Lemp v. Lemp

• Decision Date: 02 March 1915
• Citation: 175 S.W. 618,264 Mo. 533
• Parties: MARION LEMP, A Minor, by IRENE VERDIN LANGAN, her Curatrix, Appellant, v. WILLIAM J. LEMP et al
• Court: Missouri Supreme Court

175 S.W. 618

264 Mo. 533

MARION LEMP, A Minor, by IRENE VERDIN LANGAN, her Curatrix, Appellant, v. WILLIAM J. LEMP et al

Supreme Court of Missouri, First Division

March 2, 1915

Appeal from St. Louis City Circuit Court. -- Hon. George C Hitchcock, Judge.

Affirmed.

Judson Green & Henry, Campbell Allison and William A. Gardner for appellant.

(1) The words in the third clause of the will of William J. Lemp are sufficient to create a trust in favor of the children and the grandchild therein mentioned. Murphy v. Carlin, 113 Mo. 112; Noe v. Kern, 93 Mo. 367; Bakert v Bakert, 86 Mo.App. 83; Schmucker's Estate v. Reel, 61 Mo. 596; Colton v. Colton, 127 U.S. 300; Bohon v. Barrett, 79 Ky. 383; Warner v. Bates, 98 Mass. 278; Knox v. Knox, 59 Wis. 172; Jarman on Wills, p. 680. As between husband and wife, in order to create a trust in favor of their children, language need not be so strong or so explicit as would be necessary between strangers. Noe v. Kern, 93 Mo. 367; Murphy v. Carlin, 113 Mo. 112; Warner v. Bates, 98 Mass. 280. (2) Every clause of the will must be given effect, if possible, and to this end, if need be, words may be supplied or omitted and sentences transposed. Cox v. Jones, 229 Mo. 62; Small v. Field, 102 Mo. 104. (a) The word "gift" means "gift of my property." (b) The word "here" is superfluous and without meaning, unless used in apposition to making the gift of my property in a different manner -- through their mother. (c) "Having perfect confidence" means "because I have perfect confidence." (d) "None such is hereby made" means "no request to do it is hereby made, because I know she will do it without any request on my part." (e) "That my wife will do" means "that my wife will do ([it] understood)," and referring to its antecedent, the word gift, it becomes clear that this means, make a gift of my property to my children. (f) "Best for them" means "in a manner best for them." The words "faith," "confidence" and "reliance" are peculiarly apt and forceful in creating trusts, if used in the connection in which the words "perfect confidence" are found in this will. Noe v. Kern, 93 Mo. 367; Warner v. Bates, 98 Mass. 274; Portsmouth v. Shackford, 46 N.H. 423; Cockrill v. Armstrong, 31 Ark. 580; Bull v. Bull, 8 Conn. 47; Harrison v. Harrison, 2 Gratt. 1, 44 Am. Dec. 365; Blanchard v. Chapman, 22 Ill.App. 341. (3) William J. Lemp clearly explains that his "perfect confidence" that his wife will give the property to his children in such manner as will be best for them, is the only reason he does not give it to them "here." He also clearly explains that the reason he does not ask his wife to do it here, is because she will do it "without any request on my part." The testator having, himself, fully explained that he did not give directly and did not request his wife to give, only because he knew his children would get it from his wife without a request, the court cannot presume that he did not give directly or ask his wife to give because he wanted to disinherit his children. Expressio unius exclusio alterius. Murphy v. Carlin, 113 Mo. 120; Small v. Field, 102 Mo. 129; Reinders v. Koppelman, 94 Mo. 343. (4) "The prevailing doctrine is that no particular form of expression is required in order to create a binding and valid trust. Words of recommendation, request, entreaty, wish, or expectation will impose a binding duty upon the devisee by way of trust, provided the testator has pointed out with sufficient clearness and certainty, both the subjectmatter and the object of the trust." Schmucker's Estate v. Reel, 61 Mo. 596; Noe v. Kern, 93 Mo. 370; Murphy v. Carlin, 113 Mo. 112; 1 Jarman on Wills, 680. Such words as "request," "entreat," "wish," "expect" or "hope" of themselves imply the possibility that the donee will do otherwise, and are not of themselves necessarily imperative. On the contrary, such words as "having perfect confidence," "full faith," "perfect reliance," etc., import the absence of the possibility in the mind of the testator that the donee will do otherwise, and are of themselves imperative, and when addressed by one spouse to the other, respecting their natural children, and especially when made a reason for the gift, are mandatory. (5) If the donor had "perfect confidence" his wife would do it, it was his will that she should do it. It was mandatory. In considering this question it is to be remembered that the devisee is the wife of the testator, between whom it is not expected that commands should be expressed in such forcible language as between strangers. Murphy v. Carlin, 112 Mo. 119; Noe v. Kern, 93 Mo. 373; Knox v. Knox, 59 Wis. 172; Erickson v. Wittard, 1 N.H. 217; 1 Jarman on Wills, 680. (6) The devise or gift of an absolute estate to Julia Lemp in the second clause is controlled and limited by the precatory words in the third clause which immediately follow, and Julia Lemp is thereby made a trustee of said estate for the benefit of the seven children and the grandchild, with the right to use, during her lifetime, such part of the income for her own support as may be necessary. Noe v. Kern, 93 Mo. 372; Murphy v. Carlin, 113 Mo. 112; Gibson v. Gibson, 239 Mo. 506. The absence of the words "heirs and assigns forever," in the granting clause of the will, leaves the character of the estate devised to be determined from the subsequent language. R. S. 1909, sec. 579. The character of the estate devised to Julia Lemp in the granting clause of the will in question is therefore clearly controlled and limited by the precatory words in the third clause, which immediately follow, and she is thereby made a trustee of said estate for the benefit of the seven children and the grandchild, with the right to use during her lifetime, such part of the income for her own enjoyment as may be necessary. Noe v. Kern, 93 Mo. 367; Murphy v. Carlin, 113 Mo. 112. (7) While discretion in the donee to give or not to give will usually defeat the trust, a discretion as to the manner of giving, will not. Murphy v. Carlin, 112 Mo. 113; Noe v. Kern, 93 Mo. 367; Colton v. Colton, 127 U.S. 300; Erickson v. Wittard, 1 N.H. 230. While Julia Lemp is given, by the language of the third clause, full discretion as to the manner of giving this property to the children and the grandchild mentioned, and as to the time of giving it, and as to the character of restrictions to be placed upon its use or enjoyment by them, or any of them, yet no discretion is given her to withhold at her caprice the entire share of any one child or grandchild therein mentioned. Noe v. Kern, 93 Mo. 367; Colton v. Colton, 127 U.S. 300; Murphy v. Carlin, 113 Mo. 112; Warner v. Bates, 98 Mass. 278. (8) If the wife had the legal right to disinherit her granddaughter she also had the right to disinherit the other children. If she had this right her husband must have intended to disinherit all his children by his will. But the law presumes the testator intended to provide for his children, unless the contrary clearly appears. Noe v. Kern, 93 Mo. 373; 1 Beach on Trusts, sec. 69, p. 123; Lins v. Lonhart, 127 Mo. 281; Gay v. Gillilan, 92 Mo. 264. (9) Clearly there is sufficient certainty in the objects of this trust, because the seven children and the grandchild are therein expressly named and were intended to share said estate equally upon the death of Julia Lemp. There is also sufficient certainty in the subject of said trust, for it is clear that it was intended to include the entire estate of the testator. Harrison v. Harrison, 2 Gratt. 1, 44 Am. Dec. 365; Warner v. Bates, 98 Mass. 278. (10) That Mrs. Julia Lemp herself clearly understood that she, in making her last will, was merely carrying into effect the will of her deceased husband, and recognized that the children were taking the property from him and not from her is indicated by the fact that in the second clause she provides that her executors must deduct from the share of each child the advancements made to them respectively by William J. Lemp in his lifetime; and also by the fact that she did not attempt to divert any part thereof to any charitable purpose or to make any gifts to servants or to any other person except the seven children; and she attempts to excuse herself for failing to comply with his wishes respecting this appellant, Marion Lemp, by falsely claiming that she had provided for her during her lifetime. And by the further fact that, in the exercise of the discretion given her she gave three of the children their shares outright and as to four of them restricted their enjoyment by trusteeships and otherwise as she deemed best for them, just as her husband had told her to do.

Charles F. Krone, Schnurmacher & Rassieur and Edward C. Crow for respondents.

(1) The will must be construed according to the intent of the testator, unless that intent runs counter to an inflexible rule of law or of public policy. "When the intent of its maker is discovered, the will is solved." Burnet v Burnet, 244 Mo. 497. (2) The will of William J. Lemp in clearest terms gives his wife an absolute estate. It is now sought to convert this into a life estate to the widow, with remainder in trust to children and grandchild, by the alleged precatory words succeeding the devise and bequest in fee. Without questioning the power of a testator to cut down or diminish a devise by subsequent clauses, in language as clear and unequivocal as that creating the gift, yet "it might truthfully be said that it is a settled rule of property in this State, that when the words of a will, at the beginning, clearly shows that it was the intention of the testator to devise the entire estate absolutely to the first donee, then that estate will not be cut down to a less estate, by subsequent ambiguous words found therein." Cornet v. Cornet, 248 Mo....