Walker v. First Trust & Savings Bank

• Decision Date: 22 April 1926
• Docket Number: No. 7115.,7115.
• Citation: 75 ALR 757,12 F.2d 896
• Parties: WALKER et al. v. FIRST TRUST & SAVINGS BANK et al.
• Court: U.S. Court of Appeals — Eighth Circuit

75 ALR 757, 12 F.2d 896 (1926)

WALKER et al. v. FIRST TRUST & SAVINGS BANK et al.

No. 7115.

Circuit Court of Appeals, Eighth Circuit.

April 22, 1926.

Robert A. Brown, of St. Joseph, Mo., for appellants Brittain.

William E. Stringfellow, of St. Joseph, Mo., for appellants Walker and Brigham.

Charles H. Mayer, of St. Joseph, Mo., for appellees Hastings.

Kendall B. Randolph, of St. Joseph, Mo. (Lewis F. Randolph and John P. Randolph, both of St. Joseph, Mo., on the brief), for appellees Motter.

Before STONE, VAN VALKENBURGH, and BOOTH, Circuit Judges.

BOOTH, Circuit Judge.

The appellee First Trust & Savings Bank was appointed trustee by the will of John S. Brittain, deceased. As such trustee it brought the present suit, making the beneficiaries of the trust parties, asking for instructions in the execution of the trust. Jurisdiction was based on diversity of citizenship.

John S. Brittain died December 11, 1917. He left surviving five children, whose names and ages at the time of his death were as follows: Jessie Turner Brittain Walker, 50; Mildred Brittain, 48; John S. Brittain, Jr., 43; Mary Noel Brittain Hastings, 40; Susan Jane Brittain Motter, 38. He left surviving him no child of a deceased child. Three of his daughters were married and had issue. Mrs. Walker had three children. Mrs. Hastings had three children. Mrs. Motter had one child, and since the death of her father another child has been born. Since the death of Mr. Brittain, John S. Brittain, Jr., and Mildred Brittain have both married. John S. Brittain, Jr., has one child. Mrs. Mildred Brittain Brigham has no children. All of the grandchildren are living. Mr. Brittain, prior to his death, had given to each of his three married daughters $175,000; to each of the other children he had given about $75,000.

The clauses of the will, so far as they are material to the present inquiry, are as follows:

Clause Second. "I bequeath to each of my children, Jessie Brittain Walker, Mildred Brittain, Mary Noel Brittain Hastings, Susan Jane Brittain Motter and John S. Brittain, Jr., the sum of four hundred dollars ($400.00) per month, and to my sister, Olivia S. Brittain the sum of eighty dollars ($80.00) per month, which sum I direct shall be paid to each of my children and my sister, respectively, monthly on the first day of each month succeeding my decease, but in case of the death of any of my said children during the pendency of my estate in the probate court, leaving issue, then I direct that during such time the children of such deceased child shall receive the same amount their parent would have received if living, but in case of the death of any of my said children during the pendency of my estate in the probate court, without leaving issue surviving, then the annuity of such child shall cease. In case my son, John S. Brittain, Jr., decides to do so he may take one thousand (1,000) shares of the common stock of the John S. Brittain Dry Goods Company at par value of one hundred ($100.00) each, total one hundred thousand dollars ($100,000.00), in lieu of the above bequest of four hundred dollars ($400.00) per month. If he so elects, it must be with the understanding that he will have no further interest in my estate. If he elects to take said stock, it may be transferred to him at once."

Clause Fourth. Paragraph 1. "Subject to the foregoing, I give, devise and bequeath to the First Trust & Savings Bank, a corporation organized under the laws of the state of Illinois, and doing business at Chicago, Cook county, Illinois, and to its successor or successors, in trust, all the rest and residue of my estate, whether real, personal or mixed, wherever situated, whether in possession or expectancy, whether now owned or hereafter acquired, of which I may die seized, or to which I may have any right, title or interest in law or equity, at the time of my death, to have and to hold the same in trust, for the uses and purposes hereinafter mentioned; and I direct that upon the settlement of my estate in the probate court, all assets of my estate of every kind and description not heretofore disposed of by devise or bequest, shall be turned over to said First Trust & Savings Bank, as such trustee, and I direct that the said First Trust & Savings Bank shall not be required to give any bond under the laws of Missouri, for the performance of its duties as such trustee. The said trustee shall have full power and authority to sell and convey or cause to be sold and conveyed any part or portion of my real and personal estate, whenever in its judgment a disposition of the same may be wise and prudent, and to receive the proceeds of sale, and reinvest the same as other property and funds of my estate may be reinvested. * * *

Paragraph 4. "Out of the income of said property, or the proceeds thereof, said trustee shall pay first, the reasonable and necessary expense of executing this trust and reasonable compensation to said trustee, as provided by contract, and

Paragraph 5. "Second, shall pay my sister, Olivia S. Brittain, of Philadelphia, Pennsylvania, or Trenton, New Jersey, the sum of eighty dollars ($80.00) per month, and shall pay to each of my children, Jessie Brittain Walker, Mildred Brittain, Mary Noel Brittain Hastings and Susan Jane Brittain Motter, the sum of four hundred dollars ($400.00) per month, payable monthly on the first day of each month during the term of the natural life of each, respectively, and also a like sum of four hundred dollars ($400.00) per month to my son, John S. Brittain, Jr., payable monthly on the first day of each month during the term of his natural life, unless my said son shall elect to take one thousand (1000) shares of the stock of the John S. Brittain Dry Goods Company as his full share in my estate, and the remainder of the net annual income shall be paid to my daughters, Jessie Brittain Walker, Mary Noel Brittain Hastings and Susan Jane Brittain Motter, during the term of their natural lives, respectively.

Paragraph 6. "In case of the death of any of my children during the existence of this trust, leaving issue, then the child or children of such deceased daughter or son shall receive the sum of four hundred dollars ($400.00) per month payable as aforesaid, which sum shall be divided among the children of such deceased child.

Paragraph 7. "In case the net annual income of any one year shall not be sufficient to pay the annuities herein provided for, then said trustee shall pay to my said sister, the sum of eighty dollars ($80.00) per month and the other annuities shall be ratably reduced.

Paragraph 8. "In case of the death of any of my children during the existence of this trust, without leaving lawful issue surviving, the annuity herein provided for shall cease.

Paragraph 9. "In case any annuity herein provided for shall cease, then the share of the income of such annuitant shall be distributed equally between my daughters, Jessie Brittain Walker, Mary Noel Brittain Hastings and Susan Jane Brittain Motter, or the survivor of them.

Paragraph 10. "In case the net annual income in any one year shall be more than sufficient to pay the annuities herein provided for, then such excess shall be paid to my daughters, Jessie Brittain Walker, Mary Noel Brittain Hastings and Susan Jane Brittain Motter, share and share alike.

Paragraph 11. "During the existence of this trust, said trustee shall once a year furnish each beneficiary hereunder a statement of the condition of said trust fund, including an itemized statement of the property and a list of securities held by said trustee hereunder.

Paragraph 12. "It is specially ordered and directed that no part of the said principal trust fund, or property or proceeds thereof shall be distributed to my children, but the principal trust fund shall remain intact until the death of the last survivor of my said children. Immediately on the death of the last survivor of my said children, this trust shall terminate, and the principal trust fund shall be divided as follows:

Paragraph 13. "First, said trustee shall pay all necessary costs and expenses of executing this trust, as per contract hereinbefore mentioned, and,

Paragraph 14. "Second, said principal trust fund shall be divided equally among my grandchildren, share and share alike."

For convenience of reference we have numbered the paragraphs of clause fourth 1 to 14, inclusive. Paragraphs 2 and 3 are not material here.

The trustee took possession about July 31, 1919. Jessie Turner Brittain Walker, who prior to her father's death had become a widow, died June 3, 1923, leaving her three children surviving. Prior to the death of Mrs. Walker, the trustee, in the administration of the trust estate, had paid each year to Mrs. Walker, Mrs. Hastings, and Mrs. Motter the excess annual income from the estate, mentioned in the fourth clause of the will. The average excess annual income for the years 1920, 1921, 1922, and 1923 was $11,432.30. Upon the death of Mrs. Walker the question was raised whether the Walker children were entitled to receive a share of the excess annual income. The trustee thereupon filed its bill in equity, asking for instructions in reference to the distribution of the excess annual income, and also in reference to a number of other matters. Eighteen questions were asked. The first question is as follows:

"(1) Jessie Brittain Walker, having died leaving issue surviving her, what disposition should be made by the trustee, during the existence of the trust, of the share in the excess annual income theretofore received by said Jessie Brittain Walker? Is such share payable in equal shares to Mary Noel Brittain Hastings and Susan Jane Brittain Motter, or is it payable in equal shares to the children of said Jessie Brittain Walker, deceased, or does it revert as an accumulation to the principal trust fund, or is it payable to the heirs of John S. Brittain, deceased, according to the laws of descent of the state of...