In re Temple's Estate

• Decision Date: 05 December 1922
• Docket Number: No. 17464.,17464.
• Citation: 245 S.W. 633,211 Mo. App. 71
• Parties: In re TEMPLE'S ESTATE.
• Court: Missouri Court of Appeals

245 S.W. 633

211 Mo. App. 71

In re TEMPLE'S ESTATE.

No. 17464.

St. Louis Court of Appeals. Missouri.

December 5, 1922.

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

In the matter of the estate of Theodore H. Temple, deceased. From a judgment construing the will, trustees thereunder appeal. Affirmed.

Daniel J. O'Keefe and Henry E. Haas, both of St. Louis, for appellants.

W. J. Blesse and William Kohn, both of St. Louis, for respondent.

ALLEN, P. J.

This appeal involves the construction of the last will and testament of Theodore H. Temple, deceased. The precise question presented is whether real estate devised by the testator is charged with the payment of a legacy of $1,000 made to Esther Cleary by clause 5 of the will. The will, omitting formal parts, is as follows: "

"First. I direct that all my just debts and funeral expenses be promptly paid.

"Second. I give, devise and bequeath to my beloved wife, Annie M. Temple, all the rents, revenue and income from all my estate, real, personal and mixed, of which I may be possessed; to have and to hold the same unto her, my said wife, for and during her natural life, Or for so long as she may remain unmarried and my widow. These provisions for my widow are given in lieu of, and in extinguishment of, her right and title of dower.

"Third. Upon and after the decease or second marriage of my said wife, Annie M. Temple, I give, devise and bequeath my estate or its remainder unto the children then living of my brother, Gustav A. Temple, to be divided among said children in equal parts, each nephew to receive his part when he attains the age of twenty-one (21) years, and each niece to receive her part when she attains the age of eighteen (18) years.

"Fourth. I hereby give and bequeath to my wife, Annie M. Temple, to be her own absolute property, all my household furniture, jewelry, books, paintings, horses and buggies of which I may be possessed.

"Fifth. I hereby set apart the sum of one thousand dollars ($1,000.00), the same to be held in trust for the benefit and use of my beloved niece Esther R. M. Cleary, until she shall have attained the age of eighteen years, when the said sum of one thousand dollars ($1,000.00) shall be paid to her, my said niece Esther, by the trustees, hereinafter to be named, of this fund. I direct the said trustees to invest Said one thousand dollars ($1,000.00) in safe security at the rate of six (6) per cent. annual interest, and pay said interest to my said niece towards her maintenance and education. I hereby nominate and appoint my wife, Annie M. Temple, and my brother, Gustav A. Temple, as trustees of said trust, without bond.

"Sixth. Should any portion of my real estate materially increase in value, I hereby authorize and direct my executors and trustees hereinafter named to sell such real estate and invest the proceeds of such sale in other real estate enhancing in value.

"Seventh. I nominate and appoint my said wife, Annie M. Temple, executrix and trustee, and my said brother, Gustav A. Temple, executor and trustee of this, my last will, without bond; and I hereby give to my said executors and trustees all the power, authority and discretion of this, my last will."

The will was executed on February 15, 1912. The testator " died on September 20, 1914, and shortly thereafter the will was admitted to probate, and letters testamentary were issued to the executor and executrix named therein. Within six months thereafter the widow renounced the provision made for her in the will and elected to take dower in lieu thereof. She also declined to act as one of the trustees under the will, and one Diederich was appointed in her stead. The inventory showed that the testator's personal estate amounted to $558.29, of which $319.79 was cash in bank. Seventeen different parcels of real estate were inventoried.

It appears that in a partition suit, instituted in 1913, the real estate was partitioned in kind, the widow receiving certain parcels thereof, and the remainder being set apart to the trustees under the will for the minor children of Gustav A. Temple; the court proceeding therein upon the theory that there was sufficient personalty in the estate to pay all debts, legacies, and expense of administration. In November, 1919, but $28.47 then remaining in the hands of the executor and executrix, the probate court entered an order wherein, after finding that there were not sufficient personal assets on hand to pay the legacy to Esther Cleary and that the legacy constituted a charge against the real estate devised to the trustees for the minor children of Gustav A. Temple, the court ordered that the executor and executrix proceed to sell at public or private sale "such portions, or all, of the real estate," so devised to such trustees, or so much thereof as might be necessary to pay the said legacy; the real estate being fully described. From this order the trustees appealed to the circuit court, where, upon a trial before the court, without a jury, the court found the legacy to Esther Cleary, with interest from the date of the testator's death, was a charge upon the real estate devised to said trustee, and adjudged that sufficient thereof be sold to pay such legacy. From this judgment the trustees have appealed to this court.

The cause was dried in the circuit court upon an agreed statement of facts, from which (in addition to matters set out above) it appears that the testator was 54 years of age at the time of his death; that he had been in robust health and active in the real estate business until about four days before his death, when he suffered a paralytic stroke which left him in a semiconscious condition, which condition continued until death occurred; that he was very fond of his niece, Esther Cleary, who was six years of age at the time of his death, bought her presents, and took great interest in her; that she was his constant companion, and that his last words expressed a desire to see her; that at the date of the execution of the will, February 15, 1912, the testator had on deposit in bank $553.62, and from that time until his death he deposited various amounts, aggregating in all $38,783.26, the balance in his bank account during such period ranging from $500 to sums in excess of $4,000; that, with money thus deposited by him from time to time, he purchased a parcel of land in St. Louis county, taking the title in the name of himself and his wife, creating an estate by the entirety, and erected a residence thereon, the land and building costing more than $18,000, of which $3,802.50 was paid on September 10, 1914, in discharge of a debt secured by deed of trust thereon; that the widow, as tenant by the entirety, became the sole owner of the property, free of incumbrance; and that the testator...