McDougal v. McDougal, 7286

• Decision Date: 02 May 1955
• Docket Number: No. 7286,7286
• Citation: 279 S.W.2d 731
• Parties: Ruth McDOUGAL, Plaintiff-Appellant, v. Oral J. McDOUGAL, Defendant-Respondent, Mississippi Valley Trust Company, a corporation, Garnishee.
• Court: Missouri Court of Appeals

Page 731

279 S.W.2d 731

Ruth McDOUGAL, Plaintiff-Appellant, v. Oral J. McDOUGAL, Defendant-Respondent, Mississippi Valley Trust Company, a corporation, Garnishee.

No. 7286.

Springfield Court of Appeals, Missouri.

May 2, 1955.

Motion for Rehearing or to Transfer Overruled June 6, 1955.

Phillips & Phillips, Poplar Bluff, for plaintiff-appellant.

Ted M. Henson, Poplar Bluff, Bradley & Noble, Kennett, for defendant-respondent.

STONE, Judge.

Plaintiff, Ruth McDougal, appeals from an order quashing an execution and garnishment issued on a judgment entered in the Circuit Court of Butler County, Missouri, which 'adopted and made the judgment of this court' two prior judgments entered in divorce actions in the Chancery Court of Clay County, Arkansas. In Case No. 3051 in said Chancery Court (hereinafter referred to as the first Arkansas case), the trial chancellor on November 28, 1942, dismissed the complaint of Oral J. McDougal and, on the cross-bill of Ruth McDougal, granted a decree of divorce to the wife, gave her care and custody of two minor children, directed the husband to pay attorneys' fees and $100 per month 'for the support of herself and said children,' and adjudged that the wife 'is entitled to and is * * * the owner of one-third of (Oral's) personal property absolutely and wheresoever situated including the personal property bequeathed to (Oral) under * * * the will of W. B. A. Barnes, deceased,' who died in Butler County, Missouri, on March 17, 1941. Upon appeal, the Supreme Court of Arkansas found that Oral 'had been guilty of conduct which fully sustained the * * * decree of divorce to the wife' but, 'because of her condonation of her husband's conduct,' that portion of the decree granting a divorce to Ruth and awarding her one-third of Oral's personal property was reversed. However, Oral was 'directed to contribute $100 per month to the support of his wife and children.' McDougal v. McDougal, 205 Ark. 945, 171 S.W.2d 942, 943. In Case No. 4049 (hereinafter referred to as the second Arkansas case), a decree of divorce was granted on June 7, 1945, to Oral on the pleaded statutory ground, not alleged in the first Arkansas case, of separation for three consecutive years without cohabitation. Section 34-1202, Arkansas Statutes 1947 (amended by Acts 1953, No. 161, in particulars not here material). ¹ The judgment in the second Arkansas case (hereinafter referred to as the second Arkansas judgment) further provided that 'property rights have been settled by the parties and under said property settlement agreement * Ruth McDougal is hereby vested with an undivided one-third interest in the personal property of the plaintiff (Oral) absolutely, and one-third of the real estate of which he is seized for her life.' ²

By the judgment entered in the instant Missouri case on December 29, 1945 (hereinafter referred to as the Missouri judgment), from which no appeal was taken the judgments in both Arkansas cases were 'adopted and made the judgment of this (Circuit) Court (of Butler County) as fully as if originally founded herein.' By execution and garnishment in the Missouri case during April, 1951, plaintiff (Ruth) sought to reach and obtain one-third of Oral's 'proportionate interest' of 3/57 in the residuary trust estate of W. B. A. Barnes, deceased, held by Mississippi Valley Trust Company of St. Louis, Missouri, as trustee. Following a hearing on defendant's (Oral's) motion to quash the writ of garnishment, the Circuit Court of Butler County found that the second Arkansas judgment, 'as to the personal property of Oral J. McDougal, is extinct and invalid for the reason that said judgment sought to impress a lien of a 1/3 interest upon the personal property of the said Oral J. McDougal, and if valid, could only be as against such property in which he had an absolute and vested interest,' held that 'Oral J. McDougal did not have a vested interest in said bequest at the time of the Arkansas decree,' and quashed the execution and garnishment. Such order being a complete and final disposition of the subject-matter of defendant's motion to quash, plaintiff's appeal therefrom properly lies. Section 512.020 RSMo 1949, V.A.M.S.; Flynn v. Janssen, Mo., 266 S.W.2d 666, 671(8); Slagel v. Murdock, 65 Mo. 522, 524(1); Ex parte James, 59 Mo. 280, 284(3); Gale v. Michie, 47 Mo. 326, 327(1).

In the last will and testament of W. B. A. Barnes (hereinafter referred to as the Barnes will), the testator made specific cash bequests to five individual legatees and to cemetery trustees in the second to seventh paragraphs, inclusive, provided in the eighth paragraph for the support of a sister, and then made other specific cash bequests to thirteen nephews, nieces, great-nephews and great-nieces in the ninth to seventeenth paragraphs, inclusive, 'to be paid * * * as hereinafter provided' in the eighteenth paragraph, i.e., 'in annual payments of one-tenth (1/10) of the principal amounts bequeathed, together with the income earned by the principal during the year next preceding such payments.' In the nineteenth paragraph of the Barnes will, the testator provided that 'if any of the beneficiaries named in * * * paragraphs * * * nine to seventeen, both inclusive, should depart this life before my demise, or before the amounts bequeathed to him, her or them, shall have been fully paid, then I direct that said sum or sums or the residue thereof, shall pass to his, her or their heirs in accordance with the laws of descent and distribution of the state of which such beneficiary or beneficiaries shall be a resident at the time of his, her of their death.'

After appointing Mississippi Valley Trust Company (hereinafter referred to as Mississippi Valley) as 'executor and trustee,' the testator in the twenty-first paragraph gave and bequeathed the residue of his estate to Mississippi Valley 'to be handled and administered by it,' stated that, upon final settlement by and discharge of Mississippi Valley as executor, Mississippi Valley thereafter should 'hold all of said estate not theretofore disposed of and administer the same as trustee,' and directed that 'at the end of ten years after my demise * * * the rest, residue and remainder of my estate be divided among the beneficiaries named in * * * paragraphs * * * ninth to seventeenth, both inclusive, in proportion to the amounts bequeathed to them, or to their heirs as provided by * * * paragraph nineteen.' In a codicil to the Barnes will, the testator made specific cash bequests of $3,000 each to three great-nephews, of whom Oral was one, payable 'in annual payments of one-tenth (1/10) of the principal amounts bequeathed, together with the income earned * * *, exactly as provided in Paragraphs Eighteen and Nineteen of my * * * will,' and also directed that 'said beneficiaries * * * shall share in the residue of the estate exactly as provided for beneficiaries and bequests under Paragraphs Nine to Seventeen, both inclusive, as set out in Paragraph Twenty-one of my * * * will.' The cash bequests to beneficiaries named in the ninth to seventeenth paragraphs of the Barnes will and in the codicil thereto aggregated $57,000 so Oral, to whom $3,000 was bequeathed, had an undivided 3/57 interest in the residuary estate. Ruth seeks one-third of that 3/57 interest.

The primary issue presented by Oral's motion to quash the writ of garnishment directed to Mississippi Valley was whether his 3/57 interest in the residuary trust estate was vested or contingent, when the second Arkansas judgment was entered on June 7, 1945, giving Ruth 'an undivided one-third interest in the personal property' of Oral. An interest or estate is vested when there is an immediate right of present enjoyment, or a present, fixed right of future enjoyment. ³ It is the uncertainty of the right of enjoyment, and not the uncertainty of actual enjoyment, that renders an interest contingent, ⁴ and an interest does not become contingent merely because it is uncertain whether the beneficiary will come into actual possession and enjoyment thereof. ⁵ But, although these broad general principles are easy of statement, their proper application to the facts of a given case is frequently perplexing. ⁶ It is a simple matter to reiterate that, in determining whether an interest is vested or contingent, the testator's intention, as gathered from the four corners of his will, should be followed unless it contravenes public policy or some established rule of law, ⁷ but again numerous cases vividly portray the practical difficulties encountered in judicial determination of such intention. So it is that, in attempting to ascertain the testator's intention in the myriad of instances in which there has been no clear, definite and specific statement of intention, the courts have considered many factors and have evolved numerous auxiliary rules of testamentary construction, in the application of which such diverse results have been reached that some rules seem to have been contrived, as one annotator facetiously expressed it, 'like the old negro's coon trap, to 'ketch 'em both a-comin' and a-gwine.'' Annotation, L.R.A.1915C, 1012, 1057. ⁸

It has been well said that the question as to whether an interest is vested or contingent is one of substance and not of form [annotation, 1 L.R.A. 551, 553] and 'is not to be arbitrarily determined solely and alone by hard and fast rules' [Riley v. Kirk, 213 Mo.App. 381, 253 S.W. 50, 52(4)]; and that, by reason of the infinite variety of purposes and modes of expression in wills, precedents in will cases are of little value except insofar as they may formulate and enunciate rules to be followed in construction of all wills. ⁹ But, permeating and pervading the body of judicial writings treating of vested and contingent interests is the basic principle that the law favors the vesting of testamentary gifts or legacies at the earliest possible date, unless a contrary intention is manifested clearly. ¹⁰ Where...