In re Boland's Estate

• Citation: 14 S.W.2d 521
• Decision Date: 05 March 1929
• Docket Number: No. 20406.,20406.
• Parties: In re BOLAND'S ESTATE. MERCANTILE TRUST CO. et al. v. BOLAND et al.
• Court: Court of Appeal of Missouri (US)

14 S.W.2d 521

In re BOLAND'S ESTATE.

MERCANTILE TRUST CO. et al. v. BOLAND et al.

No. 20406.

St. Louis Court of Appeals. Missouri.

March 5, 1929.

Rehearing Denied March 20, 1929.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

"Not to be officially published."

Petition by the Mercantile Trust Company and John L. Boland, executors of the estate of Catherine M. Boland, deceased, for permission to return certain securities distributed to them as trustees of the estate of Catherine M. Boland, deceased, and to substitute other securities opposed by Julia M. Boland and others. The probate court granted the petition, but, on appeal to the circuit court, the petition was dismissed for want of jurisdiction, and petitioners appeal. Judgment of circuit court affirmed.

Carter, Jones & Turney, and George A. McNulty, all of St. Louis, for appellants.

Bryan, Williams & Cave, O'Neill Ryan, and W. B. Kinealy, all of St. Louis, for respondents.

SUTTON, C.

On May 15, 1920, Catherine M. Boland made her last will and testament. Upon her death the will was admitted to probate in St. Louis county. The provisions of the will pertinent here are as follows:

"Item Ten: I have established a number of trusts herein naming my son, John L. Boland, and the Mercantile Trust Company, a corporation of the City of Saint Louis, Missouri, as Trustees for the beneficiaries. The conveyances IN TRUST are all to be held upon the same conditions, to wit:

"(1) To hold, possess, manage and control the said trust estate and every part thereof, with full power to sell, transfer, convey and dispose of the same, upon such terms, and in such manner, and for such prices, as to my said Trustees shall seem meet and proper.

"And I do give and grant unto my said Trustees full power and authority to invest and reinvest all or any part of said trust estate which may come into their hands, in such manner, and in such securities, or other property, personal or real, and upon such terms, and for such length of time as to my Trustees shall seem meet and proper; it being intended hereby to give unto my said Trustees full and complete authority to hold, possess, manage, control, sell, convey, encumber, lease, invest and reinvest the whole and every part of said trust estate, according to their sole judgment and discretion, without any limitation upon their powers and authority so to do.

"(2) I direct that my Trustees be allowed a reasonable compensation out of both principal and income disbursed by them, for their services rendered in the administration of the trusts.

"Item Thirteen: I direct my Executors to set apart sufficient cash or securities as in their judgment will produce a net income of Twelve Hundred Dollars ($1200.00) per year; The kind and character of securities, and the nature thereof, shall be left solely to the discretion of my Executors. I give and bequeath the said securities so set apart unto John L. Boland and the Mercantile Trust Company, a corporation of the City of Saint Louis, Missouri, In Trust, however, under the powers herein set out under item Ten.

"(1) I direct my Trustees to pay, out of the net income and revenue received from said trust fund, beginning on the first day of the month following my decease, and monthly thereafter, the sum of One Hundred Dollars ($100.00) unto my faithful employé and friend, Mary J. Fitzsimons, during her life."

"(2) In the event the securities, so set apart do not produce sufficient revenue to pay unto Mary J. Fitzsimons the sum of One Hundred Dollors ($100.00) per month, I then direct my Trustees to encroach upon the principal in such an amount as may be necessary to make good any deficit between the income produced and the sum of Twelve Hundred Dollars ($1200.00) per year.

"(3) After the death of Mary J. Fitzsimons, I direct that the trust fund be delivered one-half (½) thereof unto the Trustees for my daughter, Marie Antoinette, and one-half (½) thereof unto the descendants of my son, John L. Boland, per capita."

On September 24, 1923, the probate court made an order of distribution wherein John L. Boland and the Mercantile Trust Company, as executors under the will, were authorized and directed to pay over and deliver to themselves, as trustees under the will, in fee simple, for the use of Mary J. Fitzsimons, certain designated securities of the aggregate par value of $25,500, together with any income, paid or unpaid, which may have accrued upon the securities since the death of the testatrix. This order of distribution was made upon the petition of John L. Boland and the Mercantile Trust Company, who described themselves in the petition as executors under the will of Catherine M. Boland, deceased. After the order of distribution was made, they, as executors, delivered to themselves, as trustees, the securities designated in the order with the income accrued thereon, and as trustees receipted to themselves as executors therefor. Among the securities distributed under this order of distribution were five Ellis county, Tex., 5 per cent. road district bonds of the aggregate par value of $5,000. On June 7, 1926, John L. Boland and the Mercantile Trust Company, describing themselves as executors under the will of Catherine M. Boland, deceased, petitioned the probate court for an order authorizing and directing them to return to the estate of Catherine M. Boland, deceased, the five Ellis county bonds distributed to them as trustees under the previous order of distribution, and to distribute from said estate to themselves as trustees fifteen shares of St. Louis Union Trust Company stock of the aggregate par value of $1,500, and thirty-seven shares of Blackwelder-Wielandy Book & Stationery Company preferred stock of the aggregate par value of $3,700. On July 12, 1926, the court ordered that said petition be granted, and that said executors be authorized and directed to accept from said trustees the return to them by said trustees of the said Ellis county bonds and to turn over and distribute to said trustees the said fifteen shares of the stock of the St. Louis Union Trust Company and the said thirty-seven shares of the preferred stock of the Blackwelder-Wielandy Book & Stationery Company. From this order Julia M. Boland, Joseph M. Boland, and Katherine T. Clemens, who are residuary legatees under the will, appealed to the circuit court. Upon the trial of the cause in the circuit court, judgment was entered dismissing the petition for want of jurisdiction. From this judgment, the petitioners have duly appealed to this court.

Appellants urge here that the circuit court erred in holding that the probate court, and consequently the circuit court on appeal from the probate court, had no jurisdiction to entertain their petition. Respondents contend that the order of distribution to the trustees made by the probate court on September 24, 1923, was a final judgment, and that, the term of court at which the order was made having expired, the court had no jurisdiction or power to amend, modify, or vacate the order. The appellants contend that said order, being an order of partial distribution, is conclusive only as to the securities ordered distributed, and that the court was authorized to make an order for an additional distribution out of the assets of the estate remaining in the hands of the executors. Appellants invoke the doctrine announced in State to Use of Wolf v. Berning, 6 Mo. App. 105, and in other like cases. In the Berning Case the probate court, on application of the widow and sole residuary legatee under the will of her deceased husband, ordered the executor to pay her $5,000, and in obedience to that order the executor paid said sum. In disposing of that case the court said:

"Appellant insists that this order concludes the executor that so much was at that time due from him to the person named in the order, and concludes the person named in the order that no more was then on hand. It is manifest, however, that one applying for an order of partial distribution is not to be taken as...