In re Wolfenden's Estate

• Decision Date: 16 January 1933
• Docket Number: No. 5048.,5048.
• Citation: 57 S.W.2d 697
• Parties: In re WOLFENDEN'S ESTATE.
• Court: Missouri Court of Appeals

57 S.W.2d 697

In re WOLFENDEN'S ESTATE.

No. 5048.

Springfield Court of Appeals. Missouri.

January 16, 1933.

Rehearing Denied March 9, 1933.

Appeal from Circuit Court, Newton County; Emory E. Smity, Judge.

"Not to be published in State Reports."

Accounting by O. W. Epperson, trustee, in the Estate of Frances A. Wolfenden, deceased. From judgment overruling the exceptions of the Congregational Building Society and others to trustee's report, exceptants appeal.

Affirmed.

Leo H. Johnson, of Neosho, and Charles L. Henson, of Springfield, for appellants.

Ruark & Ruark, of Neosho, for respondents.

SMITH, Judge.

This appeal is by certain exceptors, hereinafter named, from a judgment of the circuit court overruling their exceptions to a settlement of O. W. Epperson, trustee in the estate of Frances A. Wolfenden, deceased.

Frances A. Wolfenden, died on or about the 12th day of August, 1917, leaving a will in which she made provisions especially for her son, Glen Wolfenden, and for Glen's wife, Nell Wolfenden, and for Glen's son, James K. Wolfenden. Provisions were made for others named in the will. W. G. Wills was named in the will as executor and trustee, and served several years as trustee, and died on or about October 24, 1921, after which O. W. Epperson was appointed trustee, and under which appointment he has served until the present time.

On October 15, 1930, acting as trustee of said estate he filed a statement with the circuit court showing receipts and disbursements since his last report, the important parts of which report are as follows:

"MAIN BODY OF THE TRUST ESTATE

                "RECEIPTS
                "Rents collected on the Tire Shop, the
                  apartments above it, and the residence   $    592.00
                "Dividends on Bank of Neosho Stock........      900.00
                "Interest Collected ......................      376.43
                "Insurance refunds .......................       22.60
                "On hand as shown by report October, 1929     8,585.33
                "U. S. Bond at par........................      100.00
                "50 shares in Bank of Neosho Stock at par     5,000.00
                                                            __________
                "Total receipts .........................   $15,576.36
                "DISBURSEMENTS
                "Taxes (2 vouchers).......................   $  155.02
                "Insurance (2 vouchers)...................       33.31
                "Repairs (8 vouchers).....................      142.80
                "Annuities to James K. Wolfenden for
                  Twelve months, August 1, 1929, to August
                  1, 1930, at $25.00 per month (4
                  vouchers) ..............................      300.00
                "Annuities to Nell Wolfenden for 12
                  months, September 12, 1929, to September
                  12, 1930, at $50.00 per month (12
                  vouchers) ..............................      600.00
                "Allowance to Glen Wolfenden for twelve
                  months, September 12, 1929, to September
                  12, 1930, One month at $50.00 and
                  eleven months at $100.00 (12 vouchers)      1,150.00
                "Assets on hand
                "Cash in Bank of Neosho...................    8,095.23
                "U. S. Bonds at par.......................      100.00
                "50 shares of stock, Bank of Neosho at par    5,000.00
                                                            __________
                                                            $15,576.36
                

On October 31, 1930, exceptions to said report were filed. A hearing was had upon said exceptions on June 18, 1931, and on July 8, 1931, the court overruled the exceptions and approved the report of the trustee. The exceptors have appealed to this court.

The exceptions which were filed are very lengthy, and we do not set them out in full, but we do quote the first paragraph thereof which names the exceptors and which is as follows: "Now on this 31st day of October 1930, on the 14th judicial day of the regular October, 1930, term of the above court comes the Congregational Building Society, The American Missionary Association, The Congregational Home Missionary Association, The Congregational Board of Ministerial Relief and the American Board of Commissioners for Foreign Missions, and file this their exceptions to the report filed in the above matter by O. W. Epperson, trustee, at this present term of court, for the following reasons."

In appellants' brief they succinctly state the substance of their exceptions in the following language:

"1. The arbitrary increase by the trustee of Glen's support from $50.00 per month to $100.00 per month from and after October 12, 1929, till the settlement of 1930 was filed,

"(a) Without court order or other justification.

"(b) Such increase is not necessary nor permitted by the terms of the will or the decree.

"(c) Such increase is more than required for the actual used necessities of Glen Wolfenden in view of his health and ability to earn a livelihood.

"(d) That he has ability to earn an income sufficient for his reasonable comfort without any payment, but exceptors have not previously objected, but have consented to the payment of $50.00 per month.

"(e) Such increase will more than consume the income and will reduce, squander, and waste the estate so that it will not be available for his increased needs such as medical aid and such bills in the event of such need, or remain to accomplish the true benign and charitable purposes and intent of the testatrix.

"And exceptors also ask that trustee may be ordered to reduce said payments to $50.00 per month.

"2. The propriety of continuing the investments of cash assets held in trust in time deposits at low rates of interest when higher rates of seven per cent or eight per cent on safe investments are available. As a result the estate has lost about $300.00 per year or about $3,000.00 for the true accounting of which the trustee and his sureties should be held responsible."

The two exceptions as set out above are the only questions before us. First, Did the trustee act arbitrarily and in violation of his trust in increasing the payments to Glen Wolfenden, when in October, 1929, he increased the monthly payments from $50 per month to $100?

The power of the trustee came primarily from the will of Frances A. Wolfenden. The parts of the will that have any bearing whatever on the payments to Glen Wolfenden are as follows:

"(3) Unto Mrs. Nell Wolfenden, wife of my son Glen Wolfenden who is my only child, for her sole, separate and exclusive use and benefit free from supervision, right control, claim of Curtesy or dower of husband or other person in the confidence on my part that she will use the same in all proper ways, I do give bequeath and devise the following described property, viz: My household and kitchen furniture and good, inclusive of hangings and floor coverings; also my residence property now occupied by my said son Glen Wolfenden and his family, on fractional Lot Four (4) in Neosho proper bounded, beginning 95 feet west from the South East Corner of said lot running West 100 feet, then North 158 feet, then East 100 feet, then South to the beginning point; Also the sum of Fifty dollars cash month from other sources; Also Three thousand dollars additional in one sum.

"(4) Subject to the contingencies, conditions, limitations and restrictions below mentioned, I give and devise unto my grandson James K. Wolfenden, son of my said son Glen, twenty-five dollars each month out of accruing rents or interest or money from other sources; Also the remainder in fee, of in and to, my brick drug store building and its appurtenances, as located on the East half of Lot (1) in Block Four (4), in McCords Addition to the town (now city) of Neosho, Missouri, on the North side of Spring Street, inclusive of the whole of my part of said lot where said building is situated after he shall arrive at the age of thirty-five years and not before.

"(5) The said last above mentioned brick building and ground, with appurtenances, in said Block Four (4) now used as a drug store are hereby first given and devised unto the executor of this will and to his successor in trust, subject to certain contingencies below mentioned, to be by him and then held, rented let or leased out, to the best advantage, and for the best rentals out of which all needful repairs and taxes are to be made and paid, for and during the time that shall intervene between the date of my death and the date of my said grandson James K. Wolfenden shall become thirty-five (35) years of age, during all which time and term, rentals, issues and profits of the said property shall be properly collected deposited in bank and drawn out directly for the use and benefit of the said James K. Wolfenden, but only by the executor who shall so apply the said fund, without the intervention of any person than the Probate Court under whose supervision he shall act, in careful and fatherly way with voluntary counsel and advice to the said beneficiary for his advancement in life, until he shall arrive at the age of thirty-five (35) years, unless he shall die in the meantime.

"(6) But the devises and estate mentioned in the last proceeding paragraphs four (4) and five (5) are expressly...