Schlanger v. Simon, No. 47929
| Court | United States State Supreme Court of Missouri |
| Writing for the Court | PER CURIAM |
| 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 |
| Decision Date | 14 November 1960 |
| Docket Number | No. 2,No. 47929 |
Page 825
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.
Page 826
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
Page 827
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...
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Conran v. Girvin, No. 46429
...recognizes the rule of deference to the trial court's judgment but does not apply it. In the recent case of Schlanger v. Simon, Mo., 339 S.W.2d 825, 828, the author of the majority opinion thus stated the rule of deference and scope of review in a courttried case: 'On an appeal in an equity......
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Sperry v. ITT Commercial Finance Corp., No. WD
...Comm'n of Missouri, 700 S.W.2d 445, 451 (Mo. banc 1985); Delaney v. Gibson, 639 S.W.2d 601, 604 (Mo. banc 1982); Schlanger v. Simon, 339 S.W.2d 825, 831 (Mo.1960). Plaintiffs have not met that B. Punitive Damages The trial court expressly held that plaintiffs did not make a submissible case......
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First Nat. Bank of Malden v. Farmers New World Life Ins. Co., No. 8885
...case on our own initiative to determine what result we would have reached if we were sitting as a trial court. Schlanger v. Simon, Mo., 339 S.W.2d 825, The policy, though we will not set out the pertinent provisions at length, looks to the automatic insurance of all the bank's debtors whose......
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Parker v. Wallace, No. 9083
...v. Plaza Electric, Inc., Mo., 363 S.W.2d 637, 641(2); Mitchell v. Robinson, Mo., 360 S.W.2d 673, 676--677(2); Schlanger v. Simon, Mo., 339 S.W.2d 825, 830--831. Only under Point XI--'The verdict is against the greater weight of credible evidence, is the result of passion, bias and prejudice......
-
Conran v. Girvin, No. 46429
...recognizes the rule of deference to the trial court's judgment but does not apply it. In the recent case of Schlanger v. Simon, Mo., 339 S.W.2d 825, 828, the author of the majority opinion thus stated the rule of deference and scope of review in a courttried case: 'On an appeal in an equity......
-
Sperry v. ITT Commercial Finance Corp., No. WD
...Comm'n of Missouri, 700 S.W.2d 445, 451 (Mo. banc 1985); Delaney v. Gibson, 639 S.W.2d 601, 604 (Mo. banc 1982); Schlanger v. Simon, 339 S.W.2d 825, 831 (Mo.1960). Plaintiffs have not met that B. Punitive Damages The trial court expressly held that plaintiffs did not make a submissible case......
-
First Nat. Bank of Malden v. Farmers New World Life Ins. Co., No. 8885
...case on our own initiative to determine what result we would have reached if we were sitting as a trial court. Schlanger v. Simon, Mo., 339 S.W.2d 825, The policy, though we will not set out the pertinent provisions at length, looks to the automatic insurance of all the bank's debtors whose......
-
Parker v. Wallace, No. 9083
...v. Plaza Electric, Inc., Mo., 363 S.W.2d 637, 641(2); Mitchell v. Robinson, Mo., 360 S.W.2d 673, 676--677(2); Schlanger v. Simon, Mo., 339 S.W.2d 825, 830--831. Only under Point XI--'The verdict is against the greater weight of credible evidence, is the result of passion, bias and prejudice......