Wiggins v. Perry

• Decision Date: 16 March 1925
• Docket Number: No. 25037.,25037.
• Parties: WIGGINS et al. v. PERRY et al.
• Court: Missouri Supreme Court

271 S.W. 815

WIGGINS et al. v. PERRY et al.

No. 25037.

Supreme Court of Missouri, Division No. 1.

March 16, 1925.

Motion for Rehearing Overruled April 13, 1925.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

Action by Ella L. Wiggins and others against Mary Lois Perry and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Nagel & Kirby, of St. Louis, for appellants. Charles S. Reber, of St. Louis, for respondents Scudder and others.

McDonald & Just, of St. Louis, for respondents Liggett and others.

Statement.

WOODSON, J.

This suit was brought in the circuit court of the city of St. Louis, by the plaintiffs against the defendants, to construe the will of John E. Liggett, deceased.

The devisees and legatees named in the will were his wife, Elizabeth J. Liggett, testatrix, and three daughters, Ella L. Wiggins, Cora B. Fowler, and Dolly L. Kilpatrick, with whom are joined as coplaintiffs, Charles Wiggins, husband of said Ella L. Wiggins, and John Fowler, husband of said Cora B. Fowler. Dolly L. Kilpatrick is the widow of Claude Kilpatrick. The testator had a grandson named John E. Liggett, Jr., the only child of Hiram Liggett, then deceased, the only son of the testator. The said John E. Liggett, Jr., became 30 years old on April 4, 1916.

The will was dated June 5, 1893, and he died November 23, 1897. There were no substantial changes made in the will between the date of it and the death of the testator.

Ella L. Scott, now Ella L. Wiggins, then the wife of Mitchell Scott, who died December 8, 1902. His wife, Ella L. Scott, had only one child, Eleanore Scott, who married George Van Riper, who, up to the bringing of this suit, had only one child, the minor defendant John Van Riper. After this suit was begun, and before the decree was rendered, said Eleanore Scott Van Riper had another child, the minor defendant Eleanore Scott Van Riper. Said Eleanore Scott Van Riper, daughter of said Ella L. Wiggins, and her said two minor children, John Van Riper and Eleanore Scott Van Riper, are the only descendants of said Ella L. Wiggins.

Before this suit was begun, said Ella L. Scott married Charles Wiggins. The plaintiff Dolly Kilpatrick had only two children: Mary Lois Kilpatrick, who married Louis Hayes and was divorced from him; there were no children by Louis Hayes; he died after said decree was rendered, and thereafter said Mary Lois Kilpatrick married the defendant Eugene Perry, who had only one child, the minor defendant Eugene Kilpatrick Perry. Elizabeth Kilpatrick, who married the defendant Charles Scudder, and who died prior to the bringing of this suit, leaving her only child, the minor defendant Eliza" beth Liggett Scudder. The defendant John E. Liggett, Jr., the grandson of the testator, married Margaret Gay, and they had two children, the minor defendants Lawrence C. Liggett and Margaret Liggett. Margaret Gay Liggett, the wife of John E. Liggett, Jr., divorced him and later married the defendant Frank G. Denison. John E. Liggett, Jr., thereafter married Violet Colby.

The will of the testator is quite lengthy, but the material parts of same, in so far as this case is concerned, are as follows:

The testator had owned a large amount of real estate, which he had conveyed to the Liggett Realty Company, a corporation organized and chiefly owned by him for said purpose. The inventory of his estate showed that he owned 1,988 shares of the par value of $100 per share. The total capital stock was 2,000 shares, $200,000.

After the death of testator, his will was duly probated in the probate court, city of St. Louis, on November 29, 1897, and his widow, Elizabeth J. Liggett, duly qualified. as executrix and administered the estate, which consisted entirely of personal property. There was no real estate.

The inventory of the estate showed a total of personal assets, $3,088,296.37, consisting of notes, accounts, stocks, bonds, cash, and goods and chattels. Among the stock items were 4854/8 shares of the capital stock of Liggett & Myers Tobacco Company, and 497 shares of the capital stock of Edmonds Realty Company.

By his will the testator appointed his three sons-in-law, Claude Kilpatrick, John Fowler, and Mitchell Scott, trustees of the trusts created by article third of his will, and he also gave to each of them one share of stock in the Liggett & Myers Tobacco Company.

"First. I direct my executrix, hereinafter named, to first pay all my debts and funeral expenses, and the expenses of the administration of my estate.

"Second. I give and bequeath unto my wife, Elizabeth J. Liggett, in lieu of all statutory allowances, all my household and kitchen furniture, pictures, books, silverware, ornaments, paintings and all other household furniture, needful and ornamental, now in or pertaining to our residence in the city of St. Louis. Also all my horses, vehicles, harness, and other equipments thereto belonging. To have and to hold the same to her, the said Elizabeth J. Liggett, her heirs and assigns forever.

"Third. I give, devise, and bequeath to Claude Kilpatrick, John Fowler, and Mitchell Scott, all of St. Louis, Missouri, such part of the Liggett & Myers Tobacco Company, and the Liggett Realty Company (both corporations of the state of Missouri) as may be owned by me, or in which I may have any contingent interest at the time of my decease, including my interest in those certain one hundred shares of the capital stock of the said Liggett & Myers Tobacco Company, held in trust by its board of directors and their successors under the provisions of a certain trust agreement in writing, bearing date the nineteenth day of May, 1890; also all my real estate, cash on hand, bonds, notes, coupons, stocks of other companies and corporations, and all other of my property and money whatsoever not otherwise disposed of by this my will

"In trust, nevertheless, for the following uses and purposes, that is to say, to promptly pay over to my said wife, Elizabeth J. Liggett, for and during the term of her natural life, and in lieu of all dower in my estate, all rents, profits, earnings, income, and dividends made and declared on my said stock of the said Liggett Realty Company, as and when the same shall at any time be received from said company by my said trustees.

"After the death of my said wife then my said stock of the Liggett Realty Company shall be further held by my said trustees under this trust for the sole benefit and behoof of my daughters, Dolly L. Kilpatrick, wife of said Claude Kilpatrick, Cora B. Fowler, wife of John Fowler, and Ella D. Scott, wife of said Mitchell Scott, to their sole and separate use, free and clear of an estate' by courtesy, interest, or control of this said present or any future husband of them, or either of them, for and during the natural lives of my said daughters, in equal portions, share and share alike, with remainder over as to the undivided share aforesaid, of each one, to the heirs of the body of each one of my said daughters as their absolute property, per stirpes and not per capita; but should any of my said daughters die without issue then her portion of said realty company stock herein bequeathed to her for life shall go to the survivor and survivors of my said daughters in equal portions for life, with remainder over, as to such portion, to the heirs of the bodies of such as shall die leaving issue of their bodies absolutely, share and share alike, per stirpes.

"After the decease of my said wife, my said trustees shall, during the existence of this trust hereby created, continue to promptly pay over all rents, profits, earnings, income, and dividends made and declared on my said stock of the said Liggett Realty Company, as and when the same shall at any time be received from said company by my said trustees, to the beneficiaries and in the proportions as is above provided in this clause of my will.

"If my grandson, John E. Liggett, Jr., shall die before reaching the age of thirty years, without issue, then and in that event his share of my estate hereinafter devised and bequeathed to him in this my will shall go to such of my said daughters as shall survive him, in equal portions for life, and to the issue of such of them as shall then be dead, or shall die thereafter, share and share alike, per stirpes, and not per capita; and the last of my said daughters being dead the whole of John E. Liggett, Jr.'s share (he being dead before he arrives at the age of thirty Years, without issue), shall go to and become the property of the issue of such of my said daughters as shall die leaving issue to take per stirpes, but said share is to be held and managed upon the same trusts as is provided in this clause of my will.

"As to the share of my estate hereinafter bequeathed and held by my said trustees for the benefit of said John E. Liggett, Jr., my said trustees or their successors, may pay ha their discretion to my grandson out of the income of said share until he shall reach the age of sixteen years, for his education and support, the sum of twelve hundred dollars per annum, in such installments as shall be necessary for such purposes. And after my said grandson shall have reached the age of sixteen years, and until he shall have reached the age of twenty-one years, my said trustees may in their discretion pay to.my said grandson, out of the income of his said share, the sum of two thousand dollars per annum for his education and support in such installments as shall be necessary for such purposes.

"Out of the accumulated income of the share of my said grandson bequeathed by this my will, to my said trustees, for his benefit my said trustees may, in their discretion, on my said grandson reaching his majority, invest, out of said accumulated income of his share, the sum of ten thousand dollars in any legitimate business, for his benefit. When my said grandson shall have reached the age of twenty-five years my said trustees may, in their...