Mcintosh v. Wiggins

• Decision Date: 26 November 1941
• Docket Number: No. 11781.,11781.
• Citation: 123 F.2d 316
• Parties: McINTOSH v. WIGGINS.
• Court: U.S. Court of Appeals — Eighth Circuit

123 F.2d 316 (1941)

McINTOSH v. WIGGINS.

No. 11781.

Circuit Court of Appeals, Eighth Circuit.

October 29, 1941.

Rehearing Denied November 26, 1941.

Paul Bakewell, Jr., of St. Louis, Mo., for appellant.

Daniel N. Kirby, of St. Louis, Mo. (Harry W. Kroeger, of St. Louis, Mo., on the brief), for appellee.

Before SANBORN and JOHNSEN, Circuit Judges, and NORDBYE, District Judge.

SANBORN, Circuit Judge.

The appellant brought this action asking that the appellee be required to turn over to appellant certain property, together with the rents and profits thereof, and that appellee be enjoined from having the benefit of a provision of a decree of the Circuit Court of the City of St. Louis entered June 22, 1923, upon which it is asserted the appellee bases her right to withhold the property from appellant. From a decree dismissing the action, this appeal is taken.

The property involved is an undivided one-fourth of that portion of the estate of John E. Liggett, deceased, which, by the terms of his will, went to his daughter Cora B. Fowler for life on the termination of two testamentary trusts. This property is held by the appellee, and she claims a life interest in it under the will of John E. Liggett as construed by the decree of the Circuit Court of the City of St. Louis entered June 22, 1923, and also under the judgment of the United States District Court for the Eastern District of Missouri, affirmed by this Court in Perry v. Wiggins, 8 Cir., 57 F.2d 622, certiorari denied 287 U.S. 609, 53 S.Ct. 12, 77 L.Ed. 529. The appellant asserts that, by the terms of the will of John E. Liggett, who was her grandfather, she, on August 10, 1928, when her mother, Dolly L. Kilpatrick, died, became entitled to one-half of the property in which her mother had acquired a life estate on the death of Cora B. Fowler, and that the provision of the decree of June 22, 1923, of the Circuit Court of the City of St. Louis, pursuant to which the appellee claims and holds the property, is erroneous and was obtained by fraud, accident or mistake, and that the appellee should be enjoined from having the benefit of it.

The broad question presented is whether, under the facts disclosed by the record, the court below was required to grant the appellant the relief which she sought. To state these facts in complete detail would be more confusing than helpful. We shall refer to them only so far as necessary.

The three daughters of John E. Liggett, a resident of St. Louis, Missouri, who died testate November 23, 1897, leaving a large estate, were Cora B. Fowler, Dolly L. Kilpatrick and the appellee, Ella L. Wiggins. The trusts created by the will terminated April 4, 1916. At that time the three daughters became entitled to receive the major portion of their father's estate. They each received an undivided one-third of this portion. They conceived the idea that, under the will, they acquired estates in fee and not for life. Whether their estates were in fee or for life depended upon the construction of the following provisions of the will: "After the death of my said wife then my said stock * * * shall be further held by my said trustees under this trust for the sole benefit and behoof of my daughters * * * to their sole and separate use * * * for and during the natural lives of my said daughters, in equal portions, share and share alike, with remainder over as to the undivided share aforesaid, of each one, to the heirs of the body of each one of my said daughters as their absolute property, per stirpes and not per capita; but should any of my said daughters die without issue then her portion of said * * * stock herein bequeathed to her for life shall go to the survivor and survivors of my said daughters in equal portions for life, with remainder over, as to such portion, to the heirs of the bodies of such as shall die leaving issue of their bodies absolutely, share and share alike, per stirpes."

In May, 1920, the three daughters brought suit in the Circuit Court of the City of St. Louis to secure a construction of the will of their father, asserting that upon the termination of the trusts created by the will, they took fee title to their shares of the estate. All of the then existing descendants of the testator were made parties to the suit, including the appellant, who was an adult daughter of Dolly L. Kilpatrick, and including, also, Elizabeth Liggett Scudder, a minor, who later became Elizabeth Kennard and who was the child of Elizabeth Scudder, a deceased daughter of Dolly L. Kilpatrick. If Dolly L. Kilpatrick had only a life interest in her share of her father's estate, with remainder over to her issue, then on her death the appellant and Elizabeth Liggett Scudder would, under the will of John E. Liggett, each take an undivided one-half of that share. If Dolly L. Kilpatrick and her sisters had a fee title to their respective shares, the appellant and Elizabeth Liggett Scudder would receive nothing under the will. The appellee, Ella L. Wiggins, also had an adult daughter, Eleanore Van Riper, who had two minor children. The appellant and the adult daughter of Ella L. Wiggins, although served with process in the will-construction suit, did not appear. Elizabeth Liggett Scudder did appear and was represented by her father, as guardian ad litem. The grandchildren of Ella L. Wiggins were also represented by a guardian ad litem. The grandchildren of Dolly L. Kilpatrick and of Ella L. Wiggins had the same counsel, who filed answers in their behalf asserting that the three daughters of John E. Liggett took estates for life in their respective shares of their father's estate, with remainder over to their surviving issue "and, in case there be none, with remainder as to said share to the survivor or survivors of said daughters in equal portions for life, with remainder over in fee upon the death of the last survivor of said daughters to the surviving issue of said daughters, share and share alike, per stirpes." These answers prayed that the court so construe the will. The trustees under the will, who were also parties to the suit, in their answer brought up certain doubtful questions relative to the disposition of undistributed property of the estate still in their possession, and prayed the aid and instructions of the court.

After a trial, the Circuit Court of the City of St. Louis concluded that the daughters of the testator, by the terms of his will, took only life estates, with remainder over to their issue. Counsel for the minor grandchildren of the two daughters of the testator who had issue (Cora B. Fowler was childless) was asked to draft the decree. He wrote into his draft of a proposed decree his interpretation of the will respecting the devolution of the share of a daughter of the testator in case of her death without issue, which was that it would go to the surviving daughters of the testator and to the survivor of them for life, and would not vest in remainder until the last surviving daughter of the testator had died. The draft of a decree prepared by counsel for the minor grandchildren was finally approved as to form by all counsel for all parties who had appeared in the suit, and was entered by the court as its decree. The daughters of the testator then appealed to the Supreme Court of Missouri on the sole issue as to whether they had fee title to their shares of their father's estate. The questions as to what would become of the share of a daughter having a life estate, in the event she died without issue, and as to when the share of such a daughter would vest in remainder were not in dispute, were not raised, and, of course, were not before the Supreme Court of Missouri on the appeal. That court decided that the daughters of the testator took life estates only, and affirmed the decree appealed from. Wiggins v. Perry, 271 S.W. 815. In its opinion, the Supreme Court of Missouri copied almost verbatim a statement contained in the brief of counsel for the minor grandchildren, when it said (page 826 of 271 S.W.): "We therefore respectfully submit that the will of John E. Liggett, construed according to its true intent and purpose, creates life estates only in his daughters, with contingent remainders over in the heirs of their respective bodies, and that the lineal descendants only of each daughter who answers the description of such heirs at the time of her death takes such remainders, and that the trial court was clearly right in so ruling."

It is, of course, obvious that in making that statement counsel and the court were dealing with the question of the estate which each daughter of the testator took under the will at the termination of the trusts, and were not dealing with the questions as to what would happen to the share of a daughter who died without issue and as to when title to her share would vest in remainder, which questions had not been presented on the appeal. That the Supreme Court of Missouri did not rule on these questions would not affect the conclusiveness of the decree. See and compare Russell v. Russell, 3 Cir., 134 F. 840; Simonds v. Norwich Union Indemnity Co., 8 Cir., 73 F.2d 412, 416.

The decree of the Circuit Court of the City of St. Louis, affirmed on appeal, contained the following provision with respect to the devolution of the share of Cora B. Fowler: "If both her sisters, Ella L. Wiggins and Dolly L. Kilpatrick, shall survive her, then an undivided one-half interest in said property shall go to and vest in each of said sisters for her life, and on the death of either of them, the undivided one-half interest therein of the one so dying shall go to and vest in the survivor for her life, and upon her death the whole of said property shall go to and vest absolutely in the then surviving issue of said Ella L. Wiggins and Dolly L. Kilpatrick, share and share alike, per stirpes and not per capita."

Cora B. Fowler died July 19, 1928. Concededly, upon her death her share of her father's estate passed to...