Rutherfurd v. Farrar

• Decision Date: 20 June 1938
• Docket Number: No. 24875.,24875.
• Citation: 118 S.W.2d 79
• Parties: RUTHERFURD et al. v. FARRAR et al.
• Court: Missouri Court of Appeals

118 S.W.2d 79

RUTHERFURD et al. v. FARRAR et al.

No. 24875.

St. Louis Court of Appeals. Missouri.

June 20, 1938.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

Proceeding by Thomas S. Rutherfurd and others against James Christy Farrar, for whom Theresa W. Farrar, as his executrix and sole heir, was substituted following his death, to construe a will, determine title to land devised, and for partition, wherein the land was partitioned and sold and James H. Maguire was appointed as trustee to manage the funds so received. From judgment overruling the defendant's motion to set aside a judgment of distribution which was made without notice to defendant, the defendant appealed to the Supreme Court, which transferred the appeal to the St. Louis Court of Appeals, 112 S.W.2d 847.

Affirmed.

Christy M. Farrar and Leslie Hawes Fisher, both of St. Louis, for appellant.

Barker, Durham & Drury and David J. Tompkins, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is an appeal from the order and decision of the Circuit Court of the City of St. Louis overruling a motion to review and set aside a final judgment of distribution of the proceeds of the sale of certain real estate pursuant to an interlocutory judgment of partition, which final judgment was concededly entered without notice to the defendant in the suit who claimed to be entitled to share in the distribution.

The result in the case depends upon the construction to be given a certain clause of the will of Thomas S. Rutherfurd, who died in the City of St. Louis on January 27, 1887, leaving surviving him six children, of whom one was his daughter Adele, the wife of James S. Farrar.

The clause in controversy, which is a part of the seventh paragraph of the will, is as follows:

"And to the following of my children, viz: Isabelle, wife of Dr. B. A. Clements, Thomas S. Rutherfurd, Adele, wife of James S. Farrar, Maud, wife of W. T. Hartz, Lucile, wife of T. A. Bingham and John Rutherfurd I will and devise all my real estate then remaining in equal proportions during their respective lives with remainder over to their issue respectively, with the right and power however in each of my said children in the event that at or previous to their death they should have no child or children then living then such child of mine may by will devise and dispose of his or her share in my real estate so bequeathed to him or her in such manner and to such person or persons or for such uses and purposes as he or she may elect and choose."

This case involves the question of the interest, if any, in the proceeds of the sale on the part of one James Christy Farrar, the son of Adele's husband, James S. Farrar, by a previous marriage. In other words, Adele was merely the stepmother of James Christy Farrar, who was in nowise related by blood to Thomas S. Rutherfurd, the original testator. However there was a child born of the marriage of Adele to James S. Farrar, a son, Bernard Royal Farrar, who was born during the lifetime of Thomas S. Rutherfurd, and was the only child of Adele surviving at the time of Rutherfurd's death.

On March 30, 1903, Bernard Royal Farrar died unmarried, intestate, and without issue, leaving surviving him, as his sole heirs at law, his mother, Adele, and his brother of the half blood, James Christy Farrar. The subsequent bone of contention between the parties has been the question of the character of interest in the Rutherfurd estate James Christy Farrar inherited upon the death of his half brother, Bernard Royal Farrar, whose own interest in the estate as the son of Adele was necessarily determinable under the particular provision of the will of Thomas S. Rutherfurd which has been heretofore quoted.

Following the death of Thomas S. Rutherfurd no step was taken towards the partition of the real estate devised by his will until December 11, 1913, when a suit was brought in the Circuit Court of the City of St. Louis by Rutherfurd's descendants and certain other interested parties for the purpose of having the will partially construed, the title to the real estate determined, and the same partitioned among the persons entitled thereto under the will. James Christy Farrar, whose interest, whatever its character, was by inheritance from his deceased half brother, Bernard Royal Farrar, was made the sole party defendant to the suit.

By its interlocutory decree, which was entered on February 3, 1914, the court found that Bernard Royal Farrar, upon the death of his grandfather, Thomas S. Rutherfurd, had taken a vested remainder in the undivided one-sixth of the real estate devised to his mother, Adele, for life; that upon the death of Bernard Royal Farrar, James Christy Farrar, being related to him only by the half blood, had inherited one-third of his estate (his mother, Adele, having inherited two-thirds), or a remainder in one-eighteenth of the real estate devised by the will of Thomas S. Rutherfurd; and that Adele, as life tenant under the will, was the owner of such "undivided one-eighteenth of said real estate for and during her life, with remainder over in fee to James Christy Farrar; such remainder, however, being subject to whatever power and authority is given her [Adele] by the seventh paragraph of the said will of Thomas S. Rutherfurd".

The "power and authority" thus referred to in the decree as given by the seventh paragraph of the will was, of course, the power and authority conferred upon each of Rutherfurd's six children, "in the event that at or previous to their death they should have no child or children then living", to devise or dispose of his or her share in the real estate by will in such manner and to such person or persons or for such uses and purposes as he or she might elect and choose. It is to be observed, however, that the court, in its interlocutory decree, did not undertake to determine other than that the remainder vesting in James Christy Farrar had come to him subject to "whatever power and authority" had been given Adele to dispose of the property by her will, thus leaving the question of the interpretation and validity of that power of appointment a matter for future determination in the event, no doubt, that Adele should thereafter elect to exercise it.

Pursuant to the court's decree the real estate was sold for the net sum of $19,855.05, and respondent, James H. Maguire, was appointed trustee to manage the fund; pay the net income therefrom to the children of Thomas S. Rutherfurd during their lives; and thereafter pay over the corpus to their issue in accordance with the terms of Rutherfurd's will. Thereupon Maguire gave bond and qualified and entered upon his trusteeship, and thereafter managed the fund, subject to the continuing jurisdiction of the circuit court, until January 10, 1933, when a petition was filed in the cause by certain of the heirs, and distributees for an accounting and distribution of their respective shares in the fund.

Following the filing of such petition the trustee filed his report as to the residue of the fund on hand, and prayed for an order of court authorizing him to make distribution of the fund to those persons entitled thereto. On May 15, 1933, the court, having accepted the trustee's report, ordered the trustee to distribute the fund among the several distributees, of whom Adele was one, and distribution was thereupon made in accordance with the court's order; acquittances were taken from the distributees, including Adele; and upon the filing of the same the court entered its order discharging the trustee and his surety.

It is admitted that the portion of the fund paid over to Adele included the one-eighteenth interest theretofore found to have been owned by her for life "with remainder over in fee to James Christy Farrar", and that the value of such one-eighteenth interest in the fund was the sum of $1,103.06.

Adele had meanwhile become domiciled in the City of Washington, District of Columbia, where she subsequently died testate on February 11, 1935.

By the terms of her will she devised and bequeathed to the Union Trust Company of the District of Columbia all of her estate, real, personal, and mixed, including any and all interest that she had in the estate of her father, Thomas S. Rutherfurd, to hold the same in trust for the use and benefit of one Henrietta Morgan Leach, a friend of Adele, to whom the net income of the trust estate was to be paid at convenient intervals.

There was a further provision that upon the death of Henrietta Morgan Leach the sum of $5,000 should be paid to James Christy Farrar, if he were living, and if he were not living, then to his widow, if there should be a widow surviving him.

Still a further provision was that upon the death of Henrietta Morgan Leach, and after the bequest of $5,000 to James Christy Farrar or his widow had either been paid or its failure determined, the balance of the estate should be distributed among Adele's four designated nieces in equal shares in fee simple or absolutely, according to the nature or quality of the estate. In the event of the death of any one of such nieces leaving descendants, it was provided that the descendants should take per stirpes the share that the particular niece would have received had she survived; and in the event of the death of any one of such nieces without leaving descendants, it was provided that the share of the one so dying should go to the surviving nieces.

Upon the death of Adele her...