Noe v. Kern

• Decision Date: 19 December 1887
• Citation: 93 Mo. 367,6 S.W. 239
• Parties: NOE et al. v. KERN et al.
• Court: Missouri Supreme Court

6 S.W. 239

93 Mo. 367

NOE et al. v. KERN et al.

Supreme Court of Missouri.

December 19, 1887.

1. WILL — CONSTRUCTION — CREATION OF TRUST — PRECATORY WORDS.

An action in equity to charge the property of a testator with a trust involved the construction of the following will: "I give, devise, and bequeath unto my husband * * * all my real and personal estate absolutely. * * * I make this bequest in the full faith that my husband will properly provide for the two children of my deceased brother, * * * whom we have undertaken to raise and educate." Held to create a trust in favor of the children.

2. SAME — TRUST FOR THE SUPPORT OF MINORS — AMOUNT OF ALLOWANCE.

A wife, in devising all her real and personal property to her husband, created a trust in favor of the two children of her deceased brother, whom testatrix and her husband had adopted, and always treated and cared for as their own. The husband died, leaving the trust unexecuted, and the curator of the children brought suit in equity to charge the estate of testatrix with the trust so created. It appeared from the evidence that testatrix died possessed of a large amount of property, real and personal; that the children were without other means of support; that both were frail and sickly, and that one, on account of mental and physical weakness, would probably never be able to contribute to her own support. Held that, under the circumstances, an award of $9,000 for their support and education was not excessive.

Appeal from St. Louis circuit court; DANIEL DILLON, Judge.

This is a suit in equity, instituted by Paul and Sadie Noe, through their curator, John Wickham, against Robert H. Kern, administrator de bonis non of the estate of Virginia C. Ferguson, deceased, and Horace Ghiselin, administrator of the estate of William F. Ferguson, deceased, to charge the property in the hands of the administrator of the estate of Virginia C. Ferguson with a trust which plaintiffs claimed was created in their favor by virtue of the last will and testament of the said Virginia C. Ferguson. There was a verdict for plaintiffs, and defendants appealed.

Given Campbell and H. D. Laughlin, for appellants. Collins & Jamison and John Wickham, for respondents.

NORTON, C. J.

This is a proceeding in equity which calls for the construction of the will of Virginia C. Ferguson, wife of William F. Ferguson. She died on the sixth of September, 1883, leaving the following will: "In the name of God, amen. I, Virginia C. Ferguson, wife of William Ferguson, of St. Louis, Mo., make and declare this to be my last will and testament, and hereby revoke all other wills by me heretofore made. First. I give, devise, and bequeath unto my husband, William Ferguson, all of my real and personal estate absolutely; the real estate being mostly situated in the city of Norfolk, county of Norfolk, state of Virginia. I make this bequest in the full faith that my husband will properly provide for the two children of my deceased brother, Simeon, whom we have undertaken to raise and educate. I appoint my said husband, William Ferguson, the executor of this, my last will and testament." Two days after the death of Mrs. Ferguson, her husband died, leaving a will, theretofore made, devising all his property to his wife, the said Virginia, without making any provision for the two children of said Virginia's brother Simeon, whom they had undertaken to raise and educate, and who are the plaintiffs in this suit, and claim that, from the precatory words used in her will, a trust was created in their favor. During the two days that said William lived after his wife's death, the evidence showed that he was under the influence of morphine, and not capable of transacting business. The said Virginia, at the time of her death, owned in St. Louis personal property worth about $10,000 and also owned considerable real estate in Virginia. Sometime before the death of Mrs. Ferguson, she and her husband, who were childless, took into their family Paul and Sadie Noe, (the plaintiffs in this suit,) two children of Simeon Noe, the deceased brother of Mrs. Ferguson, who lived with them as their adopted children, and were supported and maintained by them as such, until the death of said Virginia and William Ferguson. No debts were proved up against the estate of said Virginia. The circuit court held that, by the will of Mrs. Ferguson, her estate passed to her husband, charged with a trust in favor of said Paul and Sadie Noe, and that the sum of $9,000 was a reasonable amount for the purpose Mrs. Ferguson had in view, which was adjudged to be paid over to the curator of the plaintiffs, both of whom were minors. The defendants have appealed from this judgment, and insist that the will of Mrs. Ferguson does not admit of the construction thus put upon it, and that, if it does, the judgment of the court is for too large an amount.

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