Riley v. Kirk
| Citation | 253 S.W. 50,213 Mo. App. 381 |
| Decision Date | 30 April 1923 |
| Docket Number | No. 14661.,14661. |
| Parties | RILEY v. KIRK et al. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Clinton County; A. D. Burnes, Judge.
Action by H. R. Riley, trustee, against Clyde M. Kirk and others. From the judgment rendered, plaintiff appeals. Affirmed.
Daniel H. Frost, of Plattsburg, for appellant.
R. H. Musser, of Plattsburg, for respondents.
Plaintiff, as the present trustee in charge of a trust fund created by the will of William Kirk, deceased, brings this action to construe the trust clause in said will in order that he may know to whom he should distribute the same, now that the object of the trust has been accomplished.
William Kirk died, testate, July 1, 1887, leaving his widow, Eliza A. Kirk, and three children, Theophilus, Kirk, William T. Kirk, and Eva K. Thompson. His will was duly probated. Theophilus Kirk was made the executor thereof and duly administered and settled said estate.
The will directed the executor to collect all debts due the estate, to convert all personal property into cash (except books, wearing apparel and furniture bequeathed to the widow in the fifth section of the will), and, after the payment of debts, the executor was directed to "set apart for the use and benefit of my wife, Eliza A. Kirk, one-third of the residue of money so realized; and the remaining two-thirds he shall distribute equally among my children or their heirs." The will then devised certain parcels of real estate therein described to each of testator's children respectively.
As such trustee, Theophilus Kirk collected the whole of said trust fund and continued to execute the trust and apply it as therein directed until his death on November 7, 1921, at which time the plaintiff herein, H. R. Riley, was appointed trustee as his successor.
Theophilus Kirk died, testate, on November 7, 1921, leaving his widow, Adellah G. Kirk, and the following as his only heirs: His children, Clyde M. Kirk, Eugenia Young, Camilla Kirk, Halkaline Kirk, Lyman T. Kirk, `Robert M. Kirk, and two grandchildren, Paul Cowgill and Clyde Cowgill, only children of a deceased daughter, Evaline Kirk Cowgill.
In his will, Theophilus Kirk bequeathed to his wife, Adellah G. Kirk, all of his personal property of whatsoever character and description to be hers absolutely. He appointed her his executrix, and she duly qualified and settled the said estate.
Eliza A. Kirk, the widow of William Kirk. died on the _____ day of February, 1022, and at her death the trust fund in the hands of the trustee amounted to approximately $20,000, which the trustee now desires to distribute. The question the trustee asks is: Who is entitled to the one-third of said trust fund which would have gone to Theophilus Kirk had he outlived his mother, Eliza A. Kirk? Does it go under the will of Theophiius `Kirk to his widow, Adellah Kirk, as the sole `legatee of his personalty, or does it go to the children and heirs of said Theophilus Kirk? The circuit court held that it went to the latter and not to Theophilus Kirk's widow, as legatee of his personalty. Plaintiff, however, maintained that the trust clause of William Kirk's will created a vested remainder in William Kirk's three children ; and that upon the death of Theophilus Kirk, he having a vested remainder in onethird of said trust fund, it passed under his will to his widow, Adellah G. Kirk, as the sole legatee of his personalty, instead of to his heirs.
Plaintiff invokes the well-established rules that the law favors vested estates; that estates shall be held to vest at the earliest possible period unless a contrary intention is clearly manifested in the grant, and that no remainder will be construed to he contingent which may, consistently with the intention of the creator of the estate, be deemed to be vested. Tindall v. Tindall, 167 Mo. 218, 225, 66 S. W. 1092. And, in support of his contention, plaintiff urges that the will gave to each of testator's three children the present capacity to take in possession on the very day testator died, had Eliza A. Kirk also died on that day. There is no question but that the taw favors vested estates, and, when there is a doubt as to whether a remainder is vested or contingent, the courts will construe it as a vested estate. It is also well settled that adverbs of time, such as "after," "when," etc., do not of themselves create a contingent remainder, but refer rather to the time the enjoyment of the estate is to commence. Chew v. Keller, 100 Mo. 362, 368, 13 S. W. 395. And in the absence of anything in the will showing, either expressly or by implication, that testator intends that the title to his bounty is to be postponed, it is conclusively presumed that his gift is to vest at his death. Henderson v. Calhoun (Mo. Sup.) 183 S.W. 584, 586;
However, the question presented by the trustee is not to be arbitrarily...
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