Stifel v. Butcher
| Decision Date | 11 September 1972 |
| Docket Number | No. 55787,No. 1,55787,1 |
| Citation | 487 S.W.2d 24 |
| Parties | Carl G. STIFEL et al., Plaintiffs-Respondents, v. Thomas P. BUTCHER et al., Defendants, Donald Gunn, Jr., Guardian Ad Litem for Karen Louise Murphy, et al.,Appellants |
| Court | Missouri Supreme Court |
Samuel C. Ebling, St. Louis, for plaintiffs-respondents.
Forrest M. Hemker, Greensfelder, Hemker, Wiese, Gale & Chappelow, St. Louis, for Thomas P. Butcher, Walter Whitmore Butcher and Mary Louise Butcher Boertman, defendants-respondents.
Husch, Eppenberger, Donohue, Elson & Cornfeld, Benjamin Uchitelle, Francis M. Oates, St. Louis, for defendants-appellants, realigned-respondents, Steven Whitmore Butcher and Jeffrey Ross Butcher.
Frank P. Motherway, St. Louis, for above named defendants-respondents and for all unknown or unborn persons claiming any right, title or interest by or through the will of Charles H. Peck or who derive or claim to derive their respective right, title, claim or interest as heirs, devisees, grantees, assignees, successors or descendants of Charles H. Peck, deceased, or any of his descendants or any of the above named defendants-respondents.
Peper, Martin, Jensen, Maichel and Hetlage, Warren, R. Maichel, St. Louis, for defendants-appellants, realigned-respondents, Nancy Sue Butcher Thompson, Mary Elizabeth Butcher and John Keimig Butcher, a minor.
C. Perry Bascom, Bryan, Cave, McPheeters & McRoberts, St. Louis, guardian ad litem and counsel for defendant-appellant, realigned-respondent Danika Marie Butcher, a minor.
Donald Gunn, Jr., St. Louis, guardian ad litem for Karen Louise Murphy, a minor, Barbara Lynne Murphy, Deborah Lee Murphy, Robby Vaughn Johnston, Roberta Ann Johnson, Roger Drew Lenthe, Susan Dillaine Lenthe, Stephen Dirk Lenthe, Gene Anne Lenthe, Nan Travis Scogin, Jan Roland Scogin, Robert Cruse Scogin, Jeffrey Robert Peck, Karen Louise Dworsack, Fannie Lee Peck, Barbara Ann Peck, Warren Allen Peck, Constance Jean Peck and Carol Peck, Gunn & Gunn, St. Louis, of counsel.
WELBORN, Commissioner.
Action to construe testamentary trust.
Charles H. Peck, a resident of St. Louis, executed his will, drawn by him, July 15, 1897. Peck died July 3, 1899, and his will was probated. The will created a trust, and this action is concerned, primarily, with the distribution of the trust income under Clause Sixteenth of his will, reading as follows:
'Sixteenth: For and during the life of the last surviving one of my descendants that may be living at the time of my death, and for and during fifteen years next after the death of said survivor the said trustees shall pay all the remaining net income of the trust estate not hereinbefore disposed of (or that may be by Codicil to this Will hereafter disposed of) in equal annual quarterly payments, on the fifteenth day of January, April, July and October of each year as follows, to-wit:
'To my son Charles H. Peck Jr. During his life three eighteenth share of said income.
'To my son Stephen Peck during his life three eighteenth share of said income.
'To my son John A. Peck during his life three eighteenth share of said income.
'To my daughter, Rebecca, wife of J. W. Dusenbery Jr., during her life three eighteenth share of said income.
'To my daughter Belle Peck during her life three and one half shares of said income.
'To Lidda, and Mamie Peck, daughters of my deceased son Rudolph Peck, to each, during their lives one and one half thirty-sixth share of said income.
'To Mabel, and Marion Peck, daughters of my deceased son Roderick A. Peck, to each, during their lives one and one half thirty sixth share of said income.
'To William J. Peck, son of my deceased son, William, W. Peck during his life one and one half eighteenth share of said income, said share to be paid to Stephen Peck, in trust, and, by him paid from time to time as he may think proper to said Wm. J. Peck until he arrives at the age of twenty-five years, and thereafter said share to be paid directly to said Willie J. Peck.
'If the above named my descendants should die prior to my death, leaving descendants living at the time at the time of my death, such last mentioned descendants shall receiver per stirpes and in equal parts, the share their deceased parent would have taken if then living, and said trustees shall pay such share accordingly.
'Whenever after my death and prior to the expiration of said fifteen years next after the death of the last surviving one of my descendants living at the time of my death, any one of my descendants shall die leaving descendants living such last mentioned descendants shall receive per stirpes and in equal parts the share their deceased parent would have received if then living and said trustees shall pay such share accordingly.
'The word 'descendants,' wherever used in this Will, means lawful descendants, and means descendant where there is but one.
'The payment of income to be made under this sixteenth clause of my will to my descendants, and under any will of any of my descendants having the power of appointment as hereinafter authorized, are in each individual case to be made only during the life of such descendant who may die prior to the expiration of said fifteen years, and in the case of my descendants who may (be) living at the expiration of said fifteen years, the payments to be made to them in each individual case until the expiration of said fifteen years and then cease.
'The share that my descendants would would receive under this sixteenth clause is subject to be diminished by the provisions of 15 clause and to (be) increased or diminished by the following provisions.
'I hereby authorize and empower any of my descendants to whom the right has accrued under any provision (this included) in this 16th clause of my my will, any share of said income to designate and appoint, by his or her duly executed will, the person or persons, among my descendants, only and whether or not their parent descended from me, be living to take and receive such share of said income after the death of said descendant--theretofore receiving such share making said appointment by will, such designation and appointment by such will may be of, and to one or more of my descendants, and for not exceeding the perod above limited, and if to more than one descendant, then of what part of said share each is to receive, and the said trustees under my will shall pay said shares in the parts, and to the person or persons among my descendants designated and appointed as aforesaid by the will of the deceased descendant to to whom it was formerly paid.
'Should any of my descendants die before or after my death leaving no descendants, or Brother or Sister descended from me, and having made no appointment by will as above provided, of the person to whom to his or her share should after his or her death be paid, then such share of income under this sixteenth clause of my will shall be be paid to the other of my descendants then living and entitled to receive shares of income under this sixteenth clause of my will and in the same proportion in which they are receiving shares of income.
'In every case of any payment of income to be made under this sixteenth clause of my will to any female, such payment shall be to her for her sole and separate use, and free from the control and debts of her husband, if any she have.'
The direction to pay Belle Peck 'three and one half shares' of the income created an immediate problem in view of the eighteenth and thirty-sixth fractional shares given the other beneficiaries. If Belle's share was a 3. 5/18ths, the total shares specified by the will would have amounted to 40/36ths. This ambiguity brought about a suit by the trustees in the St. Louis Circuit Court in which all of the living descendants of the testator and their spouses were defendants. Based upon an agreement of the beneficiaries, a decree was entered on January 30, 1902, by which the shares of the income beneficiaries were determined in twentieths and fortieths fractions.
Charles Peck, Jr., a son of the testator, who died after the execution of the will and before the testator, was survived by two children. One, Pearle Peck Desnoyers, had three minor children at the time of the 1902 decree, two of whom were alive at the testator's death and one who had been born afterwards. Those three children were parties to the 1902 action and represented by a guardian ad litem who advanced no claim on their behalf to share presently in the income as a descendant of the named income beneficiary. The decree divided the share of Charles Peck, Jr., equally between his two children. The effect of this decree was a per stirpes construction of the provision of Clause Sixteenth insofar as it directed the distribution of the income share of a first taker who did not survive the testator. The language of Clause Sixteenth was identical in the gift to descendants 'per stirpes and in equal parts' in the case of descendants predeceasing the testator and those who died subsequently.
John A. Peck, a son of the testator and one of the named income beneficiaries, died in 1926. By his will he attempted to exercised the power of appointment granted him by his father in Clause Sixteenth in favor of two of his sisters, but on the condition that they pay an amount equal to one third of the income to John Peck's widow. In 1938 a suit was filed in the St. Louis Circuit Court by Austin Peck II, a grandson of Charles Peck. The petition alleged that the attempted conditional exercise of the power of appointment by the will of John A. Peck was invalid because it had the effect of naming a person not a descendant of Charles H. Peck as the taker of the income rights of John A. Peck, 'and this John A. Peck was forbidden to do by the will of Charles H. Peck.' The prayer was for a decree that the income to which John A. Peck was entitled under the will of Charles H. Peck be distributed in equal shares to...
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