Simon v. St. Louis Union Trust Co.

• Decision Date: 07 May 1940
• Docket Number: 36293
• Parties: Walter C. Simon and George J. Simon, Plaintiffs, Appellants, v. St. Louis Union Trust Company, a Corporation, Trustee, and Lillian May Ferree, Defendants, Respondents
• Court: Missouri Supreme Court

139 S.W.2d 1002

346 Mo. 146

Walter C. Simon and George J. Simon, Plaintiffs, Appellants, v. St. Louis Union Trust Company, a Corporation, Trustee, and Lillian May Ferree, Defendants, Respondents

No. 36293

Supreme Court of Missouri

May 7, 1940

Rehearing Denied May 7, 1940.

Appeal from Circuit Court of City of St. Louis; Hon. William S Connor, Judge. Opinion filed at September Term, 1939 March 6, 1940; motion for rehearing filed; motion overruled at May Term, 1940, May 7, 1940.

Affirmed.

Hall & Dame for appellants.

(1) The will of George H. Simon, under which appellants claim, is to be construed in accordance with the intention of the testator in determining whether the certificates of deposit and joint name notes constitute a part of his estate, for this determines whether there was a gift or trust to the survivor. This intention determines the ownership. 48 A. L. R. 189; In re Van Fossen, 13 S.W.2d 1076; Schnur v. Dunker, 38 S.W.2d 282; Murphy v. Wolfe, 45 S.W.2d 1079. (2) Unless the survivor can show title to the fund based on a gift or trust his claim must fail. Burden of proof is on party seeking to establish gift inter vivos. 48 A. L. R. 189; In re Van Fossen, 13 S.W.2d 1076. (3) It is only a presumption (under the statute) of joint ownership which is raised by the joint name form of the deposit, and such presumption is overcome by a showing of an intention contrary to the idea of joint ownership. Schnur v. Dunker, 38 S.W.2d 282; Craig v. Bradley, 153 Mo.App. 586; Murphy v. Wolfe, 45 S.W.2d 1079; In re Van Fossen, 13 S.W.2d 1076. Limitations do not operate against plaintiffs in this action, nor do laches, until death of life tenant. Limitations do not run as against heirs, until death of intermediate life tenant. Miller v. Proctor, 49 S.W.2d 84, 330 Mo. 43; Graham v. Stafford, 171 Mo. 692; Betts v. Gehrig, 266 S.W. 690, 306 Mo. 36; Carr v. Dings, 54 Mo. 95; Dyer v. Brannack, 66 Mo. 391; Armbruster v. Armbruster, 31 S.W.2d 28, 326 Mo. 51. (4) The statutes, Sections 5400, 5465, do not operate to give rise to any presumption in favor of the joint ownership of the Pilcher notes, and no proof of their joint ownership was given. Ambruster v. Ambruster, 31 S.W.2d 28, 326 Mo. 51; Schnur v. Dunker, 38 S.W.2d 282. (5) In construing a will, an invalid part of the will is to be taken along with the valid part in determining the intention of the testator. Sevier v. Woodson, 205 Mo. 202. (6) Under will requiring executor to pay income from trust fund to widow during her life, and upon her death for payment of principal to testator's children, cause of action for misappropriation of trust fund held not to have accrued to children of testator so as to start running of limitations against action on bond prior to death of widow. State ex rel. Bremer v. Schulte, 90 S.W.2d 1078. (7) No laches in failing to do a useless thing. Dillman v. Davison, 239 S.W. 505. (8) The circuit court has jurisdiction rather than the probate court to adjudicate all matters at issue here, and no further resort to the probate court is required. No question of collateral attack arises. If Charlotte B. Simon held funds that were not administered in the probate court in which, under the will, she held a qualified life interest, or as the will expressed it, a trust interest, the circuit court could and should adjudicate these funds as belonging to the residue estate of George H. Simon. Johnson v. Grice, 199 S.W. 409; Meyer v. Nischwitz, 199 S.W. 744; Hick v. Dyer, 47 Mo. 214; Chandler v. Hedrick, 187 Mo.App. 664, 173 S.W. 93. (9) Estoppel does not apply against the plaintiffs in this case. There is no proof to sustain the elements of estoppel. The burden of proof is on the party setting up estoppel. There is no showing of detriment to the defendants by the conduct of plaintiffs. Grafeman Dairy Co. v. Northwestern Bank, 288 S.W. 359, 315 Mo. 849.

Louis Kawin for respondents.

(1) Plaintiffs did not allege or prove facts entitling them to any relief. Gorg v. Rutherford, 31 S.W.2d 585; Einstein v. Strother, 182 S.W. 122. (2) A probate court order, approving a final settlement, is a judgment which is not subject to collateral attack, even on charges of fraud, or on charges that items belonging to the estate have been omitted therefrom. Gorg v. Rutherford, 31 S.W.2d 585; Rogers v. Johnson, 28 S.W. 635, 125 Mo. 202; Howell v. Jump, 41 S.W. 976, 140 Mo. 441; State ex rel. Noll v. Noll, 189 S.W. 582; Goodman v. Griffith, 134 S.W. 1051, 155 Mo.App. 574; State ex rel. Gray v. Carroll, 74 S.W. 468, 101 Mo.App. 110; Michie v. Grainger, 129 S.W. 983, 149 Mo.App. 301. (3) This is not a suit to construe the will of George H. Simon. The rights of the several parties were fixed and determined by legal principles unrelated to said will. Craig v. Bradley, 153 Mo.App. 586, 134 S.W. 1081; Frost v. Frost, 200 Mo. 474, 98 S.W. 527; Case v. Espenschied, 169 Mo. 215, 69 S.W. 276; Zahner v. Voelker, 11 S.W.2d 63; Secs. 5400, 5465, R. S. 1929; Murphy v. Wolfe, 45 S.W.2d 1079; Schnur v. Dunker, 38 S.W.2d 284; Alexander v. Alexander, 44 S.W.2d 872. (4) Charlotte B. Simon was not a trustee, but was a life tenant with the right to encroach upon the principal of the residuary estate. Harbison v. James, 90 Mo. 411, 2 S.W. 292; McMillan v. Farrow, 141 Mo. 55, 41 S.W. 890; 2 Page on Wills (2 Ed.), sec. 1022, p. 1683. (5) A wife who acquires ownership of real or personal property by virtue of survivorship need not prove a gift or a trust to substantiate her title to such property. Her ownership accrues by operation of law. Mere proof of an existing tenancy by the entirety and her survivorship establishes her title and sole ownership. Craig v. Bradley, 153 Mo.App. 586, 134 S.W. 1081; Case v. Espenschied, 169 Mo. 215, 69 S.W. 276; Zahner v. Voelker, 11 S.W.2d 63. (6) The mere fact that the Pilcher notes were payable to husband and wife was sufficient to create an estate by the entirety without the aid of any statute. Zahner v. Voelker, 11 S.W.2d 63; Craig v. Bradley, 153 Mo.App. 586, 134 S.W. 1081; Frost v. Frost, 200 Mo. 474, 98 S.W. 527; Case v. Espenschied, 169 Mo. 215, 69 S.W. 276.

OPINION

Clark, J.

George H. Simon died testate, a resident of St. Louis, in April, 1922, leaving his widow, Charlotte Simon, two sons by a former marriage, Walter Simon and George J. Simon, and one daughter, Lillian Ferree, by his marriage with Charlotte. Charlotte Simon died intestate in April, 1935, survived by her daughter Lillian. In August, 1931, Charlotte Simon executed two written instruments; one placing certain property with the St. Louis Union Trust Company in trust for her daughter Lillian, and the other appointing the Trust Company agent for the management of certain other property. In November, 1936, Walter Simon and George J. Simon brought this suit in equity in the circuit court at St. Louis against the Trust Company and Lillian Ferree. The petition alleges that most of the property in the trust fund and all the property in the agency account was derived from the residue estate of said George H. Simon and, under his will, belongs to his three children in equal proportions; also mismanagement and loss in both funds are charged and plaintiffs ask for an accounting and other relief. The answers of defendants admit that the property in the agency account was derived from the George H. Simon estate; allege that defendants have at all times been ready and willing to turn over said property to the children of George H. Simon when proper receipts are given, deny all other allegations of the petition and plead laches and limitations. The chancellor found the issues for defendants, rendered a decree that plaintiffs have no interest in the property in the trust account and ordered the agency account divided among plaintiffs and Mrs. Ferree. Plaintiffs have appealed.

The will of George H. Simon devised the family residence to the widow and daughter as tenants in common; gave the household goods to the widow; gave 200 shares of stock in the St. Louis Architectural Iron Company to the widow and children in certain proportions; made a cash bequest to the widow of a deceased son; and then, in item eight, gave the residue to the widow during life or widowhood, with power to consume or dispose of the property, with provision for accounting and distribution to the children of testator of the property remaining at the death or remarriage of the widow. Item eight of the will also requests that the widow be not required to give bond. The will names the widow as executrix without bond.

On May 22, 1922, the executrix filed in the probate court her inventory of the estate of George H. Simon showing personalty of the par value of $ 35,636.60. Attached to and filed with the inventory was a statement showing that the title to the family residence was in the name of "George H. Simon and Charlotte Simon, his wife;" also that certain time certificates of deposits, totaling $ 11,500.00, were issued to "George H. Simon and Charlotte Simon," and certain notes signed by one Pilcher and wife and totaling $ 2,800.00, were payable to "George H. Simon and wife." The statement claimed that the real estate, time certificates and notes were held by George H. Simon and Charlotte Simon as an estate by the entirety, that upon the death of George H. Simon the title to said property vested in Charlotte Simon and, for that reason, was not included in the inventory. In October, 1923, the executrix filed her final settlement which, after payment of claims and distribution of assets, shows assets remaining in the estate of the par value of $ 13,083.37 and the probate court ordered these assets delivered to Charlotte Simon under the provisions of item eight of the will.

The par value of the assets turned over to the Trust Company for the agency account in ...