Walter v. Dickmann
| Decision Date | 09 April 1918 |
| Citation | 202 S.W. 537,274 Mo. 185 |
| Parties | CAROLINE M. WALTER v. JOSEPH F. DICKMANN, Sheriff of St. Louis, and JULIUS E. GREFFET, Appellants, And JOHN S. GUHMAN and MARY A. GUHMAN |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. W. M. Kinsey Judge.
Affirmed.
Kinealy & Kinealy for appellant.
(1) As the trust created in clause seventh of the will of Mary Walter is not restricted to a life or lives in being and twenty-one years it violates the law as to perpetuities and is void. 30 Cyc. 1483; Sheppard v. Fisher, 206 Mo 208. (2) The intention of the testatrix must be gathered from the words employed in the will. Thompson on Wills, p. 136 sec. 157; 1 Schouler on Wills (5 Ed.), p. 586, sec. 466; 2 Woerner's Am. Law of Adm. (2 Ed.), sec. 414, p. 870; Hurst v. Van de Veld, 158 Mo. 239; Settle v. Shafer, 229 Mo. 561. (3) And this is true although the intention so expressed may appear to the court or to others as absurd. 30 Am. & Eng. Ency. Law (2 Ed.), p. 663; Board of Trustees v. May, 201 Mo. 360; Elliot v. Topp, 63 Miss. 138; Marshall v. Hadley, 50 N.J.Eq. 547; Jackson v. Hoover, 26 Ind. 511. (4) Clause seventh of the will being void, the will must be construed as though that clause did not appear therein. Sandusky v. Sandusky 261 Mo. 351; Lurie v. Radnitzer, 166 Ill. 609; Ramsdill v. Wentworth, 101 Mass. 125. (5) John S. Guhman being mentioned only in the void clause of his grandmother's will, she died intestate as to him, since there is nothing to show that he was intentionally omitted therefrom. R. S. 1909, sec. 544; Thomas v. Black, 113 Mo. 66.
Muench, Walther & Muench for respondent.
(1) The cardinal rule to be followed in the construction of every will is that the true intention of the testator should be discovered, and then followed. R. S. 1909, sec. 583; Burnet v. Burnet, 244 Mo. 491; Freeman v. Maxwell, 262 Mo. 13; Middleton v. Dudding, 183 S.W. 443. (2) In case of an actual ambiguity, that construction will be adopted which will leave the will as an effective instrument, rather than a construction which would invalidate the same. 2 Jarman on Wills (6 Ed.), p. 2208; 30 Cyc. 1499, 1515. And the estate will be held a vested, rather than a contingent one, where doubt exists. Collier Will Case, 40 Mo. 287; Deacon v. Trust Co., 197 S.W. 265; Tindall v. Tindall, 167 Mo. 225; Cox v. Jones, 229 Mo. 53. (3) A will should be so construed as to dispose of the entire estate, unless a different intention be clearly expressed. Farish v. Cook, 78 Mo. 212; Webb v. Archibald, 128 Mo. 299. And the fact that a will was made, raises the presumption of law that the testator intended to, and did, dispose of all his property. Mudd v. Cunningham, 181 S.W. 386; Griffith v. Witten, 252 Mo. 643. (4) The trust estate created under clause seven of the will ran for the joint lives of John S. Guhman and Mary A. Guhman, his wife, but vested in their children as to the remainder, immediately upon the death of testatrix, to become executed in them upon the death of the last surviving lifetenant. Deacon v. Trust Co., 197 S.W. 261; Mettler v. Warner, 243 Ill. 600. (5) Even though clause seven could be held void, as in violation of the rule against perpetuities, yet John S. Guhman was so fully "named" in the will, and so completely shut out from participation in the remaining estate of his grandmother, as to leave him no vendible interest in that estate. Sec. 544, R. S. 1909; Guitar v. Gordon, 17 Mo. 412; Fugate v. Allen, 119 Mo.App. 188; Block v. Block, 3 Mo. 594; Beck v. Metz, 25 Mo. 70; Hockensmith v. Slusher, 26 Mo. 237; McCourtney v. Mathes, 47 Mo. 533; Pounds v. Dale, 48 Mo. 270; Wood v. Drake, 135 Mo. 393.
The plaintiff sought to enjoin the sale under execution by defendant Joseph Dickmann, sheriff, of certain real estate. The execution was issued on a judgment in favor of defendant Julius E. Greffet and against defendant John S. Guhman. The property was levied upon as the property of defendant John S. Guhman, and plaintiff brought this suit to restrain the sale, claiming the real estate was her own and such sale would cloud her title. On the filing of the petition the trial court granted a temporary injunction, which on a final hearing was made perpetual; the sheriff and Greffet appealed.
The land upon which the levy was made was devised to the plaintiff, Caroline M. Walter, by her mother, Mary Walter, who died in 1909. John S. Guhman was the grandson of Mary Walter; his mother, a daughter of Mary Walter, died before the death of her mother. Appellants claim that John S. Guhman, by descent, had an interest subject to levy for the payment of his debts in the real estate, which was given by the will to other devisees. This, on the theory that he was not "named or provided for" in the will, as required by the statute. However, the will has the following clause in relation to John S. Guhman:
In order to sustain their position appellants assert, and must maintain, two propositions:
First: That this provision in the will for John S. Guhman is void as coming within the rule against perpetuities.
Second: Because that clause is void it cannot be considered in construing the will, citing Sandusky v. Sandusky, 261 Mo. 351, 168 S.W. 1150. Considering the will with that clause ignored, John S. Guhman was "not named or provided for," is the argument.
Both sides assume that if the limitation over to the "heirs" is within the rule, the entire clause is void.
The contest turns upon the interpretation of the language which gives $ 3,000 to William S. Hauschulte, in trust, with directions to pay the "net income" of the fund to Mary A. Guhman during her natural life, and "after her death the net income is to be paid to my grandson, John S. Guhman, for and during the term of his natural life, and after his death to be paid in equal shares to the children of my grandson, and to them and their heirs and assigns forever."
Appellants construe it as a continuing trust, the discharge of which requires the payment of the net income arising from the fund not only to Mary A. Guhman for life and to John S. Guhman for life and then to his children, but also to their heirs forever, as direct beneficiaries of the trust, so that the absolute title would not necessarily vest in anyone within the lives of persons then in being and twenty-one years thereafter; it would therefore be within the rule against perpetuities and void.
Respondent's construction makes the words "to be paid in equal shares to the children of my grandson" refer to the corpus of the fund, so that on the death of Mary A. and John S. Guhman, the trustee may deliver the fund to their children as their absolute property, thereby finally executing the trust and leaving no place for application of the rule against perpetuities.
It does not seem necessary to bring into play rules of construction employed for the solution of ambiguities. The real intention of the testatrix may be carried out by giving effect to the language used according to its well established legal significance.
The construction of appellants necessarily treats the words "their heirs and assigns forever" as words of purchase, whereas under all rules and precedents they are words of limitation. If words mean anything, the expression "after his death to be paid in equal shares to the children of my grandson, to them and their heirs and assigns, forever," is a positive direction to the trustee without limit, qualification or contingency. The intention and the legal effect of the words used was to vest in the children of John S. Guhman, after his death, the equitable title to the income arising from the fund, a title which they could assign and which would pass to their heirs by descent. That a trustee intervenes makes no difference in the significance of the words used. Equitable estates are subject to the same incidents, properties and consequences as belong to estates at law. [1 Perry on Trusts and Trustees (6 Ed.), sec. 357, et seq.; Simmons v. Cabanne, 177 Mo. 336, 76 S.W. 618, l. c. 352, 76 S.W. 618; Lich v. Lich, 158 Mo.App. 400, 138 S.W. 558, l. c. 414, 138 S.W. 558; Cornwell v. Wulff, 148 Mo. 542, 50 S.W. 439; Young v. Robinson, 122 Mo.App. 187, 99 S.W. 20, l. c. 193, 99 S.W. 20.]
There is respectable authority for the doctrine that a vested equitable interest in an income from personal property is not subject to the rule against perpetuities, though title to the corpus of the property does not vest within the required time. [Rhodes' Estate, 147 Pa. 227, 23 A. 553.] Without determining the point by application of that doctrine, another well recognized rule may be applied with the same result. A bequest of the income, use or occupation of any specific property, without qualification or limit as to time, is in effect a bequest of the corpus of the...
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