Primeau v. Primeau

• Decision Date: 13 July 1927
• Docket Number: No. 25874.,25874.
• Citation: 297 S.W. 382
• Parties: PRIMEAU et al. v. PRIMEAU et al.
• Court: Missouri Supreme Court

297 S.W. 382

PRIMEAU et al. v. PRIMEAU et al.

No. 25874.

Supreme Court of Missouri, Division No. 2.

July 13, 1927.

Appeal from St. Louis Circuit Court; A. B. Frey, Judge.

Suit by Edward M. Primeau, individually, and by Edward M. Primeau, executor of the last will of Edward A. Primeau, deceased, and another, against Gertrude Primeau, guardian of the person and estate of Louise A. Primeau, a person of unsound mind, and Louise A. Primeau, a person of unsound mind, by Gertrude Primeau, her guardian, and another. From the judgment, the guardian appeals in her personal and representative capacities. Affirmed.

Anderson, Gilbert & Wolfort, of St. Louis, for appellant.

Edward A. Feehan and Charles M. Ryan, both of St. Louis, for respondents.

BLAIR, J.

Suit in equity to remove the guardian of an insane widow and set aside an election made by said guardian on behalf of said widow to renounce the will of her deceased husband and to take a child's share of his estate, with a prayer that the court make such election for said insane widow as will be for her best interest. There was a decree for plaintiffs granting the relief prayed for. By an order of one of the judges of this court, under authority of section 1474, R. S. 1919, an appeal was granted said guardian, both in her personal and representative capacities.

No motion for new trial was filed at the trial term below, and hence there is nothing before this court except the record proper. The question for determination is whether or not the facts stated in the petition authorized the trial court to enter the judgment appealed from. We will state as briefly as possible the facts set forth in the petition. The answer of appellants practically admits all of the facts thus set forth.

Edward A. Primeau, who will be referred to as "testator," died in the city of St. Louis October 21, 1922, leaving surviving Louise A. Primeau, his widow, who will be referred to as such, and a son and a daughter by a former wife, to wit, respondents Edward M. Primeau and May E. Mueller. No child was born to the union of the testator and his widow.

By his will, testator named his son, Edward M. Primeau, as executor, and, as such executor, said son took charge of the estate consisting entirely of personal property of the value of about $34,000, none of which was derived from his wife's separate property. Said Edward M. Primeau was so administering said estate when the petition in this case was filed. By the terms of said will, one-third of testator's estate was bequeathed to the son Edward absolutely, one-third to the daughter May, absolutely, and one-third to the St. Louis Union Trust Company, in trust for testator's widow for and during her natural life. It was provided that said trustee, out of the income of said trust fund (or out of the body of same, if necessary) should support and maintain said widow. Pending the administration and distribution of his estate, testator laid upon his executor the duty of providing for the care and support of his widow. Said bequest to the trust company in trust for testator's widow was made "in lieu of dower and all statutory provisions giving said widow an interest in said estate." At the death of testator's widow, whatever remained of said trust fund was, under said will, to go to testator's son and daughter (respondents here) share and share alike.

In 1912, which was about ten years before testator's death, Louise A. Primeau, the widow, became insane, and it was necessary to and testator did confine her in St. Vincent's Institution for the Insane in St. Louis county, where she was still confined at the institution of this suit. The petition alleges:

"That the mental malady of said Louise A. Primeau is incurable, and that it will be necessary that she remain an inmate of such an institution during the remainder of her life; that said Louise A. Primeau is now about 60 years of age."

Mrs. Primeau had never been formally adjudged to be insane. On May 19, 1923, appellant Gertrude Primeau, who is the widow of testator's brother and also the sister of his insane widow, instituted such proceedings in the probate court of the city of St. Louis that said Louise A. Primeau was formally adjudged insane, and said Gertrude Primeau was by said probate court appointed guardian of the person and estate of said widow. The estate was represented as being of the value of about $11,000 and as consisting of the right of such insane widow to renounce the will of testator and to take a child's share of his estate. On or about July 14, 1923, said guardian "filed in said probate court, and in the office of the recorder of deeds of the city of St. Louis, a purported renunciation by said widow of said will of said Edward A. Primeau, deceased, and a purported election by said widow to take a child's share in the estate of said Edward A. Primeau, deceased."

Said petition then proceeded to allege that such purported renunciation and election were not for the best interest or benefit of the widow, but were for the benefit and in the sole interest of said guardian and next of kin; that such guardian was not a proper person to remain guardian of the widow because of such personal and private interest in controlling a third part of testator's estate in such a way as to keep it intact and to let it increase and accumulate rather than to use it for the benefit of the widow, to the end that the remainder thereof, after the death of the widow, might go to the next of kin of said widow.

Further allegations are made in the petition to the effect that the widow was hopelessly and incurably insane; that the provisions for her care and support made in testator's will are better for her than a child's part of his estate intrusted to the care of a guardian.

Said petition then alleges that section 325, Laws of 1921, pp. 111 and 112, if construed in certain ways, would violate certain provisions of the federal Constitution and the Constitution of the state of Missouri. We will not here notice such allegations, as they do not now concern us.

The prayer of the petition was as follows:

"Wherefore, plaintiffs pray that the said Gertrude Primeau, guardian as aforesaid, be removed as such guardian, and that the court make such election for said insane widow as will be to her best interests considering her condition and the provisions made for her by said testator, and considering also the right of testator to dispose of his property by will and that the next of kin of said insane widow have no claim upon his bounty; and plaintiffs pray that the decree of this court be certified to the probate court of the city of St. Louis, state of Missouri. Plaintiff's further pray that the court will make such further orders and decrees in the premises as may be just and equitable."

Thereafter, A. M. Brinkman, Esq., was by the trial court appointed guardian ad litem for the insane widow. The widow was not personally served with process, but service for her was had on appellant guardian. The St. Louis Union Trust Company filed its answer admitting the facts alleged in the petition and asking the court to make whatever orders and decrees it deemed to be just and equitable. The statutory guardian, Gertrude Primeau, at first filed a demurrer, and, when same was overruled, she filed her answer, in which she admitted that the widow was and is incurably insane and also practically admitted all of the facts set forth in the petition except those allegations reflecting upon her own qualifications to serve as guardian and those tending to show that the provisions made for the widow in testator's will were better for said widow than a renunciation of the will and an election to take a child's share of testator's estate.

The answer of the guardian ad litem admits the allegations of the petition, alleges the unfitness of Gertrude Primeau to act as guardian, and joins in the prayer of the petition.

The trial court found the issues in favor of the plaintiffs, in their personal capacities, and in favor of the son as executor. It also found in favor of the trust company and in favor of the widow, as represented by the guardian ad litem. It found against the guardian appointed by the probate court. It found that the renunciation of the will by statutory guardian and an election to take a child's share in testator's estate were not in the interest nor for the benefit of said widow, but were in the interest and for the benefit of the next of kin of said widow, and that it was for the best interest and benefit of the widow to abide by the said will and to accept the provisions therein made for her by testator and to take thereunder.

The court found that appellant Gertrude Primeau had an interest as next of kin inconsistent with her duty as guardian of the widow. It was accordingly ordered that such renunciation of the will and election to take a child's share be set aside. Thereupon the court elected for the widow to take under testator's will. It was further ordered that Gertrude Primeau be removed as guardian of said widow.

I. Appellant seemingly does not challenge the propriety of the order made by the trial court, if said court had the jurisdiction and power, under the facts stated in the petition, to make such an order. It is quite apparent that, if the court had such power, the order made was fully justified by the opinion of this court in the case of In re Estate of Connor, 254 Mo. 65, 162 S. W. 252, 49 L. R. A (N. S.) 1108, which the trial court held to be decisive of his right and duty to make the order which he made. On the authority of that case, we have no hesitancy in ruling that the facts set forth in the petition, if proven (and on the present state of the record it must be conclusively presumed they were so proven), amply justified the trial court in ruling that it was not for the benefit or best interest of the widow to renounce the will and to take a child's share of the estate, but, on the...