Orr. v. St. Louis Union Trust Co.

Citation236 S.W. 642,291 Mo. 383
Decision Date19 November 1921
Docket NumberNo. 21685.,21685.
PartiesORR et al. v. ST. LOUIS UNION TRUST CO. et al.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

Action by Rebecca M. Ghio against the St. Louis Union Trust Company, trustee under the will of James C. Ohio, and others Judgment for defendants, and plaintiff appealed. Isaac H. Orr, as executor of plaintiff's estate, was substituted as appellant on her death, and certain respondents made co-appellants. Judgment affirmed in part, and reversed and remanded in part.

Leahy & Saunders and David W. Voyles, all of St. Louis, for appellants.

Bryan, Williams & Cave, of St. Louis, for respondent St. Louis Union Trust Co.

DAVID E. BLAIR, J.

This is an action seeking the construction of the will of James C. Ohio, deceased, and the establishment of a trust as to a portion of his estate.

In the amended petition on which the cause was tried below Rebecca M. Ohio was named as plaintiff, and all the other parties to the case were named as defendants. The trial court found for the defendants on both counts of the petition, and dismissed the bill, and Mrs. Ghio appealed. Since the appeal was taken the death of Mrs. Ghio on December 11, 1920, has been suggested and the cause was revived in the name of her executor, Isaac H. Orr. Said executor has duly entered his appearance herein, and has been substituted as appellant. On January 24, 1921, the parties hereto filed their stipulation showing a state of facts upon which they have agreed that certain original defendants and heretofore respondents may be permitted to withdraw as respondents in this court, and be made coappellants with said Isaac H. Orr, executor. Such substitution is ordered made in accordance with that stipulation.

The parties to the case are now arrayed as follows: Isaac H. Orr, executor of the estate of Rebecca M. Ohio, deceased, Elizabeth McMenamy, John B. Ghio, Olivia M. Dunn and J. C. Martin Ohio (children of Mrs. Ohio) are appellants, and St. Louis Union Trust Company (hereinafter referred to as Trust Company) and Joseph A. Mc-Menamy, Freeland J. Dunn, Elsie K. Ohio, and Mathilda C. Ohio (the husbands and wives of the respective children), and Evelyn Garth McMenamy, Adrian McMenamy, Walter Bowles McMenamy, Mary Renee Ohio, [codes Garth Dunn, Virginia Lee Dunn, and Nary Louise Ghio (grandchildren of James C. and Rebecca Ghio) are respondents. James C. Ghio will be hereinafter referred to as testator.

Testator and Rebecca M. Ghio were man and wife, and lived for many years in St. Louis county at "Tranquilla," their country home. Testator was a man of wealth, and provided for his family accordingly, and the country home was spendidly maintained, and members of his family were permitted to travel extensively. Much of his wealth was inherited. The value of his estate does not appear. Two sons and two daughters were born of the marriage between testator and his wife, and survived testator.

Mrs. Ohio inherited large sums of money from the estates of her father and a half-brother in Germany. The proceeds of these estates were remitted to her from time to time between 1892 and 1906 by one Bruhn, her attorney in Germany. It was contended by Mrs. Ghio that these remittances amounted to $104,500. The proof of the exact amount rested in letters from said Bruhn. These letters were not admitted in evidence by the trial judge. From proof of statements and admissions of testator it appears that a total sum of about $100,000 was so received. Testimony of the children of testator tends to show that as these remittances were received Mrs. Ghio turned them over to testator for investment on her account, and it was her contention, and is now the contention of her executor, that testator received these funds from her as trustee of an express trust.

Testator died February 2, 1914, and left a will by which he made certain specific bequests, and devised and bequeathed the residue of his estate to the St. Louis Union Trust Company, of the city of St. Louis. In trust. The provisions of said will, so far as necessary to an understanding of the case, are as follows:

"Fourth. I hereby give, devise and bequeath all the rest and residue of my property, of every kind and character, and wheresoever situated, to the St. Louis Union Trust Company, as trustee, in trust, and upon, to and for the uses, purposes and trust hereinafter declared; and I hereby authorize and empower said trustee to invest, reinvest and make changes of investments of the principal of the trust estate hereby created, and to make investments thereof in real and personal estate, as it shall deem for the best interests of said trust estate, so as to derive income therefrom and thereon. In making sales, or leases for longer periods than ten years, of real estate, I wish said trustee to consult my wife and son John B. Ghio, if both are living, or the survivor of them after the death of one, and to make such sales or leases with their written consent, which written consent may be by their joining in conveyance or lease, as the case may be, or in and by a separate instrument attached to and made part of such conveyance or lease, respectively. Said trustee shall pay to my beloved wife, Rebecca Margaritta Ghio, the whole of the net income from said trust estate, so long as she lives; after her death, in equal shares, to my children, so long as my children, or any of them, remain alive. If any of my children die during the continuance of this trust, leaving a child or children them surviving, his or her child or children, respectively, shall take the parent's place and share in equal parts. This trust shall continue for the full term of the life of my said wife and of the last survivor of my children and pro tanto during the minority of any child or children of any of my children who shall die leaving a child or children them surviving.

"Upon the death of my wife and the last survivor of my children, leaving a child, children, or other descendants of any of my children them surviving, the property then composing the trust estate, principal as well as interest, shall go to and become the property of such child, children, or other descendants of my children, in equal shares, share and share alike, perstirpes and not per capita; this trust to cease pro tanto as to the shares of any who are of age, and the property composing such shares, principal as well as interest, to be paid to them freed from trust; the shares of any who are minors to remain in trust until, and such trust to cease pro tanto when and as each child, or other descendant, of my said children becomes of full age, as to his or her share, and his or her share, principal and any unexpended income, to be paid over to him or her, freed from trust; the shares of any who are minors to remain in trust and be paid over to them, respectively, when and as they arrive at full age. During minority the trustee shall have the power to expend shares of income which any minor shall be entitled to as a beneficiary under this will, for the support and education of each minor. If such share of income for any minor is more than shall be necessary for the support and education of such minor, after supporting and educating him or her, the remainder of his or her share shall be accumulated for his or her benefit and paid over to him or her when and as he or she becomes of full age. Payments of income to every beneficiary hereunder of full age shall be made in equal monthly portions, so nearly as possible, and so nearly as practicable on the first day of each month. No advancement, nor any other payment, shall be made to any beneficiary except of net income, and that only after the same has been received by the trustee, and no beneficiary shall have power to anticipate such income, or to in any manner whatever incumber the same, or the principal of any portion of the trust estate, and shall not have title to either income or principal except and only when and as the same shall have been actually received by the beneficiary from the trustee. * * *

"Sixth. I hereby declare that the provision for my wife made in and by this will is to be in lieu of dower and any and all other statutory rights whatsoever.

"Seventh. The trustee appointed in and by the fourth paragraph or item of this will, is hereby authorized, in lieu of paying her income thereon or therefrom, to permit my wife, if she shall so desire, to reside rent free at my home place in St. Louis county, Missouri, and to assist her, as far as possible, in keeping and maintaining it in the same condition I would keep and maintain it if alive."

By said will said Trust Company was also named as executor. Said will was filed for probate February 28, 1914. Letters testamentary were issued to said Trust Company as executor. March 3, 1914, and notice of issuance of such letters was published within 30 days thereafter. Said Trust Company took charge of said estate as executor under the will and duly administered the same and made its final settlement and was discharged as such executor October 17, 1915. The estate has ever since been in the hands of said Trust Company as trustee under said will. No claim on account of alleged trust funds of Mrs. Ghio was presented against said estate prior to the final settlement in the probate court.

It appears that the gross income from said estate, net income and amounts paid to Mrs. Ohio from about May, 1916, to and including the year 1918, are as follows:

                                           Gross       Net           Paid
                Year.                      Income.    Income.      Mrs. Ghio
                1914 (in part) ........... $ 9,230.85  $ 6,641.12   $ 6,100.00
                1915 .....................  18,367.56    5,267.87     7,200.00
                1916 .....................  17,380.64    1,453,54     7,200.00
                1917
...

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