Hereford v. Unknown Heirs, Grantees or Successors of Tholozan

Decision Date09 July 1956
Docket NumberNo. 45335,45335
Citation365 Mo. 1048,292 S.W.2d 289
PartiesRobert A. HEREFORD et al., Plaintiffs-Appellants, v. The UNKNOWN HEIRS, GRANTEES OR SUCCESSORS OF Adelle THOLOZAN, Deceased, et al., Defendants-Respondents, Benoist Sanguinet et al., Defendants-Appellants, Reubin Sanguinet et al., Intervenors-Appellants.
CourtMissouri Supreme Court

Stamm, Millar, Neuhoff & Campbell, By: David Y. Campbell, St. Louis, for Benoist Sanguinet et al.

Thompson, Mitchell, Thompson & Douglas, Richard P. Conerly, Charles M. Spence, St. Louis, Robert A. Hamilton, St. Louis, for Locust Realty Co. and Frank's, Inc.

Henry Edenhoh, St. Louis, for St. Louis Title & Abstract Co.

Robert Ebert, St. Louis, for John Sanguinet and Reubin Sanguinet.

HOLLINGSWORTH, Judge.

This appeal arises out of a suit brought in six counts. Count One seeks construction of the will of Adelle Tholozan, deceased. Counts Two, Three, Four and Five seek to quiet title to four tracts of real estate owned by testatrix at the time of her death. Count Six seeks partition of said real estate. It appearing to the parties and to the court, following a pretrial conference, that an adjudication of the issues presented under Count One would be basically determinative of the remaining five counts, it was ordered that Count One be separately tried and that a final and appealable judgment be rendered thereon prior to trial and adjudication of all other issues in the case. From the final decree rendered on Count One, plaintiffs and certain of the original defendants have joined in an appeal and certain intervening defendants have joined in another appeal. This court has jurisdiction both because title to real estate is involved and the amount in dispute, exclusive of costs, exceeds $7,500. Article V, Sec. 3, Constitution of Missouri, V.A.M.S.

Adelle Tholozan, a widow, executed the will in question on December 9, 1862. She died on April 2, 1877, without having remarried and without issue. Her will, consisting of two handwritten pages, a photostatic copy of which is in evidence, was duly admitted to probate in the Probate Court of the City of St. Louis.

Item First thereof forgave all indebtedness owing testatrix by her niece, Adelle Phillips, and ordered the evidences thereof cancelled and delivered up by the executors named in Item Fifth.

Item Second devised 'about one hundred & fifty four arpens' (approximately 154 acres) of land in St. Louis County, in equal shares, per stirpes, to testatrix' brother, Charles Sanguinette, her sisters, Caroline Cozens and Mary Garnier, and the two children of a deceased sister, Eulalie Bright, to wit: Charles Bright and Eulalie Page.

Item Third devised a life estate in the western half of a lot in the City of St. Louis (hereinafter referred to as the Hebert Street property) to Bridget Healy, whom, the will says, testatrix 'raised'.

Item Fourth, on which the issues presented by this appeal turn, reads as follows:

'It is my will & desire, & I hereby give, grant, devise & bequeath all the balance & remainder of my property & estate of every nature & kind whatsoever unto Louis V. Bogy & William C. Jamison as joint tenants & Trustees, for the Sole, separate & exclusive use, benefit & behoof of Adelle Philips my niece, during her natural life, and at & after her death, then for the sole, separate & exclusive use, benefit & behoof of Eulalie Philips only daughter of said Adelle Philips & all other children of said Adelle Philips, if any should be born hereafter, share & share alike, & if the said Eulalie Philips & the other children of said Adelle Philips, if any there should be, shall die, without having married, or without issue living, then the said property as aforesaid, & such portion thereof as shall then be on hand, shall go to & vest in fee simple in the said Sisters and brother of said Adelle Tholozan & their legal representatives, according to law, the Statutes of descents and distributions.'

Testatrix' brother and sisters named in Item Second of her will died prior to 1900. Adelle Phillips, the person named in Items First and Fourth, was a daughter of testatrix' brother, Simon Sanguinet. She was 28 years of age when the will was executed. She died February 28, 1920, at the age of 85 years, leaving surviving as her only child, Eulalie Phillips, the person named and referred to in Item Fourth. (The only other child of Adelle Phillips, a son, died in infancy prior to the execution of Mrs. Tholozan's will.) Eulalie Phillips, aged three years when the will was executed, died testate on March 19, 1950, at the age of 90 years. She had never married and left no issue, either natural or adopted. Defendant Arthur P. Luchesi was named executor of her estate.

The total value of testatrix' estate, at time of probate, was approximately $100,000. It consisted of personal property of an approximate value of $15,000, the tract of real estate devised by her in Item Second, which tract is not here in controversy, and the four parcels described in the petition. These four parcels hereinafter are referred to as the Olive Street property, the Hebert Street property, the Walnut Street property and the Lucust Street property.

By deed dated March 22, 1901, Adelle Phillips and Eulalie Phillips conveyed all their right, title and interest under testatrix' will in the Walnut Street property to James P. Maginn, who, in turn, deeded said property to defendant Maginn Investment Company.

The Hebert Street property was taken in condemnation by defendant City of St. Louis under a condemnation suit filed on August 5, 1922. The sum of $1,600 was awarded as damages for such condemnation, which sum was paid into the registry of the St. Louis Circuit Court on March 23, 1927, by defendant City of St. Louis, where it remained at the time of trial. The City of St. Louis denied any interest in the issues here presented.

On May 29, 1944, Eulalie Phillips quitclaimed the Locust Street Property to defendant Locust Realty Company for an expressed consideration of $100. Plaintiffs offered to show that the actual consideration was $11,000, which offer the trial court, on objection of certain of the individual defendants, refused. On February 13, 1947, defendant Locust Realty Company leased said property to defendant Frank's Inc., for a period of ten years ending February 28, 1957, at an annual rental of $9,000. On June 17, 1947, defendant Locust Realty Company executed a deed of trust on the Locust Street property to secure an indebtedness for borrowed money in the amount of $30,000. On June 2, 1952, defendant St. Louis Title and Abstract Company acquired said deed of trust and the remaining principal note secured thereby, in the amount of $23,250, which note was due on June 17, 1952.

In a memorandum opinion, the trial court found that Item Fourth should be construed 'in accordance with the contentions of counsel for Locust Realty Company', which, as we understand the record, are, in the main, also the contentions of such of the other defendants as claim under Eulalie Phillips, including defendants Maginn Investment Company, Frank's, Inc., and St. Louis Title and Abstract Company, the latter two of whom have joined with Locust Realty Company in a respondents' brief filed in support of the finding and decree of the trial court. The decree rendered herein, after recital of the substance of the aforesaid facts, was:

'9. That the true intent, meaning and legal effect of Item Fourth of the will of said Adelle Tholozan, deceased, * * * were to create * * * [in the four tracts of property referred to in said Item Fourth] * * * a life estate in said Adelle A. Phillips and a fee simple absolute in said Eulalie A. Phillips and all other children of said Adelle A. Phillips, if any should be born, and an alternative substitutional devise in fee simple absolute in said Caroline Cozens, Mary Garnier, Charles Sanguinette and Eulalie Bright and their legal representatives, according to law, which said latter devise was to take effect only if Eulalie Phillips and all other children of said Adelle A. Phillips, if any should be born, died without issue and without having married prior to the death of her mother Adelle A. Phillips.

'10. That by virtue of said Eulalie A. Phillips surviving and being the only child of her mother, said Adelle A. Phillips, said Eulalie A. Phillips became vested with a fee simple absolute in the property * * * [described in Item Fourth] * * * and the said alternative substitutional devise to plaintiffs and certain of the defendants as surviving legal representatives of the said Caroline Cozens, Mary Garnier, Charles Sanguinette and Eulalie Bright failed.'

The respective interests and titles of the many parties herein were thereupon determined and adjudged in accord with the portions of the decree above quoted.

The appellants (with the exception of intervenor-defendants John Sanguinet and Reubin Sanguinet) are the descendants and successors of testatrix' brother and three sisters mentioned in Item Second of the will. (Henceforth, we will refer to these parties, consisting of the plaintiffs and such of the defendants whose interests are in common with those of plaintiffs, as 'the appellants', unless we specifically otherwise so state.) They contend that testatrix did not devise a fee simple title to Eulalie Phillips and that they, as the residuary devisees named in Item Fourth, were invested with fee simple title upon the death of Eulalie Phillips.

The executor of Eulalie Phillips' estate and her heirs and residuary devisees contend that Item Fourth devised a remainder in fee to Eulalie, and, in the alternative, that Item Fourth violates the rule against perpetuities and is void, resulting in intestacy as to the real estate involved in this suit.

The appellant-intervenor-defendants, John Sanguinet and Reubin Sanguinet, are descendants and successors of Frederick Paul Sanguinet, who was not made a beneficiary under the will of...

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