Hanssen v. Karbe

• Decision Date: 05 April 1938
• Citation: 115 S.W.2d 109,234 Mo.App. 663
• Parties: GUSTAV HANSSEN, JR., AND AUGUSTA HANSSEN, HIS WIFE (PLAINTIFF), APPELLANT, v. OTTO F. KARBE, TRUSTEE, ST. LOUIS UNION TRUST COMPANY, TRUSTEE, UNDER THE LAST WILL AND TESTAMENT OF GUSTAV HANSSEN, SR., DECEASED, EMELIE HANSSEN, MARY HANSSEN DOERR, AND LILLIAN HANSSEN JAMES (DEFENDANTS), RESPONDENTS
• Court: Missouri Court of Appeals

115 S.W.2d 109

234 Mo.App. 663

GUSTAV HANSSEN, JR., AND AUGUSTA HANSSEN, HIS WIFE (PLAINTIFF), APPELLANT, v. OTTO F. KARBE, TRUSTEE, ST. LOUIS UNION TRUST COMPANY, TRUSTEE, UNDER THE LAST WILL AND TESTAMENT OF GUSTAV HANSSEN, SR., DECEASED, EMELIE HANSSEN, MARY HANSSEN DOERR, AND LILLIAN HANSSEN JAMES (DEFENDANTS), RESPONDENTS

Court of Appeals of Missouri, St. Louis

April 5, 1938

Motion for Rehearing Overruled April 20, 1938.

Writ of Certiorari Denied May 21, 1938.

Appeal from the Circuit Court of the City of St. Louis.--Hon. M. G Baron, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Harry A. Frank and Foster H. Brown for appellants.

(1) A testator, by the expressed terms of his will, may change a debt into an advancement, and thereupon the same takes on all the usual incidents of an advancement. Nelson v Nelson, 90 Mo. 460, l. c. 464; Knight Estate, 253 Pa 290, l. c. 292; Cochran v. Garth, 163 Tenn. 59, l. c. 65; Darne v. Lloyd, 82 Va. 859, l. c. 861-862. (2) The note secured by a deed of trust, being a debt prior to the father's death, was converted into an advancement by the terms of the father's will, and after the father's death said note and deed constituted no part of the father's estate, draws no interest after his demise, its value, as to principal and interest, was then established and is merely to be accounted for by the son and charged against his share when the estate is distributed. Nelson v. Wyan, 21 Mo. 347, l. c. 352; Hines v. Hines, 243 Mo. 480, l. c. 500; In re Lears Estate, 146 Mo.App. 642, 124 S.W. 592; Wentworth v. Wentworth, 75 N.H. 547, l. c. 549; Garth v. Garth, 139 Mo. 456, l. c. 465-66; Snider v. Snider, 149 Pa. 362, l. c. 363; Chiles v. Gallagher, 67 Miss. 413, l. c. 421; Montgomery Tr. v. Brown, 134 Ky. 592. (3) The Missouri Statutes relating to advancements and requiring the same to be brought into hotch-pot so there may be equality among heirs, applies only to intestates and has no application where there is a will, and a direction in such will requiring the executor or trustee to treat a debt as an advancement, is an expressed term which cannot be ignored, and, if inequality is the result, such is the expressed wish of the testator. R. S. Mo. 1929, secs. 311, 312 and 526; In re Lear's Estate, 146 Mo.App. 642; Ray v. Loper, 65 Mo. 470; Snider v. Snider, 149 Pa. 362, l. c. 363; Wickliffe v. Wickliffe, 226 S.W. 1035, l. c. 1037. (4) Where an heir receives an advancement in excess of his share of the estate, he cannot be compelled to refund that excess. Ann. Note, 46 A. L. R. 1426-1428; McPherson v. Black (Ky.), 284 S.W. 413, l. c. 414; Edwards v. Livesay, 203 Ky. 53, l. c. 54; Re Sipchens Estate, 180 Wis. 504, l. c. 510; McCoy v. McCoy, 105 Va. 829, l. c. 841. (5) The interpretation and construction of the testator's will, especially the seventh clause thereof, involved a question of law involving the administrator's duties and the rights of the heir, and the doctrine of estoppel and acquiescence has no application. Ladd v. Stephens, 147 Mo. 319, 48 S.W. 918. (6) Estoppel by acquiescence cannot be applied where there is a common mistake nor where the party against whom the acquiescence is asserted does not have full knowledge of the facts nor is fully aware of his legal rights. It is also necessary that the party claiming the estoppel was induced to change his position or was misled by the acquiescence. Green v. Yarnell, 6 Mo. 326, l. c. 329; Tennant v. Insurance Co., 133 Mo.App. 345, l. c. 365; See 10 R. C. L., pp. 693 and 695.

Bryan, Williams, Cave & McPheeters for respondent, St. Louis Union Trust Company.

(1) The seventh clause of the will of the testator, considered alone and by itself, does not convert the debt of the plaintiffs to the testator into a technical advancement, for the reason that it provides that the original debt and the interest on it is to be deducted at the time of the distribution of his estate to his children. An advancement is an irrevocable gift and does not, and cannot, bear interest. 18 C. J., p. 911; In re Williams, 62 Mo.App. 339, 347; Lynch v. Culver, 260 Mo. 495, 497; Pilkington v. Wheat, 330 Mo. 767, 771; Nelson v. Wyan, 21 Mo. 347, 352. (2) And when the seventh clause of the will is considered with the other provisions of the will providing for equality among the testator's children it is readily seen that it was not the intention of the testator to convert the indebtedness of the plaintiffs into a technical advancement. Cross v. Hoch, 149 Mo. 325, 336 et seq. 338; Zook v. Welty, 156 Mo.App. 703, 710; Ladd v. Stephens, 147 Mo. 319, 333. (3) The plaintiff Gustav Hanssen, Jr., is estopped from asserting that the notes and deed of trust were not a part of the estate of the testator by reason of the judgment of the Probate Court of the City of St. Louis, Missouri, determining that they were a part of the estate of the testator and ordering the executor to pay them over to itself as trustee under the will of the testator. Constitution of Missouri, sec. 34 of article VI; Sec. 2045, R. S. Mo. 1929; Art. 9, chap. 1, R. S. Mo. 1929; Secs. 230, 242, 284, R. S. Mo. 1929; Drexler v. Washington Development Co., 172 Cal. 758; In re Ostlund, 57 Wash. 359; Harter v. Petty, 266 Mo. 296, 303, 306; Einstein v. Strother, 182 S.W. 122, l. c. 123; Crump & Murphy v. Hart & Murphy, 189 Mo.App. 572, 575; State ex rel. Brouse v. Burnes, 129 Mo.App. 474, 479; Wolff v. Rager et al., 326 Mo. 222, 228 et seq. 229; State ex rel. v. Goggin, 191 Mo. 482, 487, 90 S.W. 379; State ex rel. Gott v. Fidelity & Deposit Co., 317 Mo. 1078, 1088, 1090, 1091, 1092, 1093; Bramell v. Cole, 136 Mo. 201, 209; State ex rel. v. Roeper, 9 Mo.App. 21, 22; State ex rel. v. Jones, 14 Mo.App. 595; State ex rel. v. Lankford, 55 Mo. 564, 568; State ex rel. Pountain v. Gray, 106 Mo. 526, 533. (4) The plaintiff Gustav Hanssen, Jr., has acquiesced in the acts of the Trust Company both as executor and as trustee in taking possession of the notes and in asserting ownership of them and should be concluded and bound by his acquiescence.

HOSTETTER, P. J. Becker and McCullen, JJ., concur in result but not in all of the language used.

OPINION

HOSTETTER, P. J.

This is a suit in equity which was begun in the Circuit Court of the City of St. Louis on March 5, 1935, by Gustav Hanssen, Jr., and Augusta Hanssen, his wife, against Otto F. Karbe, trustee in a certain deed of trust covering the home property of plaintiffs, and the St. Louis Union Trust Company, trustee under the last will and testament of Gustav Hanssen, Sr., and the latter's widow, Emelie Hanssen, and his two surviving daughters, Mary Hanssen Doerr and Lillian Hanssen James.

The plaintiff, Gustav Hanssen, Jr., was a son of the testator, and he and his mother (the widow) and his two sisters, the daughters of the testator, constituted all the survivors who were the beneficiaries under the will.

The relief sought by the petition was, first, to enjoin the foreclosure of the deed of trust on the house and lot in the city of St. Louis, owned and occupied by the plaintiffs, and, second, to obtain a construction of the will of Gustav Hanssen, Sr., and, third, the removal of the St. Louis Union Trust Company as Trustee under the will for alleged improper acts in connection with the management of the estate.

The will was executed in due form on November 17, 1924. The testator died on July 16, 1930, and the will was thereupon duly probated in the Probate Court of the City of St. Louis.

The first three paragraphs of the will are non-essential to the issues in this case, providing for payments of debts, certain small specific bequests of money, and of household furniture and personal effects to the widow, and, for the sake of brevity they are omitted together with the signatures and attestation clause, and the remainder of the will reads as follows:

"Fourth All of the rest, residue and remainder of my property, both real and personal, and of every kind and description, whereever the same may be situated, I give, bequeath and devise unto the St. Louis Union Trust Company, a corporation, of the City of St. Louis, Missouri, to have and to hold the same as trustee, upon the terms and conditions, for the uses and purposes, and with the powers and duties following, that is to say:

"Said Trustee shall receive, hold and manage said property, and shall invest the same in such stocks, bonds and other property, real or personal, as the Trustee may deem safe and desirable, shall make reinvestments and changes of investment thereof from time to time, and shall collect the income therefrom, with full power in the Trustee to sell, exchange, lease, pledge, mortgage or otherwise dispose of all or any portion of the trust estate, in such manner and upon such terms as the Trustee may deem most beneficial to the trust estate. The Trustee shall have full power to determine whether any money or other property coming into its hands shall be considered as a part of the principal or the income of the trust estate, and to apportion between such principal and income any loss or expenditure in connection with the trust estate, as to it may seem just and equitable. The Trustee shall have further power to continue to hold any stocks, securities or other property which it may receive hereunder so long as it may consider the same desirable investment, regardless of whether such stocks, securities or other property are in law proper investments for trust funds. The Trustee may invest any part of the trust funds in property located outside of the State of Missouri, or in the obligations of non-residents of said State.

"After paying the necessary charges and expenses incurred in the management and investment of the trust estate, including the reasonable compensation of the...