Loud v. St. Louis Union Trust Company

• Decision Date: 06 April 1923
• Citation: 249 S.W. 629,298 Mo. 148
• Parties: IDA MARY LOUD, Appellant, v. ST. LOUIS UNION TRUST COMPANY et al
• Court: Missouri Supreme Court

249 S.W. 629

298 Mo. 148

IDA MARY LOUD, Appellant, v. ST. LOUIS UNION TRUST COMPANY et al

Supreme Court of Missouri, First Division

April 6, 1923

Appeal from St. Louis City Circuit Court. -- Hon. John W. Calhoun Judge.

Reversed and remanded (with directions).

Jourdan Rassieur & Pierce and John M. Goodwin for appellant.

(1) No interest is good unless it must vest, if at all, not later than twenty-one years and ten months after some life or lives in being at the creation of the interest. Gray on Perpetuities (3 Ed.) sec. 201; Koehler v. Rowland, 205 S.W. 220; 30 Cyc. 1467; 21 R. C. L. 282, sec. 2. (a) The rule governs both legal and equitable interests. Gray Perpetuities (3 Ed.) sec. 202. (b) For the purposes of applying the rule a woman is considered capable of child-bearing so long as she lives. 30 Cyc. 1483, note 90; Gray on Perpetuities (3 Ed.) sec. 215; Rozier v. Graham, 146 Mo. 352; Flora v. Anderson, 67 F. 182; In re Dawson, 39 Ch. Div. 155; List v. Rodney, 83 Pa. St. 483. (c) In applying the rule regard is had to possible and not to probable or actual events. 22 Am. & Eng. Ency. Law, p. 707; Shepperd v. Fisher, 206 Mo. 239; Gray on Perpetuities (3 Ed.) sec. 214; 30 Cyc. 1483; Nightingale v. Burrell, 32 Mass. 104 (Pick.) ; Church v. Grant, 69 Mass. (3 Gray) 142; Sears v. Putnam, 102 Mass. 5; In re Ackerman's Will, 74 N.Y.S. 477; Donahue v. McNichol, 61 Pa. (11 P. F. Smith) 73. (d) A will must be construed as if the rule did not exist, and then so construed, the rule must be remorselessly applied. Gray on Perpetuities (3 Ed.) sec. 629; 30 Cyc. 1498; 21 R. C. L. p. 294, sec. 18. (e) This court has had frequent occasion to consider and apply the rule against perpetuities. In many instances wills and conveyances have been invalidated as being in violation of it, while in others the full vigor of the rule has been acknowledged, but no violation was found. Chism's Adm. v. Williams, 29 Mo. 288; Vaughn v. Guy, 17 Mo. 429; Riley v. Jaeger, 189 S.W. 1168; Bradford v. Blossom, 207 Mo. 177; Shepperd v. Fisher, 206 Mo. 208; Lockridge v. Mace, 109 Mo. 162; Gates v. Seibert, 157 Mo. 254; Deacon v. Trust Co., 271 Mo. 669; State ex rel. v. Hains, 73 Mo. 320; Naylor v. Godman, 109 Mo. 543; Walters v. Dickman, 202 S.W. 109; Koehler v. Rowland, 205 S.W. 217. (2) The interest of the Loud children under the Blanke will are not vested upon the death of testatrix. (a) The will itself specifically provides that no right or title shall vest in any beneficiary until the money or property has been actually received by him or her. (b) It is the duty of the court to give due regard to the directions of the testatrix. R. S. 1919, sec. 555. (c) In the following instances where a testator or grantor has specifically provided that right or title shall not vest until a particular time, the interests have been held contingent until that time, and where the question of remoteness arose, such instruments have been held void as being in violation of the rule against perpetuities. Buxton v. Kroeger, 219 Mo. 244; Eckle v. Ryland, 256 Mo. 424; Emison v. Whittlesey, 55 Mo. 254; Bennett v. Bennett, 217 Ill. 434; Battie-Wightson v. Thomas, 2 L. R. Ch. Div. 95; Rowland v. Tawney, 26 Beavan, 67; In re Morse's Settlement, 21 Beavan, 174; Comport v. Austin, 12 Simons, 218; Griffin v. Blunt, 4 Beavan, 248. (d) Mrs. Blanke created spendthrift trusts and to hold that interest in the Loud children vested in the corpus renders the effort to create spend-thrift trusts a nullity. Kessner v. Phillips, 189 Mo. 515. (e) When the Blanke will is analyzed in detail it will be found that no direct gift is made to the Loud children in the corpus until they each attain the age of thirty-five and forty years. (3) The following cases, upon examination, demonstrate that the interests in the Loud children did not vest upon the death of testatrix: Deacon v. Trust Co., 271 Mo. 669; O'Hara v. Johnston, 113 N. E. (Ill.) 127; Leake v. Robinson, 2 Meriv. 363, 35 Eng. Reprint, 975; Kates v. Walker, 82 A. (N. J.) 301; Schuknecht v. Schultz, 212 Ill. 43; Pitzel v. Schneider, 216 Ill. 87; In re Kountz's Estate, 62 A. 1103; Hewitt v. Green, 77 A. (N. J.) 25; Taylor v. Crosson, 98 A. 375; Geisler v. Trust Co., 101 A. 797; Dime Savings & Trust Co. v. Watson, 254 Ill. 419; Gates v. Seibert, 157 Mo. 254, 268; Bradford v. Blossom, 207 Mo. 177. (4) Even if the interests in the Loud children be vested yet they are subject to being divested upon their death prior to receiving their share, at which time such interest may revest beyond the limits of the rule. 21 R. C. L. pp. 298, 299, sec. 22; Gray on Prepetuities (3 Ed.) secs. 114, 317; Starr v. Methodist Church, 75 A. 595; Sears v. Putnam, 102 Mass. 5; Shepperd v. Fisher, 206 Mo. 239. (5) The gift to a class, upon each of them attaining a certain age, where at the death of the testatrix no member of that class is of the prescribed age and it is possible that other persons may be born into the class, is barred for remoteness. 30 Cyc. 1485-1490; Gray on Perpetuities (3 Ed.) secs. 369, 372, 376. (6) Appellant is not estopped from bringing this action. (a) By her acceptance of a portion of the income, which is a small part of all the property belonging to her, she has done nothing to the prejudice of the respondent Trust Company. (b) The rule of perpetuities is a mandate of the law, which declares void any interest created in contravention thereof. It is, therefore, impossible for parties, by agreement or conduct, to make legal that which is void. In re Schaefer's Estate, 180 N.Y.S. 638; Carrier v. Carrier, 123 N. E. (N. Y.) 135. (c) Where a beneficiary has accepted benefits under a will he is not thereby estopped from insisting upon a due interpretation of the instrument and that its provisions violate the rule against perpetuities. In re Walkerly's Estate, 41 P. 772; Schuknecht v. Schultz, 212 Ill. 43. (7) Upon the effect of the decree construing paragraph five of item fourth (c) in the Archibald Loud case. (a) The conduct of appellant in that case can only mean that she consented to a payment to her son out of this fund, which was all her own. (b) The question of whether Items Fourth, Fifth, Sixth and Seventh of the Blanke will violated the rule against perpetuities was not determined in the above action, and could not have been determined by reason of the lack of the necessary parties. (c) The law is well settled that a judgment or decree in an action is only conclusive and operates as an estoppel as to the issue actually litigated and determined. 15 R. C. L. p. 973, sec. 450. (d) It has been ruled that where the subsequent action is upon a different claim, a judgment in a former case is only conclusive and only bars those issues which were actually tried. Garland v. Smith, 164 Mo. 222; LaRue v. Kempf, 171 S.W. 592. (e) Pleadings are the foundation for a judgment, and the court has no jurisdiction to determine the interests of parties to a legal controversy where such a determination of their interests is not embraced within the pleadings. Charles v. White, 214 Mo. 187. (8) Where portions of a will are void as being in contravention of the rule against perpetuities and these portions relate to the same property and constitute a part of one general plan of disposition, the valid as well as the invalid provisions will fall. Lockridge v. Mace, 109 Mo. 162; Shepperd v. Fisher, 206 Mo. 208. (9) Item Seventh relates to the same property and is part of the plan creating the trust, and even though standing alone it be valid, it must fall with the invalid provisions. Lockridge v. Mace, 109 Mo. 162; Shepperd v. Fisher, 206 Mo. 208. (10) Since the trust created by the Blanke will is void, the respondent Trust Company is not entitled to any allowance for attorney's fees and costs incurred in this case in its efforts to maintain the integrity of a void instrument. Bailey v. Buffalo Loan Co., 108 N. E. (N. Y.) 561. Appellant should not be called upon to pay the Trust Company's expenses in defending a void instrument, which it prepared itself.

Bryan, Williams & Cave for respondent.

(1) It is the duty of courts to construe wills so as to carry out as far as possible the intention of the testatrix, rather than to defeat such intention, particularly when the rule that threatens is harsh in its application. Gray on Perpetuities (3 Ed.) secs. 632, 633; James Estate, 245 Pa. St. 127. (2) Where there is a valid limitation, and then in a later part of the instrument there is a clause which modifies the limitation already made, which modification might make it too remote, the modifying clause will be rejected altogether. 30 Cyc. 1499; Gray on Perpetuities (3 Ed.) sec. 233. (3) The rule against perpetuities has no application to vested interests or to interests which will vest within the period of a life and lives in being and twenty-one years thereafter. Gray on Perpetuities (3 Ed.) secs. 205, 206, 232. (4) The law favors the vesting of interests and estates, and in the absence of words expressing a clear intent to the contrary an estate will be construed as vested rather than contingent -- a vested interest rather than an executory or future interest -- and, consistently with the testator's intention, the estate will be construed to vest at the earliest possible time, so that, unless otherwise clearly expressed, it will vest immediately upon the testator's death. Deacon v. Trust Co., 271 Mo. 669; Collier's Will, 40 Mo. 287; Jones v. Waters, 17 Mo. 587. (5) The interest of each of the grandchildren who are named in the will was a vested interest in each of them immediately upon the death of the testatrix. Deacon v. Trust Co., 271 Mo. 669; Collier's Will, 40 Mo. 287; Tindall v. Tindall, 167 Mo. 218; Rodney v. Landau, 104 Mo. 257; Chew v. Keller, 100 Mo. 362; Waddell v. Waddell, 99 Mo. 343. (a)...