State ex rel. Hammerstein v. Hess
| Decision Date | 08 November 1971 |
| Docket Number | No. 56439,R,No. 2,2,56439 |
| Citation | 472 S.W.2d 362 |
| Parties | STATE ex rel. Robert W. HAMMERSTEIN, Jr., and The American Cancer Society, Missouri Division, Inc. (St. Louis Unit), a Not-For-Profit Corporation, Relators, v. Honorable Philip G. HESS, Judge of the Circuit Court of Jefferson County, Divisionespondent. |
| Court | Missouri Supreme Court |
Lupo & Jones, David G. Lupo, St. Louis, for relator, Robert W. Hammerstein, Jr.
Donald S. Hilleary, Clayton, for relator, American Cancer Society, Missouri Division, Inc. (St. Louis Unit), a Not-For-Profit Corporation.
Samuel Richeson, Roland A. Wegmann, Jack C. Stewart, Dearing, Richeson, Roberts & Wegmann, Hillsboro, for Philip G. Hess, Judge.
In this original proceeding, relators seek to prohibit respondent judge from proceeding further in Case No. 41,577, now pending in Jefferson County, Missouri.
The record reflects that one Lena M. Kohler created a testamentary trust in 1958 which provided, generally: (1) that the entire net income derived from the trust properties was to be paid in monthly installments to her daughter during the natural life of the latter, (2) that upon the death of the daughter, such payments were to be made to the daughter's husband during his natural life or until he might remarry, and (3) that upon the death of both the daughter and her husband, or his remarriage, the trust would terminate and distribution of all principal and accrued income was to be made to numerous named beneficiaries of which The American Cancer Society, St. Louis Unit, was one. Its interest, as were the interests of the many others so designated, was made contingent by virtue of the further provision that: 'This trust may be terminated during the life of my daughter * * * or during the life of my son-in-law * * * during such period when either of them may be the sole beneficiary, if there should be such a course of events or circumstances, that my trustee(s) should deem it best to terminate the same, but such action on the part of the trustee(s) shall not make them liable to the remaining beneficiaries in any way or manner and such distribution shall then be made either to my daughter * * * if living, otherwise to my son-in-law * * * if living.'
By letter of October 15, 1970, presumably delivered to all concerned, the trustee advised of the death of the daughter and that he would terminate the trust on January 15, 1971, and make full and final distribution to the son-in-law. Therein, he listed all trust assets and his belief that there existed 'a course of events or circumstances' authorizing such action as contemplated by the trust instrument. The listed assets of the trust estate included various shares of stock, a certificate of deposit, and an account in a bank located in St. Louis, as well as real estate consisting of an undivided 1/36th interest in a 40-acre tract in Kansas plus 4.2 acres in Jefferson County, Missouri. The trustee resided in St. Louis County.
On November 10, 1970, The American Cancer Society filed suit, identified as Case No. 316544, in St. Louis County against the trustee and all others interested in the estate. Therein, it was alleged that the decision of the trustee to terminate the trust was 'under the circumstances * * * arbitrary, capricious, in bad faith, and constitute(d) a breach of trust.' Based on this assertion, the prayer of the petition sought to have (1) the trustee enjoined from terminating the trust, (2) the trustee removed, (3) the trustee ordered to make an accounting, and (4) allowance of attorney fees, and such other relief as might be proper.
On December 2, 1970, other contingent beneficiaries filed suit in Jefferson County against the trustee and, as in the prior suit, joined all interested parties. Similar allegations were made that the trustee's decision was unreasonable, arbitrary, capricious and made in collusion with the son-in-law. In the prayer it was requested (1) that the trustee be declared unqualified, (2) that he be removed, (3) that the court 'decree that no such course of events nor circumstances have occurred' as to permit the termination of the trust, (4) that if the court determines the son-in-law has remarried, the trust be terminated and all assets be distributed to the contingent beneficiaries, and (5) that there...
To continue reading
Request your trial