Hannibal Trust Co. v. Elzea

• Decision Date: 30 July 1926
• Docket Number: No. 25472.,25472.
• Citation: 286 S.W. 371
• Parties: HANNIBAL TRUST CO. v. ELZEA et al.
• Court: Missouri Supreme Court

286 S.W. 371

HANNIBAL TRUST CO. v. ELZEA et al.

No. 25472.

Supreme Court of Missouri, Division No. 1.

July 30, 1926.

Appeal from the Hannibal Court of Common Pleas; John L. Plowman, Special Judge.

Action by the Hannibal Trust Company, executor of the will of Henry S. Elzea, deceased, against Van B. Elzea and others. From the judgment rendered, defendant Frances C. Dunn appeals. Affirmed.

Rendlen & White, of Hannibal, for appellant.

Berryman Henwood and Eby & Hulse, all of Hannibal, for respondents.

SEDDON, C.

Action in equity involving title to real estate by respondent, Hannibal Trust Company, the duly appointed and qualified executor under and by virtue of the last will of Henry S. Elzea, deceased, to construe said will and for direction as to its duties thereunder. Defendants are the collateral heirs of the deceased testator and also the residuary legatees under his will. Defendant and appellant, Frances C. Dunn, is the beneficiary of a specific devise under the will and is also one of the residuary legatees. The will of Henry S. Elzea was executed and attested on May 15, 1911, and the parts thereof pertinent to this action are as follows:

"Item 1. I revoke all former wills by me made. Item 2. I direct that all of my just debts including funeral and cemetery expenses be first paid out of my personal estate. * * * Item 4. J. give and bequeath to my niece, Fannie Belle Dunn, for her sole and separate use during the term of her natural life, to be hers separate and apart from the debts or control of her present or any future husband, she to have all the rents, income or profits arising from the property known as No. 1206 Broadway street, Hannibal, Mo., if unsold at her death it shall revert to my estate. In the event that sickness or other emergency shall arise that she shall be in needy circumstances she is at liberty to dispose of the same. * * * Item 7. After the payment of my debts and providing for the above bequests, I direct that all of the rest and residue of my estate, both real, personal or mixed, and wheresoever located, be reduced to cash, which is to be divided share and share alike, that is, to my brothers and sisters then living, and where any shall have died, then the heirs of their body shall receive what their mother or father would have received, if living. And Fannie Belle Dunn; my niece, shall share equally with my brothers and sisters in addition to above."

Appended to the will, as a part thereof, Is a codicil, executed and attested on October 15, 1913, as follows:

"It is my intent and purpose to leave no debts or unpaid accounts other than that attending my funeral and cemetery expenses, as I have supplied my home where I now reside, and which has been my domicile for years, with more than enough to support me in luxury. I have annually supplied the principal foodstuffs— such as flour, sugar, coffee, lard and meats in quantities to last for months—and have kept up the household expenses regularly for years, in which Fannie Belle Dunn has been in domestic control and charge. Therefore, I direct that any claims that may be made against my estate be repudiated by my executor and, if any beneficiary named in the body of this will on the reverse side hereof shall make or file any claim for service rendered, or make demand for recompense, they shall be barred from receiving any bequest of or other benefit from my estate, direct or indirect."

The testator died on January 24, 1918, and the will and codicil were duly probated on January 28, 1918. Appellant Frances C. Dunn is the same person referred to in the will as Fannie Belle Dunn.

The testator, Henry S. Elzea, was a bachelor and died at the age of 86 years, owning a substantial amount of property, real and personal. His estate is solvent, and no rights of general or unsecured creditors are involved herein. Appellant Frances C. Dunn is a niece of the testator, who, according to her testimony, had reared her from the time she was a child of the age of 2½ years. She resided with testator until she was married, after which she resided in Hannibal for a while and then in St. Louis for nearly seven years, when she returned to Hannibal and resided with testator continuously for 13 years until his death. Testator and appellant made their home in a large house of nine or more rooms, and there was no other person about the home place. Appellant "looked after the chores and tended to all the duties in managing and looking after the household."

On December 5, 1914, the testator borrowed the sum of $8,000 from the German American Trust Company, afterward the American Trust Company, evidencing the loan by his personal, unsecured note for said amount. With the proceeds of that loan and other moneys he then had in the bank, testator purchased, on or about December 5, 1914, for the sum of $11,000, certain real property, particularly described as all of lot 4 and part of lot 3 in Henry W. Collins' subdivision of outlots 96 and 97 in the city of Hannibal, and referred to in the record and herein as the Courtney property. It was agreed by the parties at the trial that the reasonable market value of the Courtney property is $12,000, and that the reasonable income or rental therefrom is $115 per month. It was also admitted that testator's home place, upon which he and appellant resided, had a reasonable market value of $10,000. When testator procured the loan of $8,000, on December 5, 1914, from the German American Trust Company, his property was unincumbered, and the trust company believed his personal, unsecured note to be good. Subsequently, Henry S. Elzea, on or about December 28, 1914, by deed of gift, conveyed to appellant the home place, together with 20 or 25 acres adjoining, and also the Courtney property. The validity of that conveyance, which was controverted by the heirs of Henry S. Elzea, was upheld by this court (Elzea v. Dunn, 297 Mo. 690, 249 S. W. 933), and judgment was ordered to be entered in favor of Frances C. Dunn, the appellant herein. Upon the trust company learning of that conveyance, its board of directors ordered its secretary and treasurer to request and require Henry S. Elzea to secure the payment of his unsecured note for $8,000. Pursuant to said request, Henry S. Elzea executed and delivered to one 0. A. Brown, secretary and treasurer of the American Trust Company, his promissory note, dated May 1, 1917, for $8,100 (being the principal and accrued interest of the $8,000 unsecured note), and a deed of trust of even date securing payment of said $8,100 note. By said deed of trust, Henry S. Elzea conveyed to Joseph Bassen, trustee for the holder of said note, a tract of land described as lot 10 of Smashey's subdivision of outlot 96, north of Market street in the city of Hannibal, except a strip 3 feet wide off the east side thereof and also except a strip 3 feet wide off the north end thereof, being the property mentioned as No. 1206 Broadway street in item 4 of the will of Henry S. Elzea and referred to in the record and herein as the Griswold property, and also a tract of land described as lot 6 in H. W. Collins' subdivision, referred to in the record and herein as the Hutchinson Carriage Shop property. The note secured by said deed of trust was indorsed by 0. A. Brown, the payee, and delivered to the American Trust Company, which is the owner and holder thereof. Henry S. Elzea subsequently paid to the holder of the note the sum of $1,500, which was applied and credited upon the principal of the note. On February 28, 1018, the American Trust Company presented said note in the probate court of Marion county as a demand against the estate of Henry S. Elzea, and said demand was allowed for $6,666, the amount of principal and interest then due thereon, and classified as a fifth class demand. The note not having been paid and nine months having elapsed after the death of Henry S. Elzea, the trustee named in said deed of trust advertised the property described therein for sale under the terms of said deed of trust. Thereupon, appellant, through her attorneys, notified the respondent, Hannibal Trust Company, executor under the will of Henry S. Elzea, in writing, that the Griswold property, known as No. 1206 Broadway street, was specifically devised to appellant, Frances C. Dunn, and demanded that said executor sell all of the real estate comprising the residuary estate and pay off the debt represented by said note and deed of trust out of the proceeds from the sale of the residuary estate, under the penalty of being held liable otherwise for all attorney's fees, expenses, losses, and damages of any kind or character.

On August 4, 1919, the Hannibal Trust Company, American Trust Company, Frances C. Dunn, and the several collateral heirs and residuary legatees of Henry S. Elzea entered into a written agreement, whereby it was agreed that the Hutchinson Carriage Shop property shall be sold at private sale and the net proceeds therefrom applied upon the note owned and held by the American Trust Company ; that the advertisement of the trustee's sale shall be withdrawn; that the Hannibal Trust Company, as executor, shall bring a suit to construe the Henry S. Elzea will in order to determine the proportionate part, if any, the Griswold property devised to Frances C. Dunn by item 4 of said will shall bear of the total indebtedness due on said note, it being contended by appellant Frances C. Dunn that said Griswold property is not liable for any portion of said indebtedness, and by defendant collateral heirs and residuary legatees of testator that said Griswold property should bear its proportionate part of said indebtedness; that Frances C. Dunn shall convey said Griswold property to said Hannibal Trust Company, as trustee, for the purpose of enforcing the terms of said agreement, and, if said Frances C. Dunn shall fail or refuse to pay the amount of indebtedness, if any adjudged to be borne by said Griswold property, within 90...