St. Louis Union Trust Co. v. Bassett

• Decision Date: 30 July 1935
• Parties: St. Louis Union Trust Company, a Corporation, and Alice H. Von Schrader, Appellants, v. Mary Arabella Frances Bassett, Eloise Hoblitzelle, Margrate Olivia Von Schrader, Frederick William Von Schrader, III, Mary Eloise Von Schrader, George W. Lubke, as Executor Under the Will of Eloise Von Schrader, George W. Lubke, as Trustee Under the Will of Eloise Von Schrader, Julia Hodgson, Otto U. Von Schrader, Mary H. Von Schrader, His Wife, Henrietta Von Schrader Bassett, Prentiss Peck Bassett, Her Husband, Frederick William Von Schrader, II, Anne Von Schrader, His Wife, Alleyne Von Schrader, Irene Bond Von Schrader, His Wife, and Nellie Clark
• Court: Missouri Supreme Court

85 S.W.2d 569

337 Mo. 604

St. Louis Union Trust Company, a Corporation, and Alice H. Von Schrader, Appellants, v. Mary Arabella Frances Bassett, Eloise Hoblitzelle, Margrate Olivia Von Schrader, Frederick William Von Schrader, III, Mary Eloise Von Schrader, George W. Lubke, as Executor Under the Will of Eloise Von Schrader, George W. Lubke, as Trustee Under the Will of Eloise Von Schrader, Julia Hodgson, Otto U. Von Schrader, Mary H. Von Schrader, His Wife, Henrietta Von Schrader Bassett, Prentiss Peck Bassett, Her Husband, Frederick William Von Schrader, II, Anne Von Schrader, His Wife, Alleyne Von Schrader, Irene Bond Von Schrader, His Wife, and Nellie Clark

Supreme Court of Missouri

July 30, 1935

Rehearing Denied July 30, 1935.

Appeal from Circuit Court of City of St. Louis; Hon. Robert W McElhinney, Judge.

Reversed and remanded (with directions).

Taylor Chasnoff & Willson, Alex. R. A. Garesche and James V. Frank for appellants.

(1) The rule against perpetuities is violated unless an estate which is granted necessarily vests within lives in being and twenty-one years thereafter, plus the period of gestation under certain circumstances. 21 R. C. L. 282; 48 C. J. 937; Gray on Perpetuities (3 Ed.), sec. 201; Koehler v. Rowland, 275 Mo. 586, 205 S.W. 220, 9 A. L. R. 107; 21 R. C. L. 293; 48 C. J. 939; Johnson v. Preston, 226 Ill. 447; Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135. (a) The rule is satisfied only if there is within the time required a vesting of the estate beyond a possibility. It is not concerned with duration or termination of an estate, but on the other hand it is not satisfied by a showing that an estate may vest within the prescribed time. Schee v. Boone, 295 Mo. 225, 243 S.W. 882; Loud v. Trust Co., 298 Mo. 171, 249 S.W. 629; Shepperd v. Fisher, 206 Mo. 239, 103 S.W. 989; Gray on Perpetuities (3 Ed.), sec. 214. (b) The rule applies to interests both legal and equitable and in realty and personalty. Gray on Perpetuities (3 Ed.), sec. 202; Deacon v. St. Louis Union Trust Co., 271 Mo. 669, 197 S.W. 265. (c) The object of the rule is to defeat the intention of the testator if that intent (as shown by the entire instrument giving the words thereof their plain and common meaning or their technical meaning, depending upon their use), is to create future interests which violate the rule. Gray on Perpetuities (3 Ed.), sec. 629; 21 R. C. L. 294; Plummer v. Roberts, 315 Mo. 652, 287 S.W. 316; Loud v. Trust Co., 298 Mo. 171, 249 S.W. 629. (2) Future interests arising under a power of appointment such as here involved are deemed for the purpose of applying the rule against perpetuities to be created by the instrument creating the power rather than by the one executing it. Gray on Perpetuities (3 Ed.), Appendix, secs. 950, 953, 963; 26 Harv. L. Rev. 720; In re Powell's Trusts, 39 L. J. Ch. (N. S.) 188; Lawrence's Estate, 136 Pa. 354; Boyd's Estate, 199 Pa. 487; Genet v. Hunt, 113 N.Y. 158; Reed v. McIwain, 113 Md. 140; Thompson v. Pen, 214 Mass. 523; 21 R. C. L. 302. (3) Devises are void as a whole when created under a single comprehensive plan of distribution if any of such interests violate the rule against perpetuities when the parts of such interests cannot be separated without defeating the general intent of the testatrix. 21 R. C. L. 320; Shepperd v. Fisher, 206 Mo. 208, 103 S.W. 989; Mockbee v. Grooms, 300 Mo. 446, 254 S.W. 175.

John R. Green, Green, Henry & Remmers and Harry C. Lamberton for Henrietta Von Schrader Bassett.

(1) It is, we submit, settled beyond dispute that in computing the period established by the rule against perpetuities the time must be calculated from the date of the creation of a power of appointment, and not from the date when the power is exercised. It is immaterial that the power is a general power, so long as it can be exercised only by the donee's will. Gray on Perpetuities (3 Ed.), sec. 514; Minot v. Paine, 230 Mass. 514, 120 N.E. 167; In Matter of Dows, 167 N.Y. 231, 60 N.E. 441; Gambrill v. Gambrill, 122 Md. 563, 89 A. 1094; Brown v. Columbia Finance & Trust Co., 123 Ky. 775, 97 S.W. 421; Boyd's Estate, 199 Pa. 493, 49 A. 297; Lawrence's Estate, 136 Pa. 364, 20 A. 521; In re Powell's Trusts, 39 L. J. Ch. (N. S.) 188; In re Phillips, 28 Ont. L. R. 94. (2) A more difficult question is whether, if the will is void as to the fund over which the testatrix held the power of appointment, it is necessarily void as to the entire trust which she created by her will. We submit that it is, and that the good must fall with the bad. Shepperd v. Fisher, 206 Mo. 208, 103 S.W. 989; Lochridge v. Mace, 109 Mo. 162.

Marion C. Early for Otto U. and Mary H. Von Schrader.

Alvan J. Goodbar, Thomas P. Moore and Walter Wehrle for other respondents.

(1) The rule against perpetuities has to do only with the time at which the title vests, if a legal estate be concerned, or the beneficial interest vests, if an equitable estate. It has nothing to do with the postponement of the enjoyment of that interest. If an interest is vested it is not subject to the rule, however remote may be the time when it may come into possession. Plummer v. Brown, 287 S.W. 323; Deacon v. St. Louis Union Trust Co., 271 Mo. 695; 48 C. J. 982; Loud v. St. Louis Union Trust Co., 249 S.W. 629; 21 R. C. L. 290; Greenleaf v. Greenleaf, 58 S.W.2d 448; 48 C. J. 943; Gates v. Siebert, 157 Mo. 254. (2) Although the rule against perpetuities is a rule of property and not a rule of construction, yet if there are two possible constructions to a testament, one of which would permit effect to be given to the will and the other would result in it being held void, in whole or in part, preference will be accorded to the construction which will uphold the will. 21 R. C. L. 295; Loud v. St. Louis Union Trust Co., supra; Davis v. Rossi, 34 S.W.2d 8; Plummer v. Brown, supra. (3) The law favors the vesting of estates and the intention of a testator as gathered from the will must prevail as to whether an estate is vested or contingent. 40 Cyc. 165; Tindall v. Tindall, 167 Mo. 225; Plummer v. Brown, supra. (4) A private trust is determined by the failure of beneficiaries who have standing in interest to enforce the trust. Gray on Perpetuities (3 Ed.), sec. 237(d), p. 898; 39 Cyc. 35. (5) Where a power is created to make an appointment by will or testamentary disposition, that power may be exercised by the grantee thereof leaving the property to his own estate; hence in applying the rule against perpetuities to such disposition as the grantee may make by will, the time limited by the rule against perpetuities is to be reckoned from the exercise of the power and not from its creation. 26 Harv. L. Rev. 64, 720; 27 Harv. L. Rev. 705; Rous v. Jackson, 29 L. R. Ch. D. 521. (6) Where a will contains distinct and independent provisions so that different portions of the property or different estates in the same are created, some of which are valid and others of them invalid, the valid ones will be preserved unless those which are valid are so dependent upon the invalid that they cannot be separated without defeating the general intention of the testator. But if such a holding would defeat the general plan of disposition made by the will, then the valid devises must fall with the invalid. Lockbridge v. Mace, 109 Mo. 162; Shepperd v. Fisher, 206 Mo. 208; Mockbee v. Grooms, 254 S.W. 170; Loud v. St. Louis Union Trust Co., supra. The test is whether the rejected parts may be expunged without essentially changing the general testamentary scheme. 21 R. C. L. 321.

Coles, J., not sitting.

OPINION

PER CURIAM

This is a suit to partition certain real property in St. Louis County, Missouri, and in the city of St. Louis, Missouri, and to partition certain personal property. The right to partition depends upon the construction of the will of Eloise Von Schrader, deceased.

The cause was originally filed by George M. Von Schrader, who thereafter died, and the cause was revived in the name of St. Louis Union Trust Company, executor under the will of the original plaintiff, and Alice H. Von Schrader, the widow and sole devisee under the will of the original plaintiff, was joined as plaintiff.

After the cause was revived an amended petition was filed. Defendants, Otto U. Von Schrader and Mary H. Von Schrader, his wife, filed separate answers admitting the allegations in the amended petition. Defendants, Frederick William Von Schrader, III, Margrate Olivia Von Schrader, Mary Arabella Frances Bassett, Mary Eloise Von Schrader and Eloise Hoblitzelle, minors, by their respective guardians ad litem, filed general demurrers to the petition. Defendants, Frederick William Von Schrader, II, and Anne Von Schrader, his wife, filed general demurrer, and defendant George W. Lubke, executor and trustee under the will of testatrix, filed general demurrer. It seems that no pleading was filed for other defendants except Julia Hodgson. It is stated that she filed answer admitting the allegations in the petition, but this answer does not appear in the record. It does not appear that defendant, Henrietta Von Schrader Bassett filed answer, but she filed here separate brief supporting plaintiffs. However, it is only the petition and demurrers that are of consequence here. The separate demurrers were sustained, plaintiffs refused to plead further and the petition was dismissed and plaintiffs appealed.

The amended petition is in two counts and the first count thereof alleges the filing of the original petition by George M. Von Schrader on July 30, 1930, and his death on November 5, 1931 the revival of the cause in the name of the present plaintiffs, the naming of St. Louis Union Trust Company as the executor under the will of George M. Von Schrader, deceased, the probate of his will and the...