Shriners Hospitals for Crippled Children v. Emrie

• Decision Date: 12 June 1961
• Docket Number: No. 2,No. 48461,48461,2
• Citation: 347 S.W.2d 198
• Parties: SHRINERS HOSPITALS FOR CRIPPLED CHILDREN, a corporation, Respondent, v. Harry EMRIE, Jr., William C. Emrie, Jessie O. Emrie, Gladys Combs Shields, Louise Emrie Gossage, Thelma Bergfield, Jean Casteel, Lillian Olsen, Edna Symms, Thelma Wright, Daisy Woolley, Pendleton Goodall, Jr., Pendleton Goodall, Jr., Executor of the Estate of Margaret O. Goodall, deceased, Jessie M. Renard, Appellants, Harry C. Emrie, Sr., Ginny Sue Wright, Moya Olsen Lear, Joy Olsen Pendegraft, Mary Lou Breyfogle, William Woolley, Mildred Head Schoenhals, Anna Bruce, William Deway Bruce, Sophia Kenamore, Will Calvert, Vanila Calvert, Lucille Calvert, Martha Morrison, Mrs. J. Robyn, Richard E. Kohler, Jean Kohler, Mrs. A. L. Browne, Marie Walters, Marilyn Walters Youll, Louise Clem Anderson, Bessie Lindhorst, Jessie Pyle, Ruth Mayger, Charies A. Renard, Mary Ellen Nelson, Minnie Braun, Edward M. Anderson, Mrs. Edward M. Anderson, The Salvation Army, a corporation, High Ridge Fire Association in High Ridge, Missouri, a voluntary association, Children's Home Society of Missouri, a corporation, Bethesda Dilworth Memorial Home, a corporation, and Charles A. Renard and Otto R. Erker, Executors of the Estate of Nettie C. Bruce, deceased, Respondents
• Court: Missouri Supreme Court

Page 198

347 S.W.2d 198

SHRINERS HOSPITALS FOR CRIPPLED CHILDREN, a corporation, Respondent, v. Harry EMRIE, Jr., William C. Emrie, Jessie O. Emrie, Gladys Combs Shields, Louise Emrie Gossage, Thelma Bergfield, Jean Casteel, Lillian Olsen, Edna Symms, Thelma Wright, Daisy Woolley, Pendleton Goodall, Jr., Pendleton Goodall, Jr. Executor of the Estate of Margaret O. Goodall, deceased Jessie M. Renard, Appellants Harry C. Emrie, Sr., Ginny Sue Wright, Moya Olsen Lear, Joy Olsen Pendegraft, Mary Lou Breyfogle, William Woolley Mildred Head Schoenhals, Anna Bruce, William Deway Bruce, Sophia Kenamore, Will Calvert, Vanila Calvert, Lucille Calvert, Martha Morrison, Mrs. J. Robyn, Richard E. Kohler, Jean Kohler, Mrs. A. L. Browne, Marie Walters, Marilyn Walters Youll, Louise Clem Anderson, Bessie Lindhorst, Jessie Pyle, Ruth Mayger, Charies A. Renard, Mary Ellen Nelson, Minnie Braun, Edward M. Anderson, Mrs. Edward M. Anderson, The Salvation Army, a corporation, High Ridge Fire Association in High Ridge, Missouri, a voluntary association, Children's Home Society of Missouri, a corporation, Bethesda Dilworth Memorial Home, a corporation, and Charles A. Renard and Otto R. Erker, Executors of the Estate of Nettie C. Bruce, deceased, Respondents.

No. 48461.

Supreme Court of Missouri, Division No. 2.

June 12, 1961.

Mortimer A. Rosecan, Pendleton Goodall, Jr., St. Louis, for appellants.

Robert P. Smith, Washington, D. C., Foster & Vogel, St. Louis, for respondent, Shriners' Hospitals for Crippled Children.

Tralles, Hoffmeister & Gilpin, St. Louis, for respondent, Mary Ellen Nelson.

G. A. Buder, Jr., Richard O. Roberts, St. Louis, for respondent, The Salvation Army.

David E. Horn, David J. Tompkins, St. Louis, for respondent, Children's Home Society of Missouri.

William M. Ward, St. Louis, for respondent, Bethesda-Dilworth Memorial Home.

Lena Frank Oakley, David J. Stephens, St. Louis, for respondents, Ruth Mayger and Minnie Braun.

Cottrell Fox, St. Louis, for respondent, Sophia Kenamore.

Noel Robyn, Clayton, for respondent, Mrs. J. Robyn.

Paul Brackman, Clayton, Guardian ad Litem for respondent, Ginny Sue Wright.

STOCKARD, Commissioner.

Mrs. Nettie C. Bruce executed her last will and testament on February 6, 1954. At that time she owned 10,258 shares of the common stock of Ralston Purina Company which had a par value of $25 per share. On January 9, 1957 the Articles of Incorporation of Ralston Purina Company were amended whereby the authorized shares of common stock were increased from 1,600,000 shares having a par value of $25 per share to 8,000,000 shares having a par value of $5 per share. At the time of this five-for-one stock split Mrs. Bruce owned 10,205 shares, and she received from Ralston Purina Company a certificate for 40,820 additional shares of common stock. Her total holdings then were 51,025 shares, and this was the number of shares she owned at the time of her death on March 7, 1958.

In the third clause of her will Mrs. Bruce made 40 separate bequests of a stated number of shares of the common stock of Ralston Purina Company to named individuals, and in the fourth clause she made bequests of a stated number of shares to six different organizations. These bequests totaled 4,190 shares of stock. The bequest to plaintiff-respondent was as follows: 'I give to Shriners Hospital for Crippled Children, now located at 700 South Kingshighway Boulevard, St. Louis, Missouri, two hundred (200) shares of common stock of Ralston Purina Company.' The will contained a residuary clause whereby all the 'rest, residue and remainder' of the estate was bequeathed in equal shares to such or all of fifteen named persons who survived the testatrix each of whom was also designated in the third clause of the will to receive a bequest of a stated number of the shares of the common stock of Ralston Purina Company. One of the coexecutors of the will was Charles A. Renard who received a bequest in the third clause of 200 shares of stock and who was also named as one of the fifteen residuary legatees.

The executors tendered to plaintiff-respondent 200 shares of the common stock of Ralston Purina Company having a par value of $5 per share in full satisfaction of the bequest in the will. Suit was then brought by plaintiff-respondent for a declaratory judgment, to which all persons and organizations having an interest under the will were made parties, to obtain a declaration of rights under the will. The trial court entered judgment that plaintiff-respondent 'is entitled to receive 1,000 shares of the common stock of the Ralston-Purina Company, * * * in satisfaction of the bequest to [it] of 200 shares of the common stock of the Ralston-Purina Company, as such stock was constituted on the date of the execution of said will.' In the judgment similar orders were made as to the other organizations and persons designated in the third and fourth clauses of the will to receive bequests of a stated number of shares of the common stock of Ralston Purina Company. All the residuary legatees, except Charles A. Renard, have appealed.

It is frequently said that the rights of a legatee under a will are determined by the character of the legacy, that is, whether specific, general or demonstrative. Section 474.430 RSMo 1959, V.A.M.S. provides that the courts 'shall have due regard to the directions of the will, and the true intent and meaning of the testator,' and 'fundamentally and always' the paramount rule in construing wills is the ascertainment of the intent of the testator, which is to be determined, when possible, by a consideration of the will as a whole, Hereford v. Unknown Heirs, etc., of Tholozan, 365 Mo. 1048, 292 S.W.2d 289, 293; Buder v. Stocke, 343 Mo. 506, 121 S.W.2d 852, and not merely from those provisions creating the particular gift. In re Shearer's Estate, 346 Pa. 97, 29 A.2d 535; Morrow v. Detroit Trust Co., 330 Mich. 635, 48 N.W.2d 136. A specific legacy is defined as 'a gift of a specific thing, or of some particular portion of the testator's estate, which is so described by the testator's will as to distinguish it from other articles of the same general nature.' 4 Page, Wills Sec. 1394; In re Bernheimer's Estate, 352 Mo. 91, 176 S.W.2d 15; Waters v. Hatch, 181 Mo. 262, 79 S.W. 916; Fidelity Nat. Bank & Trust Co. v. Hovey, 319 Mo. 192, 5 S.W.2d 437, 73 A.L.R. 1228. In this case a determination of the intention of the testatrix, if that is possible from the language of the will, as to whether the legatees named in the third and fourth clauses of the will are to receive the equivalent of the stated number of shares of stock with a par value of $25, or only the stated number of shares of stock with a par value of $5, will result in a determination of whether the testatrix intended the bequests to be specific or general.

A stock split, such as we have here, is a mere change in form of the stockholder's interest in the company and not a change in the substance of the property. Adams v. Conqueror Trust Co., 358 Mo. 763, 217 S.W.2d 476, 481, 7 A.L.R.2d 268. Appellants admit, or at least they do not dispute the proposition, that a determination that the challenged bequests are specific results in the named legatees receiving their proportionate share of the increased number of shares of stock resulting from the stock split. The fact that the additional shares of stock acquired by the testatrix by reason of such a stock split 'pass under a specific bequest of the original shares, is too well settled for contradiction.' In re Vail's Estate, Fla., 67 So.2d 665, 667. See also Waters v. Hatch, supra; In re Largue's Estate, 267 Mo. 104, 183 S.W. 608; Fidelity Nat. Bank & Trust Co. v. Hovey, supra; Lansdale v. Dearing, 351 Mo. 356, 173 S.W.2d 25, 147 A.L.R. 728; Adams v. Conqueror Trust Co., supra; In re Parker's Estate, Fla.App., 110 So.2d 498; In re Wilson's Estate, 260 Pa. 407, 103 A. 880, 6 A.L.R. 1349, 1353; In re Griffing's Will, 11 A.D.2d 709, 1032, 204 N.Y.S.2d 850, 207 N.Y.S.2d 1003; In re Hicks' Will, 272 App.Div. 594, 74 N.Y.S.2d 246; Clegg v. Lippold, Ohio Prob., 123 N.E.2d 549; In re Martin's Will, 252 N.Y. 582, 170 N.E. 151; First Nat. Bank of Boston v. Charlton, 281 Mass. 72, 183 N.E. 250; 57 Am.Jur. Wills, Sec. 1593; 43 Iowa Law Review at p. 504, and the cases there cited.

There has been a historical tendency of courts to look with some disfavor on specific legacies. 4 Page, Wills Sec. 1392. In Fidelity Nat. Bank & Trust Co. v. Hovey, supra [319 Mo. 192, 5 S.W.2d 442], reference is made to a 'judicial bias against specific legacies.' This is more pronounced in those cases where there is a gift by will of securities when ademption by extinction is in issue, apparently on the theory that the testator wanted the gift to be effective. The result has been for the courts to state that as a general rule gifts of securities in the form of corporate stock or bonds are general bequests, In re Bernheimer's Estate, supra; 2 Jarman, Wills p. 1076, 'unless the will of the testator, construed from its four corners, makes it reasonably clear that a special or specific bequest was intended.' Fidelity Nat. Bank & Trust Co. v. Hovey, supra; First Nat. Bank of Boston v. Charlton, supra. The result is that the issue of whether a bequest of securities in the form of corporate bonds or stocks is special or general is decided upon the particular facts of each case, and as one judge said in considering a case involving this question, the reported cases are 'full of bewildering refinements and contradictions.' Matter of Hastings, Sur.Ct., N.Y., 6 Dem. 307, 312. It was suggested in Clegg v. Lippold, supra, that the courts should re-examine the nature of a bequest of stock in the surroundings of the modern business world, and in some respect this has been done. As stated In re Largue's Estate, supra [267 Mo. 104, 183 S.W. 610], 'Many of the courts of last resort * * * have broken away from the arbitrary and ironclad English rule...