Lang v. Taussig, 38752.

• Decision Date: 05 June 1944
• Docket Number: No. 38752.,38752.
• Citation: 180 S.W.2d 698
• Parties: LANG et al. v. TAUSSIG et al.
• Court: Missouri Supreme Court

180 S.W.2d 698

LANG et al. v. TAUSSIG et al.

No. 38752.

Supreme Court of Missouri, Division No. 1.

June 5, 1944.

Appeal from St. Louis, Circuit Court, Division No. 3; Edward M. Ruddy, Judge.

Suit by Benjamin S. Lang and another, as trustees under the will of Hubert P. Taussig, deceased, against Amadee J. Taussig, the First Unitarian Church of St. Louis, the Washington University, and others, to construe deceased's will. From a decree construing the will, defendants church and university appeal.

Reversed and remanded with directions.

J. Hugo Grimm, of St. Louis, for appellant First Unitarian Church of St. Louis.

Richard S. Bull, of St. Louis, for appellant Washington University.

Charles H. Luecking, of St. Louis, for defendants Amadee J. Taussig et al.

Bryan, Williams, Cave & McPheeters, of St. Louis, for respondents Benjamin S. Lang and St. Louis Union Trust Co., trustees.

VAN OSDOL, Commissioner.

Suit by Benjamin S. Lang and St. Louis Union Trust Company, trustees under the will of Hubert P. Taussig, deceased, to construe the will, particularly with reference to the trustees' duties relating to two $10,000 bequests, one each to The First Unitarian Church of St. Louis and The Washington University, defendants-appellants. The trial court decreed that it was the paramount intention of the testator to adequately provide for his children, and that the provision for appellants "is, therefore, not effective," being in conflict with testator's paramount intention; from the decree Church and University have perfected an appeal.

The testator died December 21, 1930. He was survived by his widow, Amanda J. Taussig, who died November 25, 1937; and three children, Amadee J. Taussig, defendant-respondent, Anna A. Taussig (now Stout), defendant-respondent, and Gladys T. Lang (wife of Benjamin S. Lang, plaintiff-respondent), defendant-respondent. At the time of the making of the will testator was possessed of 211 of the 500 shares of stock of Western Manufacturers Building Company, a corporation; other members of testator's family owned 118 shares of the stock. On May 25, 1928, the date of the making of the will, the owners of the 118 shares of stock by a "trustee agreement" entered into with Hubert P. Taussig, testator, vested their stock in him, as trustee (the better to negotiate the sale of it), he to hold the shares, including his own, so long as he should live, or until he should dispose of the shares, "and that after his death if said stock shall not have been disposed of by him it may be disposed of by his personal representatives, that is to say, the executor (St. Louis Union Trust Company was appointed executor by the will) or executors of his will, at any time within a period of ten (10) years from the date of the death of the survivor of the party of the first part (Hubert P. Taussig) and his wife, Amanda J. Taussig; and the party of the first part agrees that he will hold said certificates, and after his death his personal representatives will hold the same; that all the stock so deposited under this agreement, including his own shares, shall be disposed of for the same price per share, and for as high price as he or his personal representatives can obtain for the same * * *."

Including the 211 shares of stock of Building Company (appraised for State Inheritance Tax, September 11, 1931, at $71,107), testator died possessed of a net personal estate of the value of about $90,000; and of estates in real property of the value of about $16,000. Within three or four years before the making of the will an offer of $450,000 for the building, asset of Building Company, was refused, and the building produced a net income in excess of $25,000 in the year 1928.

By his will, Hubert P. Taussig made provision for the payment of his debts, probate expenses and inheritance taxes; provided a fund for the care of certain cemetery lots and, by paragraph 3d, devised and bequeathed all the rest and residue of his estate unto Benjamin S. Lang and St. Louis Union Trust Company (plaintiffs-respondents) as joint trustees to hold in trust for the uses and purposes and with the powers and duties as thereinafter expressed, "that is to say:

"(a) Said trustees shall have power at any time and from time to time to sell any property belonging to the trust estate for such consideration and upon such terms as they may believe to be to the advantage of the trust estate and those interested therein; * * * and for the purpose of making any distribution of the principal fund, to sell any property which in their opinion cannot be fairly distributed in kind, and for that purpose to place any value upon any property which they may think fair and just, which said valuation shall be final and binding upon all persons who may be interested in such distribution. They shall have further power to hold as investments, for such time or times as their judgment may dictate, any stocks held by me at the time of my death. * * *"

Provision was made by subparagraph (b), paragraph 3d, for payment by the trustees to testator's wife during her lifetime of such installments of the net income of the trust estate as might be found practicable and at the same time convenient to her. By subparagraph (c) provision was made, after the death of testator's wife, for the payment by the trustees of a monthly sum of $50 to testator's sister, Emma L. Taussig (who died March 8, 1932), so long as she should live, and a like sum monthly to testator's sister-in-law, Alice Jolivet (who died November 20, 1940), so long as she should live. Subparagraph (d) provided that, subject to the monthly payments provided in subparagraph (c), supra, and after the death of the widow, payment should be made by the trustees of equal shares of the net income accruing from the trust estate to the three children of testator, the payments to continue until the termination of the "trust as hereinafter set out." Subparagraph (e), and a material portion of subparagraph (f), of paragraph 3d, provided:

"(e) At the death of my wife, or when my daughter, Anna, shall have reached the age of forty years, or if she shall survive my wife and die before reaching said age, then at her death, whichever event shall last occur, the trustees shall distribute all the assets then comprising the trust estate, except the shares of the Western Manufacturers Building Company, in equal shares per stirpes, among my three children, Gladys T. Lang, Amadee J. Taussig and Anna A. Taussig, and the descendants of any of them who may have died leaving one or more descendants then living.

"The shares of stock of the Western Manufacturers Building Company are subject to the provisions of a trust agreement. If they shall have been sold by the trustee thereunder, the proceeds thereof shall be divided as provided in paragraph (e) hereof, as soon as the said proceeds shall have been received, not earlier than the time stipulated in said paragraph (e). If they shall not be sold pursuant to said trust agreement, they shall be distributed amongst my descendants as provided in said paragraph (e) as soon as practicable after they are free from the power of sale given by said trust agreement and after my said daughter, Anna, shall have reached the age of forty (40) years, after having reserved sufficient to yield enough to pay the annuities of those persons mentioned in paragraph (c) hereof still living.

"(f) If at the time of my death I shall have disposed of my shares of stock in said Western Manufacturers Building Company, or if I have not, then as soon as the trustees shall have disposed of them they shall distribute to the Trustees of the Church of the Unity in the City of St. Louis the sum of Ten Thousand Dollars ($10,000.00), and to the Washington University of said City the sum of Ten Thousand Dollars ($10,000.00), which last named amount shall be held by said University as a separate trust fund, and the income accruing from its investments shall be used in assisting needy students in its Engineering Department.

"After having paid said sums amounting to Twenty Thousand Dollars ($20,000.00), and after reserving a sufficient fund to enable them to pay the annuities provided for in paragraph (c) hereof out of the income therefrom when invested, the trustees shall distribute the remainder of the proceeds of the sale of said shares of stock among my children and their descendants as hereinabove set out * * *." Provision was also made in the subparagraph, in the event of the death of any child, for a partial trust to the use of the surviving consort of such child, if such consort were living at the time of distribution of the trust estate.

Other subparagraphs of paragraph 3d and the concluding paragraph 4th of the will appear not to be material to its construction.

(The First Unitarian Church of St. Louis, defendant-appellant, is successor to the interest of the Trustees of the Church of the Unity in the City of St. Louis, beneficiaries.)

The trial court adjudicated an issue adversely, in part, to Oscar Janssen, a defendant, personal representative of Alice Jolivet, deceased, from which adjudication that defendant perfected no appeal.

Other issues presented are (1) whether the trustees, plaintiffs-respondents, should hold the 211 shares of stock until November 25, 1947, 10 years after the death of Amanda J. Taussig, survivor (see excerpt of trust agreement quoted supra), if they are unable to dispose of the shares at a fair price before that date; (2) whether the payment of the bequests of $10,000 each to Church and University is limited to payment out of the proceeds of the sale of the 211 shares of stock and, if Church and University have any (no) interest in the assets other than the shares of stock for the satisfaction of their bequests, then what action should be taken at this time by the testamentary trustees in regard to the other assets of the trust estate, and also in regard to the 211 shares of stock; and (3)...