Wiegand v. Woerner
| Decision Date | 24 January 1911 |
| Citation | 134 S.W. 596,155 Mo.App. 227 |
| Parties | CHARLES WIEGAND et al., Appellants, v. WILLIAM F. WOERNER et al., Respondents |
| Court | Missouri Court of Appeals |
Submitted on Briefs January 10, 1911
Appeal from St. Louis City Circuit Court.--Hon. William M. Kinsey Judge.
REVERSED AND REMANDED (with directions).
STATEMENT.--This is a suit in equity instituted by appellants Charles and George Wiegand, Jr., as plaintiffs. The defendants are William F. Woerner, as trustee under the will of George Wiegand, deceased, and as executor of the estate of Rosalie Wiegand, deceased, the St. Louis Union Trust Company, as trustee under that will, and Anna Rubelmann, co-beneficiary with plaintiffs under the trust hereinafter to be referred to, and also residuary legatee under the will of her mother Rosalie Wiegand, deceased. The petition, so far as we deem it material to state it, sets out that plaintiffs are the children of George Wiegand, deceased, born of a former marriage of George Wiegand, and that defendant Anna Rubelmann is the child of George Wiegand born of his second marriage which was with the aforenamed Rosalie Wiegand; that Rosalie Wiegand died testate on the 24th of July, 1908; that defendant Woerner, by the last will of Rosalie Wiegand was appointed executor of her estate and duly qualified as such her will having been duly probated; that the aforenamed George Wiegand, the father, died testate, a copy of the will being attached as an exhibit to the petition and read in evidence. We summarize it here. By the first clause provision for the payment of the debts, funeral expenses and expenses of administration is made. The second clause devised to his wife Rosalie, the family homestead and appurtenances in St Louis, during her life, the remainder at her death to his daughter Anna Rubelmann. The third clause "devised" to his wife all of the stock in the Standard Stamping Company (the stock averred in the petition to be worth $ 355,800 par), owned by testator at his death, she to hold the legal title thereto during her life, collecting dividends thereon retaining for herself one-fourth of the net income derived from such stock, paying the remaining three-fourths of the income or dividends to the three children, that is Charles and George Wiegand, Jr. and the daughter Anna, in equal proportion, directing that no part of this stock should be sold prior to the death of his wife without the written consent of his wife and each of his said three children, and that if all should consent his wife could sell the whole or any part thereof and hold the proceeds free from any trust and divide them equally, that is to say one-fourth to herself and one-fourth to each of the three children; on the death of his wife the stock then held by her as trustee to vest in and be divided equally among the three children, one-third to each.
The fourth clause is set out in full both in the petition and answer. It is as follows:
The fifth clause constituted his wife Rosalie residuary devisee, and the sixth clause constituted her executrix without bond.
It is further averred in the petition that at the time of the death of George Wiegand, his estate, aside from the homestead, consisted entirely of personal property of the value of about $ 600,000, including the $ 355,800 stock heretofore referred to, which it avers was, under the terms of the third clause of the will and prior to the death of Rosalie Wiegand, distributed among plaintiffs, the defendant Anna Rubelmann and Mrs. Rosalie Wiegand; that the balance of the personal property belonging to the estate of George Wiegand, other than this stock, amounted to about $ 240,000, all of which, with the exception of fifteen or twenty thousand dollars cash in bank, consisted of stocks and bonds bearing interest and earning dividends on the par value thereof, at the rate of from 4 to 7 per cent per annum.
Before continuing the synopsis of the petition, it is as well to state that a wrong date is given in it as the date of turning over the trust fund to the trustees, the date given in the petition being the 18th of July, 1908, when it should be July 8, 1908, the mistake having occurred through a typographical error in a statement furnished plaintiffs by the trustees August 5, 1909. Instead of following the petition therefore in giving the date there set out as that on which the fund was turned over to the trustees, we will use the correct date, July 8, 1908.
Continuing the synopsis of the petition, it further avers that on or about the 8th of July, 1908, Rosalie Wiegand, acting under the advice of the defendant Woerner, who was her attorney, delivered to said Woerner and to the St. Louis Union Trust Company, as trustees, under the fourth clause of the will of George Wiegand, the sum of $ 100,000, consisting of cash to the amount of $ 59,600, and two certificates of deposit amounting to $ 40,000, and that on July 8th, Woerner and the St. Louis Union Trust Company, the latter hereafter referred to as the Trust Company, as trustee, invested about $ 10,000 of the trust fund in the purchase of certain street railroad bonds and that on the 5th of August, 1908 (the date of the aforementioned statement) there remained in the hands of the trustees as of the trust fund so created, in addition to the St. Louis Railroad Company bonds, the sum of $ 90,022.19, practically cash, something like $ 5000 of it in the hands of the trustees, the balance in bank; that from the date of the death of George Wiegand until July 8, 1908, Rosalie Wiegand, as residuary legatee of George Wiegand, held, possessed and enjoyed the income and interest from all of the estate of George Wiegand, with the exception of the stock in the Standard Stamping Company heretofore referred to as having been distributed, and held, possessed and enjoyed the income from that portion of the estate so delivered as aforesaid by her to Woerner and the Trust Company on the 8th of July, 1908; that Woerner, as the executor of the estate of Rosalie Wiegand, now claims that he is entitled out of the trust fund as belonging to the estate of Rosalie Wiegand, the sum of $ 2138.85, and as such executor is claiming that sum from himself and the St. Louis Trust Company, as trustees; that plaintiffs, disputing this claim, assert that by the death of Rosalie Wiegand, on the 24th of July, 1908, the trust terminated and the beneficiaries thereof were entitled immediately thereafter to a distribution of the fund. It is averred that the trustees were not required to and did not give any bond; they did no other work in connection with the administration of the trust than to receive it and hold it during a period of six days (so it is averred, but sixteen days is the correct period), and to purchase for investment the ten bonds of the railroad company, and that they claim for compensation for the services so rendered the sum of $ 3000, which plaintiffs aver is grossly unreasonable. There are charges in the petition reflecting on the motives of Mr. Woerner, in connection with the transfer of the trust fund from Mrs. Wiegand to the trustees. It is, however, averred that Mr. Woerner, by acting as attorney for Mrs. Wiegand and as the executor of her estate under her will, is occupying an antagonistic position to his duties as trustee. The prayer of the petition is that William F. Woerner be decreed to be disqualified to act as trustee; that he be removed as such and that the Trust Company, as trustee, be ordered to distribute and pay to each of the plaintiffs one-third of the trust fund, with interest from the date of demand, to-wit, August 3, 1908, less such reasonable compensation justly and equitably chargeable to the shares of the fund belonging to the plaintiffs and less also such reasonable expenses as it may have incurred in the administration of the trust fund and for general relief.
The...
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