Sebree v. Rosen

• Decision Date: 22 May 1952
• Parties: Frank P. SEBREE, Administrator with Will Annexed of the Estate of Sarah Rosen, Deceased, Morris Rosen, Rose Silverman, and Meyer Rosenwasser, Appellants-Respondents, v. Jacob ROSEN, Jacob Rosen, As Trustee of the Trust Estate Created under and by Virtue of the Purported Inter Vivos Trust Agreement of Pete Rosen and Sarah Rosen, Dated
• Court: Missouri Supreme Court

Page 865

349 S.W.2d 865

Frank P. SEBREE, Administrator with Will Annexed of the Estate of Sarah Rosen, Deceased, Morris Rosen Rose Silverman, and Meyer Rosenwasser Appellants-Respondents, v. Jacob ROSEN, Jacob Rosen, As Trustee of the Trust Estate Created under and by Virtue of the Purported Inter Vivos Trust Agreement of Pete Rosen and Sarah Rosen, Dated May 22 1952, and Trust Agreement Supplements Thereto Dated July 24 1953, and February 27, 1954; Jacob Rosen, as Executor of the Estate of Pete Rosen, Deceased, Betty Rosen, Sue Hyken, Carl Hyken, Mary Bodney, Bernard Bodney, Sam Rosen, and Avrom Rosen, Herbert Rosen, Joyce Rosen, Beverly Hyken, David Rosen, and Mary Sue Rosen, Pro Ami, Respondents-Appellants, Raymond Rosen and Charlotte Rosen, Pro Ami, Sylvia Bain, Dorothy Hyken, Melvin Silverman, Sarah Lena Mendelsohn, and Dorothy Rosen, Respondents.

No. 47330.

Supreme Court of Missouri, Division No. 2.

Sept. 11, 1961.

Motion for Clarification and Modification of Opinion Denied

Oct. 11, 1961.

Terence M. O'Brien, Daniel S. Millman, Kansas City, for Frank P. Sebree and others.

Walter A. Raymond, Kansas City, for Jacob Rosen and others.

BOHLING, Commissioner.

This review involves controversies between the children, heirs at law, of Pete and Sarah Rosen (formerly Rosenwasser), with other descendants of said Pete and Sarah having contingent interests joined as parties defendant. The trial was under an amended petition of fourteen counts. A separate trial was ordered on Count XIV, the court retaining jurisdiction thereover. The record is lengthy. ¹ It is not possible to refer to all of the many and varied factual situations and statements of the deceased settlors within reasonable limits. The purpose of the suit was to set aside an inter vivos trust agreement, including supplements, and certain other deeds and agreements of the parents or the survivor, and to recover and decree title to specific real preperty, for damages, and other relief. Some defendants, children of plaintiffs, joined in the allegations and prayers of plaintiffs' petition. The decree was, generally speaking and so far as material here, in favor of the defendants, subject to exceptions presently noted. Plaintiffs have appealed and present issues involved only in Counts I, III, VII, and VIII of their petition. Defendant heirs, their spouses, children, and attorneys have appealed and attack that portion of the decree on Count III removing the settlors' surviving trustee, Jacob Rosen, and appointing the City National Bank and Trust Company of Kansas City, Missouri, as successor trustee, and they also attack on the ground of inadequacy that part of the decree awarding $20,000 out of the trust estate to each of the two attorneys for the defendants. Count I involves the validity of a trust estate consisting of real property appraised at $545,741. The appeals come to this court. Walsh v. Southwestern Bell Tel. Co., 331 Mo. 118, 52 S.W.2d 839.

Defendants have filed a motion to dismiss plaintiffs' appeal for violations of Civil Rule 83.05, V.A.M.R. We find the brief of plaintiffs-appellants subject to criticism, as is also defendants-appellants' brief. However, we conclude that the interests of justice require a decision on the merits. Civil Rule 83.09. Vest v. Bialson, 365 Mo. 1103, 293 S.W.2d 369, 373, 63 A.L.R.2d 504. The motion to dismiss is overruled.

Pete and Sarah Rosenwasser lived in Warsaw, Poland, with their children Meyer, Rose, Morris, Mary, and Charles. Pete came to Kansas City, Missouri, in 1910. Sarah and all the children except Meyer, the eldest, who had to be left behind on account of a scalp rash or disease, joined him here in 1913. The family name was changed to 'Rosen.' Jake, Sam, and Sue Rosen were born in the United States. Meyer, who came to the United States in 1920, uses the original name, Rosenwasser. Charles never married, had no children, and was killed during World War II.

Pete died at the age of 71 on June 14, 1954, and Sarah, 74 years old, died November 17, 1954.

The plaintiffs are Morris Rosen, Rose Silverman, and Meyer Rosenwasser (sometimes referred to as 'plaintiff heirs'), and Frank P. Sebree, as administrator of the Estate of Sarah Rosen, deceased.

The defendants are Jacob Rosen, as trustee of an alleged inter vivos trust agreement of Pete Rosen and Sarah Rosen, and two supplements thereto, as executor of the estate of Pete Rosen, deceased, and individually, Betty Rosen (Jake's wife), Sue Hyken, Carl Hyken (Sue's husband), Mary Bodney, Bernard Bodney (Mary's husband) (sometimes referred to as 'principal defendants'), Samuel Rosen, and fourteen other lineal or in-law relations of Pete and Sarah Rosen, including the grandchildren of the settlors, joined as parties defendant in Counts I and XIV on behalf of themselves and all others of their class yet unborn.

Plaintiffs Morris Rosen, Rose Silverman, and Meyer Rosenwasser, and defendants Jacob Rosen, Sue Hyken, Mary Bodney, and Samuel Rosen are all the surviving children of Pete and Sarah Rosen. We frequently refer to the parties by their first names.

I. Counts I and VIII. The evidence bearing on Count I and Count VIII overlaps.

Count I is an action (a) to set aside an inter vivos trust agreement executed by Pete Rosen and Sarah Rosen, and supplements thereto, collectively referred to as the 'big trust,' on the alleged grounds that Pete Rosen, Jacob Rosen, Betty Rosen, Carl Hyken, and Sue Hyken fraudulently conspired to and did unduly influence and trick Sarah Rosen into executing the same to obtain preferential treatment in the benefits and assets thereof; and (b) for ancillary relief.

The big trust, the original inter vivos trust agreement 'by and between Pete Rosen and Sarah Rosen, husband and wife, hereinafter called the 'Settlors,' and Dr. Jacob Rosen and Pete Rosen, hereinafter called the 'Trustees," was executed and recorded on May 22, 1952, and the supplements thereto, with warranty deeds transferring additional property of the settlors to the trustees, of July 24, 1953, and February 27, 1954, were recorded August 3, 1953, and March 1, 1954, respectively. The corpus of said trust consisted of entirety estates held by Pete and Sarah in real estate. Pete and Jake were named joint trustees and, upon Pete's death, Jake became the sole trustee. The power of revocation and the right to withdraw or add assets to the trust estate were reserved only during the lifetime of Pete. It contained a spendthrift provision. It was to continue for twenty years after the death of the surviving settlor, the settlors or said survivor being the sole beneficiaries for life. It provided for the distribution of the net income. The remainder interest in the income for the twenty-year period and the corpus upon termination were to be distributed to the settlors' children as follows: Jacob Rosen, 30% of net; Morris Rosen, 15% of net; Sue Hyken, 15% of net; Mary Bodney, 15% of net; Meyer Rosen, 10% of net; Samuel Rosen, 5% of net; Rose Silverman, 10% of net; or to the lineal descendants, if any, per stirpes, in the event of the death of any of said remaindermen, otherwise to swell the shares of the surviving remaindermen or their lineal descendants.

Plaintiffs in seeking to set aside the big trust stress the disparities in the distributions made by the settlors.

Count VIII is an action based on a fraudulent conspiracy between Jacob Rosen, Betty Rosen, Sue Hyken, Carl Hyken, Mary Bodney, and Bernard Bodney to unduly influence, misrepresent, coerce, and trick Sarah Rosen into executing a written document, dated July 13, 1954, referred to as the 'forgiveness agreement,' purporting to forgive, release, and annul various receivables, face amount $46,000, owed Sarah and allegedly now owed the estate of Sarah Rosen, deceased, by said defendants and by plaintiff Morris and his wife, Dorothy Rosen; to set aside a purported warranty deed to Mary Bodney of real estate described in a contract to sell said real estate, on which there remained a balance unpaid, which constituted a receivable described in said forgiveness agreement; to set aside all purported satisfactions of said receivables, including the aforesaid contract of sale, and cancellations of deeds of trust securing said receivables, whether recorded or not; and to restore the same to full validity and enforceability against the respective makers thereof, and for ancillary relief.

The appealing defendants in their joint and several answers admitted certain allegations of the different counts in plaintiffs' petition but, as stated by plaintiffs, denied some of the formal allegations and all the effective allegations of the petition with respect to each count involved in this review.

By his will, executed February 24, 1954, Pete gave $5 each to Rose, Meyer, and Sam; then 25% of the remainder to Sarah; and distributed the balance of his estate as follows: 10% to Mary, 15% to Morris, 25% to Sue, 40% to Jake, and 10% to Jewish charities to be determined by his executor. Jake duly qualified as executor of Pete's estate.

All counts involved on this appeal are in equity and for trial de novo. We state our view on some general contentions of the parties.

'Our review is with deference to the findings of the trial chancellor on irreconcilable, directly conflicting, verbal testimony on fact issues, and his findings are usually sustained unless the overwhelming weight of the evidence appears to be against them. * * * The rule does not extend to evidence in the form of depositions * * * or documents * * *.' Creek v. Union Nat. Bank, Mo., 266 S.W.2d 737, 747[1, 2]. See also Barr v. Snyder, Mo., 294 S.W.2d 4, 8[2-4]; Schlanger v. Simon, Mo., 339 S.W.2d 825, 828[1, 2]. The credibility of the witnesses is for the trier of the facts and the fact that witnesses are not contradicted is not decisive. Mueller v. Mueller, Mo., 318 S.W.2d 365[4-6]; Poole v. Campbell, Mo., 289 S.W.2d 25, 32.

The briefs make many references to the...