Sandusky v. Sandusky

• Decision Date: 25 May 1915
• Docket Number: No. 16955.,16955.
• Citation: 265 Mo. 219,177 S.W. 390
• Parties: SANDUSKY v. SANDUSKY et al.
• Court: Missouri Supreme Court

177 S.W. 390

265 Mo. 219

SANDUSKY v. SANDUSKY et al.

No. 16955.

Supreme Court of Missouri, Division No. 2.

May 25, 1915.

Appeal from Circuit Court, Clinton County; Alonzo D. Burnes, Judge.

Suit by Sydney G. Sandusky, executor, against James M. Sandusky, trustee, and others. From an order allowing an attorney's fee to be paid out of the funds of the estate, the plaintiff and James M. Sandusky, trustee, appeal. Reversed.

A suit brought by the executor of the will of Mary E. Dorsey against her heirs and those claiming under the will to determine their respective rights was determined in the trial court against the heirs. They thereupon filed their motion for an allowance of their costs, including a reasonable attorney's fee to be paid out of the funds of the estate. That motion was sustained, and a fee of $600 was allowed to H. T. Herndon and Claude Hardwicke, the attorneys for the heirs, for their services in the cause. The heirs appealed from the judgment and decree in the principal cause to this court, and the judgment was affirmed. That opinion is reported in 261 Mo. 351, 168 S. W. 1150. The executor and James M. Sandusky, trustee under the will, appealed from the order allowing said attorney's fee, and that appeal was sent to the Kansas City Court of Appeals, by which court it was, on motion of the heirs, transferred to this court.

Mrs. Dorsey was a widow, and died without issue. By her will she gave several legacies not necessary to be mentioned here. Clauses 3 and 10 of the will were as follows:

"3. I give to my executor, hereinafter named, the sum of one thousand dollars, in trust, however, for the following purposes, to wit: To be by him loaned out on unincumbered real estate at not more than 5 per cent. per annum, and the interest, less the necessary costs and charges, to be used by him in keeping in repair the monument erected to the memory of my late husband, John S. Dorsey, deceased, and his two wives, and, also in keeping the lot in said `Fairview Cemetery' on which said monument stands, in good condition. If at any time there should be an accumulation of interest not needed for the purposes aforesaid amounting to as much as five hundred dollars, then 80 per cent. of such interest shall be paid by such trustees to the legatees or beneficiaries named in the residuary clause of this, my will, and as in said cause provided."

"10. I give and bequeath to the Odd Fellows' Home at Liberty, Missouri, one wheel chair and chamber chair."

Clause 12 began as follows:

"12. I give, devise and bequeath, absolutely, all the rest, residue and remainder of my estate, real, personal and mixed, and wheresoever situate, to James M. Sandusky, in trust to effectuate the following benevolences and charities, to wit: One-fourth thereof, primarily, for the purchase, construction, furnishing, maintenance, and repair of a parsonage for the occupancy of such pastors or ministers of the gospel as may from time to time, in their ministerial capacity, serve the association of Christians in Liberty, Missouri, commonly known as `The Presbyterian Church of Liberty, Missouri.' meaning thereby the congregation now worshipping in the church edifice located at the corner of Main and Mississippi streets in Liberty, Missouri, and for the construction, furnishing, maintenance and repair of a church edifice for said congregation aforesaid, commonly known as `The Presbyterian Church of Liberty, Missouri'; and, secondarily, for the genera] advancement of Christianity, said parsonage shall be known `The Mary Elizabeth Dorsey Parsonage of the Presbyterian Church of Liberty, Missouri'; said charity may be executed by the trustee herein named, or by such trustee or trustees as said congregation may designate to receive said trust fund for said purposes."

Then followed in said twelfth clause and as a part thereof separate provisions in favor of the Second Baptist Church, the Methodist Episcopal Church South, and the Christian Church, all of Liberty, which provisions were each exactly the same as the provision made for the Presbyterian Church set out.

The petition of the executor sets out the will in hæc verba, and contains the following:

"Plaintiff alleges that he is in doubt as to the true construction of said will, especially as to said clause numbered three (3) in said will, relating to the bequest of one thousand dollars ($1,000.00) for keeping in repair the monument and lot in `Fairview Cemetery' particularly described in said clause three (3); and as to said clause numbered ten (10) in said will, relating to the bequest to the `Odd Fellows' Home at Liberty, Missouri'; and as to said clause numbered twelve (12) in said will, relating to the bequest of the residue of the estate of said Mary E. Dorsey, deceased, left after the payment of certain legacies specified in said will, to the four several associations of Christians in Liberty, Missouri, known and described in said clause twelve (12) as `The Presbyterian Church at Liberty, Missouri,' `The Second Baptist Church at Liberty, Missouri,' `The Methodist Episcopal Church (South) at Liberty, Missouri, and the Christian Church at Liberty, Missouri;' that conflicting claims are set up as to the validity and meaning of said clauses three (3), ten (10), and twelve (12) in said will, and as to the rights and interests of said legatees named in said clauses three (3), ten (10), and twelve (12), and as to the rights and interests of the heirs of said Mary E. Dorsey in the property bequeathed by said clauses, and plaintiff cannot, by reason of said conflicting claims, safely proceed in the execution of said will, and in the discharge of his duties as executor, without the direction of this court."

The prayer of the petition is as follows:

"Wherefore plaintiff prays the judgment and direction of the court in regard to the true construction of said clauses three (3), ten (10), and twelve (12) of said will, and as to his duties in the premises."

The answer of James M. Sandusky, trustee, alleged his acceptance of the trust and prayed that said clause 12 be adjudged valid. The answer of the heirs is long, alleging that the various religious associations of Liberty named in the will then had and possessed church edifices, and that all except the Baptists had a parsonage. Many other facts not necessary to be here mentioned were stated in that answer as reasons why the third and twelfth clauses of the will should be adjudged void. That answer contained the following:

"These defendants further state that, by reason of the facts herein stated, the bequest the said deceased attempted to make to plaintiff, Sydney G. Sandusky, executor, by article (or paragraph) 3 of said will, is contrary to and not authorized by law, and is null and void and cannot be enforced or carried into effect, and that said deceased should be deemed to have died intestate as to the fund she attempted to dispose of by said bequest, and that such fund be distributed among the heirs of said deceased." "These defendants further state that, by reason of the facts herein stated, a controversy has arisen between the heirs of said deceased, and plaintiff and the defendants who are not heirs of said deceased, as to the validity of said articles (or paragraphs) numbered 3 and 12 of said will, and as to the facts herein alleged, and as to the disposition that may properly be made of the property and funds said deceased attempted to dispose of by articles numbered 3 and 12 of said will; and, by reason thereof, these defendants desire an adjudication as to the validity of said articles numbered 3 and 12 of said will, as hereinafter prayed for, and, in case it should be held that either of said paragraphs of said will is valid, or capable of being carried into force or effect, or should be enforced or carried into effect, that the court fully construe the same as hereinafter prayed for, and cause the will of said deceased to be strictly complied with relation thereto.

"These defendants therefore pray that the court adjudge and decree said articles (or paragraphs) numbered 3 and 12 of said will, and each of them, null and void and not capable of being enforced or carried into force or effect, and that the trusts said deceased attempted to create thereby, and each of them, be adjudged and decreed null and void and worthless and impracticable to enforce or carry into effect to have been created for the benefit of the heirs of said deceased; that it be adjudged and decreed useless and impracticable to enforce or carry into effect said articles (or paragraphs) of said will, and that said corporation and said associations, and each of them, and their trustees and representatives, be adjudged and decreed incapable of lawfully claiming any interest, either actual or beneficial, in to the property or funds said deceased attempted to dispose of by said articles (or paragraphs) of said will; and, in case it should be found, adjudged, or decreed by the court that said articles (or paragraphs) of said will, or either of them, or any part of either of them, are valid, or can be enforced or carried into effect, that the same be fully construed and interpreted by the court so as it will unmistakably appear by the court's decree how much or what portion, if any, of the Property and funds said deceased attempted to dispose of by said will, is require.] by said will to be used in the purchase of parsonages, how much or what portions thereof, if any, in construction of parsonages, how much or what portion thereof, if any, in furnishing parsonages, how much or what portion, if any, in maintenance of parsonages, how much or what portions, if any, in repair of parsonages, bow much or what portion, if any, in construction of church edifices, how much or what portion, if any, in furnishing church edifices how much or what portion, if any, in maintenance of church edifices, and how much or what portion, if any, in the repair of church edifices, and how...