Flynn v. Danforth

• Decision Date: 07 December 1976
• Docket Number: Nos. 37241,37264 and 37265,s. 37241
• Citation: 547 S.W.2d 132
• Parties: Norma Faye Adams Lott FLYNN and Norma Faye Adams Lott (now Norma Faye Adams Lott Flynn), Administratrix W.W.A. of the Estate of Augusta Louise Smith, Deceased, Plaintiffs-Appellants, v. John C. DANFORTH, Attorney General of the State of Missouri, et al., Defendants-Respondents, and Vincent P. Nangle, Jr., et al., Intervening Defendants-Appellants. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 132

547 S.W.2d 132

Norma Faye Adams Lott FLYNN and Norma Faye Adams Lott (now

Norma Faye Adams Lott Flynn), Administratrix

W.W.A. of the Estate of Augusta Louise

Smith, Deceased, Plaintiffs-Appellants, v. John C. DANFORTH, Attorney General of the State of Missouri, et al., Defendants-Respondents, and Vincent P. Nangle, Jr., et al., Intervening Defendants-Appellants.

Nos. 37241, 37264 and 37265.

Missouri Court of Appeals, St. Louis District, Division Four.

Dec. 7, 1976.

Motions for Rehearing or Transfer Denied Feb. 18, 1977.

Van Matre & Van Matre, William W. Van Matre, Jr., Mexico, Alvin H. Juergensmeyer, Warrenton, for plaintiff-appellant Norma Faye Adams Lott (now Norma Faye Adams Lott Flynn), Administratrix W. W. A. of the Estate of Augusta Louise Smith, deceased.

Darryl L. Hicks, Warrenton, for plaintiff-appellant Norma Faye Adams Lott Flynn, individually.

Mastorakos & Kopsky, Homer N. Mastorakos, Paul W. Kopsky, Michael J. Doster, Chesterfield, for intervening defendants-appellants Vincent P. Nangle, Jr., Mary R. Nangle, Arthur W. Lamme, Anna Louella Lamme, Edward S. Reifsteck, Geraldine Reifsteck, Homer R. Stude and Wanda M. Stude.

John C. Danforth, Atty. Gen., B. J. Jones, Asst. Atty. Gen., Jefferson City, for defendant-respondent.

NORWIN D. HOUSER, Special Judge.

Action for a declaratory judgment, brought by Norma Faye Adams Lott (now Flynn) in her official capacity as Administratrix cum testamento annexo of the Estate of Augusta Louise Smith, deceased, against the Attorney General, City of Warrenton, The Warren County Library District, by and through its named trustees, and Rosa Adams (who died before trial, leaving Norma the sole heir of Augusta), to construe the Last Will and Testament of Augusta. In a separate pleading, filed in her individual capacity, Norma alleged that a trust created by Augusta's will (leaving the residue of the estate to the Warrenton public library) failed and that the assets of the estate passed to Norma under the laws of intestacy. Vincent P. Nangle, Jr. and wife, and three other couples, granted leave to intervene, filed an answer asking to be declared owners in fee simple of a certain described tract of 653 acres of land in Warren County by virtue of a deed to them executed by Norma as administratrix. The Attorney General contested the validity of the deed and the authority of the administratrix to convey the real estate by said deed. The trial resulted in a judgment and decree upholding the trust and declaring that the trust did not fail; declaring that the power of sale in Augusta's will was a personal one and that Norma, as administratrix, had no authority to exercise the power and sell the real estate to defendants Nangle, et al.; that the deed was not executed pursuant to the statutes authorizing an administratrix to sell real estate and is void. Intervenors Nangle, et al. filed a motion to modify and amend the judgment to order Norma to repay all amounts of principal and interest paid by them on the purchase price. This motion was overruled without prejudice. Motions for new trial filed by Norma, individually and as administratrix, and by Intervenors, were overruled. Norma appealed in both her individual and official capacities, and Intervenors appealed.

In her last will and testament, executed on May 31, 1945, after providing for payment of debts and funeral expenses and one $50 specific bequest, Augusta in Paragraph 3 devised the residue of her estate "to E. S. Aydelott, in trust for the following uses and purposes: ", followed by three subparagraphs lettered (A), (B) and (C). Subparagraph (A) imposed on the trustee the duty to collect the income and after deducting expenses to pay the net income to Augusta's mother for life. Subparagraph (B) provided that upon the death of Augusta's mother the net income be paid to Norma for her education, and after completion of her education to Norma for her life. Subparagraph (C) provided: "At the death of my mother Augusta Louise Johnson, and my niece, Norma Fay Adams, or in the event that my (m)other and my niece shall precede me in death, then at my death I give, devise and bequeath the residue of my estate, whether real, personal or mixed, unto the Warrenton Public Library of the City of Warrenton, Warren County, Missouri."

Paragraph 4 provided: "I direct that after my executor hereinafter named has finally settled my estate in the Probate Court, he shall then have the Judge of the Circuit Court of Warren County, Missouri, appoint the said E. S. Aydelott as trustee of the trust fund as set out in Paragraph III of this Will. Upon the death or refusal to act of said E. S. Aydelott, then it is my desire that the Judge of said Circuit Court appoint a successor trustee, who shall be a resident of the City of Warrenton, Missouri."

Paragraph 5 provided: "I hereby give to my executor and trustee full power to lease or mortgage the real estate owned by me at the time of my death, or to sell the same either at public or private sale, on such terms and conditions as he may deem advisable and for the best interests of my estate; and said trustee shall report annually all sales and investments relating to my estate, to the Circuit Court of Warren County, Missouri, for approval."

Paragraph 6 provided: "I hereby constitute and appoint E. S. Aydelott executor of this my Last Will and Testament."

E. S. Aydelott and Augusta's mother predeceased testatrix. Norma was appointed administratrix of the estate with the will annexed. In that capacity Norma filed a petition in the Probate Court informing the court that she believed it to be to the best interest of the estate that the 653 acre tract be sold because if left vacant it would depreciate in value, and praying for "an order authorizing her to list said property with Stude Realty Company for $80,000.00." The court made an order, reciting the taking up of Norma's petition to list the real property with the realty company "for the purpose of disposing of same on such terms as can be arranged"; that "it would be to the best interest of said Estate that said property be sold, and therefore orders that Norma Fay Adams Lott as Administratrix w. w. a. list said property for the purpose of selling and disposing of same on such terms as is marketable and reasonable."

Norma's deed to Vincent P. Nangle, Jr., et al. was headed

"DEED UNDER POWER OF SALE IN WILL

(Section 473.457 R.S.Mo.)"

It recited Norma's appointment as administratrix with the will annexed; that the will empowered decedent's executor "to sell and convey real estate, including the real estate hereinafter described"; that "Under the terms of Section 473.457, R.S.Mo., the First Party, as personal representative of the decedent, is authorized to execute the testamentary power above mentioned"; that decedent's interest has not since her death been conveyed or ordered conveyed by the court; and that "The exercise by (Norma) of the testamentary power above mentioned is not conditioned upon approval by the Probate Court." The stated consideration was $70,000.00. The grantees were to have and hold the property "as fully as (Norma), as such personal representative of the decedent, may transfer and convey the same. The purpose and intent of this deed is to execute fully and completely the power contained in decedent's last will aforesaid." Norma executed the deed in her capacity as personal representative as administratrix w.w.a. of the estate of Augusta.

Three principal issues are raised on this appeal: (1) whether the deed is valid or void, and if void whether Norma as administratrix should be ordered to return to Intervenors the purchase price and interest paid by them; (2) whether Augusta's will created a valid and binding public charitable trust in favor of the city public library, and if so whether the county library district is the proper beneficiary of that trust under the cy pres doctrine or the doctrine of deviation; and (3) whether the cause should be remanded for further proceedings.

(1) On the Validity of the Deed

The circuit court declared the administratrix' deed void, holding that Norma had no authority to execute the deed under the power of sale in the will; that the power was a personal power granted to E. S. Aydelott alone, beyond the power of Norma to exercise as administratrix, and that the deed was not made pursuant to the statutes authorizing an administrator to sell real estate, Chapter 473, RSMo 1969.

Administratrix Norma and Intervenors contend that the court erred in so holding; that the power was not personal to E. S. Aydelott; that Norma, as administratrix, had authority to enter into this conveyance as a proper exercise of a general power of sale granted in the will; that no order of sale or order by the Probate Court approving a sale was necessary.

Section 473.457, RSMo 1969, dealing with the sale of property under the power granted in a will, follows:

"1. The sale and conveyance of property under a will shall be made by the acting executor or administrator with the will annexed, if no other person is appointed by the will for that purpose, or if such person fails or refuses to act.

"2. Whenever power to sell or otherwise deal with property under a will, by the terms thereof, is personal to the executor therein designated, the court may direct the exercise thereof by a successor executor or administrator or by some other person. The court has full power to supervise the exercise of such powers and to make such orders as are necessary to effectuate the will of testator.

"3. When power to sell, mortgage, lease or exchange property of the estate has been given to any executor under the terms of any will, the executor may proceed under such power, or under the provisions of this law, as he may determine."

At the time the will was executed the predecessor section to Subsection 1 was in force, in form substantially the same (for our purposes) as the present subsection. Subsection 1...