St. Louis Union Trust Co. v. Kaltenbach

• Decision Date: 05 March 1945
• Docket Number: 39268
• Parties: St. Louis Union Trust Company, a Corporation, as Successor Trustee Under the Will of Isaac Shelby Warren, Deceased, Plaintiff, Appellant-Respondent, v. Henry J. Kaltenbach, Jr., Administrator c.t.a. of the Estate of Guy S. Warren, Deceased, and Thomas Penner, a Minor, by Richard F. Moll, Guardian ad Litem, Defendant, Appellants-Respondents
• Court: Missouri Supreme Court

186 S.W.2d 578

353 Mo. 1114

St. Louis Union Trust Company, a Corporation, as Successor Trustee Under the Will of Isaac Shelby Warren, Deceased, Plaintiff, Appellant-Respondent, v. Henry J. Kaltenbach, Jr., Administrator c.t.a. of the Estate of Guy S. Warren, Deceased, and Thomas Penner, a Minor, by Richard F. Moll, Guardian ad Litem, Defendant, Appellants-Respondents

No. 39268

Supreme Court of Missouri

March 5, 1945

Rehearing Denied April 2, 1945.

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.

Affirmed in part and reversed and remanded in part.

Bryan, Cave, McPheeters & McRoberts for appellant-respondent (plaintiff).

(1) Allowance cannot properly be made out of a trust estate except for services which are of benefit to the trust estate. In re Thomasson's Estate, 171 S.W.2d 553, 350 Mo. 1157; In re Donges's Estate, 103 Wis. 497; Appeal of Farmer, 137 Md. 155, 111 A. 771; City Bank & Trust Co. v. McCaa, 213 Ala. 579. (2) Nor is there any statute or rule of law providing for or recognizing allowance to a guardian ad litem for counsel fees in a suit to construe a will. Walton v. Yore, 58 Mo.App. 562; Jones v. Yore, 142 Mo. 38, 43 S.W. 384; Jones v. Yore, 158 Mo. 83, 57 S.W. 1134. (3) The amounts allowed for counsel fees to Kaltenbach, administrator c.t.a., and to Richard F. Moll, guardian, were excessive and inequitable.

Thompson, Mitchell, Thompson & Young and Charles M. Spence for appellant-respondent Kaltenbach.

(1) The phrase "next of kin" as used in a will, means those nearest in consanguinity and not "heirs at law." Smith v. Egan, 258 Mo. 569, 167 S.W. 971; Swazey v. Jaques, 144 Mass. 139, 10 N.E. 758; In re Everitt's Estate, 195 Pa. 450, 46 A. 1; Van Cleve v. Van Fossen, 73 Mich. 342, 41 N.W. 258; Barrett v. Egbertson, 92 N.J.Eq. 118, 111 A. 326. (2) Even if the phrase "next of kin" as used in a will does not mean those nearest in consanguinity, as distinguished from "heirs at law," the more particularized phrase "next nearest of kin" does so mean. Smith v. Egan, 258 Mo. 569, 167 S.W. 971; Clark v. Mack, 161 Mich. 545, 126 N.W. 632; Hammond v. Myers, 292 Ill. 270, 126 N.E. 537; Locke v. Locke, 45 N.J.Eq. 97, 16 A. 49; In re Altdorfer's Estate, 225 Pa. 136, 73 A. 1068; Keniston v. Mayhew, 169 Mass. 166, 47 N.E. 612; Leonard v. Hayworth, 171 Mass. 496, 51 N.E. 7; Haas v. Speenburgh, 122 Misc. 458, 203 N.Y.S. 202, 207 N.Y.S. 847; In re Martin's Will, 255 N.Y. 248, 174 N.E. 643. (3) A judgment of a foreign court certified in accordance with the Act of Congress is admissible in evidence and carries with it a presumption, conclusive unless rebutted, that the court which entered it was one of general jurisdiction and had jurisdiction of the subject matter and the parties. The adoption of Thomas Penner was therefore properly proved. Western Assurance Co. v. Waldon, 238 Mo. 49, 141 S.W. 595; O'Connell v. Smith, 131 S.W.2d 730. (4) The adoption of Thomas Penner removed him from the bloodstream of the Warren family so that he is incapable of inheriting as a member of that family. Sec. 9614, R.S. 1939; St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685. (5) The allowance of expenses, including fees, out of the estate in a case of this sort is proper. St. Louis v. McAllister, 302 Mo. 152, 257 S.W. 425; Trautz v. Lemp, 334 Mo. 1085, 72 S.W.2d 104; Singer v. Taylor, 137 P. 931; Guerin v. Guerin, 270 Ill. 239, 110 N.E. 402; Morse v. Stearns, 131 Mass. 389; In re Curtis' Estate, 86 P.2d 260; 2 Page on Wills (2d Ed.), sec. 1411; In re Thomasson's Estate, 171 S.W.2d 553; Littleton v. General American Life Ins. Co., 136 S.W.2d 433; Hartnett v. Langan, 282 Mo. 471, 222 S.W. 403; Savings Trust Co. of St. Louis v. Beck, 73 S.W.2d 282. (5) The allowance to the guardian ad litem and his counsel was improper as being excessive and unreasonable.

Richard F. Moll, Guardian ad Litem, and Francis M. Curlee and John P. McCammon for appellant-respondent Thomas Penner.

(1) The language of the will, "at her death . . . to descend to next nearest of kin," had the effect of creating a vested interest in the testator's heirs at law. "At her death" created an immediate vested interest. Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947; McArthur v. Scott, 113 U.S. 340, 5 S.Ct. 652, 27 L.Ed. 1015; Union Natl. Bank v. Bunker, 232 Mo.App. 1062, 114 S.W.2d 193; Thompson v. Thompson, 175 S.W.2d 885. (2) "To descend" means to vest in, to pass by inheritance, to pass by operation of law. 18 C.J. 791; 26 C.J.S. 983; Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947. (3) "Next nearest of kin" means legal heirs or heirs at law. New York Life Ins. & Trust Co. v. Winthrop, 237 N.Y. 93, 142 N.E. 431, 31 A.L.R. 791; First Trust Co. v. Myers, 351 Mo. 899, 174 S.W.2d 378; Krause v. Jeannette Inv. Co., 333 Mo. 509, 62 S.W.2d 890; Soderstrom v. Mo. Pac. Ry., 141 S.W.2d 72; Sec. 306, R.S. 1939. (4) The literal meaning of "next nearest of kin," giving effect to every word, vests the entire estate in Thomas Penner. (5) Testator's language, "at her death without children her estate to descend to next nearest of kin," was an attempt to dispose of his daughter's estate, so that he died intestate as to his own estate. Krause v. Jeannette Inv. Co., supra. (6) Penner's adoption was not made in accordance with the Missouri law, and could not have the effect of depriving him of his inheritance under the Missouri law. Secs. 9608-9616, R.S. 1939; Rockford v. Bailey, 322 Mo. 1155, 17 S.W.2d 941; Fienup v. Stamm, 28 S.W.2d 437; In re Perkins, 234 Mo. 716, 117 S.W.2d 686; Hooper v. United States, 13 F.2d 19. (7) Regardless of the effectiveness of the California adoption of Penner under the Missouri law, it could not deprive him of his right to inherit from his great-grandfather or greataunt. Hockaday v. Lynn, 200 Mo. 456, 98 S.W. 585; McIntyre v. Hardesty, 149 S.W.2d 334; Leeper v. Leeper, 347 Mo. 442, 147 S.W.2d 660, 133 A.L.R. 586; Webber v. Griffiths, 159 S.W.2d 670; Crawford v. Arends, 176 S.W.2d 1. (8) The statute of adoption was intended to extend the rights of an adopted child to inherit. It was not designed or intended to deprive the adopted child of his rights. St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685; Secs. 9608-9616, R.S. 1939. (9) It is the duty of the guardian ad litem to contend for the construction most favorable to his ward. Kennard v. Wiggins, 160 S.W.2d 706; Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977, 87 A.L.R. 600. (10) The guardian ad litem and his counsel are entitled to receive reasonable fees out of the trust estate. Sec. 867, R.S. 1939; Littleton v. Gen. Am. Life Ins. Co., 136 S.W.2d 433; Kingston v. St. Louis Union Trust Co., 154 S.W.2d 39; Walton v. Yore, 58 Mo.App. 562. (11) Counsel for Guy S. Warren and his administrator are not entitled to the allowance of fees out of the trust estate. In re Thomasson's Estate, 350 Mo. 1157, 171 S.W.2d 553; Littleton v. Gen. Am. Life Ins. Co., 136 S.W.2d 433; Savings Trust Co. v. Beck, 73 S.W.2d 282.

OPINION

Hyde, J.

This is an action to construe a will, and for directions as to the distribution of the trust estate created thereby, brought by the Successor Trustee. The decree entered ordered distribution to the defendants, one-half each, after paying allowances for attorney's fees. All parties have appealed. Each defendant claims the entire fund (more than $ 70,000.00); and the plaintiff contends that defendants' allowances for attorney's fees are improper.

The testator, Dr. Isaac Shelby Warren, made this will in 1881 and died in 1889. The material parts thereof are as follows:

"I will and bequeath to my wife Anne Emily Warren and my four children, named Anne Lee Warren, Guy Warren, Thomas Bracken Warren and Aubrey Gill Warren my entire estate both personal (of every kind and variety) and my entire real estate, share and share alike equally with this exception which I definitely make in favor of Anne Lee Warren, in consequence of her affliction, she is to have ten thousand dollars in cash in addition to her equal share.

"It is my will that my entire real estate be held intact, & shall not be sold or divided until the youngest living child is twenty-one years of age, and the whole estate both real and personal to be held in trust for the benefit of the heirs named, . . .

"All bequests made in this instrument to my daughter Anne Lee Warren are made by me (her father) directly to Anne Emily Warren (her mother) in trust for the benefit & use of Anne Lee Warren during her natural life, and at her death without children her estate to descend to next nearest of kin.

"The whole estate (i mean income from it) may be used for the heirs jointly. None of the children during their minority, shall be allowed to use any part of the estate or income from it, excepting through their mother or . . . through her legal successor as trustee, . . ." (Italicised clause is part to be construed herein.)

The testator (who was not a lawyer) wrote this will himself. (The will so states.) Mrs. Warren settled the estate as executrix and served as trustee until 1898. Plaintiff was then appointed successor trustee of the trust for Anne Lee Warren. Prior to the death of the testator, one of the four children mentioned in the will, Aubrey Gill Warren died intestate unmarried and without issue. Anne Lee Warren (Powe) died on September 5, 1942. Her husband (W. R. Powe), had predeceased her and she left no children nor descendants of deceased children surviving her. The trust terminated upon her death and it became the Trustee's duty to make distribution to the persons entitled thereto under Dr. Warren's will. At the time of Mrs. Powe's death, her brother (testator's son), defendant Guy Warren, was still living. Anne Emily Warren, testator's widow, had predeceased Mrs. Powe and so...