Missouri Baptist Sanitarium v. McCune
| Decision Date | 02 May 1905 |
| Citation | 87 S.W. 93,112 Mo.App. 332 |
| Parties | MISSOURI BAPTIST SANITARIUM, Appellant, v. McCUNE, Respondent |
| Court | Missouri Court of Appeals |
Appeal fro Pike Circuit Court.--Hon. David H. Eby, Judge.
This proceeding originated in the probate court of Pike county. The appellant, a legatee under the will of Amelia Tinsley deceased, filed its exceptions in the probate court to the final settlement of A. J. McCune, executor of the last will of Mrs. Tinsley, who died testate in said county June, 1901. The will, a portion of which only is material to this controversy, and is hereinafter set out, provided among other things that certain bank stock owned by the testatrix to the amount of $ 6,000, should be sold by her executor and the proceeds of such sale be divided equally between the St Louis Baptist Sanitarium and the Orphans' Home, both of which were under the supervision of the Baptist Church. Mr McCune, the executor, collected $ 720 dividends declared on stock and turned the said dividends into the general fund of the estate, of which his wife and he were residuary legatees. After having collected the $ 720 dividends arising out of the bank stock, he disposed of the bank stock on September 30 1902, at a premium of $ 610 and on July 7, 1903, paid over to the Baptist Sanitarium $ 3,420.64, which amount was one-half of the amount for which he sold the bank stock, including premiums and interest on the same at six per cent from the date of the appraisement of such bank stock to the date of sale, Sept. 30, 1902. These facts appearing in the final settlement of the executor, the Baptist Sanitarium, appellant herein, filed its exceptions to such final settlement in the probate court, praying said court to disapprove such final settlement for the reason that the executor had not accounted to appellant for one-half of the dividends collected on said bank stock and prayed the court for an order on the executor to pay appellant the sum of $ 360 with interest thereon at six per cent from the date the executor collected the dividends. The exceptions were disallowed by the probate court. Appellant appealed therefrom to the circuit court of Pike county. Upon such appeal, all of the facts herein above stated were shown in the circuit court by the will, its probate, inventory and appraisment of the estate, receipts for disbursements and final settlements, together with other records of the probate court in that behalf pertinent to the issue, which will and records show that A. J. McCune was nominated executor by the provisions of said will; that the will was probated June 17, 1901, and immediately thereafter he qualified as such executor and letters testamentary were granted him thereon; that among other things inventoried as parcel of said estate, were sixty shares of stock in the Mercantile Bank at Louisiana, Missouri. So much of the will as is pertinent to this controversy is as follows:
Judgment affirmed.
Pearson & Pearson for appellant.
(1) The court in construing a will, of the different items thereof, should give it such a construction that the property therein bequeathed would go to the parties that testatrix wanted and intended it should go. Briant v. Garrison, 150 Mo. 655, 52 S.W. 361; Garth v. Garth, 139 Mo. 456, 465, 41 S.W. 238; Walton v. Drumtra, 152 Mo. 489, 54 S.W. 233; McMillan v. Farrow, 141 Mo. 55, 41 S.W. 890; Cross v. Hoch, 149 Mo. 325, 50 S.W. 786; Thomas v. Thomas, 149 Mo. 426, 51 S.W. 111. (2) It is a reasonable construction of the will that the testatrix intended to bequeath this bank stock as a trust fund to the two institutions named in her will, and simply directed that her executor sell the same to the very best advantage possible that it might be the more easily divided, and the institutions realize the greater amount in a consequence thereof. And, such a bequest carries with it any interest or dividends, which might have accrued up to her death and also between the time of her death and the sale of the stock. Page on Wills, sec. 499, p. 587; Fleming v. Carr, 47 N.J.Eq. 449; Kent v. Tapley, 11 J. U. R. 940; Gibbon v. Gibbon, 13, C. B. 205; Sheffield v. Parker, 158 Mass. 330.
Ball & Sparrow for respondent.
The will of testatrix is absolutely clear. Anyone can understand what her intentions were; she said she owned stock in the Mercantile Bank to the amount of six thousand dollars; she directed that the stock be sold to the highest bidder and the proceeds of the sale be divided equally between the "St. Louis Baptist Sanitarium" and the "Orphans' Home;" therefore the authorities cited by appellant have no application to this case. The intention of the testatrix, of course, is to be gathered from the whole instrument. McMillan v. Farrow, 141 Mo. 55, 41 S.W. 890.
NORTONI, J. (after stating the facts).
Appellant argues that under item two of the will, a bequest of the bank stock was made to it and the Orphans' Home and that such bequest carried with it the dividends also, therefore one-half of the dividends which were collected by the executor and turned by him into the corpus of the estate should be awarded to the Baptist Sanitarium, together with interest thereon since the date of their collection. This no doubt would be true under appellant's assumption that item two of the will is a bequest of the bank stock. There is no doubt of the law in such case. "The general rule stated in the briefest way is that a dividend belongs to the one who is the owner of the stock at the time when the dividend is actually declared, irrespective of the time when it is earned, although it may be made payable at a future date." "Under the foregoing principles, a specific legatee of corporate shares is entitled to all dividends which are declared after the death of the testator." [Cook on Corp., sec. 539; Brundage v. Brundage, 60 N.Y. 544, 12 Ct. App. Rep. 934; In re Kernochan et al., 104 N.Y. 618, 11 N.E. 149; Johnson v. Bridgewater Iron Mfg. Co., 80 Mass. 274, 14 Gray 274.] [Cook on Corp., sec. 305; Wilson v. Maddison, 2 Y. & C. Ch. 372.] Indeed the law is well settled to the effect that he who owns stock at the time the dividends are declared, owns also the dividends and it is immaterial when the dividends accrued, whether before or after the death of the testator, as the time the law fixes in adjusting the ownership of dividends is the time when the dividends were declared, and thus severed from the stock of which theretofore they are treated as incident, and if there was in this case a bequest of the bank stock, there would be no difficulty in agreeing with appellant in its contention. But as we have seen, there is no bequest of the bank stock in the will. The language employed by the testatrix in speaking of the stock is, "Which I desire shall be sold to the highest bidder and the proceeds of such sale divided," etc. Here we have no bequest of the stock but a bequest of the...
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