Hanssen v. Karbe

• Decision Date: 21 June 1937
• Docket Number: No. 34585.,34585.
• Citation: 106 S.W.2d 415
• Court: Missouri Supreme Court
• Parties: HANSSEN et ux. v. KARBE et al.

106 S.W.2d 415

HANSSEN et ux. v. KARBE et al.

No. 34585.

Supreme Court of Missouri, Division No. 2.

June 21, 1937.

Appeal from St. Louis Circuit Court; M. G. Baron, Judge.

Suit by Gustav Hanssen, Jr., and Augusta Hanssen, his wife, against Otto F. Karbe, trustee, and others. From the judgment the plaintiffs appeal.

Cause transferred to the St. Louis Court of Appeals.

Harry A. Frank and Foster H. Brown, both of St. Louis, for appellants.

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

BOHLING, Commissioner.

This is a suit involving the construction of a will. A son and his wife seek to enjoin the foreclosure of a deed of trust, securing their certain indebtedness therein described, on the ground the provisions of the father's will changed the debt thus secured into an advancement.

Our first duty is to determine the appellate jurisdiction. Our Courts of Appeals have general appellate jurisdiction; whereas this court's appellate jurisdiction is limited to that jurisdiction conferred or authorized by our State Constitution. Therefore, if the record of a given cause fails to affirmatively disclose appellate jurisdiction in this court, jurisdiction over the appeal is in the proper court of appeals. State ex rel. Pitcairn v. Public Service Commission, 338 Mo. 180, 182(1), 90 S.W. (2d) 392, 393(1); State ex rel. Orscheln, etc., Inc., v. Public Service Commission, 338 Mo. 572, 574(1), 576, 92 S.W.(2d) 882, 883(2), 884(6); Mitchell v. Dabney, 332 Mo. 410, 415(2, 3), 58 S.W.(2d) 731, 733(2, 3); Stuart v. Stuart, 320 Mo. 486, 487, 8 S.W.(2d) 613(1). If this court has jurisdiction, it is because the amount in dispute exceeds $7,500 or title to real estate is involved. Mo.Const. art. 6, § 12; Amend.1884, §§ 3 and 5, pp. 108, 118, R.S. 1929, 15 Mo.St.Ann. pp. 561, 641, 644, art. 6, § 12; Amend.1884, §§ 3, 5; Section 1914, R.S.1929, Mo.St.Ann. § 1914, p. 2587.

The "amount in dispute" does not appear to have been definitely developed in the trial court. We are not required to indulge in speculative or conjectural calculations to arrive at the amount in dispute to determine appellate jurisdiction. Rather, the litigants are required to affirmatively establish in the trial court the facts essential to a jurisdictional amount lodging the review proceedings here. McGregory v. Gaskill, 317 Mo. 122, 124, 296 S.W. 123, 124(3, 6); Drew v. Platt, 329 Mo. 442, 445, 44 S.W.(2d) 623, 625(3); City of Doniphan v. Cantley (Banc) 330 Mo. 639, 640, 50 S.W.(2d) 658, 659(2, 6); Consolidated School Dist. v. Gower Bank (Mo.Sup.) 53 S.W.(2d) 280, 281(3); In re Flynn's Estate, 338 Mo. 522, 526(2), 92 S.W.(2d) 671, 674(3, 5); Hardt v. City Ice & Fuel Co. (Mo.Sup.) 102 S.W.(2d) 592, 593(3).

Briefly, however, of the facts: Gustav Hanssen, Sr., departed this life June 16, 1930, testate. Emelie Hanssen, his widow, and three children, Gustav, Jr., Mary Hanssen Doerr and Lillian Hanssen James survived him. His will, after providing for the payment of debts and for certain specific bequests, gave, bequeathed and devised all the rest, residue and remainder of his estate unto the St. Louis Union Trust Company, a corporation, as trustee, for the use and benefit of his said widow and children; the payment of one-half of the net income of said trust estate to his widow and one-sixth to each of his said children, with authority in the trustee to encroach on the principal of the trust estate, if necessary, for the reasonable care and comfort of the widow; and for the termination of said trust upon the remarriage or death of said widow. If terminated by remarriage, said trust estate is to be divided equally between said widow and said three children, that is, one-fourth part to each. If terminated by death, said trust estate is to be divided equally between said three children. Gustav, Jr., and his wife, Augusta, became indebted to Gustav, Sr., on November 1, 1924, in the principal amount of $7,330, which indebtedness is evidenced by notes secured by deed of trust on certain real estate in St. Louis city. There is a statement in the record that said principal sum, plus accrued interest (6 per centum annually) amounted to $11,000 at the time of trial. Clause 7 of said will, reads: "Seventh: I have heretofore made loans to some of my children, and may hereafter make other loans to them. It is my wish, and I so direct, that any money owing to me at the time of my death by any of my children, either upon notes, open accounts or otherwise, shall be charged, both as to principal and interest accruing thereon, as advancements made to my said children out of their respective shares in and to my estate, and the same shall be deducted from such shares at the time of the distribution thereof to my said children, as is hereinbefore in this will set out."

Respondents contend, construing the will as a whole, that at the time provided for distribution under the will, Gustav, Jr., is entitled to participate with the then beneficiaries in the trust estate, and he and his wife, appel...