Humphreys v. Welling

• Decision Date: 17 December 1937
• Citation: 111 S.W.2d 123,341 Mo. 1198
• Parties: Herman Humphreys, Verna Humphreys, William Humphreys, Lizzie Russel, Minnie Brown, Sally Moberly, Pauline Humphreys, Edyth Lederer, John C. Humphreys, Lesta Evans, Ruth Shelton, Truman Humphreys, Linda Rhodes, Frances Vencill, Melba Humphreys, Clifton Humphreys, Drury H. Humphreys, Clyde E. Humphreys, Harry Humphreys, Joan Humphreys, Clyde E. Humphreys, as Administrator of the Estate of John A. Humphreys, Lois Forson, Mary Virginia Crookshanks, and J. V. Forson, as Administrator of the Estate of Helen Henicker, v. Bessie Welling, Fern Hoff, Shirley Nadine Malone and W. W. Malone, Defendants, Bessie Welling and Fern Hoff, Appellants
• Court: Missouri Supreme Court

111 S.W.2d 123

341 Mo. 1198

Herman Humphreys, Verna Humphreys, William Humphreys, Lizzie Russel, Minnie Brown, Sally Moberly, Pauline Humphreys, Edyth Lederer, John C. Humphreys, Lesta Evans, Ruth Shelton, Truman Humphreys, Linda Rhodes, Frances Vencill, Melba Humphreys, Clifton Humphreys, Drury H. Humphreys, Clyde E. Humphreys, Harry Humphreys, Joan Humphreys, Clyde E. Humphreys, as Administrator of the Estate of John A. Humphreys, Lois Forson, Mary Virginia Crookshanks, and J. V. Forson, as Administrator of the Estate of Helen Henicker, v. Bessie Welling, Fern Hoff, Shirley Nadine Malone and W. W. Malone, Defendants, Bessie Welling and Fern Hoff, Appellants

Supreme Court of Missouri

December 17, 1937

Appeal from Sullivan Circuit Court; Hon. Walter A. Higbee Judge.

Affirmed.

P M. Marr and A. D. Campbell for appellants.

(1) It was the intention of the testatrix, and by the terms of the will the fee title was in Fred Humphreys. (a) Because, the heirs of Mary Ann Humphreys had been generously provided for by previous gift of approximately 1000 acres of land, and the object of this will was not to provide for the heirs of Mary Ann Humphreys. (b) Because, the second paragraph of this will affirmatively indicates that its object was to provide specially for her grandson, Fred Humphreys. (2) The executory devise to the heirs of Mary Ann Humphreys is invalid. As to whether or not the executory devise to the heirs of Mary Ann is invalid depends upon whether the will gave the first taker, Fred Humphreys, an express or implied power of alienation at any time. If there was such right in Fred by the terms of the will, either express or implied, the executory devise is destroyed by such express or implied right to alien, the executory devise being repugnant to the estate granted the first taker, and in determining the validity of the executory devise we look only to the face of the will, and are not concerned with whether Fred had the right to make the deed to his mother, or whether the control of the land was or was not properly turned over to him, or whether Fred did or did not die before he reached the age of thirty years. We are concerned with the quantum of estate granted by the will, and that only. O'Day v O'Day, 193 Mo. 62; 1 Tiffany on Real Property (2 Ed), sec. 167; Gannon v. Albright, 183 Mo. 238; 2 Redfield on Wills, p. 277; Roth v. Rauschenbush, 173 Mo. 582; Cornwell v. Wulff, 148 Mo. 542; Wead v. Gray, 78 Mo. 59; Moran v. Moran, 106 N.W. 206; Gannon v. Pauk, 200 Mo. 75.

L. E. Atherton and Fisher, Whitten & Keyes for respondents.

(1) The will of Mary Ann Humphreys clearly creates a trust estate placing the legal title in Charlie Humphreys as trustee, and making Fred Humphreys beneficiary and it was her clear purpose to defer passage of title to Fred until he was thirty years of age unless it was sooner turned over to him in accordance with the terms of the will. (a) The trust created by the will of Mary Ann Humphreys was an active trust because it required the trustee to perform certain specific duties and the fee vested in the trustee, and this is true even though there was no power of disposal of the fee in the trustee. Jones v. Jones, 223 Mo. 424, 123 S.W. 29, 25 L. R. A. (N. S.) 424; Matthews v. VanCleve, 221 S.W. 36, 282 Mo. 19; Burnet v. Burnet, 244 Mo. 503, 148 S.W. 872; Garland v. Smith, 164 Mo. 1, 64 S.W. 188; Simpson v. Erisner, 155 Mo. 157, 55 S.W. 1029; Cross v. Hock, 149 Mo. 325, 50 S.W. 786; McPike v. McPike, 181 S.W. 2. (b) The court must, if possible, ascertain and effectuate the intention of the creator of the trust unless forbidden by law. 65 C. J., p. 497, sec. 241; Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 139; Lane v. Garrison, 293 Mo. 530, 239 S.W. 813. (c) The law favors that construction which will uphold the validity of the trust. 65 C. J., p. 498, sec. 242; Commerce Trust Co. v. Bayles, 273 S.W. 760. (d) In construing a trust or will the whole instrument must be considered. 65 C. J., p. 499, sec. 246; Selleck v. Hawley, 331 Mo. 1038, 56 S.W.2d 393. (2) A trust never fails for want of a trustee. Rothenberger v. Garrett, 224 Mo. 191, 123 S.W. 574; Adams v. Highland Cemetery Co., 192 S.W. 947. (a) The law presumes the acceptance of the trustee. West v. Bailey, 196 Mo. 517; Williams v. Hund, 258 S.W. 703. (3) The will of Mary Ann Humphreys created a condition precedent to the vesting of title in Fred Humphreys and placed his title in the trustee until the conditions precedent were met, that is that Fred Humphreys reached thirty years or after his reaching twenty-five years of age and he satisfied the then acting probate judge and the property turned over to him, neither of which condition precedent ever occurred; until the condition precedent was fulfilled the fee was in the trustee. Jarboe v. Hey, 122 Mo. 341, 26 S.W. 968; Graham v. Moore, 189 S.W. 1188; Sec. 3103, R. S. 1929. (4) "If the said Fred Humphreys shall die without children, then the property hereinbefore devised and bequeathed to the said Fred Humphreys shall descend and go to my heirs and not to the heirs of Fred Humphreys." This clause of the will clearly refers to the time, if ever, when Fred Humphreys would receive the legal title and not to the time of the death of the testator. (a) Gift over to heirs of testatrix in the event of Fred Humphreys' death without issue, refers to his death before the vesting of the estate and not to the death of the beneficiary before testatrix. 39 C. J., pp. 321-322, sec. 1333, p. 326, sec. 1334; Trust Co. v. Curby, 255 Mo. 411, 164 S.W. 485; Sec. 3109, R. S. 1929; Bixby v. St. Louis Union Trust Co., 22 S.W.2d 820, 323 Mo. 1014, 11 A. L. R. 288; Kerens v. St. Louis Union Trust Co., 223 S.W. 649, 283 Mo. 601; Matthews v. VanCleve, 221 S.W. 35, 282 Mo. 19; Dameron v. Lanyon, 234 Mo. 642, 138 S.W. 1; Owens v. Men & Millions Movement, 296 Mo. 119, 246 S.W. 172; Ewart v. Dalby, 51 S.W.2d 435, 319 Mo. 108. (b) Fred Humphreys' interest in the land was contingent on his survival of the trust, that is, that he reached the age of thirty years or that it was turned over to him under the provisions of the will after reaching twenty-five years. Anchor Realty & Inv. Co. v. Becker, 3 F.Supp. 22; Jarboe v. Hey, 122 Mo. 341. (c) The deed to Mrs. Welling, appellant, being made before vesting of title in Fred, was void. Burnet v. Burnet, 244 Mo. 507, 148 S.W. 872; Jarboe v. Hey, 122 Mo. 346. (d) One reading the will under the circumstances under which it was made can have no doubt but that the testator intended to dispose of the entire estate and that no part of it was to go to the heirs of Fred Humphreys should he die before reaching the age of thirty years or before the land was turned over to him under the terms of the will after reaching twenty-five. Patrick v. Blair, 119 Mo. 105; Trust Co. v. Curby, 255 Mo. 393; Dameron v. Lanyon, 234 Mo. 627; Wood v. Kice, 103 Mo. 329, 15 S.W. 623; 65 C. J., secs. 285, 289, pp. 536, 541; Matthews v. VanCleve, 221 S.W. 34, 282 Mo. 19.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

This action was instituted by the heirs (other than Fern Hoff) of Mary Ann Humphreys to quiet the title to certain real estate and cancel a deed from Fred Humphreys to Bessie Welling. Mary Ann Humphreys was the mother of James Humphreys, who was, in his lifetime, the husband of Bessie Humphreys, now Bessie Welling. James and Bessie Humphreys were the parents of Fred Humphreys and Fern Humphreys, now Fern Hoff. The controversy involves the third paragraph of the last will and testament of Mary Ann Humphreys and facts developing thereunder. Said paragraph reads:

"3rd I hereby give, devise and bequeath unto my beloved grandson, Fred Humphreys, all the residue of my property, both real and personal and wherever situated, which said property, however, I give and bequeath to my beloved grandson, Fred Humphreys, in trust, and I hereby appoint my son, Charlie Humphreys, as trustee, which said property is to be held in trust by the said Charlie Humphreys as trustee for the said Fred Humphreys until my said grandson Fred is thirty (30) years of age. I hereby require and request that such trustee have control and possession and the rental of said real estate, using the same first to pay taxes thereon, and to keep the same in reasonable repair, and the remainder, after deducting a reasonable allowance for his time and trouble in so looking after said property, to be paid to my said grandson Fred, to be by him used and expended as he may see fit; and, if my said grandson, Fred Humphreys, after reaching twenty-five (25) years of age can show to the satisfaction of the then acting Probate Judge of Sullivan County, Missouri, that he is frugal, industrious and shows a disposition to take care of and manage said land in a prudent manner so as to not squander or waste the same, or any part thereof, then that the same shall be turned over by such trustee after so reaching twenty-five (25) years of age, and after so satisfying such probate judge to him absolutely, otherwise to be managed by such trustee, as hereinbefore provided, until the said Fred shall reach the age of thirty (30) years, when the same shall be turned over to him absolutely.

"I further provide that the said Fred shall not have the power of alienation or disposing of said land or of selling or managing or in any way conveying the same until he shall reach the age of thirty (30) years, unless the same be turned over to him after reaching the age of twenty-five (25) years in which event he may then have the full power of alienation and disposal. If the said Fred Humphreys shall die without children then the property hereinbefore devised and bequeathed to the said Fred Humphreys shall descend and go to my heirs and not to the heirs of the said Fred...