In re Bernero's Estate

• Decision Date: 16 July 1917
• Docket Number: No. 19447.,19447.
• Parties: In re BERNERO'S ESTATE.
• Court: Missouri Supreme Court

197 S.W. 121

271 Mo. 529

In re BERNERO'S ESTATE.

No. 19447.

Supreme Court of Missouri, Division No. 2.

July 16, 1917.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

In the matter of the assessment of the collateral inheritance tax in the estate of Louis Bernero, deceased. Theresa Goodwin and others appeal from judgment adverse to them. Reversed and remanded.

See, also, 267 Mo. 427, 184 S. W. 74.

This proceeding was originally instituted in the probate court of the city of St. Louis on the 25th day of January, 1912. After judgment in the probate court the proceeding was duly appealed to the circuit court of the city of St. Louis, which court, on December 6, 1915, entered its judgment fixing and assessing collateral inheritance taxes in the total sum of $11,572.03. That portion of the judgment assessing the tax is as follows:

"It is therefore ordered, adjudged, and decreed by the court that the parties liable for a collateral inheritance tax upon the transfer of interest in the real estate herein described, the amounts of their respective interests therein, and the amount of tax which said parties are liable for on their respective interests, are as follows, to wit:

                      Parties Liable as            Cash Value      Amount
                        Life Tenants.             of Interest.     of Tax
                Joseph Longinotti .............   $ 19,142 72    $   957 13
                Ida Longinotti ................     19,454 20        972 71
                Theresa L. Goodwin ............     19,775 25        988 76
                Louis Longinotti ..............     19,945 30        997 26
                Laura Longinotti ..............     20,484 26      1,024 21
                Florence Longinotti ...........     20,865 28      1,043 27
                Mary Longinotti ...............     21,081 27      1,054 07
                Adele Longinotti ..............     21,586 06      1,079 31
                Catherine Longinotti ..........     22,789 87      1,129 50
                Leo Longinotti ................     21,899 42      1,094 98
                James Longinotti ..............     24,416 92      1,220 83
                                                  ___________    __________
                                                  $231,440 55    $11,572 03
                

"It is still further ordered, adjudged, and decreed by the court that said taxes be and they are hereby assessed upon the succession to the following described real estate situated in the city of St. Louis, Missouri, to wit: [Then follows a description of the property.] That the said parties liable for said tax as aforesaid shall pay the same upon their respective interests to the collector of revenue of the city of St. Louis, Missouri, together with interest upon the tax assessed against each of them, respectively, at the rate of 1 per cent. per month from July 15, 1911, to the date of payment, together with the costs of this proceeding, and said taxes so assessed are hereby adjudged to be a first lien in favor of the state of Missouri upon the respective interest of said parties in and to said described real estate; but the payment by any one or more of said parties of the amount of tax, interest, and cost, against his or their respective interests, shall operate to discharge the lien of the state of Missouri upon such interest so paying the tax, without affecting its lien as against the interest or interests of those of said parties, if any, who do not voluntarily pay the amount of tax assessed against them."

An appeal was duly taken by the above-named persons to this court. The case was tried below upon an agreed statement of facts (comprising 50 pages of the printed record here) and some parol testimony. The important facts necessary to an understanding of the issues may be summarized as follows:

Louis Bernero, Sr. (in whose estate this proceeding is attempted to be had), died testate in St. Louis, August 8, 1904, seised of the fee-simple title to considerable real estate, including a five-story business building known as No. 902 Washington avenue (the same being the property involved in this proceeding). For brevity we will hereinafter refer to said property as the Washington avenue property. At his death he left surviving him his wife, Theresa Bernero, and a nephew, Manuel Bernero, referred to in the will as an adopted son, but who (according to the agreed statement of facts) had never been, by deed, adopted by the said Louis Bernero, Sr. Disposition of said Washington avenue property, by clause 5 of the will of Louis Bernero, Sr., was made as follows:

"I give and devise unto my beloved wife Theresa Bernero [here the Washington avenue property is described] to have and enjoy for and during the term of her natural life, and at the time of her death the same to pass to our adopted son, Manuello Bernero, if he shall survive her, to have and enjoy during his natural life, and at his decease to pass to and vest in fee in his children, if any he have, or their descendants, but in default or failure of such direct heirs, children or grandchildren him surviving, then at the time of his death the title to said realty in fee shall pass to and vest in my right heirs; if, however, my said wife shall survive said Manuello, then she, said Theresa Bernero, is hereby empowered to devise said realty as she shall see fit, or if she shall fail to make such testamentary disposition of same, then said realty, upon her death, shall vest in my right heirs, if she shall survive said Manuello. I authorize and empower my said wife during her lifetime, and if said Manuello shall survive her and enter upon the enjoyment of said realty, then said Manuello, during his lifetime, to lease said realty thus bequeathed to them for life as aforesaid, successively, on such terms as they severally deem proper, each exercising such right during her or his life tenancy, for leasehold periods not exceeding twenty-five (25) years each."

Administration was had upon the estate of Louis Bernero, Sr.; final settlement therein having been made on December 14, 1908. During the process of administration an assessment of collateral inheritance taxes was made upon said estate, but no such tax was assessed in connection with the devise of the Washington avenue property now involved. On April 4, 1910, Manuel Bernero died, and left surviving him one child, Louis Bernero, Jr. On July 15, 1911, Theresa Bernero (wife of testator) died testate, and in her will exercised the power of appointment given her by her husband's will over the Washington avenue property in the following manner:

Clause 11 of Will of Theresa Bernero.

"I give and devise to said St. Louis Trust Company the following real estate: [Here follows a description of the Washington avenue property.] To have and to hold the same as trustee upon the trusts and subject to the conditions following, that is to say:

"Said Trust Company, and its successor or successors in trust, shall have full power to take possession of, hold, and manage the above described real estate, in trust, however, for the equal use and benefit of all of the children of my sister, Clotilda Longinotti, wife of Joseph Longinotti, for and during the natural lives of such of said children as may be living at the time of my decease, and until the death of the last survivor thereof. At present there are eleven children, namely, Joseph, Ida, Theresa, Florence, Laura, Louis, Mary, Adele, Leo, Catherine and James Longinotti; but it is my intention that this trust shall be for the equal benefit of all of the children of my said sister, whether they be living at the time of my decease or born thereafter, and for the descendants of any of said children who may have died leaving issue, such descendants taking per stirpes and not per capita. I direct, however, that the trust herein created shall cease and determine upon the death of the last survivor of said children who may be living at the time of my decease.

"Said Trust Company, as such trustee, shall be authorized to rent or lease said real estate and to improve the same, and for that purpose to incumber the same in such manner and upon such terms as in the judgment of said trustee shall be for the best interests of the trust estate herein and hereby created for the use and benefit of my said nephews and nieces.

"After paying the necessary expenses incident to the care and management of said real estate, including a reasonable compensation for its services, said trustee shall pay and distribute the net revenue derived therefrom, share and share alike among said children of my sister, Clotilda Longinotti, and to the descendants of any of said children who may have died leaving children, such descendants taking the parent's share, paying the same directly to such children or other descendants as shall have reached the age of majority, and paying to the guardian of the minor children or other descendants or expending for their several benefits their respective share, according to the discretion of said trustee.

"Upon the death of the last survivor of my said sister's children who shall survive me, the trust herein created shall cease and the property then constituting the trust estate shall pass to the then living descendants of my said sister, Clotilda Longinotti, share and share alike, such descendants taking per stirpes and not per capita.

"Said St. Louis Union Trust Company, and its successor or successors in trust, shall be authorized to sell and convey the fee simple title to said property at any time and upon such terms as in its judgment would be for the best interests of said trust estate, provided such sale meets with the approval in writing of a majority in number of my said nephews and nieces who are at the time of lawful age.

"In the event of such sale, said trustee shall hold the proceeds thereof as representing the corpus or principal fund of the trust estate, with power to reinvest the same in such other property or securities as in the judgment of said trustee will yield a safe and regular income, and from time to time change investments and make new investments as may be necessary for the proper...