Orr. v. St. Louis Union Trust Co.
Citation | 236 S.W. 642,291 Mo. 383 |
Decision Date | 19 November 1921 |
Docket Number | No. 21685.,21685. |
Parties | ORR et al. v. ST. LOUIS UNION TRUST CO. et al. |
Court | Missouri 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.
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:
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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