In re Rahn's Estate

• Decision Date: 16 February 1927
• Docket Number: No. 25818.,25818.
• Citation: 291 S.W. 120
• Parties: In re RA N'S ESTATE. AliFiENS, Consul of Germany at St. Louis, v.
• Court: Missouri Supreme Court

291 S.W. 120

In re RA N'S ESTATE AliFiENS, Consul of Germany at St. Louis, v. No. 25818.

Supreme Court of Missouri, Division No. 1.

December 31, 1926.

Motion for Rehearing Denied February 16, 1927.

Appeal from Circuit Court, Carroll County; Ralph Hughes, Judge.

In the matter of the estate of Jacob Rahn, deceased. Petition by Hugo Mundt, Consul of Germany at St. Louis, against Robert G. Martin, executor of the last will and testament of Jacob Rahn, deceased. From an adverse order, the executor appealed to the circuit court, where judgment was entered in his favor, and petitioner appeals. Subsequently Rudolph Steinbach, German Consul General at Chicago, was substituted as party plaintiff, and George Ahrens, German Consul at St. Louis, was in turn substituted for Rudolph Steinbach. Reversed and remanded, with directions.

G. Detjen, of St. Louis, and Smith B. Atwood, of Carrollton, for appellant.

Franken & Timmons, of Carrollton, for respondent.

SEDDON, C.

Jacob Rahn died testate in Carroll county, Mo., 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 ($10,000.00), 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, Mo., 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, Mo., in accordance with item 2 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 2 of testator's will, together with 6 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 executor take and receive credit therefor in his settlement of said estate, after deducting from said bequest the inheritance tax assessed and levied against said bequest in favor of the state of Missouri, with interest thereon, in the aggregate sum of $528.38, which had been paid to the state by said executor on February 5, 1921. In due time, respondent, Robert G. Martin, as executor of said estate, appealed from the order and judgment of distribution made and entered by said probate court to the circuit court of Carroll county, where the proceeding was tried anew.

The proceeding was tried and submitted in the circuit court of Carroll county on September 21, 1923, upon an agreed statement of facts, setting out in lame verba the last will of Jacob Rahn, deceased, the date of probate thereof, the appointment of respondent executor, and that said executor has sufficient money on hand to pay off and distribute the legacy provided by item 2 of said will, but that no part of said legacy has been paid. ` The agreed statement further stipulates, as facts agreed upon by the parties, that:

"On the 6th day of April, 1917, a state of war was declared to exist by the Congress of the United States of America between the United States of America and the empire of Germany in Europe, and that said state of war existed between said United States and said German Empire until the 2d day of July, 1921, said date being the date designated by the President of the United States in his Proclamation of date the 14th day of November, 1921, as the date of the ending of the war between the United States of America and Germany; and it is further agreed that an armistice was signed and entered into between the United States of America and the said German Empire, and the other allied and associated powers engaged in said war, on the 11th day of November, 1918. It is further stipulated and agreed that Hugo Mundt is now the accredited official German Consul of Germany, located at the city of St. Louis in the state of Missouri, in the United States of America, he having been recognized as such by the government of the United States on the 26th day of June, 1922, and it is further agreed that the empire of Germany had no accredited German consul at the city of St. Louis, Mo., after April 6, 1917, until the 26th day of June, 1922.

"It is further stipulated and agreed that, at the time of the death of the said Jacob Rahn, the Red Cross service in Germany was carried on by and through individual Red Cross societies in the various states composing the German Empire, and that these separate state organizations in matters of national concern operated through a committee known as the Central Committee of the German Society of the Red Cross, for the following purposes:

"(1) To perfect and strengthen by their activity and means the arrangements for personnel and material suitable for taking in charge, nursing, and treating the wounded and sick, on the field of battle in case of war.

"(2) To support, with all powers and means at their disposal, the military sanitary service in case of war.

"(3) Also after the conclusion of peace to grant aid to such needy participants in the war who in consequence of the war were injured in their health and thereby impaired in their earning capacity, as well as their surviving dependents so far as they do not already receive sufficient assistance from the empire or other sources.

"It is further stipulated and agreed that the said Central Committee continued in existence until the 21st day of November, 1922, when it was succeeded by an organization incorporated under the name of Das Deutsche Rote Kreuz (the German Red Cross), which is in existence at this time, under the Red Cross Treaty to which the United States is a party."

On November 3, 1923, the circuit court of Carroll county entered its judgment and decree, wherein that court finds that:

"The bequest in the second item of the will of Jacob Rahn, deceased, is void as against public policy, and that the bequest should not be paid as provided for in said item of said will." Wherefore, it was "adjudged and decreed by the court that the petitioner, Hugo Mundt, plaintiff herein, take nothing by his petition, and that the judgment of the court should be and is hereby rendered for the defendant, Robert G. Martin, executor of the estate of Jacob Rahn, deceased; and it is further adjudged and decreed that the said defendant executor have and recover of said plaintiff his costs."

In due time, the petitioner, Hugo Mundt, filed his separate motions for new trial and in arrest of judgment, which were overruled by the trial court, and said petitioner was granted an appeal to this court. Subsequently, by agreement of the parties, Rudolph Steinbach, German consul general at Chicago, Ill., was substituted as party plaintiff herein, in the place and stead of Hugo Mundt, consul of Germany at St. Louis, Mo. On April 27, 1926, the parties filed in this court their signed stipulation, wherein it is agreed that George Ahrens, German consul at St. Louis, Mo., may be substituted as party plaintiff in the place and stead of Rudolph Steinbach, German consul general at Chicago, Ill., so that said George Ahrens thereby becomes the party appellant in this court.

Appellant assigns error, asserting that the finding of the circuit court is against the evidence and the weight of the evidence, and against the law as applied to the...