St. Louis Union Trust Co. v. Kelley

• Decision Date: 13 January 1947
• Docket Number: 39783
• Citation: 199 S.W.2d 344,355 Mo. 924
• Parties: St. Louis Union Trust Company, Trustee of the Residuary Trust Estate Created by the Will of Julia Ann Adele Sarpy Morrison, Deceased, Plaintiff-Appellant, v. Martha Adele Morrison Kelley et al., Defendants-Respondents; Florence Kelley Reyburn et al., Defendants-Appellants
• Court: Missouri Supreme Court

199 S.W.2d 344

355 Mo. 924

St. Louis Union Trust Company, Trustee of the Residuary Trust Estate Created by the Will of Julia Ann Adele Sarpy Morrison, Deceased, Plaintiff-Appellant, v. Martha Adele Morrison Kelley et al., Defendants-Respondents; Florence Kelley Reyburn et al., Defendants-Appellants

No. 39783

Supreme Court of Missouri

January 13, 1947

Motion for Rehearing or to Transfer to Banc Overruled February 10 1947.

Appeal from Circuit Court of City of St. Louis; Hon. William K Koerner, Judge.

Affirmed.

Shepley Kroeger, Fisse & Ingamells and Harry W. Kroeger for plaintiff-appellant St. Louis Union Trust Comany, Trustee of the Residuary Trust Estate Created by Will of Julia Ann Adele Sarpy Morrison; William G. Pettus, Jr., for defendants-appellants Florence Kelley Reyburn, A. Tevis Reyburn, Kathleen MacKenzie Reyburn, Don Morrison Kelley, Adele Kelley Thompson and W. Roosevelt Thompson; Fred Armstrong, Guardian Ad Litem for defendants-appellants Adele Morrison Reyburn, Margot D. Kelley, Don Morrison Kelley, Jr., Anita Carr, Virginia Carr, Clark M. Carr, Jr., Eugene M. Carr, Jr., Theodore Van Soelen, Jr., and Virginia Van Soelen, Daniel Donaldson Van Soelen, Theodore Van Soelen, Jr., and Eugene M. Carr, Jr.,

(1) In the construction of a will, the intention of the testator as gathered from the four corners of the will, is controlling. Schee v. Boone, 295 Mo. 212, 243 S.W. 882; Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135; Plummer v. Roberts, 315 Mo. 627, 287 S.W. 316. (2) Once the testator's prime or paramount intention has been ascertained, words or expressions indicative or declaratory of a subordinate purpose on his part must be so construed as to harmonize with the main or moving purpose in the making of the will. Schee v. Boone, 295 Mo. 212, 243 S.W. 882; Brown v. Tuschoff, 235 Mo. 449, 138 S.W. 497. (3) If a will is susceptible of two possible constructions, one of which would result in the will being rendered void as violative of the rule against perpetuities, and the other of which would result in the sustension of the will, that construction should be adopted which will uphold the will. Carter v. Boone County Trust Co., 338 Mo. 629, 92 S.W.2d 647; Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135; Davis v. Rossi, 326 Mo. 911, 34 S.W.2d 8; Plummer v. Roberts, 315 Mo. 627, 287 S.W. 316. (4) Unless a contrary intent is shown by a will, the words "children" or "child" mean offspring of the first degree, and not more remote offspring. Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135; Deacon v. St. Louis Union Trust Co., 271 Mo. 669, 197 S.W. 261. (5) The rule against perpetuities has reference to the time within which the title vests, and postponement of the vesting in possession, for whatever period, does not violate the rule against perpetuities. Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135; Schee v. Boone, 295 Mo. 212, 243 S.W. 882; Deacon v. St. Louis Union Trust Co., 271 Mo. 669, 197 S.W. 261. (6) Where a testator uses language, which if standing alone would create a fee, a limitation over in derogation of such fee creates an executory devise. Sullivan v. Garesche, 229 Mo. 496, 129 S.W. 949. (7) An executory devise may be created by a limitation over upon the first devisee dying before reaching a certain age. Deacon v. St. Louis Union Trust Co., 271 Mo. 669, 197 S.W. 261. (8) A devise or bequest to a class in remainder upon termination of a life estate vests at the death of the testator in the members of the class then in existence, subject to such changes in the class as might thereafter occur; and a limitation over upon the death of a member of such class without issue is an executory devise. Buckner v. Buckner, 255 Mo. 371, 164 S.W. 513; Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947. (9) Even though a condition is annexed to the grant of an estate in fee, upon the occurrence of which the fee is to terminate, the fee nevertheless becomes vested subject to being divested. Deacon v. St. Louis Union Trust Co., 271 Mo. 669, 197 S.W. 261. (10) The vesting of an estate in fee satisfies the rule against perpetuities even though there remains the possibility that such fee may become divested upon the occurrence of a condition subsequent. Deacon v. St. Louis Union Trust Co., 271 Mo. 669, 197 S.W. 261; Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629. (11) Where a testator provides for a vesting in fee and then attempts to cut down the fee by a limitation over in the nature of an executory devise, which is void for remoteness, such executory devise, being inconsistent with the prior estate, should be rejected for repugnancy. Schee v. Boone, 295 Mo. 212, 243 S.W. 882; Davis v. Rossi, 326 Mo. 911, 34 S.W.2d 8. (12) Where a testator provides for a vesting in fee and then attempts to cut down the fee by a limitation over in the nature of an executory devise, which is void for remoteness, the fee takes effect divested of the void limitation. Schee v. Boone, 295 Mo. 212, 243 S.W. 882; Chapman v. Cheney, 191 Ill. 574, 61 N.E. 363; Church in Brattle Square v. Grant, 69 Mass. 142; Smith v. Townsend, 32 Pa. 434; Saxton v. Webber, 83 Wis. 617, 53 N.W. 905, 20 L.R.A. 509; American Law Institute's Restatement of the Law of Property, sec. 229; Lewis on Perpetuities, p. 657; Anno., 28 A.L.R. 394; Anno, 75 A.L.R. 127. (13) Where an estate is granted in plain and unequivocal language in one clause of a will, it cannot be lessened or cut down by a subsequent clause of the will, unless the language used in such subsequent clause is as clear, plain and unequivocal as the language of the first grant. Sevier v. Woodson, 205 Mo. 202, 104 S.W. 1; Palmer v. French, 326 Mo. 710, 32 S.W.2d 591; Lemp v. Lemp, 264 Mo. 533, 175 S.W. 618; Gibson v. Gibson, 239 Mo. 490, 144 S.W. 770; Carter v. Boone County Trust Co., 338 Mo. 629, 92 S.W.2d 647. (14) When a will contains distinct and independent provisions creating different estates in the same property, some of which are valid and others of which are invalid because violative of the rule against perpetuities, the valid ones will be preserved unless they are so dependent upon the invalid that they cannot be separated therefrom without defeating the general intention of the testator. Shepperd v. Fisher, 206 Mo. 208, 103 S.W. 989; Shepard v. Union & New Haven Trust Co., 106 Conn. 627, 138 A. 809, 814; Equitable Trust Co. v. Snader, 17 Del. Chan. 203, 151 A. 712; Millikin Natl. Bank of Decatur v. Wilson, 343 Ill. 55, 174 N.E. 857; Minot v. Paine, 230 Mass. 514, 120 N.E. 167; In re Trevor, 239 N.Y. 6, 145 N.E. 66; In re Whitman's Estate, 248 Pa. 285, 93 A. 1062; W. Barton Leach, "Perpetuities in a Nutshell," 51 H.L.R. 638, 656; Manley O. Hudson, "The Rule Against Perpetuities in Missouri," Mo. Bul., Vol. 15, No. 11, Law Series 3, pp. 3, 22; Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629, distinguished. (15) When part of an attempted disposition fails as a direct consequence of the rule against perpetuities, such partial invalidity will not affect the balance of the attempted disposition, where the conveyor, if he had known of the partial invalidity, would have preferred that all of the balance of the attempted disposition take effect according to its terms. American Law Institute's Restatement of the Law of Property, sec. 402, sec. 402 Comment c, sec. 402 Comment d. (16) Where an estate is devised upon alternative limitations, one of which offends the rule against perpetuities, while the other does not, the invalid limitation does not affect the validity of the other, if the event determining which alternative shall take effect is one which must occur within the period allowed by the rule, and if the contingency upon which the invalid limitation is to take effect has not occurred. Quinlan v. Wickman, 233 Ill. 39, 84 N.E. 38; Springfield Safe Deposit & Trust Co. v. Ireland, 268 Mass. 62, 167 N.E. 261, 64 A.L.R. 1071; Jackson v. Phillips, 96 Mass. 539; Armstrong v. Armstrong, 53 Ky. 333; In re Trevor, 239 N.Y. 6, 145 N.E. 66; 41 Am. Jur. 102, Perpetuities, sec. 59; 64 A.L.R. 1077.

John C. Vogel for defendants-respondents Clark M. Carr, Anita O. Carr, Eugene M. Carr, Anne A. Carr, Virginia Carr Van Soelen and Theodore Van Soelen.

(1) The gifts over in Section Six of the will of Julia Ann Adele Sarpy Morrison after the creation of life estates in her daughters, Martha Adele Morrison Kelley and Virginia Abernathy Morrison Carr, were void, being in violation of the rule against perpetuities. They were contingent remainders which might not vest until a date more than 21 years and 10 months after the death of the testatrix and more than 21 years and 10 months after the lives in being. Loud v. St Louis Union Trust Co., 298 Mo. 148, 249 S.W. 269; St. Louis Union Trust Co. v. Bassett, 337 Mo. 604, 85 S.W.2d 569; Riley v. Jaeger, 189 S.W. 1168; Shepperd v. Fisher, 206 Mo. 208, 103 S.W. 989; Mockbee v. Grooms, 300 Mo. 446, 254 S.W. 170; Blackhurst v. Johnson, 72 F.2d 644. (2) Even if the gifts over to the children or descendants of children of Martha Adele Morrison Kelley and Virginia Abernathy Morrison Carr were vested remainders they were subject to executory devises which violated the rule against perpetuities and the entire trusts are void. Lockbridge v. Mace, 109 Mo. 162, 18 S.W. 1145; Shepperd v. Fisher, 206 Mo. 208, 103 S.W. 989; Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629; Mockbee v. Grooms, 300 Mo. 446, 254 S.W. 170; Riley v. Jaeger, 189 S.W. 1168. (3) This is an appeal from a decree in a case in equity and is triable de novo on appeal. Rhodus v. Geatley, 347 Mo. 397, 147 S.W.2d 631. (4) The provision for Adele Carr in the second codicil to Mrs. Morrison's will is an attempted disposition of a portion of a trust estate and is an integral part of the trust which is void. Under the rule...