Rauch v. Metz

• Decision Date: 16 May 1919
• Docket Number: No. 19928.,No. 19930.,19928.,19930.
• Citation: 212 S.W. 353
• Parties: RAUCH et al. v. METZ et al.
• Court: Missouri Supreme Court

212 S.W. 353

RAUCH et al. v. METZ et al.

No. 19928.

No. 19930.

Supreme Court of Missouri, in Banc.

May 16, 1919.

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

Suit by J. F. Rauch and Henry J. Ohlms, as executors of the will of Henry F. Pieper, deceased, and as trustees of certain funds, etc., against Callie A. Pieper and others, Herman C. Metz, and Mary Ensor, to obtain a construction of the will. From the adjudication Callie A. Pieper and others appeal, and Herman C. Metz takes a separate appeal. Reversed and remanded for further proceedings.

See, also, 212 S. W. 357.

William Waye, Jr., of St. Charles, and Brownrigg, Mason & Altman, of St. Louis, for appellant Ensor.

C. W. Wilson, of St. Charles, for appellants Pieper and others.

Hugo Muench and J. L. Hornsby, both of St. Louis, for respondent Metz.

BROWN, C.

The plaintiffs, J. F. Rauch and Henry F. Ohlms, sue as executors of the will of Henry F. Pieper as well as trustees of certain funds thereby created. Rauch is also executor of the last will of Henry A. Pieper, and sues in that capacity, and as curator of the estate of Henry Pieper, minor son of Henry A. Pieper, and beneficiary in his father's will, as well as in the will of Henry P. Pieper, his grandfather. Henry F. Ohlms also sues in his personal capacity as distributee in the will of which he is executor, but takes no appeal from the decree.

The defendants Callie A. Pieper, Kathleen Pieper, and Dorothy Pieper are beneficiaries in the will of Henry A. Pieper, a son of Henry F. Pieper and one of the legatees named in his will; Herman C. Metz and Mary Ensor, who claim in this distribution through Elizabeth Metz, deceased, one of the legatees in the will of Henry F. Pieper, the first-named being a son of said Elizabeth Metz, and the last-named claiming to be an adopted daughter. The other defendants include all the beneficiaries named in said will with, the exception of Henry A. Pieper, Henry Pieper, Elizabeth Metz, and Henry F. Ohlms.

The object of the suit is to secure the judicial construction of certain terms and bequests contained in the will of Henry F. Pieper and directions for distribution thereunder.

Three separate appeals were taken. The appeal of the widow and two adult children of Henry A. Pieper is docketed here as case No. 19928; the appeal of Mary Ensor is docketed as No. 19929 (212 S. W. 357); and the appeal of Herman C. Metz is docketed as No. 19930.

The appeal of Mrs. Ensor stands upon the question whether or not she is the adopted child and heir of Mrs. Metz, and therefore entitled to share with Herman C. Metz in any amount which may be distributable by the executors and trustees on account of the several legacies bequeathed to her by the terms of the will of Henry F. Pieper. For this reason her appeal will be considered separately. The other defendants, with Henry Pieper and plaintiff Ohlms, comprise all the remaining legatees, as well as all the nephews and nieces of the testator, and are not appealing.

The will of Henry F. Pieper was executed September 12, 1913. The testator was then 76 years old. His son, Henry A. Pieper, and his three children above named were his only living descendants. Mrs. Metz was his only living sister. He had no brother, but there were two deceased sisters whose children are legatees in the will; so that his thirteen legatees consist of his son and his three children, Mrs. Metz and her only natural child, and the seven children of his two deceased sisters.

After a few charitable legacies the will proceeded as follows:

"Item 7. I give and bequeath unto my son, Henry A. Pieper, the sum of five thousand dollars.

"Item 8. I give and bequeath unto my granddaughter, Kathleen Pieper, the sum of five thousand dollars.

"Item 9. I give and bequeath unto my granddaughter, Dorothy Pieper, the sum of five thousand dollars, to be held by Z. F. Rauch and Henry F. Ohlms, as trustees, until she arrives at the age of 18 years.

"Item 10. I give and bequeath unto my grandson, Henry Pieper, the sum of five thousand dollars, to be held in trust by J. F. Rauch and Henry F. Ohlms, as trustees, until he arrives at the age of 21 years.

"Item 11. The income from the two bequests made in favor of Dorothy Pieper and Henry Pieper shall be used in their behalf as may be needed for their wants and education, and the trustees are hereby authorized to use the same for that purpose.

"Item 12. I give and bequeath unto my sister, Mrs. Elizabeth Metz, the sum of five thousand dollars.

"Item 13. I give and bequeath unto my nephew, Herman C. Metz, the sum of five thousand dollars.

"Item 14. I give and bequeath unto my niece, Miss Kate Machens, of Rockford, Illinois, the sum of five thousand dollars.

"Item 15. I give and bequeath unto my niece, Aggie M. Rauch, wife of J. F. Rauch, the sum of five thousand dollars.

"Item 16. I give and bequeath unto my niece, Nettie Rummel, wife of H. U. Rummel, the sum of five thousand dollars.

"Item 17. I give and bequeath unto my niece, Clara Bliley, wife of Ed F. Bliley, the sum of five thousand dollars.

"Item 18. I give and bequeath unto my nephew, Henry F. Ohlms, the sum of five thousand dollars.

"Item 19. I give and devise unto my nephew, Edward A. Ohlms, the sum of five thousand dollars.

"Item 20. I give and bequeath unto my niece, Clara (Kruse) Borgmeyer, wife of _____ Borgmeyer, the sum of five thousand dollars."

The testator then placed his bank stock in a trust, making his executors the trustees, directing the income to be paid as received, and distribution of the stock to be made at the expiration of a period of 10 years—

"To the following named beneficiaries and in the following proportions, to wit:

"One-thirteenth (1/13) to Mrs. Elizabeth Metz.

"One-thirteenth (1/13) to Herman C. Metz.

"One-thirteenth (1/13) to Kate Machens.

"One-thirteenth (1/13) to Aggie M. Rauch.

"One-thirteenth (1/13) to Nettie Rummel.

"One-thirteenth (1/13) to Clara Billey.

"One-thirteenth (1/13) to Henry F. Ohlms.

"One-thirteenth (1/13) to Edward A. Ohlms.

"One-thirteenth (1/13) to Clara (Kruse) Borgmeyer.

"One-thirteenth (1/13) to Henry A. Pieper.

"One-thirteenth (1/13) to Kathleen Pieper.

"One-thirteenth (1/13) to J. F. Rauch and Henry F. Ohlms as trustees for Dorothy Pieper.

"One-thirteenth (1/13) to J. F. Rauch and Henry F. Ohlms as trustees for Henry Pieper."

He then directed all the rest, residue, and remainder of his estate, real, personal, and mixed to be sold by his executors, and together with rents received by them from real estate, to—

"Be divided into thirteen equal parts, to be distributed share and share alike, and accordingly the following shall be and are entitled to distribution under this item, viz.:

"Elizabeth Metz, or in the event of her death her heirs shall receive one-thirteenth (1/13).

"Herman C. Metz, or in the event of his death his heirs shall receive one-thirteenth (1/13).

"Katie Machens, or in the event of her death her heirs shall receive one-thirteenth (1/13).

"Aggie M. Rauch, or in the event of her death her heirs shall receive one-thirteenth (1/13).

"Nettie Rummel, or in the event of her death her heirs shall receive one-thirteenth (1/13).

"Clara Bliley, or in the event of her death her heirs shall receive one-thirteenth (1/13).

"Henry F. Ohlms, or in the event of his death his heirs shall receive one-thirteenth (1/13).

"Edward A. Ohlms, or in the event of his death his heirs shall receive one-thirteenth (1/13).

"Clara (Kruse) Borgmeyer, or in the event of her death her heirs shall receive one-thirteenth (1/13).

"Henry A. Pieper, or in the event of his death his heirs shall receive one-thirteenth (1/13).

"Kathleen Pieper, or in the event of her death his heirs shall receive one-thirteenth (1/13).

"J. F. Rauch and Henry F. Ohlms, trustees for Dorothy Pieper, shall receive in trust for her one-thirteenth, to be paid over in the event of her death to her heirs.

"J. F. Rauch and Henry F. Ohlms, trustees for Henry Pieper, shall receive and hold in trust for him one-thirteenth, to be paid over in the event of his death to his heirs."

Mrs. Metz died February 6, 1914. The testator never learned or knew of her death. He himself died March 12, 1914, while Henry A. Pieper died October 20, 1914.

The circuit court held that the bequest to Mrs. Metz in items number 12 and 21 of the will lapsed by her death and became a part of the residuary fund provided in item 24, and adjudicated accordingly.

The appellants Callie A. Pieper and her two daughters are, with their brother Henry entitled to the estate of Henry A. Pieper under his will. They are the appellants in case number 19928, and assert that, by reason of the lapse of the two bequests to Mrs. Metz, the amount so bequeathed descended to Henry A. Pieper and should be distributed to them and Henry Pieper under his will.

Herman C. Metz, the appellant in case number 19930, contends that these two legacies did not lapse, but passed to him as the only lineal descendant of the legatee.

I. The principal and controlling question in these two appeals is whether or not the legacy to Elizabeth Metz, the sister of the testator, lapsed by the death of the legatee during his lifetime, or took effect under the provisions of section 546 of the Revised Statutes of Missouri, in her lineal descendants. The trial court held that the first two of these legacies lapsed, and became a part of the residuary estate disposed of in item 24, in which the bequest to her did not lapse. The widow and children of the son of the testator, in their appeal, are satisfied with this decree in respect to the lapse of the two legacies, but attack it by the assertion (1) that it is erroneous in its determination that they thus become a part of the residuary estate and subject to the residuary bequest, instead of passing to the son by virtue of the statute of descents and distributions, and (2) in holding that the residuary bequest to Mrs. Metz did not...