St. Louis Union Trust Co. v. Kern

• Decision Date: 18 July 1940
• Docket Number: 36600
• Citation: 142 S.W.2d 493,346 Mo. 643
• Parties: St. Louis Union Trust Company, a Corporation, and Dorothy Beyer Hoffman, as Trustees Under the Will of Charles Kern, Plaintiffs-Respondents, v. Lena Kern, Ida Beyer, Mary Kern, Dorothy Beyer Hoffman, Ida Virginia Middleton, Mary Elizabeth Beyer, Defendants-Respondents, Augusta Huber, Leonora Huber, by Virginia McMahon, Guardian ad Litem, William Huber, Jr., by Virginia McMahon, Guardian ad Litem, and Virgil Zeigler, Defendants-Appellants
• Court: Missouri Supreme Court

142 S.W.2d 493

346 Mo. 643

St. Louis Union Trust Company, a Corporation, and Dorothy Beyer Hoffman, as Trustees Under the Will of Charles Kern, Plaintiffs-Respondents, v. Lena Kern, Ida Beyer, Mary Kern, Dorothy Beyer Hoffman, Ida Virginia Middleton, Mary Elizabeth Beyer, Defendants-Respondents, Augusta Huber, Leonora Huber, by Virginia McMahon, Guardian ad Litem, William Huber, Jr., by Virginia McMahon, Guardian ad Litem, and Virgil Zeigler, Defendants-Appellants

No. 36600

Supreme Court of Missouri

July 18, 1940

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

Affirmed.

Burnett Stern & Liberman and Edwin Grossman for Augusta Huber and Virginia McMahon, Guardian ad Litem for Leonora Huber, and Virginia McMahon, Guardian ad Litem for William Huber, Jr. Nagel, Kirby, Orrick & Shepley and Dwight D. Ingamells for Virgil Zeigler.

(1) Lena Kern's renunciation of the life estate given to her by her husband's will was equivalent to her death, accelerated the specific bequests to these appellants and the payment of the residue to Ida Beyer, and made them payable as of the time of the renunciation. 21 C. J., sec. 148, p. 994; Lainson v. Lainson, 18 Beav. 1, 52 Eng. Rep. 1; Jull v. Jacobs, L. R. 3 Ch. Div. 703, 181 Moak's, 775; Crossan v. Crossan, 303 Mo. 572, 262 S.W. 701; Boynton v. Boynton, 266 Mass. 454, 165 N.E. 489; In re Woodburn's Estate, 151 Pa. 586, 25 A. 145; Randall v. Randall, 85 Md. 430, 37 A. 209; Cockey v. Cockey, 141 Md. 373, 118 A. 850; In re Rawlings' Estate, 81 Iowa 701, 47 N.W. 992; Rench v. Rench, 184 Iowa 1372, 169 N.W. 667; Parker v. Ross, 69 N.H. 213, 45 A. 576; Anthony v. Camden Safe Deposit & Trust Co., 106 N.J.Eq. 41, 149 A. 822; Sorrells v. McNally, 89 Fla. 457, 105 So. 106; Eastern Trust & Banking Co. v. Edmunds, 133 Me. 450, 179 A. 716; Breckenridge v. Breckenridge, 264 Ky. 82, 94 S.W.2d 283; Ruh's Executors v. Ruh, 270 Ky. 792, 110 S.W.2d 1097; Baldwin's Co.-Executors v. Curry, 272 Ky. 827, 115 S.W.2d 333; Bank v. Futch, 164 Ga. 181, 138 S.E. 60; Union Trust Co. v. Rossi, 180 Ark. 552, 22 S.W.2d 370; Kern v. Kern, 293 Ill. 238, 127 N.E. 396; Ladd v. Ladd, 2 Cranch. C. C. 505. (2) Charles Kern's testamentary language that the specific bequests to the appellants and the payment of the residue to Ida Beyer should be made "upon the death of my said wife" does not prevent the acceleration of those gifts upon Lena Kern's renunciation of her life estate. Lainson v. Lainson, 18 Beav. 1, 52 Eng. Rep. 1; Jull v. Jacobs, L. R. 3 Ch. Div. 703, 181 Moak's, 775; Anthony v. Camden Safe Deposit & Trust Co., 106 N.J.Eq. 41, 149 A. 822; Union Trust Co. v. Rossi, 180 Ark. 552, 22 S.W.2d 370; Parker v. Ross, 69 N.H. 213, 45 A. 576; Randall v. Randall, 85 Md. 430, 37 A. 209; Cockey v. Cockey, 141 Md. 373, 118 A. 850; In re Rawlings' Estate, 81 Iowa 701, 47 N.W. 992; Rench v. Rench, 184 Iowa 1372, 169 N.W. 667; American Natl. Bank v. Chapin, 130 Va. 1, 107 S.E. 636, 17 A. L. R. 304; Northern Trust Co. v. Wheaton, 249 Ill. 606, 94 N.E. 980; Ruh's Executors v. Ruh, 270 Ky. 792, 110 S.W.2d 1097; Baldwin's Co-Executors v. Curry, 272 Ky. 827, 115 S.W.2d 333; Eastern Trust & Banking Co. v. Edmunds, 133 Me. 450, 179 A. 716. (3) Charles Kern's testamentary language that the specific bequests were to be paid to these appellants "if living" at the death of Lena Kern does not prevent the acceleration of those gifts upon Lena Kern's renunciation of her life estate. Scotten v. Moore, 5 Boyce, 545, 93 A. 373; American Natl. Bank v. Chapin, 130 Va. 1, 107 S.E. 636, 17 A. L. R. 304; Christian v. Wilson's Executors, 153 Va. 614, 151 S.E. 300; O'Rear v. Bogie, 157 Ky. 666, 163 S.W. 1107; Fox v. Rumery, 68 Me. 121; Northern Trust Co. v. Wheaton, 249 Ill. 606, 94 N.E. 980; Eastern Trust & Banking Co. v. Edmunds, 133 Me. 450, 179 A. 716; Cf. Nelson v. Meade, 129 Me. 61, 149 A. 626. (4) Charles Kern's testamentary language that Ida Beyer should receive one-half of the income from the trust estate for the life of his widow, Lena Kern, does not prevent the acceleration of the specific bequests to the appellants and the payment of the residue free from trust to Ida Beyer upon Lena Kern's renunciation of her life estate. Boynton v. Boynton, 266 Mass. 454, 165 N.E. 489; In re Woodburn's Estate, 151 Pa. 586, 25 A. 145; Randall v. Randall, 85 Md. 430, 37 A. 209; Safe Deposit & Trust Co. v. Gunther, 142 Md. 644, 121 A. 479; Eastern Trust & Banking Co. v. Edmunds, 133 Me. 450, 179 A. 716.

Edwin C. Luedde for Ida Beyer, Dorothy Beyer Hoffman, Ida Virginia Middleton and Mary Elizabeth Beyer; Edwards, Metcalfe & Strong and John W. Hoffman for St. Louis Union Trust Company and Dorothy Beyer Hoffman.

(1) Charles Kern, the testator, in his will specifically and clearly provided for his only living child, Ida Beyer, a separate estate that intervenes between the bequest of a life estate to Lena Kern, the widow, and the bequests of specific legacies. The renunciation by Lena Kern cannot possibly accelerate the payment of the specific legacies because to do so would deprive Ida Beyer of the substantial intervening estate devised to her by the testator, to-wit: The income on $ 18,000 worth of specific legacies for 14.10 years, the life expectancy of Lena Kern one year after the death of the testator. Crossan v. Crossan, 303 Mo. 572, 262 S.W. 701, 18 L. R. A. (N. S.) 275; Toombs v. Spratlin, 57 S.E. 59, 127 Ga. 766; Young's Appeal, 108 Pa. 17; Windsor v. Barnett, 201 Iowa 1226, 207 N.W. 362; Page on Wills, p. 2030, sec. 1224; Hall v. Smith, 61 N.H. 144; Rose v. Rose, 88 So. 513; Swan v. Austell, 261 F. 465, certiorari denied, 252 U.S. 559; In re Silsby, 229 N.Y. 396, 128 N.E. 212; In re Cooper, 86 L. J. Ch. (N. S.) 507; Foreman Trust & Savs. Bank v. Seelenfreund, 329 Ill. 546, 161 N.E. 88; 62 A. L. R. 207; Reighard's Estate, 283 Pa. St. 140, 128 A. 847; Estate of Portuondo, 185 Pa. St. 472, 39 A. 1105. (2) The will of Charles Kern provides that the children of Ida Beyer are to take the residue of the estate of Charles Kern by purchase from him directly under the will in the event Ida Beyer predeceases Lena Kern. By the terms of the will, if any of the appellants should predecease Lena Kern their specific bequests would become a part of the residue. If payment of the remainder of the estate is accelerated and the payment of the residue is made at this time to Ida Beyer, the receipt by the children of Ida Beyer of said residue will depend entirely upon the disposition of said Ida Beyer. Furthermore, an acceleration would deprive the children of Ida Beyer of the possibility that the residuary estate might be materially enhanced in the event of the death of any of the appellants prior to the death of Lena Kern. To order an acceleration would clearly be contrary to the definite intention of the testator. The effect would be to write a will for Mr. Kern. Compton v. Barbour, 124 Va. 548, 98 S.E. 651; Toombs v. Spratlin, 57 S.E. 59, 127 Ga. 766; Brandenburg v. Thorndike, 139 Mass. 102, 28 N.E. 575. (3) The words of the testator, Charles Kern, specifically state that the payments of the various specific bequests to the appellants are to be made to said appellants "if living" at the death of Lena Kern. The testator clearly intended, as his words so state, that in the event any of the appellants should predecease his widow that their bequests should become part of the residue of his estate and thereby inure to the benefit of his daughter, Ida Beyer, or his grandchildren. An acceleration would clearly defeat the expressed intent of the testator. Compton v. Barbour, 124 Va. 548, 98 S.E. 575; Toombs v. Spratlin, 57 S.E. 59, 127 Ga. 766; Brandenburg v. Thorndike, 139 Mass. 102, 28 N.E. 575; Lovell v. Charlestown, 66 N.H. 584, 32 A. 160; In re Rogers, 97 Md. 674, 55 A. 679; Augustus v. Seabolt, 3 Met. 155; Rose v. Rose, 88 So. 513; Swan v. Austell, 261 F. 465, certiorari denied 252 U.S. 579; In re Silsby, 229 N.Y. 396, 128 N.E. 212; In re Cooper, 86 L. J. Ch. (N. S.) 507; Foreman Trust & Savs. Bank v. Seelenfreund, 329 Ill. 546, 161 N.E. 88, 62 A. L. R. 201. (4) The attorneys for appellants on behalf of their clients contend that their attorneys' fees should be paid out of the funds in the hands of the trustees. They rendered absolutely no services in aid of the trust. Their position has always been hostile to the continuation of the trust. Throughout the case they have taken only one position, that is to terminate the trust and get an immediate payment of the legacies bequeathed conditionally to their clients. These services were beneficial solely to their clients and their fees are definitely not payable out of the corpus of this estate. 69 C. J., p. 905, sec. 2072; Hartnett v. Langan, 282 Mo. 471, 222 S.W. 403; Drake v. Crane, 66 Mo.App. 495; Sandusky v. Sandusky, 265 Mo. 219, 177 S.W. 390; Rose v. Rose, etc., Assn., 28 N.Y. 184; Downing v. Marshall, 37 N.Y. 380; Savage v. Sherman, 87 N.Y. 277; Attorney General v. Ins. Co., 91 N.Y. 57; Trautz v. Lemp, 72 S.W.2d 104; City Bank & Trust Co. v. McCaa, 213 Ala. 579, 105 So. 669; Hinckley v. Stebbins, 3 Cal. 478, 29 P. 52; Mudge v. Mudge, 155 Md. 1, 141 A. 396; Urey v. Urey, 86 Ky. 354, 5 S.W. 859; In re Denges, 103 Wis. 497, 74 Am. St. Rep. 885, 79 N.W. 786; Littleton v. General Amer. Life Ins., 136 S.W.2d 440; 1 Redfield on Wills (3 Ed.), pp. 493-495; 79 A. L. R. 522.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

This is a suit by the trustees under the will of Charles Kern to secure a construction of the will. From a decree construing the will, certain legatees have appealed.

Charles Kern died June 7, 1933, seized and possessed of real and personal property. By his will his property was left in trust for the benefit of his two sisters, his wife, his daughter by a former marriage, the children of...