Mercantile Trust Co. v. Muckerman

• Court: Missouri Supreme Court
• Writing for the Court: HOLMAN
• Citation: Mercantile Trust Co. v. Muckerman, 377 S.W.2d 355 (Mo. 1964)
• Decision Date: 13 April 1964
• Docket Number: No. 49596,No. 1,49596,1
• Parties: MERCANTILE TRUST COMPANY, Sole Trustee Under the Will of Lena Muckerman, Deceased, (Plaintiff) Appellant, v. Richard I. C. MUCKERMAN, (Defendant) Respondent-Cross-Appellant, and Jeanne Clare Imbs, a Minor, and Joseph F. Imbs, III, a Minor, (Defendants) Respondents-Cross-Appellants

Page 355

377 S.W.2d 355

MERCANTILE TRUST COMPANY, Sole Trustee Under the Will of Lena Muckerman, Deceased, (Plaintiff) Appellant, v. Richard I. C. MUCKERMAN, (Defendant) Respondent-Cross-Appellant and Jeanne Clare Imbs, a Minor, and Joseph F. Imbs, III, a Minor, (Defendants) Respondents-Cross-Appellants.

No. 49596.

Supreme Court of Missouri, Division No. 1.

April 13, 1964.

Thompson, Mitchell, Douglas & Neill, James M. Douglas, John O. Hichew, William G. Guerri, St. Louis, for appellant Mercantile Trust Co., sole trustee under will of Lena Muckerman, Decd.

Rassieur, Long & Yawitz, Elliott P. Koenig, Allen A. Yoder, and Roger R. Fagerberg, St. Louis, for respondent, Muckerman.

Guilfoil, Caruthers, Symington & Montrey, Rexford H. Caruthers, Gerhard J. Petzall St. Louis, for defendants-respondents, cross-appellants.

HOLMAN, Judge.

This case has recently come to the writer on reassignment. It is an action for a declaratory judgment by Mercantile Trust Company as sole successor trustee to the trust estate created by the last will of Lena Muckerman, deceased, in which it sought a construction of said will and particularly a determination as to the proper disposition to be made of the one-third share of the trust of which Richard C. Muckerman, deceased, had received the income during his life. Defendant, Dr. Richard I. C. Muckerman, contended that as the sole surviving child of Richard he was entitled to all of said share. The minor defendants, Jeanne Clare Imbs and Joseph F. Imbs, III, contended that, as the surviving children of Richard's daughter, Jeanne Imbs, deceased, they were entitled to one half of the share of the trust here involved. The trial court found that Dr. Muckerman was entitled to receive all of said trust assets. On the theory that the will was 'clear, certain and definite,' the court concluded that plaintiff's action in bringing this suit was 'not proper' and plaintiff was therefore denied any allowance for attorney fees. An allowance of $7,500 out of the trust estate was made to the minor defendants as a reasonable fee for the services of their attorneys herein. All of the parties have appealed from the ensuing judgment. Their various contentions will be hereinafter stated and discussed. The value of the one-half share claimed by the minor defendants was $166,000 on February 15, 1961. We therefore have jurisdiction because of the amount in dispute.

The portion of the will relating to the trust is Article Third which reads as follows:

'All of the rest, residue and remainder of my property, real or personal, whatsoever and wheresoever, and by whatever title held, I give, bequeath and devise to my sons, Richard C. Muckerman and Louis Muckerman, hereinafter called Trustees, IN TRUST, for the uses and purposes and for final disposition as hereinafter provided:

'Trustees shall pay to my mother, Anna Marie Jucker, during her life, out of the net income of my trust estate, two hundred dollars ($200.00) per month, and should such payments be inadequate for her support and proper care in case of sickness or other unforeseen misfortune to her, I direct my Trustees to make such additional payments to her or for her use out of such income as they may deem necessary or desirable.

'Trustees shall pay the remainder of such net income to my said four children, Richard, Louis, Helen and Josephine, or the survivors of them in equal shares and in equal monthly or quarter-annual installments as Trustees may determine.

'Page 1 of Exhibit 'A'

'At the death of any one of my said four children (a) leaving descendants him or her surviving, the share of the net income which such child was receiving shall pass to and be expended by Trustees for the care, maintenance, support and benefit of such descendants until the youngest is twenty-one years of age when the trust as to such share shall terminate and the trust property shall pass in title absolute to such descendants, and (b) leaving no descendants him or her surviving, then the share of the net income which such child had been receiving shall pass to the then survivors of my said children. Provided, however, the surviving children of any deceased child of mine, anything herein to the contrary notwithstanding, shall take the same part or share of income and at the same dates that such deceased child of mine would have received such income if living and any share passing hereunder at any time to such surviving children shall continue in trust until the youngest survivor of them is twenty-one years old or until they all die before that time when the trust as to their share shall terminate and the share shall pass (1) to them, if living, in title absolute; (2) otherwise to my then surviving children, if any, with this trust continuing thereover during their lives; and (3) otherwise to my heirs at law in title absolute.

'If the last survivor of my said four children should die leaving no child him or her surviving, and leaving no children of any previously deceased child of mine him or her surviving, then at his or her death the trust shall terminate and the trust property shall pass in title absolute to my heirs at law.

'The term 'descendants' as used herein shall be deemed to refer to and include only the children of a deceased child of mine. * * *'

Lena Muckerman was the second wife of Ignatius M. Muckerman. To his first marriage were born two children--Helen, who is now married to Warren Beckwith, and Richard C. Muckerman, whose death on March 15, 1959, has brought about the institution of this suit. Richard C. had two children--Dr. Richard I. C. Muckerman, a defendant herein, and Jeanne Clare Imbs who was killed in an automobile accident March 2, 1955. As heretofore stated, she was survived by a son, Joseph F. Imbs, III, and a daughter, Jeanne Clare Imbs, both of whom are now minors and are represented in this action by their father, Joseph F. Imbs, II, who was appointed their guardian ad litem. To the marriage of Lena and Ignatius were born two children--a daughter, now Josephine M. Judkins, and a son Louis who died March 24, 1932, leaving a daughter named Diana. Lena's mother, Anna Marie Jucker, died many years ago and the allowance to her out of the trust estate is no longer of any consequence.

The family history and the situation existing at the time testatrix made her will is shown by the deposition testimony of Helen M. Beckwith and Josephine M. Judkins (both of whom now live in California) which was offered by the minor defendants. Helen M. Beckwith testified that she married Russell T. Eggers in 1922 and that a son, William, was born of this marriage in 1926; that her father was Ignatius Muckerman and her stepmother was testatrix; that she was very young when Lena married her father and she lived in that family until she married; that all four children lived with Lena and Ignatius as a family and Lena treated all of the children as if they were her own and referred to all of them as her children. She stated that Ignatius died in 1921; that Lena became ill with cancer and entered the hospital in early January 1930 and died March 4, 1930, at the age of 53 (it was admitted in the pleadings that Lena died February 4, 1930); that at the time of her death Lena had three grandchildren--William Eggers who was about four years of age, defendant Richard I. C. Muckerman who was eight years of age, and Jeanne Muckerman who was six years of age. Mrs. Beckwith further testified that her former husband, Russell Eggers, had been married before and had two children, Carter and Mary Jane, by that marriage but that those two children had lived with Eggers' former wife; that Lena and Ignatius were of the Catholic faith and that she had been raised a Catholic; that Eggers was a Protestant; that Lena knew of the two children born of Eggers' first marriage but they never visited in her home; that she was not divorced from Russell Eggers until after Lena's death. She stated that Lena was fond of Richard and Jeanne Muckerman and they often visited in her home; that the Muckerman family would have family gatherings at either the home of Lena or Richard at Christmas, Thanksgiving, and on other special occasions.

Josephine M. Judkins testified that she was 16 at the time of Lena's death; that she was a child of Lena and Ignatius; that Lena displayed equal love for her children and stepchildren, all of whom lived together in her home; that Lena displayed normal affection for her grandchildren, Richard and Jeanne Muckerman. She stated that Lena disapproved of the marriage between Helen Muckerman and Russell Eggers because Eggers was divorced and also 'his reputation', but that she later became reconciled to the marriage and accepted their child William as a grandson; that at the time of her death Lena's only relatives were her mother and her children and grandchildren.

Before stating the contentions of the parties and considering the merits of the controversy it would perhaps be helpful to endeavor to analyze the trust provisions. It is clear that the net income is to be paid to the children of testatrix in equal shares during their lifetimes. If a child die leaving descendants the income sahll be paid to his descendants until the youngest is 21 years of age when the trust shall terminate as to such trust share and the trust property shall be delivered to such descendants. However, the word 'descendants' is thereafter stated to refer only to 'children of a deceased child of mine.' It is then provided that if any child die without leaving descendants the income which he has been receiving shall 'pass to' testatrix' other surviving children. Next is an extensive proviso. (It will be noted that the word 'descendants' does not appear in the remainder of the trust provision.) The proviso is to some extent a restatement of prior provisions. It states that the surviving children of a 'deceased child of mine' shall receive the same share of income that the deceased child...