Mersman v. Mersman

• Decision Date: 01 December 1896
• Parties: Mersman et al. v. Mersman et al., Appellants
• Court: Missouri Supreme Court

37 S.W. 909

136 Mo. 244

Mersman et al. v. Mersman et al., Appellants

Supreme Court of Missouri, First Division

December 1, 1896

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

The suit is to obtain a construction of the will of Mr. Joseph J Mersman, deceased. It is a very long document. The following synopsis of certain sections of it and quotations of the material passages present a sufficient outline of the subject-matter of the controversy:

THE MERSMAN WILL.

Section 1. General provision for payment of debts and funeral expenses.

Sec. 2. Releases to the four sons of indebtedness to the testator. Bequest to them of testator's claims against firms in which they were partners, respectively. Bequest to Otto L Mersman of a specific claim.

Sec. 3. Specific bequest of shares in the Fourth National Bank to the four daughters, three sons and a sister of testator.

Sec. 4. Specific bequest of two shares in a House Building Association to Fred. C. Mersman.

Sec. 5. Provisions concerning library and pictures, and bequest thereof to all of testator's children in equal shares.

Sec. 6. Legacy of $ 850 to sister-in-law of testator.

Sec. 7. Bequest of the furniture, etc., of testator's residence on Mississippi avenue and Kennett Place, "as a family home," to the trustees afterwards appointed, for the use of the children, "under the condition and directions hereinafter expressed."

Sec. 8. All personalty not specifically bequeathed to be converted into cash and applied to payment of debts and cash legacies. Bequest out of same (together with proceeds of shares of stock in the Fourth National Bank) to Arthur, for purchase of a home for him, of the value of $ 4,000. In case the personal property is not sufficient to pay the debts and legacies, the income of the real estate is to be used for that purpose. In case of excess of personal property over and above the debts and legacies, such excess to be distributed among all the children in equal shares.

"9. Having by deed given to each of my three other daughters a similar property, I hereby give, devise and bequeath my house known as No. 1824 Lafayette avenue in the City of St. Louis Missouri, to my daughter Ella C. Mersman, for her own sole and separate use, in the manner heretofore generally prescribed for all devises and bequests to my daughters."

"10. All my remaining real estate with the improvements thereon, I give, devise and bequeath to my sons, Joseph J. Mersman, Jr., Frederick C. Mersman and Otto L. Mersman, trustees, and to the survivors of them and their successor or successors in the trust and their heirs, executors and administrators, in trust, however, for the following uses and purposes and under the following conditions, to wit: while any of my children, Frederick C., Emma C., or Ella C., may desire to have a home in the family residence at the southeast corner of Mississippi avenue and Kennett place, the trustees shall not sell the same nor the household goods and furnishings therein contained, but shall permit my said children, or any of them, to use said house and furnishings as a dwelling for themselves. No rent shall be paid for such use and occupation by any of said children, but the expense of maintaining the grounds and buildings, including repairs, taxes and insurance, shall be paid by the trustees and deducted from time to time from the income paid to those of my said children, who may live in the house, from certain portions of my other real estate; each of said children to pay an equal portion of the expense of maintaining the house. Whenever none of my last named children shall desire any longer to reside in the house, the trustees shall sell the same, together with all the furniture, carpets, household goods and utensils herein bequeathed to them, at public or private sale, according to their discretion, and shall pay over the proceeds thereof to all of my children, share and share alike."

Sec. 11. The trustees shall collect the income of the remaining real estate or re-investments and pay same as afterward directed. But before the trustees proceed to pay over such net income, they are to pay to the executors whatever is necessary to pay the debts, funeral expenses and cash legacies. This clause of the will also contains special provisions for a house to be purchased for Arthur A. Mersman, at a cost not to exceed $ 4,000.

Sec. 12. The trustees shall pay the net income of house No. 1305 South Seventh street to Joseph during his life, and after his death to his children.

Sec. 13. The trustees shall pay to Frederick, during his life and thereafter to his children, the net income of house Nos. 16 and 18 North Main street.

Sec. 14. The trustees shall pay to Arthur during his life, and thereafter to his children, the net income of buildings No. 107 North Main street and No. 10 North Third street.

Sec. 15. This section declares that no like provision is made for Otto, because considerable sums have been given to him during the lifetime of the testator as an advancement of his share in the estate; but that he is nevertheless to share with the other children as a class in the provisions referring to them as such.

Sec. 16. The trustees shall pay to testator's four daughters, Clara, Emma, Alice, and Ella, during their lives, and thereafter to their children, the net income of four pieces of improved property in the City of St. Louis, the same being specifically described, by streets and numbers.

Sec. 17. Should any of said four daughters die leaving no issue, or should such issue become extinct, then the respective share of the net income shall be paid to the other children of the testator during their respective lives, and after their death to their children.

Sec. 18. Provides for the continuance of the trust during the lives of said Joseph, Frederick, Arthur, and the four daughters, and after their death until the youngest grandchild becomes of age, when partition may be made.

"19. The trustees herein named and their successors and the heirs, executors and administrators of them and their successors are hereby empowered to sell, hypothecate, mortgage, pledge, rent, let, improve, rebuild, repair and generally to manage and dispose of any and all of the property with all the absolute freedom and power which I myself might exercise, if living, provided, that in all things they shall act prudently for the best interests of the beneficiaries of the trust. The said trustees are also empowered to sell or mortgage any one or more properties or reinvestments for the purpose of raising funds to improve or rebuild other properties, should such an investment seem to them more profitable; they shall keep perfect accounts between the different beneficiaries and the funds upon which they are to receive the income, upon the basis that my several children and their heirs shall be entitled always to the income from the particular properties herein set apart for them, or the money raised thereon by sale or mortgage and the reinvestments of such moneys together with the increase and increment thereof. In case of loss by fire, the insurance collected therefor may be used to rebuild, or otherwise invested as the trustees may deem best. They may purchase and improve other real estate, but the same shall not be of a speculative character, and otherwise these investments and reinvestments shall be in such properties and securities as are approved by law for the investment of trust funds. The trustees or their successors shall pay all expenses of maintaining the real estate held by them, at any time during the trust, in good repair, also insurance and taxes out of the gross income collected by them, charging them respectively against the different properties or funds in their hands, so that each child may bear the expenses on the property or funds from which it derives income, paying over to the different beneficiaries only the net income therefrom."

Sec. 20. Provides for action by majority of trustees, and that one of the three may be a non-resident of Missouri.

Sec. 21. Provides for filling vacancies in number of trustees.

Sec. 22. In case of contest of the will by any of the children such contestant shall receive one dollar in lieu of all the provisions in said will made in favor of such child.

Sec. 23. Appointment of Joseph, Frederick, and Otto as joint executors, not to give any bond or security either as executors or as trustees.

The other facts necessary to an understanding of the opinion appear therein.

Affirmed.

Mills & Grant for Ella C. Mersman and Emma C. Mersman, appellants.

The object of this suit is to obtain a construction of the will of Joseph J. Mersman, deceased, and particularly the tenth and nineteenth clauses thereof. The purpose of construction is, of course, the arriving at the intention of the testator as expressed in the will. In order to do so, the court should be placed in the same position as that occupied by the testator, and the will read in the light of the circumstances under which it was made, so that a correct understanding may be had of the meaning of the language used, and the objects intended to be thereby accomplished. Both the tenth and nineteenth clauses of this will, and indeed the whole will are to be read together, and each construed with reference to the other, and in arriving at the true meaning of the will it is a cardinal rule that the general intention should control a particular intention, if inconsistent. The subordinate, secondary, particular intention, if inconsistent with the primary, leading, general intention, always gives way to the latter. 2 Woerner, Administrations, sec. 416, p. 878; Howland v. Howland, 11 Gray, 469-476; Schott Est., 78 Pa. St. 40, 44; Peters v. Carr, 16 Mo....