Union Trust Co. of St. Louis v. Curby

• Citation: 255 Mo. 393,164 S.W. 485
• Parties: UNION TRUST CO. OF ST. LOUIS v. CURBY et al.
• Decision Date: 06 December 1913
• Court: United States State Supreme Court of Missouri

164 S.W. 485

255 Mo. 393

UNION TRUST CO. OF ST. LOUIS v. CURBY et al.

Supreme Court of Missouri, Division No. 1.

December 6, 1913.

Rehearing Denied March 3, 1914.

1. WILLS (§ 775)—LAPSE—DEATH OF DEVISEE OR LEGATEE.

Where the wife of a testator, who by his will was given certain specific property and one-third of the residuary estate, died in his lifetime, the gift to her lapsed, and the property given to her passed as in case of intestacy under the statute of descents and distributions.

2. WILLS (§ 545)—SUBSTITUTE—DEATH WITHOUT "ISSUE"—"HEIRS."

Under Rev. St. 1909, § 2873, providing that where a remainder in lands, tenements, goods, or chattels shall be limited to take effect on the death of any person without heirs or without issue, the word "heirs" or "issue" shall be construed to mean heirs or issue living at the death of the person named as ancestor, where a testator gave property in trust for three grandsons until they reached the age of 35 years, and provided that if any one or more of them died without leaving issue his share should go to those entitled to the residuary estate, upon the death of a grandson without issue before reaching the age of 35 his share in the trust fund passed into the residue though he survived the testator.

3. WILLS (§ 545)—SUBSTITUTION — DEATH WITHOUT ISSUE.

A testator gave property in trust for three grandsons in equal shares payable to them, respectively, when they reached the age of 35 years, and provided that if any one or more died without leaving issue his share should go to those entitled to the residuum of the estate as ordered by the probate court, that the income should be paid to the residuary legatees in proportions determined by the probate court semiannually during the trust period, that if any of the grandsons was a profligate and unable to take proper care of his share, in the opinion of the trustees, the trust should continue after his arrival at the age of 35 years, the income in such case to be paid to him, and that if either of the beneficiaries became incapacitated from earning a living before reaching such age he should receive the income during such period of disability. The residuary estate was given to the testator's wife, son, and one of the grandsons, and to their heirs and assigns forever; the grandson's share, however, being placed in trust until he reached the age of 30 years; he to receive the net income in the meantime. Held that, independent of statute, the will disclosed an intention to give each of the grandsons an executory bequest in the trust funds, determinable as to each upon his death without issue before reaching the age of 35 although he survived the testator.

4. WILLS (§ 545)—CONSTRUCTION—NATURE OF ESTATES CREATED.

A testator gave his residuary estate in equal shares to his wife, son, and a grandson and to their heirs and assigns forever; the grandson's share, however, to be held in trust until he reached the age of 30, and the income to be paid to him in the meantime. By a codicil he provided that in case of the death of the grandson without legal issue his residue should revert back to the estate, and that in case of the death of the son before the entire settlement of the estate one-third of his residue should revert to his estate and two-thirds to the testator's estate. Held, that while, under the original will, the residuary devisees and legatees would have taken a fee in the real estate and an absolute title to the personal estate, the interest of the grandson was, by the codicil, changed to an estate determinable upon his death without legal issue, and hence, where he survived the testator and died without issue during the trust period, his share in the residue passed to the other residuary legatees and devisees.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action to construe a will by the Union Trust Company of St. Louis, as trustee under the will of Joseph L. Curby, deceased, against Margaret W. Curby and others. From the judgment, defendants Mary E. Calnane and another appeal. Affirmed.

The plaintiff, trustee under the will of Joseph L. Curby, deceased, instituted this suit against the defendants to construe said will. Said Curby resided in the city of St. Louis, and departed this life March 8, 1904. The will was executed August 7, 1899; and at that time Anna J. Curby, his wife, Clarence E. Curby, his son, and Joseph L. Curby, Jr., the only child of a deceased son, who died in the lifetime of his father, the testator, and before the will was executed, were all living. At that time the said Clarence E. Curby had two sons living, namely, Clarence J. Curby and Kennett S. Curby. These are the devisees mentioned in the will of the testator, which will be presently set out. No question is raised as to the pleadings or the procedure had in the case, consequently they will be put aside.

Said will is in words and figures as follows:

"I, Joseph L. Curby, being of sound mind and disposing memory, do make and publish this my last will and testament, hereby revoking all other wills by me at any time heretofore made.

"First. I direct that all my just debts, including funeral expenses, be paid as soon after my death as possible.

"Second. I give and bequeath to my grandson, Joseph L. Curby, Jr., all my jewelry (except Masonic jewelry), including my watch and chain; also all papers and equipments belonging to me, pertaining to the War of the Rebellion; and to my son, Clarence Edgar Curby, I bequeath all my Masonic jewelry, emblems, books and paraphernalia pertaining to Free Masonry, he to take good care of them without charge therefor being made against him in my estate.

"Third. I give and bequeath to my nephew Joseph Curby, son of David P. Curby, the sum of one thousand ($1,000) dollars; also to Joseph Curby Welch the sum of five hundred ($500) dollars; and also to Joseph Curby Jacobs the sum of five hundred ($500) dollars, all of said legacies to be paid within two years after my death.

"Fourth. I also give and bequeath to my sister, Mrs. John O. Taylor, such sum of money as may be required to purchase for her an annuity of six hundred ($600) dollars per year, payable to her monthly at the rate of fifty ($50) dollars per month. Such annuity shall be purchased by my executors and shall cease to be payable to her when she remarries and thereafter the same shall be payable to my residuary legatees. It is, however, my wish that she remain a member of my wife's family after my death and that she be provided by my wife with board, lodging and clothing as has been heretofore done by my family, and in case such be done it is my wish and request that she pay therefor such sum as she receives from the said annuity so long as she remains a member of my wife's family.

"Fifth. I also give and bequeath to each of my two brothers, William Franklin Curby and Augustus Washington Curby, such a sum of money as may be sufficient to purchase for each of them an annuity of three hundred ($300) dollars, payable monthly or quarterly, and such annuities shall be purchased by my executors.

"Sixth. I give and bequeath to my coachman, Smith Williams, colored, the sum of five hundred ($500) dollars, providing he remains with me and is in my employ at the time of my death and remains for at least two (2) years after my death with my widow if she so requests.

"Seventh: I give and bequeath to the Union Trust Company of St. Louis the sum of fifty thousand ($50,000) dollars, to the Mississippi Valley Trust Company of St. Louis the sum of fifty thousand ($50,000) dollars, and to the St. Louis Trust Company of St. Louis the sum of fifty thousand ($50,000) dollars, in trust, however, for my three (3) grandsons, Joseph L. Curby, Clarence E. Curby and Kennett S. Curby, in equal shares, payable to them respectively when they arrive at the age of thirty-five (35) years, and should any one or more of them die without leaving issue then the share of such beneficiary shall go to those who may have been declared entitled to the residuum of my estate in the proportions in which such residuum was ordered to be paid to the residuary legatees by the order of the probate court having jurisdiction of my estate. The net interest or earnings of the said trust funds shall be paid to such residuary legatees in the proportions determined by such probate court semiannually during said trust period, except as hereinafter otherwise provided. In case any one of my said grandsons above named is a profligate and unable to take proper care of his share of the said trust fund, in the opinion of a majority of the said trustees when he arrives at the age of thirty-five (35) years, then the said trust shall continue until such time as the said beneficiary manifests his capacity to take proper charge and economically manage the said fund during such time only, namely, from the time such beneficiary arrives at the age of thirty-five (35) years, and until he manifests the possession of the qualifications and attributes indicating the capacity to take proper care and properly manage the said trust fund the net interest and earnings of said trust fund shall be paid quarterly to such beneficiary. It is also my wish and will that in the event of either of said beneficiaries becoming incapacitated from earning a living by accident or disease before he arrives at the age of thirty-five (35) years, then during such period of such disability said beneficiary shall be entitled to receive the net earnings of his share of said trust fund instead of the residuary legatees, as before provided. My reasons for creating above trust are found in the fact that my observations have taught me that in many cases and in many respects too much money in the hands of young people often proves worse than poverty.

"Eighth. I give, bequeath and devise unto my beloved wife, Anna J. Curby, during the period of her natural life, my homestead, No. 19 North Grand avenue, and the grounds used in...