Williams v. Hund

• Citation: 258 S.W. 703,302 Mo. 451
• Decision Date: 04 January 1924
• Docket Number: No. 23451.,23451.
• Parties: WILLIAMS v. HUND et al.
• Court: United States State Supreme Court of Missouri

258 S.W. 703

302 Mo. 451

WILLIAMS v. HUND et al.

No. 23451.

Supreme Court of Missouri, in Banc.

January 4, 1924.

Motion for Rehearing Overruled February 11, 1924.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Suit by Henry Lutz, on whose death the cause was revived in the name of Mary A. Williams, administratrix of his estate, against William Hund and others, in which Effie M. Lutz intervened. From a judgment for intervener, defendants appeal. Transferred to Supreme Court by Court of Appeals. Judgment affirmed.

Mytton & Parkinson, of St. Joseph, and Morrison, Nugent, Wylder & Berger, of Kansas City, for appellants Rosina Hund, William Hund, of Pueblo, Colorado, Theresia Schoukowitch and William Eisenmann, by Andrew Eisenmann, next friend and guardian ad litem.

George W. Groves, of St. Joseph, remaining appellants.

Culver, Phillip & Voorhees, of St. Joseph, for respondent.

WALKER, J.

Henry Lutz instituted cult in 1919, in the circuit court of Buchanan county, against the beneficiaries in the will of his mother, to have a trustee appointed to receive the estate from the administrator and to declare the true intent and meaning of the will and direct and supervise the administration of the estate. Schneider; the trustee named in the will, was not a party to the suit. On the death of Henry Lutz, the cause was revived in the name of his administratrix. In October, 1918, Effie Lutz, Henry's widow by his second marriage, lied an intervening petition praying that Schneider, the trustee appointed by the court, be ordered to pay her the monthly allowances of $200 conditionally provided to be paid to her by the will. The court adjudged that the accumulated monthly allowances of $6,400 be paid to her and that they should thereafter be paid to her during her lifetime. :From this judgment the defendant beneficiaries appealed. The appeal was transferred to this court by the Court of Appeals for the reason that the amount involved exceeded its jurisdiction. State ex rel. v. Reynolds, 256 Mo. 710, 718, 165 S. W. 801; State ex rel. v. Reynolds, 245 Mo. 698, 703, 151 S. W. 85.

We quote so much of the opinion of Trimble, P. J., as is necessary for the consideration of the case:

"In 1909 Theresia Lutz, a resident of Buchanan county, Missouri, died, owning real and personal property worth over $200,000, and leaving a will which was duly probated, in which she appointed J. G. Schneider executor and trustee without bond.

"After giving four legacies, one of $6,000 and three of $5,000 each, she devised all the balance of her estate to J. G. Schneider, as trustee, to manage the estate, invest and reinvest and make loans of the funds; and, in the management of said estate, he was to be held to no accounting except to exercise good faith and judgment.

"Item 7 of the will directed the trustee or executor to pay, out of the income of the estate, the sum of $200 per month to testator's son, Henry Lutz, during the period of his natural life, and, if at any time the said executor or trustee should be satisfied that he would not squander it, the son was to be advanced the additional sum of $5,000 with which to engage in business, and in making such advancement the executor or trustee was to be held to account to no one, but was to be the sole judge of both the conduct and fitness of the son to receive said amount.

"Item 8 provided that if, in the opinion of the executor or trustee, the son settled down and showed himself capable of a prudent ownership and control of said estate and became a man of sobriety, a good citizen and of good business capacity (upon which matters the judgment of said trustee was to be, Canal and conclusive), the trustee was empowered to convey and settle all of said estate upon said son, and in so doing and for doing the same the trustee was to be held to no accounting by any person whomsoever, if the trustee determined determined to so settle the same.

"Item 9 of said will is as follows: `In view of the fact that my said son at this time is married to a woman, commonly known as Nora Sheldon, who is generally known to be a woman not of good character, it is my wish and I direct that she be permitted in no way to share in my estate, excepting as she may incidentally share therein which I am unable to prevent while she is the wife of my son, and hence through him obtain the use of a portion of the annuity herein provided for him. Should she be the wife of my said son at the time of my death, or at the death of my son, no provision is to be made for her and she is to receive nothing from my estate. Should my said son at any time, even after my death, become divorced from her, or should she die before the death of my said son and if thereafter, that is, either after he is divorced from her or after her death he should remarry, and if in the opinion of my executor or trustee herein named, who shall be the sole judge thereof, the person whom he then marries is a woman of good repute, then it is my will and direct that the monthly payments hereinbefore provided for and directed to be paid to my said son during the period of his natural life, shall at the death of my said son upon like conditions and subject to the same limitations be paid to his said widow for the period of her natural life. And in the event that my said son remarries and marries a woman of good reputation and one whom my said executor or trustee believes and by instrument in writing duly acknowledged declares to be such, and as above stated his judgment thereon is to be final and a condition precedent, and the further event that my said son leaves children other than by his present wife surviving him at the time of his death, then and at the termination of the trusts hereinbefore created my entire estate excepting that hereinbefore specifically given shall pass to and become the absolute property of such children or their heirs.'

"Item 10 provided that, in the event the executor or trustee did not see fit to settle upon the son the balance of said estate, then the nephews and nieces of testatrix's husband were to receive the sum of $5,000 each. There are three of these, to wit, the defendants, Bertha M. Imhof, Ferdinand Muhl, and Theresia Lang, and this is the interest they have in this suit.

"Item 11 directed that the balance and residue of said estate should go, one-third to testatrix's brother William and his heirs, one-third to the widow and children of testatrix's brother Barnhard and their heirs, and one-third to the heirs of her sister Cecelia and their heirs. These constitute all of the remaining defendants herein, and this is the interest they have in this suit.

"Item 12 authorized the trustee to appoint, by will, a successor to himself in the aforesaid trust, such successor to have all the powers given to the original trustee. Said item also provided that in the event that my said son Henry directly or indirectly contests this my last will and testament or commences any proceeding of whatsoever nature having for its object the setting aside of this my last will and testament, then all gifts, legacies, bequests and devises given or made to him herein are to lapse and the same are to become a part of my residuary estate and thereafter and forthwith he is to receive nothing whatever from my estate,' but in that event in order that he might not come to actual want, the trustee was empowered to make such advances to him from time to time as may seem to my trustee to be fit and proper for the purpose of providing him reasonably with the comforts or life, the amount of such advancements to be entirely discretionary with my said trustee, and in the exercise of his discretion my trustee is not to be held to any accounting by any person whomsoever.'

"At the time of Mrs. Lutz' death, Schneider, the trustee, was in Europe, and John L. Zeidler was appointed administrator. Upon Schneider's return, the son, Henry Lutz, opposed the powers given to Schneider under the will, and, in writing, requested. Schneider to decline to act as executor or trustee under the will.

"Schneider for a while insisted that he was going to act, but finally an agreement was made that Zeidler should continue the formal administration and Schneider should be appointed by the circuit court as trustee. Schneider, in the probate court, declined to act as trustee and executor under the will, and simultaneously with such declination to act he was appointed trustee in the circuit court, gave bond, and, with the exception of several thousand dollars left in the hands of Zeidler with which to close the administration, the estate was turned over to said trustee.

"The appointment of Schneider as trustee under the will by the circuit court was made in a suit instituted by Henry Lutz, on a petition filed by him wherein he was plaintiff and the defendants herein were made parties defendant, in which he set up said will and alleged that Theresia Lutz left no indebtedness, and the estate, with the exception of a sufficient sum with which to complete the administration, was to be turned over to the trustee, but before this could be done, `it is necessary that a trustee should be named and appointed by this court to receive said estate and execute the trust created by said will of said Theresia Lutz, according to the terms and provisions thereof as this court shall order and direct.' The petition then prayed the appointment of a trustee and that `the court will declare the true intent and meaning of said will of Theresia Lutz, and direct and supervise the administrator thereof.'

"This suit is the proceeding now pending in court and in which the present appeal was taken, and the above-mentioned petition is the original foundation of said suit. Schneider was: appointed trustee as hereinbefore stated under said petition and received the estate before service was completed on the defendants. Upon taking charge of said estate Schneider began paying the son, Henry...