Union Nat'L Bank v. Bunker et al.

• Decision Date: 07 March 1938
• Docket Number: No. 19075.,19075.
• Citation: 114 S.W.2d 193
• Parties: UNION NATIONAL BANK, ETC., RESPONDENT, v. BERTHA A. BUNKER, ET AL., DEFENDANTS, LYDIA L. BUNKER, ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

114 S.W.2d 193

UNION NATIONAL BANK, ETC., RESPONDENT, v. BERTHA A. BUNKER, ET AL., DEFENDANTS, LYDIA L. BUNKER, ET AL., APPELLANTS.

No. 19075.

Kansas City Court of Appeals. Missouri.

March 7, 1938.

Appeal from Jackson Circuit Court. — Hon. Brown Harris, Judge.

REVERSED AND REMANDED (with directions.)

Thomas H. Reynolds and R. Arch Smith for respondents, Maude S. Hollar et al.

Lathrop, Crane, Reynolds, Sawyer & Mersereau of Counsel.

Roy W. Crimm for Bertha A. Bunker et al., respondents.

Henry M. Beardsley for appellants.

BLAND, J.

This is an action to construe the will of Walter A. Bunker, deceased, who died in Kansas City, on May 31st, 1928. The will provides in Paragraph II thereof, as follows:

"II. I give, devise and bequeath to Bertha A. Bunker, beloved widow of my son, Irving Leonard Bunker, deceased, of 1209 West 59th Street, Kansas City, Missouri, the income from the sum of Fifty Thousand ($50,000.00) Dollars, which amount shall be put in trust with my executrix during her term as such executrix and afterward with the New England National Bank and Trust Company as Trustee, to be invested in good securities, and the interest received from such securities shall be paid semi-annually to Bertha A. Bunker during her lifetime. At her death, the principal shall revert to the heirs and legatees named in Paragraph XVI of this will."

Paragraph X reads as follows:

"X. I give, devise and bequeath to my deceased wife's niece, Vinnie Bell Bosworth, 9th & Glenwood, Mt. Washington Missouri, the sum of Ten Thousand ($10,000.00) Dollars, which amount shall be put in trust with my executrix (and with New England National Bank and Trust Company after her term) and invested in good securities, and the interest received from such securities shall be averaged and paid quarterly to Vinnie Bell Bosworth, with the understanding that she shall have the privilege of withdrawing from the principal of such trust at need, not to exceed One Thousand ($1,000.00) Dollars in any one year. At her death, any balance remaining after payment of her funeral expenses shall revert to the heirs and legatees named in Paragraph XVI of this will."

In other parts of the will a great many specific bequests, mostly of money, are made to various persons. The will concludes (so far as disposing of the estate of deceased is concerned) with Paragraph XVI, reading as follows:

"XVI. I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, wherever situate, to all of the following named legatees then living, and to the child or children of a deceased parent hereinafter named, to-wit: Bertha A. Bunker, Alonzo E. Bunker, Lydia L. Bunker, Earl D. Bond, LeRoy M. Bond, Harold H. Bond, Jennie A. Dampier, Frances Klumb, Jessie E. Stadon, Ruth M. Kott, William H. Culver, Maude Stevens Haller, Marian Hallar Helman and James Cardwell Hallar, in the same proportion as bequests herein made to them, and to Vinnie Bell Bosworth in the proportion of Three Thousand ($3,000.00) Dollars. The amounts so coming to Bertha A. Bunker and Vinnie Bell Bosworth shall be added to the trusts held by my executrix or her successor in accordance with Paragraphs II and X, and the interest paid to them in the same manner, and upon the death of either the principal of such bequests shall revert to the remaining legatees named in this paragraph."

It appears that Bertha A. Bunker, the widow of the testator mentioned in Paragraphs II and XVI of the will, is still alive. However, Vinnie Bell Bosworth, the person mentioned in Paragraph X and XVI of the will, died on May 22nd, 1934. Alonzo E. Bunker, whose name appears in Paragraph XVI, died testate on August 3rd, 1929. He left a will but no children. Jennie A. Dampier, whose name likewise appears in Paragraph XVI, died testate on August 2nd, 1929. The sole beneficiaries under the will of Jennie A. Dampier are her two daughters, Frances G. O'Neall, mentioned in Paragraph XVI of the Bunker will as Frances Klumb, and Jessie M. Stadon. At the time of the institution of this suit Jessie M. Stadon was the duly qualified and acting executrix of the estate of her mother. The estate of Alonzo E. Bunker had been closed at that time and the executrix discharged. The respective widow and daughters of the said two deceased persons, mentioned in Paragraph XVI of the Bunker will, are each separately mentioned in said Paragraph of said will in their own right and as such are given a share in the division of that part of the fund given to Vinnie Bell Bosworth (hereinafter referred to as the Bosworth Trust) remaining at her death.

The controversy between the appellants and the respondent is over the proper construction of Paragraphs X and XVI of the Will of William A. Bunker.

Appellants contend that, since all of those named in Paragraph XVI survived the testator, the whole of testator's residuary estate was immediately, upon the death of the testator, vested in these persons in the proportions mentioned in, and subject to, the provisions of this Paragraph; that insofar as the Bosworth Trust was concerned, Vinnie Bell Bosworth, became entitled, (Paragraph X) upon the death of the testator, to have $10,000.00 placed in trust for her during her lifetime, giving her the income therefrom, and the right to take, if she so desired, not to exceed $1,000.00 per year of the principal; that by the provisions of Paragraph XVI, certain portions of the general remainder of testator's estate, as they were collected, were to be added to the trust fund established in Paragraph X, in accordance with that Paragraph, the income from which, during her life, she was entitled to take; that it was the will of the testator that the funds which so came would be part of the trust described in Paragraph X and controlled in exactly the same manner; that in Paragraph XVI, the testator disposed of the remainder of his estate, that is, all which remained after the specific bequests which had been made theretofore in the will; that all of his property included not only the life interest in a portion of this remainder which he provided should belong to Vinnie Bell Bosworth, but as well all the corpus of her total trust; that, at the death of the testator, the total property which he left and which had not been covered and disposed of in the preceding special bequests, immediately vested, so that each one of the parties named in the residuary clause, (Paragraph XVI) immediately the testator died, had full right vested in him or her, to his or her portion, and could sell and convey that right and the property covered by it as he or she should choose; that in the Bosworth Trust, all that was given Miss Bosworth was her right for life to the income of the property in the trust and a certain sum each year according to her needs; that upon the death of Alonzo E. Bunker, his right, title and interest in the residue of the Bosworth Trust vested, by reason of his will to that effect, to his wife; that upon the death of Jennie A. Dampier, her right to and interest in the Bosworth Trust passed, under her will, to her two daughters, with the same rights thereto as above specified vested in the widow of Alonzo E. Bunker in his proportional interest in said trust fund.

Respondent denies this contention and takes the position that what remained of the Bosworth Trust passed on, and as of, the date of the death of Vinnie Bell Bosworth, to those who were named in Paragraph XVI, other than Vinnie Bell Bosworth, who were still living, and to these only.

There is no doubt that if the residuary clause (XVI) created a vested remainder in those persons named therein, other than Vinnie Bell Bosworth (for convenience we will refer to the Bosworth trust alone, although there are two trusts created by the will, the Bosworth and the Bertha A. Bunker Trusts), then appellants' contentions are well founded. However, if there was created by the will a contingent remainder, then respondent's position should be upheld.

"A vested remainder is where a present interest passes to a certain and definite person but to be employed in the future. Vested remainders are also sometimes called executed remainders. In the case of a vested remainder the interest of the remainderman rises to the dignity of an estate in the land, and the possession of the tenant of the particular estate is construed to be the possession of him in remainder, so that the remainderman is held to be seized of his remainder. The distinguishing characteristic of a vested remainder is a present capacity to take effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, and this has generally been accepted by the courts and text writers." [21 C.J., pp. 979, 980.] This description probably does not fully cover the distinction between the two classes of remainders but it is sufficient for the purposes of this case.

The vital parts of the will, so far as its proper construction is concerned, are that part of Paragraph X reading: "At her (Vinnie Bell Borworth's) death any balance remaining after payment of her funeral expenses shall revert to the heirs and legatees named in Paragraph XVI of this will," and in Paragraph XVI: "The amounts so coming to Bertha A. Bunker and Vinnie Bell Bosworth shall be added to the trusts held by my executrix or her successor in accordance with Paragraphs II and X, and the interest paid to them in the same manner, and upon the death of either the principal of such bequest shall revert to the remaining legatees named in this paragraph."

The whole or at least the principal question is whether that part of Paragraph XVI just quoted, in the use of the word "remaining" refers to the rest of those named in that paragraph (the will speaking as of the date of the death of the testator) other than Vinnie Bell Bosworth, or refers to those left at her death. It...