St. Louis Union Trust Co. v. Brug, 38349
| Decision Date | 18 October 1977 |
| Docket Number | No. 38349,38349 |
| Citation | 558 S.W.2d 375 |
| Parties | ST. LOUIS UNION TRUST COMPANY, as Trustee Under the Provisions of the Last Will and Testament of Irene B. Hoffman, Deceased, Plaintiff-Appellant, v. Merlie Oliver BRUG et al., Defendants-Respondents. . Louis District, Special Division |
| Court | Missouri Court of Appeals |
R. H. McRoberts, Jr., G. William Weier, St. Louis, for plaintiff-appellant.
James A. Pudlowski, Leo Lyng, Joseph B. Dickerson, Jr., Charles Alan Seigel, St. Louis, for defendants-respondents.
In this court-tried case plaintiff, as trustee under the last will and testament of Irene B. Hoffman, sought determination "as to whether or not plaintiff has authority to sell its interest in the real property described" in the will; and in the event a negative decision be rendered requested the Court to "order the will reformed so as to provide authority in plaintiff to sell its interest in such real property." Plaintiff also prayed that it be allowed attorney's fees and court costs from the trust estate. Suffering an adverse judgment, the plaintiff now appeals alleging the judgment of the trial court in decreeing that the plaintiff did not have the authority to sell real estate was against the weight of the evidence; and further, the refusal of the trial court to allow attorney's fees and court costs to be collected from the trust estate was against the weight of the evidence and an erroneous application of the law. 1
Inasmuch as the judgment of the trial court will be sustained "unless it is against the weight of the evidence . . . or unless it erroneously applies the law," Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), the errors leveled at the trial court require an examination of the evidence and of the testamentary document.
The function of a court is to construe a will as written by the testatrix and not make or rewrite one for the testatrix under the guise of construction, First National Bank of Kansas City v. Danforth, 523 S.W.2d 808 (Mo.1975). In performing this task we must consider the will as a whole and not give undue preference to any particular clause. When the intent of the testatrix is found, the proper construction is achieved, Mercantile Trust Company National Association v. Jaeger, 457 S.W.2d 727 (Mo. banc 1970); Scullin v. Mercantile-Commerce Bank & Trust Company, 361 Mo. 337, 234 S.W.2d 597 (1950).
In the brief trial plaintiff's trust officer testified that the Trustee had some doubt whether it had the power to sell real estate held under Item VII of the testamentary document and that one of the title companies had declared they would not pass title absent a court declaration of said power. As two of the three tracts of real estate produced no income and the third tract of real estate produced only minimal income, the trustee was of the opinion that it would be in the best interest of the trust estate to sell the real estate and invest the proceeds in income producing property.
No precedential value would be gained by a dissertation of the lengthy provisions of the testamentary document, 2 Hereford v. Unknown Heirs, et al., 292 S.W.2d 289, 293 (Mo. banc 1956). Item VI grants extensive and discretionary powers to the trustee including the power to sell. Item VII(a) of the trust document specifically provides, in part, that the net income from a described tract of real estate be paid to identified great grandchildren; and upon the death of the last survivor of those great grandchildren, the real estate would be distributed as provided in subparagraph (d). Item VII(b) of the trust document specifically provides that a three-acre tract of real estate be held by the Trustee for the sole benefit of, including payment of net income to, an identified great grandson and granted to him the power of appointment. If he failed to exercise that power of appointment, the described real estate would be distributed equally to the surviving great grandchildren identified in subparagraph (a); and if none of them survived, then to the heirs at law of the great grandson who was the original beneficiary. Inasmuch as that great grandson survived the testatrix, the additional provisions are not germane. The third tract of real estate was detailed in subparagraph (c) which provided that the net income be paid to a daughter and the children of that daughter. Upon the death of the last of these identified beneficiaries, this tract of real estate was to be distributed as provided in subparagraph (d).
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Heisserer, Matter of
...of sale contained in a trust instrument when such a sale would defeat the express purpose of the trust. St. Louis Union Trust Company v. Brug, 558 S.W.2d 375, 376-77 (Mo.App.1977). The plaintiffs have shown no very convincing need to sell the Heisserer farm. Their trial theory, by which the......
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Weldon Revocable Trust v. Weldon
...in a trust when such sale would defeat an express purpose of the trust. Id. at 872-73.7 Such was the case in St. Louis Union Trust Co. v. Brug, 558 S.W.2d 375 (Mo.App.1977). In Brug, a testamentary trustee sought court approval to sell three tracts of real estate described in the will. Id. ......