Lane v. Garrison

• Decision Date: 08 April 1922
• Citation: 239 S.W. 813,293 Mo. 530
• Parties: MARY B. LANE, REGINALD E. GARRISON and CORNELIA GARRISON TURNER, Appellants, v. ARTHUR C. GARRISON, Trustee, CLARK GARRISON and STATE NATIONAL BANK
• Court: Missouri Supreme Court

239 S.W. 813

293 Mo. 530

MARY B. LANE, REGINALD E. GARRISON and CORNELIA GARRISON TURNER, Appellants, v. ARTHUR C. GARRISON, Trustee, CLARK GARRISON and STATE NATIONAL BANK

Supreme Court of Missouri, First Division

April 8, 1922

Appeal from St. Louis City Circuit Court. -- Hon. Victor H Falkenhainer, Judge.

Affirmed.

Paul Bakewell, Jr., for appellant.

(1) An equitable estate for life may be given with a limitation over, to a third party, on the life tenant's attempt to alienate or become bankrupt. In re Luscombe's Will, 109 Wis. 186; Lampert v. Haydel, 96 Mo 450; Nichols v. Eaton, 91 U.S. 722; Louisville v. Cook, 135 Ky. 261; Bull v. Natl. Bank, 90 Ky. 452; Bottom v. Fultz, 124 Ky. 302; Bromhall v. Ferriss, 14 N.Y. 41; Camp v. Cleary, 76 Va 140; In the Matter of Porter, 3 Ch. 481; Brandon v. Robinson, 18 Ves. 429; 2 Beach on Trustees, p. 1301, sec. 569; Gray, Restraints on Alienation, sec. 78, p. 51. (2) An attempt to assign was as effective to terminate the interest of Clark Garrison, and to cause the next succeeding estate to arise, as an actual assignment. In re Luscombe's Will, 109 Wis. 186; In Matter of Porter, Coulson v. Copper, 3 Ch. 487; Adams v. Adams, I Ch. 376; Martin v. Mangham, 14 Sim. 229; Oldham v. Oldham, L. R. 3 Eq. 404. (3) On the termination of Clark Garrison's interest, the next succeeding estate arose. Walsh v. Matthews, 11 Mo. 134; Dumey v. Schoeffler, 24 Mo. 170; Gilker v. Brown, 47 Mo. 107; Hoselton v. Hoselton, 166 Mo. 188; Hook v. Dyer, 47 Mo. 218; Conger v. Lowe, 124 Ind. 369; Overton v. Lea, 108 Tenn. 555. (4) Where there is no member of the class in existence capable of taking at the time of the happening of the contingency upon which the gift is to take effect, the gift to the class fails, and there being no issue of Clark Garrison in existence at the termination of his estate, the estate of plaintiffs at once arose. Clayton v. Robards, 54 Mo.App. 543; Lehnhoff v. Theine, 184 Mo. 356; Smith v. Smith, 141 N.Y. 29; Wilson v. Denig, 166 Pa. St. 29; Rood on Wills, sec. 668; 40 Cyc. 1483. (5) The words in the will creating the interest subsequent to the interest of Clark Garrison, refer to the termination of his interest as the time when the succeeding estate arises. Dickerson v. Dickerson, 211 Mo. 495; De Lassus v. Gatewood, 71 Mo. 381. (6) Under the will, on the termination of Clark Garrison's interest, the estate was to go and vest in the alternative. That is, to his issue, if any, and if none, to these plaintiffs. Eckle v. Ryland, 256 Mo. 445. (7) Under the will, as well as under the law, when the interest of the plaintiffs arose, they were entitled to a distribution to them of the entire estate. Donaldson v. Allen, 182 Mo. 649; Speed v. Terminal Ry. Co., 163 Mo. 129; Rector v. Dalby, 98 Mo.App. 189; Blumenthal v. Blumenthal, 251 Mo. 703; Carter v. Long, 181 Mo. 710; 2 Perry on Trusts (6 Ed.) sec. 520. (8) The decree of the trial court made the testator's will for him, but did not construe it. This is not permitted. Freeman v. Maxwell, 262 Mo. 23; Dameron v. Lanyon, 234 Mo. 646. (9) The construction which the trial court placed upon this provision of the will, by its decree, violates the rule against perpetuities. Lockridge v. Mace, 109 Mo. 167; Shepperd v. Fisher, 206 Mo. 239; 1 Washburn, Real Property (4 Ed.) p. 110, sec. 57.

T. Percy Carr for respondent.

(1) The trustee is the representative of the possible unborn issue of Clark Garrison, and is bound to protect their interests in this suit. Downey v. Seib, 8 L. R. A. (N. S.) 49; Boal v. Wood, 42 L. R. A. (N. S.) 439; In re Luscombe's Will, 109 Wis. 186; Green v. Grant, 143 Ill. 61, 18 L. R. A. 381; Perkins v. Land & Imp. Co., 112 Wis. 509; Franklin Sav. Bank v. Taylor, 4 C. C. A. 55, 53 F. 854. (2) Under a proper interpretation of the will, the rights of said unborn issue are not forfeited on account of their father's violation of the condition against anticipation, which condition is purely personal as to him. In re Bedson's Trust, 28 Ch. Div., 523; Blackman v. Fysh, 3 Ch. 209; King v. Grant, 55 Conn. 170; Rockwell v. Swift, 59 Conn. 289; In re White's Estate, 163 Pa. 401. The interest of said unborn issue will not be held to be one on condition where any other interpretation is possible. Collier's Will Case, 40 Mo. 287; Deacon v. Trust Co., 271 Mo. 686; Kerens v. Trust Co., 283 Mo. 616.

SMALL, C. Ragland, C., concurs; Brown, C., absent.

OPINION

SMALL, C. --

Appeal from the Circuit Court of the City of St. Louis. This suit involves the construction of the seventh clause of the will of Daniel E. Garrison, who died in July, 1916. The will was dated May 22, 1916, and was duly probated. After making certain specific bequests, disposing of his household goods, jewelry, pictures and effects of personal use, and $ 15,000 in cash to be paid three several legatees, by said clause 7 the testator disposed of the rest, residue and remainder of his estate, real, personal and mixed, by dividing it into five equal shares, giving one share to Mary B. Garrison, the widow of his deceased son, Cornelius K. Garrison; one, to his grandson Reginald E. Garrison, and a third share to his granddaughter, Cornelia Garrison Turner. The fourth and fifth shares he disposed of as follows:

"The fourth share I give, devise and bequeath to my son, Arthur C. Garrison, to be by him held in trust for the following purposes:

"To pay to my grandson, Daniel E. Garrison, Third, the income therefrom, not exceeding one thousand dollars per annum, divided into monthly, quarterly or semi-annual installments, at the discretion of said trustee, for and during the natural life of said Daniel E. Garrison, Third. If my said grandson, Daniel E. Garrison, Third, shall die without lawful issue him surviving, said entire trust fund remaining on hand at the time of this death, together with all accumulations thereon, shall be distributed, one-half to my son, Arthur C. Garrison, and the other one-half, to Mary B. Garrison, Reginald E. Garrison, Cornelia Garrison Turner and Clark Garrison, share and share alike. In case my said grandson, Daniel E. Garrison, Third, shall, however, leave lawful issue him surviving, then, my said son, Arthur C. Garrison, shall continue to hold said fund, as trustee, for the issue of my said grandson Daniel E. Garrison, Third, until they shall severally attain their legal majority. In case, however, of the entire failure of the issue of my said grandson, Daniel E. Garrison, Third, without any of such issue having attained their majority, as aforesaid, then I direct that the said entire trust fund remaining, shall, upon such failure of issue, be divided between my son, Arthur C. Garrison, and the widow and children of my deceased son, Cornelius K. Garrison, in the same proportions as above provided, in case of the death of my said grandson, Daniel E. Garrison, Third, without issue.

"The fifth share I give, devise and bequeath to my son, Arthur C. Garrison, to be by him held and administered in trust for my grandson, Clark Garrison, upon terms and conditions identical with the trust hereinbefore created for Daniel E. Garrison, Third, except, that, in case of the death of the said Clark Garrison, without issue him surviving, or in case of the failure of the issue of said Clark Garrison, before any of them shall attain their majority, then the trust fund on hand shall be distributed to said Mary B. Garrison, Reginald E. Garrison and Cornelia Garrison Turner, share and share alike. I direct that said trustee shall have full power, authority and discretion to manage and control the said trust funds as he shall see fit, with absolute discretion either to retain any investments which shall have been made by me, or to change or reinvest such funds, or any part thereof, from time to time, as he shall deem proper, and that no bond shall be required of said trustee, under either of said trusts.

"I further direct that the above provisions in favor of my said grandsons, Clark Garrison and Daniel E. Garrison, Third, shall not be in any manner subject to either anticipation or alienation or assignment, voluntary or involuntary, on the part of either of said beneficiaries, nor shall be same be in any way liable or subject to the payment of their debts; but, in case of any such assignment or attempt to make such assignment, voluntary or involuntary, or to subject said fund to the payment of any such debts of either of such beneficiaries, either as to the income or principal of such fund, in whole or in part, such provisions in favor of either of said beneficiaries shall cease and lapse as to him, and the beneficiary interest in said fund shall pass to such other persons as would take same in case of his decease, as above provided."

By his will, testator appointed his son, Arthur C. Garrison executor without bond. The estate which passed by the residuary clause was of the value of about $ 300,000, or each share $ 60,000. At the time of his grandfather's death, Clark Garrison was single, but he was married after he came back from the World War, but had no children up to the time of the trial, October 26, 1920. November 19, 1919, he borrowed $ 500 from the defendant State National Bank of St. Louis, for which he executed his note due on demand, and a separate document assigning and transferring to said bank as security for said loan all his right to the interest in the said trust fund held by Arthur C. Garrison, as trustee for him under the will of his grandfather. His mother, Mary B. Lane (formerly Mary B. Garrison), mentioned in the seventh clause of said will, by an instrument in writing dated November 17, 1919, also guaranteed the payment of said note to the bank. Clark Garrison was not a witness in the case, but his mother, Mrs. Lane, was, and she testified...