Shaller v. Mississippi Valley Trust Co.

• Decision Date: 03 March 1928
• Docket Number: 26306
• Parties: Marie Ruth Yore Shaller et al., Appellants, v. Mississippi Valley Trust Company et al
• Court: Missouri Supreme Court

3 S.W.2d 726

319 Mo. 128

Marie Ruth Yore Shaller et al., Appellants, v. Mississippi Valley Trust Company et al

No. 26306

Supreme Court of Missouri

March 3, 1928

Appeal from Circuit Court of City of St. Louis; Hon. A. B Frey, Judge.

Affirmed.

McDonald & Just for appellants.

(1) Under the provisions of the will, the trust as to the Yore share terminated on the death of Alice K. Yore, her children being then of age. Smith v. Smith, 194 Mo.App. 309. (2) The prior will construction case did not adjudicate the question as to the time of termination of the Yore share, but only as to the John S. Kelly share. Pomeroy's Eq Jurisprudence (4 Ed.) sec. 1157; Black on Judgments, sec 611. (3) The interest of those taking the Yore share being vested and fixed with no gift over, the enjoyment merely of definite interests being postponed, on petition of all the beneficiaries of that share the court should terminate the trust as to that share, no matter what ruling is made on the above points. Donaldson v. Allen, 182 Mo. 626; Gibson v. Gibson, 280 Mo. 519; In re Buch's Estate, 122 A. 239; Simmons v. Northwestern Trust Co., 136 Minn. 357; Manders v. Merc. Trust Co., 128 A. 145; Burton v. Boren, 308 Ill. 440; Perry on Trusts & Trustees (6 Ed.) sec. 920; Pomeroy's Eq. Jurisprudence, sec. 991, note (d); 39 Cyc. 99; Sears v. Hardy, 120 Mass. 524; Williams v. Thatcher, 186 Mass. 293; Welch v. Episcopal School, 189 Mass. 108.

O'Neill Ryan for respondents.

The decree as to the period of the trust is res judicata here. The parties were the same as here. That issue was raised and decided. The judgment was appealed from (by the appellants and one of the respondents here) and became final. All the elements are here to make that decree an absolute bar to this proceeding and the judgment below, so finding, was right. St. Louis v. United Railways, 263 Mo. 423, 497-507; Turnverein v. Hagerman, 232 Mo. 693; Edmonston v. Carter, 180 Mo. 515; Fiene v. Hirchoff, 176 Mo. 516; Nave v. Adams, 107 Mo. 414; Murphy v. De France, 101 Mo. 151; Smith v. Smith, 194 Mo.App. 324; La Rue v. Kempf, 186 Mo.App. 69; 23 Cyc. 1215 to 1218; 34 C. J. 742, 868, 902, 913; Black on Judgments, sec. 638a. And the conclusive effect of the judgment lies in the judgment itself, and not in the finding, or opinion, of the court. 23 Cyc. 1218.

Ellison, C. Lindsay and Seddon, CC., concur.

OPINION

ELLISON

This is a suit to construe the will of Michael L Kelly, and for a decree terminating a trust declared therein so far as it affects the interests of the plaintiffs-appellants. The appellants are the four children (with their spouses) of Alice K. Yore, deceased, a daughter of the testator and a beneficiary under the trust. They maintain the trust ended, as to them, when the youngest of the Yore children attained the age of twenty-one years. The respondents urge above all else that the question is res judicata because of a decree entered by the Circuit Court of the City of St. Louis in 1915 in a proceeding between the same parties construing the same will; and, second, they say as a matter of independent construction now that the will does not bear the meaning contended for by appellants. The trial court upheld respondents' first contention, that the matter was res judicata. In view of the nature of the issues there seems to be no escape from quoting rather extensively from the records and documents involved.

The ninth clause of the will and the two codicils, expressing the trust, are as follows. In setting out the clause of the original will we break it up into paragraphs covering the several subjects dealt with:

Ninth Clause.

"I give, devise and bequeath to William F. Crow all the rest, residue and remainder of my estate, real, personal and mixed, in trust, however, to hold the same for the use and benefit of my children, John S., Joseph, Alice and Rosa Ann, and John M. Power, the son of my deceased daughter, Nellie, during each of their natural lives;

"With full power in said trustee or his successor in this trust to sell all the real estate or any part thereof whenever deemed advisable, and the proceeds of such sales to be invested in other real estate, or such securities as he may deem best; he shall also invest the surplus income and the proceeds of such securities as he may think best; in other words, having the great confidence in his judgment and business ability, I wish him to act as if the estate belonged to himself.

"During the five years following my death I desire that he shall pay to my daughter Alice the sum of twenty-four hundred dollars per annum, in monthly payments of two hundred ($ 200) dollars; to my daughter, Rose Ann Gerhard, the sum of eighteen hundred dollars per annum, payable in monthly installments of one hundred and fifty dollars; to each of my sons, John S., and Joseph, the sum of six hundred dollars each, to be paid to them in monthly installments of fifty dollars each, and to my Grandson the sum of six hundred dollars, payable fifty dollars monthly.

"At the expiration of the five years herein specified, he shall as certain the amounts paid to each of said persons and shall equalize their share, so that each one shall have an equal undivided 1/5th interest in the whole estate, and thereafter he or she shall be entitled to 1/5 of the net income, which shall be payable in quarterly installments.

"In the event of the death of John, Joseph or John M. Power, or any one of them, without living issue, his share shall belong to the remaining devisees. In the event of the death of either Alice Yore or Rosa Ann Gerhard, before all their children arrive at legal age, said trustee shall hold the share of said deceased person, until the youngest child arrives at legal age. . . ."

Codicil of April 6, 1897.

"I, Michael L. Kelly, do hereby revoke so much of the provisions of Article Ninth of the foregoing last Will and Testament relating to the monthly payments to be made to my daughter, Alice Yore, and in lieu hereof, I direct said William F. Crow to pay her the sum of one hundred and fifty dollars per month, and I further direct and instruct him to pay the sum of sixty dollars per month for the support and education of my grandsons, Jules and Lawrence Yore, until each arrives at legal age, when their respective allowance ($ 30) shall cease. . . ."

Codicil of June 10, 1897.

"I give, devise and bequeath to William F. Crow, in trust, for the use and benefit of Frank H. and Aenid Marie, children of my deceased daughter, Rowena K. Gerhart, the share devised and bequeathed to her in Article 9 of my said last Will and Testament hereunto attached; to have and to hold the same during the minority of each of said children; and with all the powers and authority and subject to all the conditions mentioned and contained in said Article 9; and out of the income from said estate he shall pay to their guardian or curator, the sum of thirty dollars each per month during their said minority. In the event of the death of both of said children before arriving at legal age, or thereafter, without issue, their share of said estate shall revert to the remaining devisees mentioned in said Article 9."

The will was dated in January, 1897. The testator died in December, 1897. In the meantime his daughter Rosa Ann died on May 29, 1897, and his son Joseph died single in November, 1897. The death of Rosa Ann accounts for the second codicil, of June 10, 1897, making provision for her children. She is the person designated as Rowena K. Gerhart in this codicil. The trustee William F. Crow died in 1907, and the respondent Mississippi Valley Trust Company was appointed in his stead. Another son, John S. Kelly, died in March, 1914, survived by a widow and two children. Of the original cestuis que trustent this left two, the daughter, Alice Yore, and the grandson, John M. Power.

Shortly following John S. Kelly's death in 1914 the respondent Mississippi Valley Trust Company as trustee brought a suit in the St. Louis Circuit Court to construe the will. All the other parties to this suit were parties defendant in that, save the spouses of one or two who were not married at that time. Alice K. Yore, with her four children and their spouses, the latter being plaintiffs herein, were represented by able counsel and filed answer denying the necessity for a construction of the will. The petition in this former proceeding is too long to set out in this opinion. It covers twenty-one pages of the printed record. Suffice it to say that after reciting the prior history of the trust and the contents of the whole will and then referring to some of the provisions of the ninth clause and the codicils, the petition asked the judgment of the court as to whether the two John S. Kelly children were entitled to the share of their deceased father in the trust corpus, and income earned and to accrue, and then continued:

"Further this trustee is advised there is grave doubt as to the proper construction of the will in this -- as to the quality and extent of the interest of the defendant Alice K. Yore in the trust estate if she should survive her children, who are now of legal age, and what is the nature and extent of their interest now, if any, and of the interest of such as survive their mother; . . .

"Plaintiff states . . . there should be a construction of the instrument (the will and codicils) by the court, in the particulars above set forth, and such others, if any, as the parties may desire, and the court may deem necessary, to the end that the extent of the rights and the quality of the interests of all the defendants in said trust estate under said will may now be definitely and finally ascertained and decreed, and this trustee advised and directed as to the duration of this trust, and the...