Teller v. Kaufman

• Decision Date: 30 April 1970
• Docket Number: No. 19620.,19620.
• Parties: Emanuel TELLER, Appellee, v. Lee I. KAUFMAN and Jeane K. Susman, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

426 F.2d 128 (1970)

Emanuel TELLER, Appellee, v. Lee I. KAUFMAN and Jeane K. Susman, Appellants.

No. 19620.

United States Court of Appeals, Eighth Circuit.

April 30, 1970.

Gerald A. Rimmel, Susman, Willer, Rimmel & Elbert, St. Louis, Mo., for appellants.

Hugo M. Walther, Thompson, Walther & Shewmaker, St. Louis, Mo., for appellee; Landman Teller, Teller, Biedenhard, Rogers & Marcus, Vicksburg, Miss., were with him on the brief.

Before MATTHES, BLACKMUN and BRIGHT, Circuit Judges.

BLACKMUN, Circuit Judge.

In this diversity case we are called upon to construe the trust provisions, particularly Article II C(2), of the last will and testament dated February 27, 1957, of Nora Kaufman, deceased. Miss Kaufman, a single woman in her seventies, died in 1959 domiciled in Missouri and without issue.¹

When the testatrix' will was executed in February 1957, there were then living (a) Lee I. Kaufman and Jeane K. Lewin (now Jeane K. Susman), the defendants here, who are children of Nora's theretofore deceased brother Ben; (b) Nora's older and unmarried sister Frances; (c) Nora's older and only married sister Beckye K. Teller; and (d) Beckye's two sons, Emanuel Teller, who is the plaintiff here, and Dann K. Teller. Thus at that time Nora had two living siblings (Frances and Beckye); a nephew and niece (Lee and Jeane) who were children of a deceased sibling (Ben); and two nephews (Emanuel and Dann) who were children of a living sibling (Beckye). Lillian, another unmarried sister of Nora, had died without issue prior to 1957.

The dispositive provisions of Nora's will are:

"ARTICLE I. I give, devise, and bequeath to my sister, FRANCES KAUFMAN, if she survives me by sixty (60) days, all of my property of every kind and description.

"ARTICLE II. If my sister, FRANCES KAUFMAN, shall fail to survive me by sixty (60) days but my sister, BECKYE TELLER of Vicksburg, Mississippi, should survive me by sixty (60) days, then and in that event I give, devise, and bequeath all my property of every kind and description to my Trustee hereinafter named, IN TRUST, however, upon the terms and conditions, for the uses and purposes, and with the powers and duties hereinafter enumerated:

"A. My Trustee shall pay all of the income of the trust estate to or for the benefit of my sister, BECKYE TELLER, so long as she may live beginning as soon as possible after my death.

"B. My Trustee may encroach upon the principal of the trust estate at any time and from time to time to meet any need, emergency, or special requirement of my sister, BECKYE TELLER, including the cost of her last illness, funeral, and burial.

"C. Upon the death of my sister, BECKYE TELLER, my Trustee shall pay and deliver:

"(1) Five Thousand Dollars ($5,000) to my nephew, LEE I. KAUFMAN, in appreciation of the assistance he has given to me and to my sister over the years;

"(2) The balance of the principal and any accumulated income of the trust estate in equal shares per stirpes among such of my nephews and niece, JEANE K. LEWIN, LEE I. KAUFMAN, DANN K. TELLER, AND EMANUEL TELLER, as may then survive.

* * * * * *

"ARTICLE III. If neither of my sisters, FRANCES KAUFMAN and BECKYE TELLER, should survive me by sixty (60) days, I give, devise and bequeath all of my property of every kind and description to the persons in the proportions specified in Paragraph C of Article II above."

Frances, although living at the execution of Nora's will, died prior to Nora's death and without issue.

On Nora's death her will was duly admitted to Missouri probate. Lee, who was named as executor in the will, served in that capacity without compensation. In view of Frances' prior death, the will's Article I was not effective. Beckye survived Nora by more than 60 days. Thus Article III of the will also was ineffective. The disposition of Nora's estate, therefore, was governed by Article II. The testamentary trust which that Article called for was established in due course. Lee served as trustee, apparently without compensation.²

Dann died February 21, 1963, without issue. His mother Beckye, the life beneficiary of Nora's testamentary trust, survived Dann.

Beckye died August 31, 1967. On her death the trust terminated. The plaintiff Emanuel (Beckye's then sole surviving child) and the defendants Lee and Jeane (Ben's son and daughter) were the only persons of the four named in Article II C(2) who were still living at the trust's termination. The $5,000 trust legacy prescribed by Article II C(1) has now been paid to Lee. No one questions the propriety of that payment. It is the division of the residue of the trust estate among the testatrix' niece and two nephews which is in controversy.

Emanuel takes the position that he is entitled to half the residue and that his cousins Lee and Jeane are entitled to share only the other half equally, thus making the distributive shares 50%, 25% and 25%, respectively. Emanuel instituted this suit to establish his right to the 50% share. The defendants Lee and Jeane take the position that they and Emanuel share the entire residue equally, each taking one-third. The amount in controversy is, for Emanuel, the difference between one-half and one-third, or one-sixth, of the residue, and, for each of Lee and Jeane, is the difference between one-fourth and one-third, or one-twelfth, of the residue. The sum involved exceeds the minimum amount specified by 28 U.S.C. § 1332(a) for federal diversity jurisdiction. Diversity of citizenship is also established.

Certain additional facts were brought out in evidence presented by the defendants. Much of this evidence was admitted over the plaintiff's objection. We recite these facts for background and for what they may be worth, and we do so without passing upon the issue of the admissibility of the evidence:

1. Nora, Frances and Lillian had lived together for many years in a Saint Louis apartment. The three women were spinsters and, with an occasional exception, were not remuneratively employed. Their brother Ben, who died in March 1947, for many years contributed $100 each month to their support. After Ben's death an insurance policy he had purchased on his own life provided them $75 each month; Lee then contributed the remaining $25 needed to continue the $100 precedent.

2. Beckye resided in Mississippi. Emanuel lived in Louisiana. Lee had his home in Saint Louis County, Missouri, and thus was close to the sisters. Jeane also lived in Saint Louis County.

3. Neither Emanuel nor Dann contributed anything to the sisters' support.

4. Nora's will was drawn by a Saint Louis lawyer. In February 1957, at their request, Lee called the lawyer to draw wills for Nora and Frances. The attorney consulted the sisters on February 18. During his conversation with Nora he made notes. In those notes appears the phrase, "In trust for Beckye — after Beckye, to nephews and niece equally". An initial typed draft of the will had Article II C(2) as follows:

"The balance of the principal and any accumulated income of the trust estate in equal shares per stirpes among my nephews and niece, Jeanne K. Lewin, Lee I. Kaufman, Dann K. Tiller, and Emanuel Tiller."

In this draft, however, the attorney, in longhand, inserted the words, "such of" and "as may then survive", which appeared in the final draft of Article II C(2), and made the corrections in the spelling of the names. In response to the question as to why he added the words "as may then survive", the lawyer testified:

"Well, it would be my memory that language of this type was inserted to recognize the possibility that one of the nephews and nieces might predecease the life tenant of the trust."

Chief Judge Harper ruled in Emanuel's favor. Teller v. Kaufman, 293 F. Supp. 1397 (E.D.Mo.1968).

Some well-established and undisputed general principles are applicable but, as is usual, may not be particularly helpful: (1) "The construction of wills is essentially a state-law question * * *". Evans v. Abney, 396 U.S. 435, 444, 90 S.Ct. 628, 633, 24 L.Ed.2d 634 (1970); Lyeth v. Hoey, 305 U.S. 188, 193, 59 S.Ct. 155, 83 L.Ed. 119 (1938). (2) Missouri law applies, for Missouri is the state where the testatrix resided and was domiciled and where the trust property had its situs. Brenneman v. Bennett, 420 F.2d 19, 22 (8 Cir. 1970); Bingen v. First Trust Co., 103 F.2d 260, 264 (8 Cir. 1939). (3) The "rules of construction applied to wills generally are also used in the case of testamentary trusts". First Nat. Bank of Kansas City v. Hyde, 363 S.W.2d 647, 653 (Mo. Sup.1962). (4) "In determining the meaning of a trust provision, the paramount rule of construction is that the settlor's intent is controlling * * *." First Nat. Bank of Kansas City v. Hyde, supra, 363 S.W.2d at 652. V.A.M.S. § 474.430³ is a statutory recognition of the controlling nature of the testator's intent. (5) "When the intent of its maker is discovered, the will is solved, unless that intent runs counter to an inflexible rule of law or public policy." Burnet v. Burnet, 244 Mo. 491, 497, 148 S.W. 872, 874 (1912); Carlock v. Ladies Cemetery Ass'n, 317 S.W.2d 432, 439 (Mo.Sup. 1958). (6) Intent is to be ascertained from the instrument as a whole or, as is often said, from its "four corners" so as to give effect to all its provisions. Scullin v. Mercantile-Commerce Bank & Trust Co., 361 Mo. 337, 234 S.W.2d 597, 601 (1950); Weller v. Searcy, 343 Mo. 768, 123 S.W.2d 73, 77-78 (1938); Thomas v. Higginbotham, 318 S.W.2d 234, 237 (Mo.Sup.1958); Gehring v. Henry, 332 S.W.2d 873, 876 (Mo.Sup. 1960); Prior v. Prior, 395 S.W.2d 438, 442 (Mo.Sup.1965). (7) "A testator is presumed to know and intend the legal effect of the language he uses in a will." First Nat. Bank of Kansas City v. Hyde, supra, 363 S.W.2d at 653; Gehring v. Henry, supra, 332 S.W.2d at 876; Thomas v. Higginbotham, supra, 318 S. W.2d at 237. (8) "By reason of the infinite variety of expression employed in wills, precedents are of less value in their construction than in many...