In re Calnane's Estate, 21114.

• Decision Date: 03 June 1930
• Docket Number: No. 21114.,21114.
• Citation: 28 S.W.2d 420
• Parties: In re CALNANE'S ESTATE. CALNANE v. CALNANE.
• Court: Missouri Court of Appeals

28 S.W.2d 420

In re CALNANE'S ESTATE CALNANE v. CALNANE.

No. 21114.

St. Louis Court of Appeals. Missouri.

June 3, 1930.

Rehearing Denied June 18, 1930.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

In the matter of the estate of John A. Calnane, deceased. Proceeding by Mary E. Calnane, executrix of the estate of John A. Calnane, deceased, against Mary F. Calnane, for an order authorizing her to deliver to defendant certain bonds with interest thereon, less inheritance tax paid upon a bequest, wherein defendant filed motion praying that executrix be ordered to deliver to her amount of bonds with interest without deducting inheritance tax. From a judgment of the circuit court in each instance affirming judgment and order of probate court, overruling executrix's motion and sustaining motion of defendant, the executrix appeals.

Affirmed.

George F. Beck, and Charles E. Morrow, both of St. Louis, for appellant.

Leahy, Saunders & Walther, of St. Louis, for respondent.

BENNICK, C.

This is a consolidated case, involving two separate appeals from the judgment of the circuit court of the city of St. Louis affirming the order and judgment of the probate court upon motions filed by the respective parties hereto relative to the payment to respondent, Mary F. Calnane, of a certain legacy provided for in the last will and testament of her deceased brother, Dr. John A. Calnane.

On April 18, 1924, while a patient in St. Anthony's Hospital, in the city of St. Louis, Dr. Calnane executed his will, and on May 12, 1924, he died. The controversy between the parties centers wholly around the construction to be put upon the first paragraph of the third item in the will, but, for the sake of a better understanding of the situation, we deem it advisable to copy the will substantially in its entirety, as follows:

"I, John A. Calnane, of the City of St. Louis, do hereby make, publish, and declare this to be my last will and testament, and hereby revoke all former wills by me made.

"First. I direct my executrix, hereinafter named, to pay all of my debts and the expense of my funeral.

"Second. The Fifty Thousand ($50,000.00) dollars in bonds, in my box, at the American Central Trust Co., do not belong to me, but are the property of my wife, Mary E. Calnane.

"Third. I give and bequeath to my sister, Mary F. Calnane, Thirty-three Thousand ($33,000.00) dollars, in U. S. Fourth Liberty Loan bonds.

"To the St. Anthony's Hospital, St. Louis, Eight Thousand ($8,000.00) dollars.

"To the Little Sisters of the Poor, St. Louis, Three Thousand ($3,000.00) dollars. To Emily Hafner, who has been faithful in my employ many years, Five Thousand ($5,000.00) dollars.

"Fourth. All the rest, residue, and remainder of my estate, I give, devise, and bequeath to my wife, Mary E. Calnane, absolutely.

"Fifth. I nominate and appoint my wife, Mary E. Calnane, executrix of this, my last will, and request that no bond be asked or required of her."

The will was duly filed for probate, and on January 6, 1925, respondent brought a suit contesting the same. Upon a trial of the case, the will was sustained, and from the adverse judgment, respondent took an appeal to the Supreme Court, which was dismissed by her on April 12, 1927.

Distribution of the estate was delayed due to the absence of the executrix, and in the latter part of 1927, when distribution was attempted, the present controversy arose in regard to whether the legacy to respondent was a general and demonstrative one, as insisted upon by appellant, or a specific one, as contended for by respondent.

Briefly stated, appellant's position was and is that respondent was given $33,000, no more and no less; that she is entitled to this amount paid her in Liberty bonds at the market price at the time of the payment; that if the bonds are then below par she should receive more bonds, but if at a premium she should receive a less number; and that in any event she should receive the sum of $33,000, the actual amount of the bequest.

Respondent's position, to the contrary, is that the will gives her specifically thirty-three, $1,000 Liberty bonds, irrespective of value; and that such was undoubtedly the testator's intention, inasmuch as he owned thirty-three $1,000 Liberty bonds, both at the time of the execution of the will and at the time of his death.

On April 12, 1927, when respondent's appeal from the judgment in the will contest was dismissed, the market value of United States 4¼ per cent. Fourth Liberty loan bonds was $103 28/32; and it further appears that the Missouri inheritance tax assessed against respondent's bequest was $1,350, which sum the estate paid on January 30, 1928.

On April 4, 1928, appellant filed her motion in the probate court, praying for an order of court authorizing her to deliver and pay over to respondent Fourth Liberty loan bonds, amounting to $33,000, at a market value of $103 28/32 as of April 12, 1927, and interest thereon from said date at 4¼ per cent. per annum, the same to be in full satisfaction, payment, and discharge of the bequest made to her by the deceased; and that she be authorized to deduct from the interest due on said bonds the sum of $1,350, with interest thereon at 6 per cent., from January 30, 1928, the amount and day the estate paid the Missouri inheritance tax upon the bequest made to respondent.

After such motion had been filed, respondent on the following day filed her motion, praying that the executrix be ordered to deliver to her thirty-three $1,000 United States Fourth Liberty loan bonds, with interest at 4¼ per cent. per annum, from May 12, 1924, the date of the death of the testator.

The probate court overruled appellant's motion, and sustained the motion of respondent. Appeals were allowed the estate in each instance, and in the circuit court the rulings of the probate court were affirmed, as we have heretofore indicated. It is from such judgment rendered in the circuit court...