In re Estate Rahn

• Decision Date: 16 February 1927
• Docket Number: 25818
• Parties: In re Estate of Jacob Rahn: George Ahrens, Consul of Germany at St. Louis, Missouri, Appellant, v. Robert G. Martin, Executor of Last Will of Jacob Rahn
• Court: Missouri Supreme Court

291 S.W. 120

316 Mo. 492

In re Estate of Jacob Rahn: George Ahrens, Consul of Germany at St. Louis, Missouri, Appellant, v. Robert G. Martin, Executor of Last Will of Jacob Rahn

No. 25818

Supreme Court of Missouri

February 16, 1927

Motion for Rehearing Denied February 16, 1927.

Appeal from Carroll Circuit Court; Hon. Ralph Hughes Judge.

Reversed and remanded (with directions).

G Detjen and Smith B. Atwood for appellant.

(1) Public policy with respect to a given subject is the policy of the law expressed in or plainly derived from the Constitution, laws and judicial decisions of the State relative thereto. Gordon v. Gordon, 168 Ky. 409; State ex rel. v. Dirckx, 211 Mo. 568; People v Hawkins, 157 N.Y. 12; Vidal v. Girard's Exr's, 2 How, (U.S.) 127; Dammert v. Osborn, 140 N.Y. 40; Billingsley v. Clelland, 41 W.Va. 234; Ins. Co. v. Ry. Co., 70 F. 201; United States v. Trans-Missouri Freight Assn., 166 U.S. 290; St. Louis Mining Co. v. Montana Mining Co., 171 U.S. 650; Hartford Ins. Co. v. Ry. Co., 175 U.S. 100; State v. Clarke, 54 Mo. 36; Moorshead v. United Rys. 203 Mo. 121, 165; Blanchard Co. v. Hamblin, 162 Mo.App. 251; Johnston v. Great Western Ry. Co., 164 S.W. 262; Swann v. Swann, 21 F. 301. (2) The function of the judiciary is to construe the State's constitution, laws and judicial decisions, and state, not create, public policy. 6 R. C. L. 712, art. 119; Murray v. White, 42 Mont. 423, Ann. Cas. 1912A, 1297; Janson v. Driefontein Consol. Mines, 71 L. J. K. B. (N. S.) 863 (Eng.); Egerton v. Lord Brownlow, 23 L. J. Ch. (N. S.) 348 (Eng.); Brown v. United States, 3 L.Ed. 504; Northern Pac. Ry. Co. v. Richland Co., 28 N.D. 172; Weeks v. Ins. Co., 35 A. L. R. 1485; Smith v. Railroad Co., 35 L. R. A. 314; People ex rel. v. Burke, 30 A. L. R. 1085; Smith v. Du Bose, 78 Ga. 413; Montgomery v. Montgomery, 142 Mo.App. 481; 9 Cyc. 762; Swann v. Swann, 21 F. 301. (3) Public policy favors freedom and sanction in the testamentary disposition of property, and this testator's will should be given effect. 40 Cyc. 1051; Boal v. Met. Mus. of Art, 298 F. 894; United States v. Hicks, 256 F. 707; Miller v. Camp, 280 F. 520. (4) The modern trend of public policy is against interference with property rights of alien enemies, in time of war, except so far as may be necessary to accomplish effectively the objects of the war, and this public policy is not contravened by the bequest here under consideration. Sylvester's Case, 7 Mod. Rep. 150; Porter v. Freudenberg, 1 K. B. 857, Ann. Cas. 1917C, 215; Trading With the Enemy Act, U.S. Comp. St. 1918, sec. 3115 1/2aa; Lindenberger v. Lindenberger, 235 F. 542. Bequests to alien enemies are valid. Greenia v. Greenia, 14 Mo. 526; Harney v. Donohoe, 97 Mo. 151; Bradwell v. Weeks, 1 Johnson's Chancery (N. Y.) 169; In re Roeck's Estate, 195 N.Y. 505; In re Gregg's Estate, 109 A. 777; Breuer v. Beery, 189 N.W. 717; Henderson v. Schiff, 37 T. L. R. (Eng.) 31; In re Kielsmark's Will, 11 A. L. R. 156. Alien enemies may hold property. 27 R. C. L. 924; Atty-Gen. v. Wheeden, Park Exch., 267, 145 Eng. Reprint, 776; Brown v. United States, 8 Cranch (U.S.) 110; United States v. Chemical Foundation, 294 F. 300; The Kaiser Wilhelm II, 246 F. 786; Watts, Watts & Co. v. Unione Austriaca Di Navigazione, 248 U.S. 9; In Matter of Kelly, 167 N.Y.S. 713; Posselt v. D'Espard, 87 N. J. 571. (5) This bequest is not void as giving "aid and comfort" to the enemy. U.S. Constitution, art. 3, sec. 3; Mo. Constitution, art. 2, sec. 13; Kirk v. Lynd, 106 U.S. 315; Miller v. United States, 20 L.Ed. 135; State v. Young, 97 U.S. 39; 40 Cyc. 327; 22 Cyc. 85; Babock v. Terry, 97 Mass. 482; Janson v. Driefontein Consol. Mines, 2 K. B. 419 (Eng.); Daimler Co. v. Continental Tyre Co., Ann. Cas. 1917C, 185. (6) Designation of the German Red Cross is not prejudicial. International Red Cross Treaty of 1906; Crandall on Treaties, 442; Ann. Cas 1918C, 720, 17 A. L. R. 636. (7) This bequest is consistent with our public policy which favors charitable trusts. 11 C. J. 307, sec. 12; p. 315, sec. 19; p. 62, sec. 62; p. 335, sec. 52; p. 379, sec. 110; Buckley v. Monck, 187 S.W. 31; Mott v. Morris, 249 Mo. 137; Hadley v. Forsee, 203 Mo. 418; 12 L. R. A. (N. S.) 49 and note; Chambers v. St. Louis, 29 Mo. 543; Crow v. Clay Co., 196 Mo. 234; Buchanan v. Kennard, 234 Mo. 117; Missouri Hist. Society v. Academy of Science, 94 Mo. 459; Burbank v. Whitney, 24 Pick. (Mass.) 146; Kurzman v. Lowy, 23 Misc. 380; Perry on Trusts, sec. 741; General Assembly v. Guthrie, 86 Va. 125; Peynado's Devisees v. Peynado's Executors, 82 Ky. 12.

Franken & Timmons for respondent.

(1) The bequest in Item Second of the will is void as against public policy. 2 Perry on Trusts (5 Ed.) p. 356; Dickson v. Montgomery, 1 Swan, 438; Methodist Church v. Remington, 1 Watts, 218; Zeisweiss v. James, 63 Pa. 465; DeCamp v. Dobbins, 31 N.J.Eq. 671; In re Hill's Estate (Wash.), 204 P. 1055; U.S. Constitution, art. 3, sec. 3; Sec. 10165, U.S. Compiled Statutes 1918; 38 Cyc. 956; Carson v. Hunter, 46 Mo. 467; Peltz v. Long, 40 Mo. 540. (2) There being no "German Red Cross Society of the Empire of Germany in Europe" at the date of the death of Jacob Rahn, there could be no beneficiaries under the charge of such a society. There being no beneficiaries, the legacy lapses. 11 C. J. 363; Robinson v. Crutcher, 277 Mo. 1; Cummings v. Dent, 189 S.W. 1161; Catron v. Scarritt Coll. Institute, 264 Mo. 728; Mott v. Morris, 249 Mo. 145. (3) The bequest in Item Second is for a particular purpose and no general charitable intent is expressed in the will. The particular purpose being impossible of performance, the legacy fails and the doctrine of cy pres cannot apply. 3 Woerner, Am. Law of Administration (3 Ed.) p. 1460; 11 C. J. 361, 362; 2 Perry on Trusts (6 Ed.) sec. 726; 3 Story's Eq. Juris. (14 Ed.) sec. 1554; 3 Pomeroy's Eq. Juris. (4 Ed.) sec. 1027; St. Louis, Trustee for Mullanphy, v. McAllister, 302 Mo. 152; Catron v. Scarritt Collegiate Inst., 264 Mo. 713; Crow ex rel. v. Clay County, 196 Mo. 234; Teele v. Bishop of Derry, 38 L. R. A. 629; In re White (Eng.), 33 Ch. D. 449; Brown v. Condit, 70 N.J.Eq. 440; Raque v. City of Speyer, Germany, 129 A. 207.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Jacob Rahn died testate in Carroll County, Missouri, on February 24, 1920. He was a bachelor and a citizen of the United States and, prior to his death, resided on a farm near the town of Dewitt in Carroll County. His last will and testament is dated and attested on February 8, 1916. By the second item or paragraph of his will, the testator made the following bequest:

"Second. I here will and bequeath the sum of ten thousand dollars ($ 10,000), to be paid in the manner hereinafter stated, to the German Red Cross Society, of the Empire of Germany, in Europe, without any bond or security from said Red Cross Society, all of said amount is to be by said German Red Cross Society received and by it applied and paid out for the then immediate relief, use and benefit of the then widows, orphans, and invalids, objects of charity under the then care and charge of said German Red Cross Society, aforesaid, resulting from the war now going on in Europe; the full amount of said bequest last aforesaid is to be by my executor hereinafter named (or his successor in office) paid over at the expiration of one year after the date of my death (or as soon after said one year as assets therefor may be available) to the then person acting in the accredited official capacity as Imperial German Consul, of Germany (or his accredited official successor in said official capacity) at St. Louis, State of Missouri, United States of America, without any security or bond from said Imperial German Consul (or his said successor as aforesaid) to the use and to be by said Imperial German Consul (or his said successor) paid in full amount over to said German Red Cross Society aforesaid, for the purposes aforesaid; and the receipt or receipts of said accredited Imperial German Consul (or his said official successor as aforesaid) to my said executor (or his successor in office) shall be a full acquittance and discharge to my said executor or his successor, for all amounts so paid by him as aforesaid, without question or dispute, and my said executor shall receive credit on his settlement of my estate for all amounts so paid hereunder, without question or dispute."

The will was duly proved and admitted to probate in the Probate Court of Carroll County on March 2, 1920, and letters testamentary were granted to respondent, Robert G. Martin the executor nominated in the will, who qualified as executor on March 2, 1920. On May 4, 1922, Hugo Mundt, the duly appointed, qualified and acting Consul of Germany at St. Louis, Missouri, filed in the Probate Court of Carroll County his petition for an order of distribution in the estate of Jacob Rahn, deceased, praying that court to make and enter an order directing the executor of said estate to pay over and distribute said legacy of $ 10,000, together with interest thereon from February 24, 1921 (said date being one year after the death of testator), to petitioner in his official capacity as the Consul of Germany at St. Louis, Missouri, in accordance with item two of testator's will. On December 22, 1922, the Probate Court of Carroll County made and entered an order in said estate, directing the said executor to make partial distribution of assets of said estate by paying over and distributing to said Hugo Mundt, petitioner, the legacy of $ 10,000 provided by item two of testator's will, together with six per cent interest thereon from June 26, 1922, the date when said Hugo Mundt was recognized and accredited by the United States Government as the duly appointed Consul of Germany at St. Louis, and that said e...