Payne v. Barnes, 12505

• Decision Date: 17 August 1982
• Docket Number: No. 12505,12505
• Citation: 638 S.W.2d 299
• Parties: Travis PAYNE, et al., Plaintiffs-Respondents, v. William Glen BARNES, City of Hope, Shriner's Hospital for Crippled Children, Hope for Hearing Research Foundation, Wells Fargo Bank N.A., Rawlins Barnes Stanley, and Mary Ruth Erhart Fritter, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 299

638 S.W.2d 299

Travis PAYNE, et al., Plaintiffs-Respondents, v. William Glen BARNES, City of Hope, Shriner's Hospital for Crippled Children, Hope for Hearing Research Foundation Wells Fargo Bank N.A., Rawlins Barnes Stanley, and Mary Ruth Erhart Fritter, Defendants-Appellants.

No. 12505.

Missouri Court of Appeals,

Southern District,

Division One.

Aug. 17, 1982.

John M. Belisle, J. D. Baker, Belisle & Baker, Osceola, for plaintiffs-respondents.

Julius F. Wall, Poague, Wall, Eshelman & Cox, Clinton, Kerry D. Douglas, Douglas, Douglas & Lynch, P. C., Bolivar, for defendants-appellants.

GREENE, Chief Judge.

Plaintiffs, who are sister and brothers to each other, and are niece and nephews of Travis Payne, Sr., deceased, filed a two-count petition in the Circuit Court of St. Clair County, seeking partition of five tracts of real estate located in St. Clair and Henry Counties, and an accounting of a trust fund from a court-ordered sale of a sixth tract. They sought a determination of who had legal interests in the real estate and trust fund, and the sizes of those interests, contending that they and numerous named defendants owned such interests as the heirs at law of Travis Payne, Sr., but with their status as heirs determined as of the date of death of Louis Wilson Payne, a grand-nephew of Travis, Sr., who was the life tenant of all the real estate involved in the suit.

Appellants here were among the several defendants who answered, and are descendants, or claim by testamentary gift through descendants of two sisters of Travis Payne, Sr. In their answer, they agreed that the heirs at law of Travis, Sr. were the persons entitled to share in the real estate and trust fund, but contended that the status of all such heirs at law should be determined on the date of death of Travis, Sr., rather than the date of death of the life tenant. If their contention is correct, they will receive a greater share on distribution than they would if the determinative date is that of the death of the life tenant. In fact, some of the defendants who claim as or through spouses of the collateral descendants of Travis Payne, Sr., would obtain nothing unless their contention as to the applicable date of determination is correct, as they could never themselves be heirs at law of Travis Payne, Sr.

The trial court determined that the real estate could not be partitioned in kind, and ordered it sold. The net proceeds of the sale were $435,639.13, while the amount held in trust from the proceeds of the earlier sale of the sixth tract amounted to $16,639.35.

The suit was then tried on the pleadings and arguments of counsel because there was no dispute as to the basic facts, which facts are as follows: Travis Payne, Sr. owned all of the land in question. On May 24, 1929, he conveyed two of the tracts of real estate by warranty deed. One of these tracts was sold in 1958 after a court order, and the proceeds were ordered held in trust for the beneficiaries of Travis, Sr. The second deed granted "a life interest only" in the real estate to Louis Wilson Payne, with "remainder in fee simple to the bodily heirs of the said Louis Wilson Payne." There was no language in the deed which purported to dispose of the real estate in the event the remainder after the life estate should fail. On the same day, Travis, Sr. executed his will. As to the four tracts of real estate there devised, the will provided they were to be held in trust, by trustees named in the will, with the income from the land to be paid to three brothers, two sisters, and a sister-in-law of the testator during their lifetimes, and that when the last of them died, the land would be "held in a life estate by Louis Wilson Payne, the son of my nephew, Louis H. Payne, with the remainder in fee simple to his bodily heirs." Like the deed mentioned earlier, the will did not contemplate the contingency of a failure of the remainder, and there was no residuary clause in the will.

Travis Payne, Sr. died on August 15, 1930, without issue, and without ever having been married. The will was admitted to probate, and the trustees assumed control and management of the real estate. One of the brothers named in the will as income beneficiary of the real estate trust (John B. Payne) predeceased the testator. The last of the remaining brothers and sisters so named died in 1938 (Eloise Disa Payne Wilson), and the sister-in-law (Emma Payne) died in 1962. At the time of his death in 1930, Travis Payne, Sr. was survived by the four brothers and sisters, and by the issue of five predeceased brothers and sisters. The life tenant, Louis Wilson Payne, was a grandson of one of the predeceased brothers of Travis, Sr. Louis Wilson Payne died without issue on May 4, 1980. This partition and accounting suit followed.

Based on these facts, the trial court's findings included:

"That the Last Will and Testament of Travis Payne, Sr., was dated May 24, 1929, the same day as the deed recorded at Book 182, Page 269 referred to above. That by the execution of the deed recorded at Book 182, Page 269 referred to above, his Last Will and Testament and other deeds of the same date for land which is not the subject of this lawsuit, Travis Payne, Sr. intended to dispose of his entire estate upon his death. That the decedent, Travis Payne, Sr., did not intend to die intestate as to any portion of his estate",

and

"That upon the death of Louis Wilson Payne, the gift-over to the bodily heirs of Louis Wilson Payne contained in the deed and will referred to above failed for a want of a taker. That it was the intention of the testator, Travis Payne, Sr., as expressed within the four corners of his Last Will and Testament that the fee simple estate in the above described tracts of land should vest in the heirs at law of Travis Payne, Sr. on the date of death of the life tenant with the heirs at law of Travis Payne, Sr. to be determined as of the date of death of the life tenant, Louis Wilson Payne."

The judgment of the trial court in a court-tried case must be affirmed if it is based on substantial evidence, is not against the weight of the evidence, and contains no erroneous declaration or application of law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). That part of the judgment declaring that it was the intent of Travis Payne, Sr., as expressed within the four corners of his will, that the fee simple title in the real property conveyed by the deed and will should vest in his "heirs" as determined on the date of the life tenant's death was an erroneous declaration and application of law. We therefore reverse.

An examination of both the deed and the will in the case clearly reveals the creation of life estates in Louis Wilson Payne, contingent remainders in fee to the issue of Louis Wilson Payne, ¹ and reversionary interests in Travis Payne, Sr. Reversions of this type are created by operation of law, are vested but defeasible, and freely subject to transfer by deed, will, or by intestate descent. Eckhardt & Peterson, Possessory Estates, Future Interests and Conveyances in Missouri § 43, 23 V.A.M.S. at 42 (1952); Maus, Probate Law and Practice, 3 Mo. Practice Series § 352 (1960); 1 Simes, Law of Future Interests § 45 (1936); See also Norman v. Horton, 344 Mo. 290, 295, 126 S.W.2d 187, 189 (1939). Thus, unless the will of Travis Payne, Sr. made some other disposition of the reversionary interests, they passed to his heirs by intestate descent at the time of his death in 1930. Such is the rule for a reversion created, but not disposed of, by an incomplete testamentary devise, including a disposition upon termination of a testamentary trust. Crowson v. Crowson, 323 Mo. 633, 19 S.W.2d 634 (1929); Hyde v. Hopkins, 317 Mo. 587, 296 S.W.2d 382 (1927). See also Maus, Probate Laws and Practice, supra, § 337. ² This also is the rule for a reversion created by deed. Baker v. Baker, 363 Mo. 318, 251 S.W.2d 31 (1952); Davidson v. Davidson, 350 Mo. 639, 167 S.W.2d 641 (1943).

Plaintiffs argue that (1) Travis Payne, Sr. evidenced his intent, through the contemporaneous will and deed, to dispose of his real and personal property upon his death, and evidenced his intent to not die intestate as to any portion of his estate; (2) the will evidences the intent of Travis Payne, Sr. that his heirs were to be determined as of the date of death of the life tenant, Louis Wilson Payne, for purposes of passing the reversionary interests in the land; and (3) the will bestowed a fee simple title in the testamentary trustees, so that the reversionary interest would go to the testator's heirs determined as of the date of the trustee's termination in 1962, but that a better construction would find an intent to determine such heirs of the life tenant's death in 1980. ³

The argument numbered (3) above is directed to the tracts mentioned in the will, and claims that a fee simple title vested in the trustees, who acted as such trustees until the death of the last beneficiary in 1962, and therefore no reversion existed at the time of the testator's death. From this, they somehow conclude that at the commencement of the life estate in Louis Wilson Payne, or better yet, at the end of said life estate, the thus delayed residual interest in the property fell to those persons who would have been the heirs at law of testator if he had died at such time.

The premise of this argument is unwarranted because a trustee takes only that quantum of legal title necessary for the performance of his duties. Young v. Hyde, 255 Mo. 496, 506, 164 S.W. 228, 231 (1914); Bogert, The Law of Trusts and Trustees § 144 (Rev.2d Ed. 1979); Maus, Probate Law and Practice, supra, § 423. Even if a testamentary grant to trustees purports to convey a fee simple, if the equitable interest is not of similarly unlimited duration, and not otherwise provided for, the undisposed of interest, legal and equitable, will pass intestate. Smith v. Smith, 194 Mo.App. 309, 320, 188...