Plummer v. Roberts

• Citation: 287 S.W. 316,315 Mo. 627
• Decision Date: 06 August 1926
• Docket Number: 25815,25816
• Parties: E. D. Plummer and Ralph E. Costigan, Trustees of Estate of John D. Richardson, Appellants, v. Evalina M. Roberts, Stella G. Osing, John D. Roberts, John D. Roberts, Guardian Ad Litem for Jesse Richardson Roberts, Evalina Roberts, Jessie Roberts, Ed. C. Roberts, Jesse I. Roberts, Guardian Ad Litem for Ed. C. Roberts, Jr., Matt T. Plummer, E. D. Plummer, Executor of Estate of Mamie Plummer, George R. Daniels, Nora Riordan, Mrs. Hal Morehead, Guardian Ad Litem for Sarah Morehead, Martina Martin, Dora Martin, John W. Plummer and Charles Molony, Appellants; Estelle Brown, Willie Travers, Lee Travers, James A. Donovan, Onie Donovan, Fred Donovan, and Charles Donovan, Respondents. E. D. Plummer and Ralph E. Costigan, Trustees of Estate of John D. Richardson, Respondents, v. Evalina M. Roberts, James A. Donovan, Onie Donovan, Stella G. Osing, John D. Roberts, John D. Roberts, Guardian Ad Litem or Jesse Richardson Roberts, Evalina Roberts, Jessie Roberts, Ed. C. Roberts, Jesse I. Roberts, Guardian Ad Litem for Ed. C. Roberts, Jr., Matt T. Plummer, Executor of Estate of Mamie Plummer, George R. Daniels, Nora Riordan, Mrs. Hal Morehead, Guardian Ad Litem for Sarah Morehead, Martina Martin, Dora Martin, John W. Plummer and Charles Molony, Respondents; Estelle Brown, Willie Travers and Lee Travers, Appellants
• Court: United States State Supreme Court of Missouri

287 S.W. 316

315 Mo. 627

E. D. Plummer and Ralph E. Costigan, Trustees of Estate of John D. Richardson, Appellants, v. Evalina M. Roberts, Stella G. Osing, John D. Roberts, John D. Roberts, Guardian Ad Litem for Jesse Richardson Roberts, Evalina Roberts, Jessie Roberts, Ed. C. Roberts, Jesse I. Roberts, Guardian Ad Litem for Ed. C. Roberts, Jr., Matt T. Plummer, E. D. Plummer, Executor of Estate of Mamie Plummer, George R. Daniels, Nora Riordan, Mrs. Hal Morehead, Guardian Ad Litem for Sarah Morehead, Martina Martin, Dora Martin, John W. Plummer and Charles Molony, Appellants;

Estelle Brown, Willie Travers, Lee Travers, James A. Donovan, Onie Donovan, Fred Donovan, and Charles Donovan, Respondents.

E. D. Plummer and Ralph E. Costigan, Trustees of Estate of John D. Richardson, Respondents, v. Evalina M. Roberts, James A. Donovan, Onie Donovan, Stella G. Osing, John D. Roberts, John D. Roberts, Guardian Ad Litem or Jesse Richardson Roberts, Evalina Roberts, Jessie Roberts, Ed. C. Roberts, Jesse I. Roberts, Guardian Ad Litem for Ed. C. Roberts, Jr., Matt T. Plummer, Executor of Estate of Mamie Plummer, George R. Daniels, Nora Riordan, Mrs. Hal Morehead, Guardian Ad Litem for Sarah Morehead, Martina Martin, Dora Martin, John W. Plummer and Charles Molony, Respondents; Estelle Brown, Willie Travers and Lee Travers, Appellants

Nos. 25815, 25816

Supreme Court of Missouri

August 6, 1926

Motion for Rehearing Denied October 8, 1926.

Appeal from Buchanan Circuit Court; Hon. William H. Utz Judge.

Affirmed in part and reversed in part.

Emerson C. Harrington, Mytton & Parkinson, John E. Dolman and James T. Blair for appellants Estelle Brown et al.

(1) It is well settled in Missouri and elsewhere that the rule against perpetuities is not a rule of construction, but is a rule established for the express purpose of defeating intention. Gray on Perpetuities (3 Ed.) sec. 629, p. 497; Andrews v. Lincoln, 95 Me. 541; Dime Savings Co v. Watson, 254 Ill. 419; Bowerman v. Taylor, 126 Md. 203; Graham v. Whitledge, 99 Md. 275. (2) The first thing to be done is to ascertain the intent of the testator. In this process the will (or settlement) is to be construed from its four corners, including the provisions assailed as controverting the rule against perpetuities "as if the rule did not exist, and then to the provision so construed the rule is to be remorselessly applied." Gray on Perpetuities (3 Ed.) sec. 629, p. 497; 21 R. C. L 294, secs. 18, 19; Loud v. Trust Co., 298 Mo. 171; Deacon v. Trust Co., 271 Mo. 684. "Nor should it be overlooked in the construction of a will or deed creating or attempting to create an interest or estate prohibited by the rule against perpetuities, that it should be construed just as all other deeds and instruments are construed. The real intention of the parties to the same as shown by the entire instrument should be the guiding star to its interpretation and the words of the instrument should be given their plain, ordinary and common meaning, unless the intention manifested is clearly to the contrary." Loud v. Trust Co., 298 Mo. 171; Deacon v. Trust Co., 271 Mo. 684; Barton v. Thaw, 246 Pa. St 354; Graham v. Whitridge, 99 Md. 275; Cottman v. Grace, 112 N.Y. 308. (3) In the process of the ascertainment of the intention of the testator, the usual rules of interpretation apply. (a) In getting at the meaning of the will, the whole instrument is to be considered. Dickerson v. Dickerson, 211 Mo. 496; Chew v. Keller, 100 Mo. 362; Preston v. Brant, 96 Mo. 552; Allison v. Chaney, 63 Mo. 279; Turner v. Timberlake, 53 Mo. 371. (b) "The intention of the testator must govern and . . . when that appears, it overrides all rules and precedents, making its own laws." Taber v. Talcot, 101 A. (R. I.) 4; Sec. 555, R. S. 1919. To that intention all technical rules of construction must give way. Grace v. Perry, 197 Mo. 559; Suydam v. Thayer, 94 Mo. 55; Mead v. Jennings, 46 Mo. 93; Gibson v. Gibson, 280 Mo. 529; Tillerson v. Taylor, 282 Mo. 211; Hartnett v. Langan, 282 Mo. 493; West v. Bailey, 196 Mo. 521; LaVauk v. McDonald, 190 S.W. 606; Lane v. Garrison, 239 S.W. 814; 1 Tiffany on Real Property, sec. 168, p. 578. (c) "It is equally well settled that evidence of surrounding circumstances, of the subject-matter of the devise and of the persons to be benefited thereby, is receivable in order to place the court so far as may be in the situation of the testator and looking from his standpoint to determine both the subject and objects of his bounty." Hull v. Stephens, 65 Mo. 677; Mockbee v. Grooms, 300 Mo. 474; Reinden v. Koppelman, 94 Mo. 338; Garth v. Garth, 139 Mo. 456; Murphy v. Carlin, 113 Mo. 112; Walton v. Drumtra, 152 Mo. 489. (4) This court has substantially defined a perpetuity, or estates invalid under the rule against perpetuities. Loud v. Union Trust Co., 298 Mo. 170; 21 R. C. L. pp. 287, 288, secs. 9, 10; 1 Perry on Trusts (6 Ed.) sec. 381, p. 618. (5) The rule is applicable to personal as well as real property; and to equitable as well as legal interests; and to interests in changeable funds. Loud v. Trust Co., 298 Mo. 170; Deacon v. Trust Co., 271 Mo. 696; Gray on Perpetuities (3 Ed.) p. 175, secs. 202, 202a. But "every interest in personal property which is provided to take effect in futuro is of an indestructible nature, and in that respect differs from certain remainders in realty under the common law. Schouler on Personal Property, sec. 149, p. 217. (6) The time limit fixed by the rule for the vesting of future interests, in case there is a precedent life estate, is for a life or lives in being and twenty-one years and the period of gestation. In case there is no precedent life estate and lives do not form a part of the time of suspension or postponement of the vesting of the future interest, the longest period of suspension permitted under the rule against perpetuities is twenty-one years and ten months, absolute. Barton v. Thaw, 246 Pa. St. 355; Andrews v. Lincoln, 95 Me. 545; Johnson's Estate, 185 Pa. 179; Johnson v. Preston, 226 Ill. 447; Cadell v. Palmer, 7 Bligh. 202; 1 Perry on Trusts (6 Ed.) sec. 380, p. 615; 1 Tiffany on Real Property (2 Ed.) sec. 182, p. 601; Williams on Real Property (6 Am. Ed.) 317; Goodwin on Real Property, 280; Foulke on Rule Against Perpetuities, sec. 340; Crawford v. Carlisle, 206 Ala. 387. (7) A perpetuity will not be tolerated when it is covered by a trust, than when it displays itself undisguised in the settlement of a legal estate. 1 Perry on Trusts (6 Ed.) sec. 382, p. 620; Fonda v. Fenfield, 56 Barb. 503; Johnson v. Holifield, 79 Ala. 424; Webster v. Wiggin, 19 R. L. 73, 20 L. R. A. 514; Crawford v. Carlisle, 206 Ala. 387. (8) In this case, in order that a gift may not be too remote and, therefore, void under the "rule against perpetuities," (a) the person to take must be so pointed out that he must be ascertained within the prescribed period, and (b) his interest must be one so given that it must vest within that period. Authorities, supra; Stuart v. Cockrell, L. R. 5 Ch. 713; London S.W. Ry. v. Gomm, 20 Ch. D. 562; Dickerson v. Dickerson, 211 Mo. 490; Delassus v. Gatewood, 71 Mo. 376. An estate or interest is contingent when it is limited to take effect "either to a dubious or uncertain person or upon a dubious or uncertain event." Delassus v. Gatewood, 71 Mo. 376; Dickerson v. Dickerson, 211 Mo. 488; Emison v. Whittelsey, 55 Mo. 259; Maguire v. Moore, 108 Mo. 274. (9) In getting at the meaning of a will, the whole instrument is to be considered. Dickerson v. Dickerson, 211 Mo. 496. And technical rules must yield to intent. This applies to the presumption that testator intended to dispose of his whole estate. Tillerson v. Taylor, 282 Mo. 211. And to the favoring of the vesting of estates. Hartnett v. Langan, 282 Mo. 492; LaVank v. McDonald, 190 S.W. 606. And to all the rest of the technical rules sometimes employed. This must be true since the rules mentioned have no function to perform save to aid in ascertaining intent. They cannot be permitted to defeat intent. This would transform them into something other than rules of construction. And in this case, since there is no precedent estate, the rule in favor of vesting has no application. 1 Tiffany on Real Property, sec. 168, p. 578. (10) The general plan of the will shows beyond question an intent to keep the whole property intact as long as the trustees thought best; with respect to this the trustees are vested with full discretion. The will expressly so provides. The trustees are explicitly given "absolute control" for all purposes and no other vested or vendible interest is given anyone. The discretion of the trustee extends to a postponement of payment until beyond the time fixed by the rule against perpetuities; and a vesting before that time would be in the face of the clear intent of the testator with respect to all bequests, unless it be the monthly payments to Evalina M. Roberts and James A. and Onie Donovan. Kelley's Est., 253 Pa. St. 472; Hill on Trustees, p. 495; Ballantine v. Ballantine, 152 F. 781, 160 F. 927; Siedler v. Syms, 56 N. J. Eq., 275. (11) Under the provisions of the will which purport to dispose of "the remainder" after the deduction of all previously mentioned property (paragraph 7) the donees are to take only (a) "if living" at (b) an uncertain future time. The will is explicit on these points. The bequests are expressly made to depend upon the donees being alive at an uncertain future time. The conditions are conditions prec dent to any vesting. Under all the authorities these bequests are contingent and not vested. (a) Delassus v. Gatewood, 71 Mo. 377; Emison v. Whittelsey, 55 Mo. 255; Dickerson v. Dickerson, 211 Mo. 488; Maguire v. Moore, 108 Mo. 274; Tevis v. Tevis, 259 Mo. 39; Dwyer v. Trust Co., 286 Mo. 486; Deacon v. Trust Co., ...