Mississippi Valley Trust Co. v. Palms
| Citation | 229 S.W.2d 675,360 Mo. 610 |
| Decision Date | 08 May 1950 |
| Docket Number | No. 41459,No. 1,41459,1 |
| Parties | MISSISSIPPI VALLEY TRUST CO. v. PALMS et al |
| Court | United States State Supreme Court of Missouri |
Chas. Claflin Allen, St. Louis (Lehman & Allen, St. Louis, of counsel), for appellants.
Rhodes E. Cave, George W. Simpkins, Marion S. Francis, J. Marvin Krause, all of St. Louis (Bryan, Cave, McPheeters & McRoberts, St. Louis, of counsel), for respondents.
Mary Elizabeth (Polly) Walsh, Isabella Walsh Palms and N. S. Chouteau Walsh (in his individual capacity) appealed from the trial court's decree in an action, instituted by the then trustees of the testamentary trust estate created for C. K. Dickson Walsh, to construe the will of Julius S. Walsh, Sr., of St. Louis, Missouri (hereinafter called testator), and for a determination of the rights to share in the above mentioned trust estate. The case is one of first impression.
The facts are undisputed. Testator's will was executed June 30, 1916. He was a widower, and died March 26, 1923. His will was admitted to probate in the City of St. Louis, his estate was duly administered and his executors were discharged. Testator had seven children and his will divided his residuary estate in seven equal parts. Testator's seven children were: (1) a daughter, Isabella, who married Chas. L. Palms; (2) a daughter, Ellen, who married William Maffit; (3) a son, Julius S. Walsh, Jr.; (4) a son, Robert A. B. Walsh; (5) a son, N. S. Chouteau Walsh; (6) a son, C. K. Dickson Walsh; and (7) a daughter, Josephine, who had married John S. Bates. Josephine had died in April, 1916, leaving three surviving children, (1) Julius S. Bates, (2) Mary Josephine Bates (who married Wade T. Childress), and (3) Ellen Bates, who died unmarried in 1940.
On May 22, 1925, these three last named children of Josephine Walsh Bates were legally adopted by their aunt, Ellen Walsh Maffit, the sister of the mother of said children. That adoption (under the Act of 1917) was in the Juvenile Division of the circuit court of the City of St. Louis. On October 30, 1940 Ellen Walsh Maffit died in St. Louis leaving no children or descendants of her own. She was survived by two of her adopted children. Testator was survived by all his children except Josephine, who had died in 1916. And before the death of C. K. Dickson Walsh, two more of testator's children, Julius S. Walsh, Jr., and Robert A. B. Walsh, died. Julius S. Walsh, Jr., left no children or descendants but Robert A. B. Walsh was survived by one daughter Mary Elizabeth (Polly) Walsh, an appellant here.
By testator's will one-seventh of his residuary estate was bequeathed direct to each of his five following children: (1) Isabella Walsh Palms, (2) Ellen Walsh Maffit, (3) Julius S. Walsh, Jr., (4) Robert A. B. Walsh and (5) N. S. Chouteau Walsh. With respect to those five children the will further provided: 'In the event of the death before my decease of any of my five children, Isabella, Ellen, Julius, Robert and Chouteau, then at my decease their respective shares of the residue of my estate shall pass per stirpes to their then restrictive heirs at law.'
One-seventh of testator's estate was left in trust for the children of his daughter, Josephine Walsh Bates. Those children came of age, the assets of said trust were paid to them under the provisions of the will and that particular trust was terminated, satisfied and closed. As to the termination of the trust for Josephine's children the will provided: 'When all surviving children of my daughter (Josephine) become twenty-one (21) years of age, or all shall die before that time said trust shall end and the trustees shall promptly convey, transfer and pay per stirpes to the then descendants of my daughter Josephine all of the income and principal then held in trust for them, if she leave descendants then surviving; otherwise the trustees shall promptly convey, transfer and pay said income and principal to my then heirs at law under the laws of Missouri.'
The remaining one-seventh of testator's estate was left in trust for his son, C. K. Dickson Walsh, and the termination of said trust, and disposition of the assets thereof were provided in the will in these words: The trustees of the two trusts were testator's sons and Mississippi Valley Trust Company.
C. K. Dickson Walsh died August 14, 1947, leaving no descendants and the trust created for him then terminated. It is agreed that the present value of the trust estate created for C. K. Dickson Walsh is $200,000. After this action was filed, Mary Josephine Bates Childress (wife of Wade T. Childress) died and the cause was revived against Wade T. Childress, individually and as executor and trustee under his wife's will, and also against her two minor children, Wade T. Childress, Jr. and John Savage Childress. After the appeal from the judgment below, Isabella Walsh Palms died on December 24, 1949. Charles Palms was appointed as her administrator and was substituted in this cause in this court in her stead. Thereafter, N. S. Chouteau Walsh died on March 26, 1950. Julia Crosby Walsh and the Mississippi Valley Trust Company were appointed as his executors, and were substituted in this cause in this court in his stead. All of testator's children are now deceased.
The trial chancellor's decree found that testator's heirs at law at the time of the death of C. K. Dickson Walsh, and their respective shares in the C. K. Dickson Walsh trust estate were as follows: (1) Isabella Walsh Palms, testator's daughter, one share; (2) Mary Elizabeth (Polly) Walsh, only child of Robert A. B. Walsh, one share; (3) N. S. Chouteau Walsh, testator's son, one share; (4) Julius S. Bates and Josephine Bates Childress, two shares (one share as grandchildren of testator and children of testator's daughter, Josephine Walsh Bates; and one share as the adopted children of Ellen Walsh Maffit, who was testator's daughter). Upon that finding the Chancellor ordered the plaintiff trustees to distribute the C. K. Dickson Walsh trust estate: one-fifth thereof to Isabella Walsh Palms; one-fifth thereof to Mary Elizabeth (Polly) Walsh; one-fifth thereof to N. S. Chouteau Walsh; one-fifth thereof to Julius S. Bates; and one-fifth to defendant Wade T. Childress, as executor under the will of Josephine Bates Childress.
Appellants contend that the children of Josephine Walsh Bates are not entitled to two shares of the C. K. Dickson Walsh trust estate; and state that 'the question here is whether Mrs. Maffit, by her act of adoption (of the Bates children), could make these two grandchildren double heirs of her father (the testator) within the meaning of his will.' Appellants also contend that the question 'is not one of strict right to inherit, but the question is what did Mr. Walsh intend.'
The petition prays a construction of this will, and directions as to distribution. It is the cardinal contruction rule that the courts determine the testator's intention from the entire will and give effect to ti unless it violates positive law. Kingston v. St. Louis Union Trust Co., 348 Mo. 448, 154 S.W.2d 39. But a court cannot write a new will under the guise of construction. We must determine testator's intention from the entire will, and cannot 'guess what he * * * might have done under certain conditions, if not expressed in his will.' St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685, 687; St. Louis Union Trust Co. v. Kelley, 355 Mo. 924, 199 S.W.2d 344.
As supporting their contention that the children of Josephine Walsh Bates should take two shares of the C. K. Dickson Walsh trust estate, one share through their natural mother, and one share through their adoptive mother, respondents cite In re Bartram's Estate, 109 Kan. 87, 198 P. 192; In re Wilson's Estate, 95 Colo. 159, 33 P.2d 969; Wagner v. Varner, 50 Iowa 532, In re Benner's Estate, 109 Utah 172, 166 P.2d 257 and 28 Washington University Law Review 238. They have all been carefully examined. None of them are cases of dual inheritance under the will of a common ancestor, and where, as here, testator's intention appears from the words he used. They involve inheritance under the statutes of other states, wherein a grandchild was adopted by a grandfather, who later died intestate. In some of those cases under those facts the courts approved dual inheritance. Other cases, such as Billings v. Head, 184 Ind. 361, 111 N.E. 177, under the same facts, follow the Massachusetts, New Hampshire and New Youk rule that where 'the heir occupies a dual capacity, it cannot inherit both as grandchild and adopted child.'
Appellants' brief cites In re Kessler's Estate, 288 Pa. 91, 135 A. 618; Johnson v. McDowell, 154 Iowa 38, 134 N.W. 419, 38 L.R.A.,N.S., 588; Burnes v. Burnes, C.C., 132 F. 485; Manning v. Manning, 229 Mass. 527, 118 N.E. 676; Delano v. Bruerton, 148 Mass. 619, 20 N.E. 308, 2 L.R.A. 698; Teed v. Morton, 60 N.Y. 502; Einstein v. Michaelson, 107 Misc. 661, 177 N.Y.S. 474; Thompson v. Betz, 74 Conn. 576, 51 A. 564, 92 Am.St.Rep. 235; and 38 L.R.A.,N.S., 589, note b. And see also, 41 Ill.Law Review, 466, 30 Minnesota Law Rev. 395; Leighton v. Leighton, 193 Iowa 1299, 188 N.W. 922, 929, 930, and Young v. Bridges, 86 N.H. 135, 165 A. 272. Those cases are not determinative here. We have been cited to no case by either brief and our research has revealed no case which can be said to be an authority on...
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