Union Trust Company v. Curby

• Decision Date: 03 March 1914
• Parties: UNION TRUST COMPANY, Trustee under Will of JOSEPH L. CURBY, v. MARGARET W. CURBY et al.; MARY E. CALNANE and WILLIAM C. AYER, Administrator, With the Will Annexed, of JOSEPH L. CURBY, Appellants
• Court: Missouri Supreme Court

164 S.W. 485

255 Mo. 393

UNION TRUST COMPANY, Trustee under Will of JOSEPH L. CURBY, v. MARGARET W. CURBY et al.; MARY E. CALNANE and WILLIAM C. AYER, Administrator, With the Will Annexed, of JOSEPH L. CURBY, Appellants

Supreme Court of Missouri, First Division

March 3, 1914

Appeal from St. Louis City Circuit Court. -- Hon. Hugo Muench Judge.

Affirmed.

W. M Williams, Judson, Green & Henry and George F. Beck for appellants.

(1) The trial court erred in holding that, upon the death of Joseph L. Curby, Jr., without issue, before he arrived at the age of thirty-five years, his share in the trust funds given to the three trust companies, under the seventh clause of the will passed to Clarence E. Curby, sole surviving residuary beneficiary; and in refusing to adjudge in the decree that Joseph L. Curby, at the death of the testator, became the absolute owner of said share of the trust funds, the payment thereof to him only being postponed until he became thirty-five years old. The rule is well settled that an absolute gift vests title in the legatee notwithstanding a provision for the payment of the legacy at some future day or when the legatee reaches a certain age. Harris v. Cook, 98 Mo.App. 38; Warner v. Durant, 76 N.Y. 133; Wardwell v. Hale, 161 Mass. 396. The bequests given to the grandsons by the seventh clause of the will are given to them individually and not to them as a class, and the rules pertaining to gifts to a class are inapplicable. Page on Wills, secs. 541-542, p. 626; 2 Williams on Executors, p. 373, note G. The fact that the testator placed the funds in the hands of trustees does not affect the nature, quality, or incidents of the estate given. The introduction of the trust merely changes the estate from a legal to an equitable one, and the equitable possesses all the incidents and qualities of a legal estate. Simmons v. Cabanne, 177 Mo. 352; Tremmel v. Kleiboldt, 75 Mo. 255; Cushing v. Blake, 30 N.J.Eq. 689. The seventh clause of the will does not fix the time at which the death of the grandsons without issue must occur in order that their shares respectively in the trust funds shall be paid to those declared by the probate court to be entitled to the residuary estate. The time is indefinite, uncertain, and not fixed by the will. In the absence of words in the will showing a contrary intent the death referred to is during the lifetime of the testator. As the grandsons survived the testator, each took an absolute title to his share of the trust funds. Washbon v. Cope, 144 N.Y. 297; Fowler v. Duhme, 143 Ind. 248; Quackenbos v. Kingsland, 102 N.Y. 128; Stokes v. Weston, 142 N.Y. 433; Shutt v. Rambo, 57 Pa. St. 149; Remsen on Wills, pp. 189-190; Page on Wills, 676; 2 Jarman on Wills (6 Am. Ed.), p. 721. The grandson, Joseph L. Curby, upon the death of the testator, became entitled absolutely -- under the seventh clause of the will -- to one-half of the income from the trust funds during the entire trust period, Anna J. Curby -- the wife of the testator -- having died in his lifetime, leaving only two residuary beneficiaries entitled to share in the income. The income was given absolutely during the entire trust period to the residuary beneficiaries, and the trial court erred in refusing to award to the legal representatives of Joseph L. Curby one-half of said entire income during the whole trust period upon the trust funds remaining after the death of Joseph L. Curby, Jr. (2) The testator, by the ninth clause of the will, gave to his grandson, Joseph L. Curby, deceased, one-third of the residue of his estate absolutely with full power to sell, assign, convey, and dispose of the same at his discretion. This absolute gift was not cut down to a less estate by the tenth clause, providing that the grandson's share, except $ 25,000 to be paid him at his majority, should be held in trust for him by the Union Trust Company of St. Louis, until he became thirty years of age; nor by the indefinite and uncertain provisions of the codicil executed three months after the date of the will, declaring, "In case of the death of my grandson, Joseph L. Curby, without legal issue of child or children, his residue reverts back to my estate." (a) The language of the ninth clause is clear and unambiguous. The residue is given to the three residuary beneficiaries "and unto their heirs and assigns forever." This is reiterated in the second paragraph of the ninth clause. An absolute estate, with full power of disposition, is conferred by this clause of the will. 1 Jarman on Wills (6 Am. Ed.), p. 517; Gannon v. Pauk, 200 Mo. 88; 1 Underhill on Wills, 446. (b) The tenth clause of the will, giving the property in trust to the Union Trust Company to be held for the grandson until he became thirty-five years of age, did not modify or change the character, incidents or quality of the absolute and unconditional estate or interest given by the ninth clause. It was a present gift, payable to the grandson personally when he became thirty-five years of age. Wardwell v. Hale, 37 N. E. (Mass.) 196; Harris v. Cook, 98 Mo.App. 38; 40 Cyc. 1589. (c) The absolute estate given by the will in the first instance "will not be cut down to any less estate by subsequent or ambiguous words inferential in their intent" contained in the codicil. Yocum v. Siler, 160 Mo. 289; Jackson v. Littell, 213 Mo. 58; Chew v. Keller, 100 Mo. 369; Byrnes v. Stillwell, 103 N.Y. 453; Tisdale v. Prather, 210 Mo. 402. (d) The law favors vested estates, and wherever possible, in the case of personal property, contingencies, changing or limiting the interest given by the will, are referred to the period of distribution rather than a later time. 40 Cyc. 1504 and 1607. (e) The will gave an absolute and indefeasible estate in one-third of the residue to the grandson, Joseph L. Curby. The codicil did not revoke, alter or change the absolute estate given to the grandson. The testator could not by the codicil regulate the disposition of the property given absolutely to the grandson by declaring that upon his death without issue "his residue" previously given to him absolutely "reverts back to my estate." Roth v. Rauschenbusch, 173 Mo. 582; Young v. Robinson, 123 Mo.App. 187; 40 Cyc. 1585. (3) This court has expressly held that there can be no such thing in this State as "estate tail" in money; and where money is given to the first taker in words sufficient to give an absolute title thereto, a limitation over, in case of the death of the first taker without issue, is void for repugnancy. State ex rel. v. Tolson, 73 Mo. 320; Weed v. Gray, 78 Mo. 64; Hall v. Priest, 6 Gray, 18; Albee v. Carpenter, 12 Cush. 382; Seminary v. Kellogg, 16 N.Y. 83; Hession v. Jacobus, 27 N.J.Eq. 28.

Rassieur, Kammerer & Rassieur and Schnurmacher & Rassieur for respondents.

(1) When the language of a will is so doubtful or ambiguous that the intention of the testator is not clear, technical rules of construction may be resorted to for the purpose of discovering the meaning. But when the true meaning and intent can be ascertained from the language employed, technical rules must either bend or altogether give way. Gannon v Albright, 183 Mo. 238; RoBards v. Brown, 167 Mo. 457; Walton v. Drumtra, 152 Mo. 497; Suydam v. Thayer, 94 Mo. 49; Bean v. Kenmuir, 86 Mo. 666. (2) Conceding that appellants are right in their contention that there can be no estate tail in personalty, yet an executory bequest may be created in personal as well as in real property. Gannon v. Albright, 183 Mo. 255; Smith v. Bell, 6 Pet. 68; Harbison v. James, 90 Mo. 411; 4 Kent's Comm., p. 270; 40 Cyc. 1640, 1648. (3) The interests of the grandsons of the testator in the three trust funds of $ 50,000 each, under paragraph seven of the will, were executory bequests, or bequests determinable on the death of such grandsons, or any of them, without issue, before reaching the age of thirty-five years, with estate over, in such event, to the residuary legatees. And so the interest of the grandson, Joseph L. Curby, Jr., in the residue under paragraph 9 of the will and the codicil, was an executory devise and bequest, of an estate determinable on his dying, without issue, before reaching the age of thirty-five, with estate over, in such event, to the surviving residuary devisee and legatee. Sullivan v. Garesche, 229 Mo. 496; Rothwell v. Jamison, 147 Mo. 601; Suydam v. Thayer, 94 Mo. 49; De Lassus v. Gatewood, 71 Mo. 371; Morrow v. Morrow, 113 Mo.App. 444; Richardson v. Noyes, 2 Mass. 56; Olney v. Hull, 21 Pick. 311; Re Barrett's Estate, 85 Neb. 337; Johnson v. Buck, 220 Ill. 226; Woerner, Amer. Law, Admn., sec. 436. (4) Failure of issue, in Missouri, does not, at this time, mean an indefinite failure of issue; the commonlaw rule on this subject has been changed by statute, and the cases cited by appellants, based on the doctrine of the common law, are therefore of no value. R.S. 1899, sec. 2873; Naylor v. Goodman, 109 Mo. 543; Faust v. Birner, 30 Mo. 414. Even in the absence of statute, the court will refer a failure of issue to a period following the testator's death instead of during his lifetime, where such interpretation will carry out, rather than defeat, the plain intention of his will. Dickerson v. Dickerson, 211 Mo. 483; Olney v. Hull, 21 Pick. 311. Death, without issue, before a particular age, is not an indefinite failure of issue, and a limitation over, on such death, is good. Woerner, Amer. Law Adm., sec. 439, p. 950. (5) The word "revert," in the codicil, was not used in its technical sense, but was employed by the testator to indicate his wish that in the events named the gifts mentioned were "to go" or "to pass" to the surviving residuary devisees and legatees. Beatty v. Universalist Society, 39 N.J.Eq. 463; Passmore's Appeal, 23 Pa. St. 381; Dole v....