Mercantile-Commerce Bank & Trust Co. v. Morse

• Decision Date: 21 April 1947
• Docket Number: 39826
• Citation: 201 S.W.2d 317,356 Mo. 179
• Parties: Mercantile-Commerce Bank and Trust Company, Trustee, Under the Will of Paul Brown, Deceased, v. Dorothy Brown Morse, Appellant, Frank C. Rand et al., Defendants
• Court: Missouri Supreme Court

201 S.W.2d 317

356 Mo. 179

Mercantile-Commerce Bank and Trust Company, Trustee, Under the Will of Paul Brown, Deceased, v. Dorothy Brown Morse, Appellant, Frank C. Rand et al., Defendants

No. 39826

Supreme Court of Missouri

April 21, 1947

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Affirmed.

J C. McManaway and John C. Tobin for appellant Dorothy Brown Morse.

(1) Where there is a gift in a will of an expressly stated fraction, such as "one-eighth of the trust estate" or "one-third of my estate," and it is followed by a phrase such as "then in its hands" or "as required by law," the measure of the gift is the expressly stated fraction, and the phrase is not dispositive but merely descriptive or declarative. Industrial Trust Co. v. Hall, 18 A.2d 629; In re Stong's Estate, 58 Montg. 303, 56 York 86. (2) The conveyance of one-fourth of a tract of land vests in the grantee the title to one undivided one-fourth of the whole tract as tenant in common with the grantor. McCaul v. Kilpatrick, 46 Mo. 434. (3) The will speaks as of the time of the testator's death, and estates given by will should be regarded as vesting immediately unless the testator has by clear words manifested a contrary intention. Palmer v French, 32 S.W.2d 591; Gardner v. Vanlandingham, 69 S.W.2d 947. (4) Perhaps the strongest circumstance going to show that a gift to the substance of which futurity is apparently annexed, is not contingent upon the attainment of the specified age, is a gift of the intermediate income to or for the benefit of the legatee. The rule of construction is accepted that whatever be the wording by which the principal is given, a gift of the income in the meantime vests the principal at once. 36 Harvard Law Review 886 (note); L.R.A. 1915C, p. 1036, note d; 144 A.L.R. 1162, note c; Hopkins v. Commissioner of Int. Revenue, 69 F.2d 11; Warner v. Commissioner of Int. Revenue, 72 F.2d 225; Fidelity & Columbia Trust Co. v. Commissioner, 90 F.2d 219. (5) Where by will an estate is given in unequivocal language, the same can not be cut down or diminished by a subsequent clause unless the language thereof is as unequivocal as the language of the first. Sevier v. Woodson, 104 S.W. 1; 5 Thompson on Real Property, sec. 2700; Thompson, Construction of Wills, sec. 71, p. 118, sec. 215, p. 356. (6) A literal construction of the words used in a clause of the will will not be permitted to defeat the general intention where that intent is plain from the whole will and the surrounding circumstances. This applies both to a doubtful beneficiary and to the amount of the gift. Gannett v. Shipley, 172 S.W.2d 857; First Trust Co. v. Myers, 174 S.W.2d 378. (7) By statute and decision the rule in Missouri is that in construing a will it is the task of the court to find the general purpose of the testator; to reconcile and co-ordinate provisions which may appear to be in conflict, where such reconciliation and co-ordination can reasonably be made consistent with the general purpose and, if the testator was confused in the expression of his desires, to pierce through such confusion and reduce to articulate terms the underlying intent. In doing so it must always be kept in mind that the intention of the testator is the guiding principle; that his blood relatives, his heirs, are favorites of the law and entitled to first consideration in doubtful expressions. Grundmann v. Wilde, 141 S.W.2d 779; Gibson v. Gibson, 144 S.W. 771.

Thompson, Mitchell, Thompson & Young, Samuel A. Mitchell and Edgar H. McCulloch for respondent Mercantile-Commerce Bank & Trust Company, Trustee Under Will of Paul Brown, Deceased.

(1) Paragraph (15) of said clause (f) of item twenty-one of said will should be construed according to its plain and simple language expressing the intent of the testator. First Presbyterian Church of Louisiana v. Lynott, 78 S.W.2d 396; Grenzebach v. Grenzebach, 315 Mo. 392, 286 S.W. 79; Mo. R.S.A., 1939, Sec. 568; Price v. Gordon, 347 Mo. 354, 147 S.W.2d 609; Brown v. Lyle, 236 Mo.App. 1041, 161 S.W.2d 701; Methodist Episcopal Church v. Thomas, 235 Mo.App. 671, 145 S.W.2d 157; Grace v. Perry, 197 Mo. 550, 95 S.W. 875; Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947; Cornet v. Cornet, 248 Mo. 184, 154 S.W. 121; In re Crane, 164 N.Y. 71, 58 N.E. 47; Annotation, 144 A.L.R. 1162, note (c). (2) According to the plain and unequivocal language of paragraph (15) of clause (f) of item twenty-one of said will, the amount payable and distributable to the defendant-appellant, Dorothy Brown Morse, is one-eighth (1/8th) of the corpus as it existed at the time of such distribution. Shelton v. Shelton, 248 Mo. 820, 155 S.W.2d 187; Threlkeld v. Threlkeld, 238 Mo. 459, 141 S.W. 1121; Hayes v. St. Louis Union Trust Co., 317 Mo. 1028, 298 S.W. 91; City Bank Farmers Trust Co. v. Bruguiere, 128 N.J.Eq. 120, 15 A.2d 334, affirmed 130 N.J.Eq. 213, 21 A.2d 735; Chenoweth v. Hall, 133 Kan. 310, 299 P. 645; Hall v. Hall, 209 Mass. 350, 95 N.E. 788; English v. Ragsdale, 347 Mo. 431, 147 S.W.2d 653; Aurien v. Security Nat'l. Bank Sav. & Trust Co., 137 S.W.2d 679; Blumer v. Gillespie, 338 Mo. 1113, 93 S.W.2d 939; Scott v. Fulkerson, 332 Mo. 734, 60 S.W.2d 34.

OPINION

Douglas, P.J.

This case involves the construction of the will of Paul Brown who died in 1927 leaving an estate in excess of $ 7,250,000. He left one-sixth of his residuary estate to the Mercantile Trust Company, now Mercantile-Commerce Bank and Trust Company, in trust for his two grandchildren Paul Brown, III and Dorothy Brown, now Dorothy Brown Morse, the appellant, the children of his deceased son Paul Brown, Jr. Paul Brown, III died leaving no descendants. The share of Paul Brown, III was thereafter held in trust for the benefit of Dorothy under the same terms and conditions governing her original share. The portion of the will which may be pertinent to this case are:

"Item Twenty-one: All the rest, residue and remainder of my estate of whatsoever kind, real and personal, and wherever situated at the time of my death, I give, bequeath and devise, as follows:

(f) One-sixth (1/6) thereof unto the Mercantile Trust Company, a corporation of the City of St. Louis, Missouri, IN TRUST, however, upon the terms and conditions hereinafter set out for the benefit of the children of my deceased son, Paul Brown, Jr.

The one-sixth (1/6) bequeathed and devised unto the Mercantile Trust Company, a corporation of the City of St. Louis, Missouri, under clause 'f' of this item (twenty-one) of my will, is to be held by the said corporation, IN TRUST, for the following uses and purposes, that is to say:

(1) To hold, possess, manage and control the said trust estate and every part thereof, with full power to sell, transfer, convey and dispose of the same, upon such terms, and in such manner, and for such prices, as to my Trustee shall seem meet and proper.

(2) I direct my Trustee to divide the said one-sixth (1/6) held for the benefit of the children of my deceased son, Paul Brown, Jr., into two (2) equal parts, and to set apart one (1) of said portions, IN TRUST, for the benefit of my grandson, Paul Brown, III, and to set apart the other portion, IN TRUST, for the benefit of my granddaughter, Dorothy Brown, upon the terms and conditions hereinafter set out.

(12) I direct my Trustee to pay over, from time to time, so much of the net income and revenue derived from the portion held under this item of my will by my Trustee, IN TRUST, for my granddaughter, Dorothy Brown, as in the judgment of my Trustee shall seem meet and proper, for the maintenance, education, comfort and support of my said granddaughter, until she attains the age of twenty-five (25) years; the unexpended income shall be added to and become part of the corpus of the trust estate herein created for her benefit.

(13) As and when my said granddaughter attains the age of twenty-five (25) years, I direct my Trustee to pay over the entire net income and revenue derived from her portion of the trust estate unto her, during her life.

(14) As and when my said granddaughter attains the age of thirty (30) years, I direct my Trustee to pay over, deliver and convey unto her one-eighth (1/8) of her portion of the trust estate then in its hands, free of trust.

(15) As and when my said granddaughter attains the age of thirty-five (35) years, I direct my Trustee to pay over, deliver and convey unto her one-eighth (1/8) of her portion of the trust estate then in its hands, free of trust."

When Dorothy was thirty years old in 1938 the trustee, under the provisions of paragraph 14, paid her one-eighth of the corpus of her estate as it then existed in its hands, which one-eighth amounted to $ 211,011.88.

When Dorothy reached the age of thirty-five in 1943 and was entitled to another distribution from the corpus of her estate under paragraph 15 she demanded of the trustee another one-eighth part of the corpus of her estate as originally constituted. The trustee however paid her one-eighth of the corpus of her estate as it then existed in its hands, or $ 172,126.41. Dorothy claims this amounted to but one-eighth of the remaining seven-eighths of her estate, or 7/64 of her original estate,...