred to the St. Louis Court of Appeals.

N. Murry Edwards, of St. Louis, and E. McD. Stevens, of Clayton, for appellant.

Francis M. Curlee and Richard F. Moll, both of St. Louis, for respondents.

HYDE, Commissioner.

This is an action in equity seeking relief in the nature of a declaratory judgment construing the will of David L. Dyas, deceased; also an accounting and an order requiring the corpus of the estate to be delivered to plaintiff by the executrix and trustees. The court entered judgment dismissing plaintiff's petition and plaintiff has appealed.

The parties, by stipulation, removed from the case all issues concerning an accounting or loss to corpus from the trustees' investments. The remaining question was plaintiff's right to immediate possession of the property held by the trustees (turned over to them upon final settlement by the executrix) which the record shows was about $30,000 in value. None of this property was real estate. Plaintiff considers this total value to be "the amount in dispute" so that we would have jurisdiction under the Constitution. Section 12, Art. 6; Amend. of 1884, secs. 3 and 5. Mo.R.S.A. However, when "the judgment appealed from `affects merely the temporary control of property, as contra-distinguished from the permanent divestiture of title thereto, the amount in dispute' is `the financial value of such control, or loss of control, as the case may be, and not the value of the property controlled'"; and, furthermore, "to give this court jurisdiction because of the amount in dispute it must affirmatively appear from the record that the value in money of such control exceeds $7,500." Hamilton v. Robinson, Mo.Sup., 146 S.W.2d 601, 603.

The will of David L. Dyas left his residuary estate to trustees, requiring them to divide it into three equal shares; for his wife (who was the executrix), for his son (plaintiff and appellant), and for his daughter who died in 1931. (The testator died in 1928.) There were provisions for payment of the income of each share to the beneficiary and for encroachment upon the corpus. The widow's share has been almost exhausted by such corpus encroachments. Plaintiff's share (reduced only by payment of insurance premiums) is $14,823.91; while his sister's share is $15,224.61. Paragraph 4 of the will gave instructions concerning the widow's share; and paragraph 6 covered the daughter's share, which was to be continued in trust during her life, and in the event of her death without issue, was to be divided among the "next of kin" of the testator. Paragraph 5 provided for plaintiff's share directing its termination in trust when he became 30 years old. However, paragraph 7 provided that "notwithstanding the provisions of paragraphs numbered five and six," so long as the testator's wife survived and remained his widow, "the trust estate described in said paragraphs shall continue in existence, and all of the income thereof shall be paid to my wife, who, in her discretion, and without accounting therefor, shall expend the same for the support and maintenance of herself and children and for the education of the children." It also provided that this should not "abate the discretionary powers of my Trustees to expend the corpus of the trusts." These powers were (as to plaintiff, with similar powers as to his sister): "If there should arise any emergency, making it necessary and proper, in the opinion of my Trustees, to expend any part of the corpus of such trust for the benefit and welfare of my son at any time during the existence of this trust, they are...