Trautz v. Lemp

• Decision Date: 06 February 1932
• Docket Number: 29292,29293,29294,29295,29806
• Citation: 46 S.W.2d 135,329 Mo. 580
• Parties: Kathryn H. Trautz v. Lillian H. Lemp et al., Appellants. Kathryn H. Trautz v. C. A. Tilles et al.; Alexander H. Handlan et al., Appellants. Kathryn H. Trautz v. Kathryn Marie Handlan Trautz, Appellants. Kathryn H. Trautz v. Mathudy Tire & Rubber Company, Appellant. Kathryn H. Trautz v. Eugene W. Handlan et al., Appellants
• Court: Missouri Supreme Court

46 S.W.2d 135

329 Mo. 580

Kathryn H. Trautz v. Lillian H. Lemp et al., Appellants. Kathryn H. Trautz v. C. A. Tilles et al.; Alexander H. Handlan et al., Appellants. Kathryn H. Trautz v. Kathryn Marie Handlan Trautz, Appellants. Kathryn H. Trautz v. Mathudy Tire & Rubber Company, Appellant. Kathryn H. Trautz v. Eugene W. Handlan et al., Appellants

Nos. 29292, 29293, 29294, 29295, 29806

Supreme Court of Missouri

February 6, 1932

[Copyrighted Material Omitted]

Appeal from Circuit Court of City of St. Louis; Hon. M Hartmann, Judge.

Reversed and remanded (with directions).

Edward C. Crow and Jones, Hocker, Sullivan & Angert for Lillian H. Lemp.

The right to sue. (1) Mrs. Lemp, as heir at law and beneficiary of the will, had the right to sue for its construction. Clark v. Carter, 200 Mo. 531; Andre v Andre, 288 Mo. 284. (2) Appeal of Methudy Tire & Rubber Company: (a) Independent provisions of a will are not avoided by the invalidity of others. Shepperd v. Fisher, 206 Mo. 245. (b) The power of sale in the executors is valid. Littleton v. Addington, 59 Mo. 278; Phillips v. Stewart, 59 Mo. 494; Evans v. Blackstone, 66 Mo. 439; Emmons v. Gordon, 140 Mo. 497; Franciscus v. Wingfield, 161 Mo. 556; Fisher v. Rische, 167 Mo. 532; Compton v. McMahan, 19 Mo.App. 498. (3) The widow's election: (a) The widow of the testator was put to her election by the will, and elected to accept its provisions. Schorr v. Ettling, 124 Mo. 47; Ball v. Ball, 165 Mo. 326. (b) Where a testator provides for his widow and bequeaths all the rest of his property elsewhere, the widow must elect. Pemberton v. Pemberton, 29 Mo. 413; Davidson v. Davis, 86 Mo. 444; Stoepler v. Silberberg, 220 Mo. 270; Wood v. Trust Co., 265 Mo. 526; Mosely v. Bogey, 272 Mo. 326; Lindsley v. Patterson, 177 S.W. (Mo. Sup.) 829. (c) There will be no comparison of values. Lynch v. Jones, 247 S.W. (Mo. Sup.) 128. (d) If the value of the provision for the widow is equal to or greater than her right under the law, or if the will manifests an intention to put her to her election, she must make it. Ball v. Ball, supra. (e) The right to withdraw her election is personal to the widow, and may not be exercised by her representative. Welch v. Anderson, 28 Mo. 299; Davidson v. Davis, 86 Mo. 444; Stoepler v. Silberberg, 220 Mo. 271. (4) The alleged gift of the shares: (a) There can be no gift without a present intention completely executed. Soulard's Will. 141 Mo. 657; Harris Banking Co. v. Miller, 190 Mo. 662. (b) A gift to take effect in futuro is void. Harris Banking Co. v. Miller, supra. (c) The claimant of a gift against the estate of one since deceased must prove it beyond a reasonable doubt. Albrecht v. Slater, 233 S.W. (Mo. Sup.) 10; Jones v. Falls, 101 Mo.App. 548; Reynolds v. Harrison, 191 S.W. (Mo. App.) 1030. (d) Chance declarations of a deceased donor will not support an alleged gift. Collins v. Howell, 219 Mo. 306; Geer v. Goudy, 174 Ill. 514; Dill v. Westbrook, 226 Pa. 217. (e) The retention of voting rights and dividends raises a strong presumption against an alleged gift of corporate shares. Feil v. Bank, 269 S.W. (Mo. App.) 941; Grissom v. Sternberger, 10 F.2d 767; Allen West Commission Co. v. Grimbles, 129 F. 287 (approved in Foley v. Harrison, 233 Mo. 58). (f) The uncorroborated testimony of alleged donees will not establish a gift against the estate of one since deceased. Heyer v. Sullivan, 102 A. (N. J. Ch.) 24; Freese v. Bank, 69 P. 493; Foley v. Harrison, 233 Mo. 589. (g) In equity cases this court determines the law and the fact. Seested v. Dickey, 300 S.W. (Mo. Sup.) 1088; Price v. Morrison, 291 Mo. 249; Brightwell v. McAlfee, 249 Mo. 562; Rinkle v. Lubke, 246 Mo. 377. (h) There must be acceptance of a gift upon condition. Thomas v. Thomas, 107 Mo. 463; Guthrie v. Crews, 229 S.W. (Mo. Sup.) 186; Albrecht v. Slater, 233 S.W. (Mo. Sup.) 9; Goetz v. People's Saving Bank, 31 Ind.App. 67; Thornton on Gifts, pp. 73, 69. (i) Acceptance must occur prior to death of the donor. 28 C. J. 644; 12 R. C. L. 934, sec. 10. (j) A testator is presumed to intend equality of treatment among those having equal claims upon his bounty. Kinworthy's Estate, 112 A. 774; Butler v. Moore, 94 Ind. 359; Ridgley v. Ridgley, 100 Md. 230; Revenett v. Bourquin, 53 Mich. 10. (k) A testamentary option to take shares at a price must be exercised in a reasonable time. Hilgartner v. Hilgartner, 96 A. 521. (1) A testator may lay any conditions he likes upon his bequests. Stevens v. De la Vaux, 166 Mo. 28; Gibson v. Gibson, 280 Mo. 534; Mosely v. Bogey, 272 Mo. 329. (m) A probate court has no equitable jurisdiction. In re Connor, 254 Mo. 76. (n) The settlement of estates is an ancient branch of chancery jurisdiction. Tittington v. Hooker, 58 Mo. 596; Pearce v. Calhoun, 59 Mo. 274; French v. Stratton, 79 Mo. 562. (o) This jurisdiction will not be yielded to the probate court where the latter cannot award complete relief. First Baptist Church v. Robinson, 71 Mo. 334. (p) A court of equity with exclusive jurisdiction to construe wills has jurisdiction to award complete relief. First Baptist Church v. Robinson, supra; Schwab v. St. Louis, 310 Mo. 125; Fraddie v. Frazier, 245 Mo. 403, (q) Advances bear interest from the death of the ancestor. Ann. Cases 1912A, 957; Niponey v. Rambo, 49 L. R. A. (Tenn.) 766; Fisk v. Carpenter, 195 Ky. 155. (5) If the trust or the devise over is invalid all the scheme of distribution of which it is a part falls with it. Lockridge v. Mace, 109 Mo. 168; Shepperd v. Fisher, 206 Mo. 208; Loud v. Trust Co., 298 Mo. 148; Mockbee v. Grooms, 300 Mo. 472; Tilden v. Greene, 130 N.Y. 50. (6) If the residuary dispositions of the will are valid the surviving trustees ought to be removed because of adverse claims, neglect and hostility to the beneficiaries. Gartside v. Gartside, 113 Mo. 356.

Wilfley, Williams, McIntyre & Nelson for C. A. Tilles and National Bank of Commerce.

(1) The residuary clause of the will violates the rule against perpetuities and is void. (a) Contingent interests must vest within designated life or lives in being plus twenty-one years and period of gestation. Shepperd v. Fisher, 206 Mo. 241; Loud v. Trust Co., 298 Mo. 148. (b) If any possible occurrence may prevent the estate from vesting within the period of the rule, the rule operates to render the gift void even though the probabilities are that the occurrence will never happen. Loud v. Trust Co., 298 Mo. 171, 249 S.W. 638; Shepperd v. Fisher, 206 Mo 241; Taylor v. Crosson, 98 A. 375; Gray's Perp. (3 Ed.) sec. 214; Tiffany on Real Property, sec. 180; Rice on Modern Law of Real Property, sec. 270. (2) The interests to be distributed at the termination of the trust here involved are contingent interests. De Lassus v. Gatewood, 71 Mo. 371; Dickerson v. Dickerson, 211 Mo. 483; Buxton v. Kroeger, 219 Mo. 224; Eckle v. Ryland, 256 Mo. 424; Mockbee v. Grooms, 300 Mo. 446, 254 S.W. 174; Donaldson v. Donaldson, 311 Mo. 224, 278 S.W. 690; Grenzeback v. Grenzeback, 315 Mo. 392, 286 S.W. 81; Prichard v. Prichard, 113 S. E. (W. Va.) 256; Hoyt v. Hoyt, 210 N.Y.S. 155; Birdsall v. Birdsall, 36 L. R. A. (N. S.) 1123; Howbert v. Cawthorne, 42 S.E. 683. (a) Where the language creating the gift (as here) contains merely directions to the trustees to pay over or distribute the corpus of the trust fund at the expiration of the trust the presumption arises that the interests of the legatees and devisees are contingent. Thompson, Construction of Wills, sec. 478; O'Hare v. Johnson, 273 Ill. 458; Olsen v. Youngerman, 136 Iowa 404; Wessborg v. Merrill, 195 Mich. 556; In re Pulis, 220 N.Y. 196; Barr v. Denny, 79 Ohio St. 358; Lemmon v. McElroy, 113 S.C. 532; Trust Co. v. Tiffany, 260 S.W. 358. (b) This rule is especially applicable where (as here) the gift is a class "when it cannot be known until such time who answer the class described." Thompson, Construction of Wills, par. 478. (c) The rule that the payment of income pending delay in payment of principal is some evidence of an intention to give a vested estate has no application here because in such cases "the payment of the whole interest or income of the legacy pending the delay in payment of the principal is essential to the immediate vesting of the legacy." Thompson, Construction of Wills, par. 480; Application of Miller, 288 F. 760; Steinway v. Steinway, 163 N.Y. 183. (3) There is one so-called exception to the rule that vested interests are not defeated by the rule against perpetuities. The exception to the rule arises when a remainder is given to a class and such remainder is vested in certain members of the class (then in esse) subject to open and let in other members born afterwards or afterwards fulfilling a condition. In such cases such gifts violate the rule if the number of the class and therefore the proportionate size of their share in the estate cannot be determined within the time allowed by the rule. Gray on Perpetuities (3 Ed.) secs. 110a, 205a; Kales Future Estates (2 Ed.) 775, sec. 677; Foulk on Perpetuities, secs. 67-69, pp. 443-5; 30 Cyc. 1485; McGill v. Trust Co. (N. J. Ch.), 121 A. 760; Goldberg v. Erich (Md.), 121 A. 365; Smith v. Smith, L. R. 5, Chancery Appeal Cases 345; Thomas v. Wilberforce, 31 Beav. 299; 21 R. C. L. 307, sec. 35. (4) The trust attempted to be created by the residuary clause is void because it is possible that the trust may not begin or that title will not vest in the trustees within the time allowed by the rule against perpetuities. Johnson v. Preston, 226 Ill. 447; Miller v. Weston (Colo.), 189 P. 610; Husband v. Epling, 81 Ill. 172. (5) The interest of the beneficiaries under the residuary clause are void because it is possible that the interest of said beneficiaries will not vest until after the expiration of the period permissible under the rule. (6)...