Lich v. Lich

• Decision Date: 06 June 1911
• Citation: 138 S.W. 558,158 Mo. App. 400
• Parties: LICH et al. v. LICH.
• Court: Missouri Court of Appeals

138 S.W. 558

158 Mo. A. 400

LICH et al. v. LICH.

St. Louis Court of Appeals. Missouri.

June 6, 1911.

1. WILLS (§ 698)—CONSTRUCTION—JURISDICTION.

Circuit courts, as courts of equity, have jurisdiction to construe doubtful provisions of a will on application by a trustee named in it, by an executor or administrator acting under it, or by a party interested.

2. WILLS (§ 456)—CONSTRUCTION—PARTICULAR WORDS.

Testator is presumed to have used particular words according to their common and primary acceptation, unless it appears from the context that he has used them in a different sense.

3. WILLS (§ 497) — BENEFICIARIES — "CHILDREN."

The term "children," in designating testamentary beneficiaries, does not include grandchildren or other than immediate descendants in the first degree of the person named as ancestor, in the absence of a showing of contrary intent.

4. DESCENT AND DISTRIBUTION (§ 9) — PERSONALTY—NATURE OF ESTATE.

Estates in personal property, so far as the nature of the property permits, are governed by the same rules as similar estates in real property.

5. DESCENT AND DISTRIBUTION (§ 8)—EQUITABLE ESTATES—LAWS GOVERNING.

Equitable estates are governed by the same rules of descent as govern the duration of legal estates.

6. TRUSTS (§ 135)—NATURE—ACTIVE OR PASSIVE.

A will recited that testator had "four children, two sons and two daughters," and gave all his estate in trust to hold and manage the same, to invest the personalty and lease the land, collecting the income of both, with power to incur any expense deemed necessary and proper in the management of the estate, and to divide the net income equally among the four children. The will provided that the trust should cease on the death of the last surviving child, and that the estate should then be divided among the descendants of the four children per stirpes. The trustees were given power of sale. Held, that the trust is active, and not passive.

7. DESCENT AND DISTRIBUTION (§ 8)—WILLS (§ 682)—CONSTRUCTION—NATURE OF INTERESTS GIVEN.

Each of the four children took a vested interest in one-fourth of the income during the life of the trust, the will presenting no case for application of the doctrine of cross-executory limitations; and, on death of one of them intestate, the fourth of the income which had vested in that child descends as personalty of his estate.

8. WILLS (§ 498)—BENEFICIARIES—"DESCENDANTS."

The term "descendants," as used in a will, includes all who proceed from the body of one named, as children, grandchildren, and great grandchildren.

9. WILLS (§ 687)—CONSTRUCTION—CONTINGENT REMAINDER.

Provision in a will creating a trust that, on decease of testator's last surviving child, the estate shall be divided among the children's descendants creates a contingent remainder.

10. WILLS (§ 706)—CONSTRUCTION—REVIEW.

The whole will having been brought up on appeal for construction, it must be construed irrespective of the action of the trial court, and no agreement between the parties can conclude the appellate court.

11. DESCENT AND DISTRIBUTION (§ 65)—WIDOW'S INTEREST—ELECTION—NECESSITY.

The right of the widow of one who left children, under Rev. St. 1909, § 349, to take a child's part is so absolute that she takes it even without election.

12. WILLS (§ 687)—CONSTRUCTION—SCOPE OF DETERMINATION.

In construing a will creating an indeterminate trust, with provision for distribution among the descendants of testator's children on death of his last surviving child, it was error to find that at termination of the trust the daughter of a deceased child would be seised of a particular interest; direction as to what shall be done when the time for ultimate distribution arrives being improper.

Appeal from St. Louis Circuit Court; Eugene McQuillan, Judge.

Action by Elizabeth Lich, trustee under George Lich, Sr's., will, and others, against Angela M. Lich. From the judgment, plaintiffs appeal. Reversed and remanded.

H. A. and C. R. Hamilton, for appellants. Otto F. Karbe and Jeffries & Corum, for respondent.

REYNOLDS, P. J.

George Lich, Sr., died testate in St. Louis, on the 2nd of December, 1891, leaving surviving him four children, namely, Elizabeth, Charles, George, Jr., and Mary, the wife of one Eugene G. Weidner. His last will and testament, which was duly admitted to probate, after providing for the payment of his just debts and funeral expenses, is as follows:

"Second: I have four children, two sons and two daughters, namely, George Lich, Jr., Charles Lich, Elizabeth Lich and Mary Weidner, the wife of Eugene G. Weidner. My daughter, Mary Weidner, has received twenty-five hundred dollars of me, which is to be treated as an advancement, and which sum is to be deducted from her share of my estate, as hereinafter provided.

"Third: I give, devise and bequeath all my estate of whatever kind and wheresoever situate to my son, George Lich, Jr., and my daughter, Elizabeth Lich, absolutely and in fee. In trust, however, for the following purposes: To hold and manage the same, to invest the personalty and let and lease the realty and collect the income of both, with power to incur all expenses, that they may deem necessary and proper in the management and for preservation of the estate, and with the consent of the rest of my children to improve any part of the property, and they shall semiannually account for, and divide between themselves and my other children, the net income of all my property held under this trust, giving each of them one-fourth part thereof; provided always that my daughter, Mary Weidner, shall not participate in such income until each of my other children shall have received twenty-five hundred dollars from my estate. If so disposed, said trustees may charge reasonable compensation for their services in executing this trust and they shall incur no liability except for the faithful performance of this trust: This trust shall continue so long as any of my children are alive, and upon the death of the last survivor it shall cease, and the estate shall then be divided among the descendants of my said four children, said descendants taking per stirpes and not per capita. It is my wish and purpose that my estate shall be kept together so long as the trust herein created shall continue, but if any time it shall appear to my said trustees to be indispensably necessary and at the same time advantageous to the trust fund to sell any part of my real estate, then said trustees are hereby empowered to sell the same provided that all of my remaining children, then living, shall consent thereto and join in the deed; and the proceeds of such sale or sales shall thereafter be held and managed by said trustees under this trust. All property that my daughters may receive under this will shall be for their sole and separate use, free from any marital rights of their husbands, if married.

"Fourth: I hereby nominate and appoint my son George Lich, Jr., and my daughter, Elizabeth Lich, executors of this will and request that they shall not be required to give any bond as such.

"For the aforesaid advancement of twenty-five hundred dollars to my daughter, Mary Weidner, I hold the note of her husband, Eugene G. Weidner, payable to my order. As soon as the other three children shall have each received twenty-five hundred dollars from the income of my estate as above provided, the said Mary Weidner, not having in the meantime participated in such income, the note of said Eugene G. Weidner shall be deemed to have been paid by the said Mary Weidner and shall be returned to her."

Administration having been closed upon the estate, the trustees named took it over and were jointly executing the trust when one of them, George Lich, Jr., died. This trustee who died was also a son of the testator and one of the beneficiaries named in the will. He died on the 30th of June, 1908, leaving surviving him his widow, Mrs. Sophia Lich, and an only child, Angela M. Lich, a minor, here represented by her mother, who has been appointed her guardian. From the time of the death of George Lich, Jr., the trust has been in the survivor, Elizabeth Lich, a daughter of the testator. On the death of George Lich, Jr., it was claimed for his daughter Angela and her mother that they were entitled to a fourth interest in the net income of the estate before then going to the father and husband, and they demanded that it be paid over to them. The three surviving children of the testator denied this, claiming that on the death of George, Jr., these three surviving "children" of George Lich, Sr., were entitled to the whole of the interest in the net income of the estate. The trustee, Elizabeth, desiring to protect herself as surviving trustee, joined therein by her surviving brother and sister and also suing in her own right as a child of George Lich, Sr., brought suit in the circuit court praying for an order, judgment and decree of that court construing the third clause of the will, and for a decree adjudging the rights of plaintiffs and defendant Angela in and to the net income of the trust estate and for instructions and directions to the trustee for her future guidance and for the protection of the interests of plaintiffs and of defendants. Angela, the minor daughter of George, Jr., answered by guardian. Her mother, Sophia, as the widow of George Lich, Jr., by leave of court, intervened and answered. Each of these plead that they are together entitled to the one-fourth interest in the net income of the estate, Mrs. Sophia Lich claiming that as widow she was entitled to a child's part, that is one-half of the one-fourth. There was no controversy about the relations of the parties. The only evidence submitted to the circuit court, outside of the admissions of the pleadings and the character of the parties to the action, was the will itself, it not being controverted that the $2,500, which had been charged as an advance against the share of Mrs. Mary Weidner, has...