Schlanger v. Simon
| Decision Date | 14 November 1960 |
| Docket Number | No. 2,No. 47929,47929,2 |
| Citation | 339 S.W.2d 825 |
| Parties | Carol Ann SCHLANGER, formerly Carol Ann Simon, Appellant, v John E. SIMON, Trustee Under the Will of Israel M. Simon, deceased, Frederick Nussbaum, Trustee Under the Will of Israel M. Simon, deceased, John E. Simon, Edgar J. Moch, Jr. and Frederick Nussbaum, as Executors Under the Will of Frederick M. Simon, deceased, as Substitute Defendants in the Place and Stead of Frederick M. Simon, Trustee Under the Will of Israel M. Simon, deceased, Neil Simon and Mark Simon, Jr., Respondents |
| Court | Missouri Supreme Court |
Selden Blumenfeld, James L. Zemelman, Blumenfeld & Abrams, St. Louis, for appellant.
Tobin & Hughes, Henry C. Hughes, St. Louis, for respondents.
STOCKARD, Commissioner.
Plaintiff has appealed from a judgment for defendants in her action for an accounting wherein she claims that the trustees of a trust, of which she is one of the beneficiaries, wrongfully disbursed $37,038.35 of the principal of the trust and wrongfully deprived her of $4,356.38 income therefrom.
Israel M. Simon died testate on September 3, 1935. By the fifth clause of his will he created a trust consisting of 'one-half of all the rest, residue and remainder of my estate' and named two of his sons, Fred and John, as trustees thereof. Two-thirds of the income therefrom was to be paid to a third son, Mark Simon [hereafter referred to as Mark Simon, Sr.], during his lifetime, and one-third to his grandson Mark Simon, Jr. and to Mathilda Simon, his wife. After making provisions concerning the investment of the principal, the testator provided that 'My trustees shall also have the right to pay a part of the principal of said fund to the beneficiaries under this trust, if, at any time during the period of the trust, they deem it advisable to do so.'
In the seventh clause of the will it was provided that upon the death of Mark Simon, Sr. 'his share in the trust estate shall be continued in trust and out of the income of that part of my trust estate' the trustees should pay to his widow, Nell Simon, 'during her lifetime or until she remarries one-half of the net income of that part of the income which my son, Mark, was entitled to during his lifetime, and the other one-half of the income to my great granddaughter Carol Ann Simon * * * and to any other children of my grandson, Mark Simon, Jr. * * * until said Carol Ann Simon reaches the age of 21 years, at which time the principal and accrued income of that part of the trust estate shall be divided between the children born to my grandson Mark Simon, Jr. and his wife, Mathilda Simon, share and share alike.' Carol Ann Simon, the plaintiff-appellant was the only child of Mark Simon, Jr. and his wife Mathilda. She reached her majority on May 22, 1955. Mark Simon, Sr. died in 1939. Mark Simon, Jr. and Mathilda were divorced in 1940, and Mathilda remarried approximately one month later. Other provisions of the will resulted in an increase of the interest of appellant in the trust upon the occurrence of certain events which at the time of the trial had not occurred.
On October 25, 1940, the date Mark Simon, Jr. and Mathilda were divorced, the Circuit Court of the City of St. Louis entered a judgment in a suit to construe the will of Israel M. Simon brought by the trustees against all beneficiaries of the trust, including 'Carol Ann Simon, by Mathilda Simon, guardian ad litem.' In the judgment it was recited that Mathilda Simon and 'Carol Ann Simon, a minor, by Mathilda Simon her guardian ad litem' appeared by counsel, and that the defendants entered their appearances in this action and 'filed their answers and consent to the entry of a decree in accordance with the prayer of plaintiff's petition.' This judgment recited that 'it is necessary to the proper execution of the duties of the plaintiffs, as trustees, that they be instructed by this court and that clauses Fifth, Sixth and Seventh of said will be construed.' The Court then recited that 'Mark Simon, Jr. is physically incapable of working and earning any money and that he has not for some time past furnished any support for the defendant Mathilda Simon, his wife, or for his child, Carol Ann Simon, and that the income from said one-third of the trust has not been and is not sufficient to provide support and maintenance for defendant Mathilda Simon,' but that Mathilda Simon is willing to agree that in the event the trustees, in the exercise of their discretionary powers, distribute to her one-half of the principal of one-third interest of the trust estate, amounting to the sum of $9,000, she would waive and forego, as beneficiary under said will, any and all further claims against and with respect to said trust estate. The Court then approved the payment of $9,000 by the trustees to Mathilda Simon out of the principal. Appellant does not challenge this payment to her mother of principal of the trust estate.
The Court construed the provision of the will containing the direction as to what should be done in the event of the remarriage of Mathilda Simon to refer to the 'one-third on the estate, income from which was payable to Mark Simon, Jr. and Mathilda Simon.' It then decreed that the 'remaining one-half of the one-third interest' be held for the benefit of Mark Simon, Jr. during his lifetime, and that the trustees should pay to Mark Simon, Jr. the income therefrom during his life, and that they 'shall also have the right to pay any part of the principal of the entire trust estate to Mark Simon, Jr. if at any time during the period of the trust they deem it advisable to do so.' Other provisions of the will were construed, but the construction is not material to any issue here.
It was stipulated that between May 31, 1936 and October 14, 1939 (the date of death of Mark Simon, Sr.) the trustees paid to Mark Simon, Sr. out of the principal a total of $12,293.37, and paid $6,146.70 to or for the account of Mark Simon, Jr. and Mathilda Simon. During that period all the net income was paid as follows: two-thirds to Mark Simon, Sr. and one-third to Mark Simon, Jr. and Mathilda Simon. From October 19, 1939 to October 25, 1940 (the date Mark Simon, Jr. and Mathilda were divorced) the trustees paid $1,073.41 out of the principal of the trust to Mark Simon, Jr. and Mathilda Simon, and during said period paid the income as follows: one-third to Mark Simon, Jr. and Mathilda Simon, one-third to Nell Simon, and one-third to Carol Ann Simon. From October 26, 1940 to May 22, 1950 (when Carol Ann obtained her majority) the trustees paid $14,425.50 out of the principal to Mark Simon, Jr., and paid the income as follows: one-fifth to Mark Simon, Jr., two-fifths to Nell Simon, and two-fifths to Carol Ann. On May 22, 1955 the trustees paid Carol Ann 'as her purported distributive share of the principal' the sum of $22,211.64. From May 22, 1955 to June 30, 1958 the trustees paid $3,099.37 out of the principal to Mark Simon, Jr., and paid the income as follows: five-sixths to Nell Simon and one-sixth was placed in a reserve account.
Appellant's first point in her brief is as follows: 'The Court erred in entering judgment in favor of the defendants and against the plaintiff and in dismissing plaintiff's petition, for the reason that the agreed and undisputed evidence in the case conclusively established that the defendants paid out of the principal of the trust large sums of money to or for the account of certain beneficiaries, contrary to and in violation of the terms and provisions of clauses Fifth and Seventh of the Last Will and Testament of Israel M. Simon, deceased, and that such payments diminished and unlawfully encroached on plaintiff's share of the income therefrom and the principal thereof, and consequently under the law and the undisputed evidence the judgment of the court should have been for the plaintiff.'
On an appeal in an equity case, such as this, the appellate court reviews the whole record, determines the weight and value of the evidence, and reaches its own conclusions as to the facts, giving due deference to the findings of the chancellor who saw the witnesses and heard their testimony. Botto v. James, Mo.Sup., 209 S.W.2d 256; Mueller v. Mueller, Mo.Sup., 318 S.W.2d 365. But the appellate court performs the above functions only in respect to the specific matters urged by appellant as constituting error. It does not review the whole case on its own initiative to determine what result it would have reached if it were sitting as the trial judge. The parties stipulated that the trustees paid approximately $37,000 out of the principal of the trust to certain beneficiaries, but why does appellant assert that this was wrong? In view of the encroachment provision contained in the fifth clause of the will, any payment from principal was not wrongful as a matter of law. Appellant says the payments were in violation of the terms of the fifth and seventh clauses of the will. What terms of these clauses of the will? As set out in our statement of facts these clauses had many provisions. Is...
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