St. Louis Union Trust Co. v. Hill

• Decision Date: 20 November 1934
• Citation: 76 S.W.2d 685,336 Mo. 17
• Parties: St. Louis Union Trust Company, Trustee under the Will of Frank W. Hill, v. Lloyd Randall Hill, formerly Payne, Paul Vasquez Hill, formerly Payne, Appellants, and Edna Schwarz, Kate Comins, Susan Hill and Mabel Hill
• Court: Missouri Supreme Court

76 S.W.2d 685

336 Mo. 17

St. Louis Union Trust Company, Trustee under the Will of Frank W. Hill, v. Lloyd Randall Hill, formerly Payne, Paul Vasquez Hill, formerly Payne, Appellants, and Edna Schwarz, Kate Comins, Susan Hill and Mabel Hill

Supreme Court of Missouri

November 20, 1934

Rehearing Overruled November 20, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. M Hartmann, Judge.

Reversed and remanded (with directions).

Claud D. Hall for Lloyd Randall Hill, formerly Payne, and Paul Vasquez Hill, formerly Payne.

(1) The adoption of adults is permissible under the statutes of Missouri. In re Moran, 151 Mo. 555, 52 S.W. 377; State ex rel. Buerk v. Calhoun, 52 S.W.2d 742. (2) When a testator provides in his will for a portion of his property to be held in trust for his children and provides "Upon the death of any child, his or her share shall be distributed, free from trust, to his or her heirs-at-law," adopted children are within the classification "heirs-at-law" within the meaning of that term as used in such will. Gilliam v. Guaranty Trust Co., 111 A.D. 656, aff. 186 N.Y. 127; McQuiston's Estate, 21 Pa. Dist. 738; Rauch v. Metz, 212 S.W. 353; Haver v. Herder, 96 N.J.Eq. 554, 126 A. 662; Smith v. Hunter, 86 Ohio St. 106; Laws v. Davis, 34 Ohio App. 163; Moran v. Stewart, 122 Mo. 295, 26 S.W. 962; Butterfield v. Sawyer, 187 Ill. 598, 58 N.E. 602; Hartwell v. Tefft, 19 R. I. 644, 35 A. 882; In re Cupples Estate, 199 S.W. 556, 272 Mo. 465; Thomas v. Maloney, 142 Mo.App. 193; In Matter of Cook, 187 N.Y. 250; Fosburgh v. Rogers, 114 Mo. 122; Duefon v. Keasbey, 111 N.J.Eq. 223, 162 A. 104. (3) When a will provides that property is to pass at a future date to a certain class of persons, it will be distributed among the persons who compose such class at date of distribution. Lake v. Ascher, 132 A.D. 684; Gilliam v. Guaranty Trust Co., 186 N.Y. 127; Robinson v. New York Life Ins. & Trust Co., 75 Misc. 373; 28 R. C. L., sec. 233, p. 261. (4) Where language used by the testator is plain and unequivocal the court cannot give it a different meaning for the purpose of carrying into effect a conjecture or hypothesis of testator's intent by supplying or rejecting or transposing words and phrases, and the court will give the words employed their plain and usual sense and arrive at a conclusion therefrom. Crowson v. Crowson, 19 S.W.2d 634; Records v. Fields, 155 Mo. 321, 55 S.W. 1021; Mo. Baptist Sanitarium v. McCune, 112 Mo.App. 332, 87 S.W. 95; Grenzebach v. Grenzebach, 286 S.W. 81; Philbert v. Campbell, 296 S.W. 1003.

William T. Ragland, Robert E. Moloney, George T. Priest, Ragland, Otto & Butler and Boyle & Priest for Edna Schwarz, Kate Comins, Susan Hill and Mabel Hill.

(1) The intention of the testator, evidenced by the scheme and plan of the will taken as a whole, with due regard to reason and justice, controls. Redman v. Barger, 118 Mo. 573; Allison v. Chaney, 63 Mo. 282; Schorr v. Carter, 120 Mo. 413; McMillan v. Farrow, 141 Mo. 62; Cross v. Hoch, 149 Mo. 338; Eckle v. Ryland, 256 Mo. 448; Waddell v. Waddell, 99 Mo. 345. (2) The will of Frank W. Hill, Sr., shows that in creating a life estate in his own children, with remainder over to their heirs at law, he intended by the use of the words "heirs at law" to denote heirs of the blood, and thus exclude adopted children of his children. Hockaday v. Lynn, 200 Mo. 466; Waddell v. Waddell, 99 Mo. 338; Reinders v. Koppelman, 94 Mo. 338; Melek v. Curators, 213 Mo.App. 572. (3) Section 8 of the will expressly prevents the participation of appellants in the estate of Mr. Hill, Sr. (4) In Missouri a devise by A to his children for life, with remainder over to their heirs at law, creates a vested interest in A's heirs of the blood, which cannot be destroyed by A's children adopting strangers as their heirs at law. Reinders v. Koppelman, 94 Mo. 338; Clarkson v. Hatton, 143 Mo. 47. (5) The adoption of the appellants, the two Payne men, was void for want of jurisdiction of the court making the adoption. The statute providing for adoption (R. S. 1929, chap. 125) limits the proceedings to the adoption of minors. The appellants were twenty-two and twenty-eight years of age, respectively, at the time of the adoption proceedings. (6) The Adoption Act violates Section 4, Article XXVIII of the Constitution of Missouri.

OPINION

Tipton, J.

This is an appeal from the Circuit Court of the City of St. Louis. This suit was instituted by the St. Louis Union Trust Company, trustees, for the construction of the will of Frank W. Hill. This will was executed April 4, 1918, and the testator died September 5, 1918, leaving four daughters, Mrs. Edna Schwarz, Mrs. Kate Comins, Susan Hill, Mabel Hill, and a son, Frank W. Hill, Jr.

This will was duly probated and the estate was duly administered by the executor and afterwards turned over to the St. Louis Union Trust Company as trustee. It was in charge of the estate at the institution of this suit on May 12, 1930.

The St. Louis Union Trust Company asked the court to construe the will as to whether the share of Frank W. Hill, Jr., deceased, should be turned over to the appellants or to the respondents.

By his will the testator left a life estate in equal shares to all of his children, with the remainder to their heirs-at-law.

On the 27th day of September, 1918, Frank W. Hill, Jr., married Mary Payne, who had previously been married to John Payne, but was divorced from him. Of that marriage two boys were born, Lloyd and Paul Payne. After the divorce the two boys lived with their grandparents, that is, the parents of Mrs. Hill. In 1929, Frank W. Hill, Jr., became ill and all hope for his recovery was abandoned. By a decree from the Juvenile Court of the City of St. Louis, he and his wife adopted Mrs. Hill's two sons by her former marriage. At the time of the adoption, the two boys were married and were, respectively, twenty-two and twenty-eight years of age. By decree of court, these two boys' names were changed from Payne to Hill. About two months after the adoption, Frank W. Hill, Jr., died.

The respondents state the issue in this case in their brief as follows:

"The two Payne men, now bearing the name of Hill, contend that, having been adopted by Frank W. Hill, Jr., upon his deathbed, became his heirs-at-law and as such heirs-at-law they are entitled to take as remindermen of Frank W. Hill, Jr., under the will of Frank W. Hill, Sr.

"It is the contention of the respondents, Edna Schwarz, Kate Comins, Susan Hill and Mabel Hill, daughters of Frank W. Hill, Sr., that their father intended to limit remaindermen under the will to those of his blood and not to strangers, and therefore, Lloyd Payne and Paul Payne have no interest in the estate of Frank W. Hill, Sr."

I. To uphold the action of the trial court the respondents contend that the adoption of the appellants was void for the want of jurisdiction of the court decreeing the adoption. The respondents argue that the statutes provide only for the adoption of minors.

We do not agree with the respondents. This chapter contemplates both the adoption of minors and adults.

In the case of State ex rel. Buerk v. Calhoun, 330 Mo. 1172, 52 S.W.2d 742, we have recently ruled that the juvenile division of the Circuit Court of the City of St. Louis had jurisdiction of both the subject matter and the parties in a proceeding under Section 14073 to 14081, Revised Statutes 1929, to decree an adoption of an adult. That case fully answers the contention of the respondents and it would serve no useful purpose to elaborate upon it. We hold that the court had jurisdiction to enter a decree of adoption in the proceeding instituted by Frank W. Hill, Jr., and his wife. As the appellants at that time were over twenty-one years of age it was not necessary to obtain the written consent of their natural father to give the court jurisdiction in those proceedings. [Sec. 14074, R. S. 1929.]

II. The respondents further contend that the adoption of the appellants was void because the Adoption Act (Sess. Acts 1917, p. 193; Secs. 14073 to 14081, R. S. 1929) is unconstitutional, in violation of Section 4, Article XXVIII of the Constitution of Missouri, in that it embraces matter not indicated by its general title, and not germane to the general title of the act.

The first time this constitutional question was raised was in the respondents' briefs. It was not raised in any pleading filed in the trial court. "Under our rule a constitutional question must be raised at the first opportunity and kept alive during the trial." [Gould v. Chicago, B. & Q. Railroad Co., 315 Mo. 713, 290 S.W. 135, l. c. 141.] It was not timely raised and for the purpose of this suit we must presume that the act is constitutional.

III. It therefore becomes necessary for us to construe the will of Frank W. Hill, Sr. In construing this will it is our duty to find out what was the intention of the testator as gathered from the four corners of the will and such intention must control unless it contravenes some established rule of law. [Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 136, also, Sec. 567, R. S. 1929.]

IV. Only the following sections of the will have any bearing on the questions to be determined on this appeal.

"Section No. 4 . . . After paying all costs and expenses incurred in the administration of this trust, including a reasonable fee to such Trustee, for its services hereunder I direct that the said Trustee shall accumulate the entire net income arising from such estate, for a period of ten (10) years, from and after the date of my death, without the distribution of any portion of such net income, except in the case of emergencies, as hereinafter mentioned, and from and after the expiration of ten (10) years, from the date of my...