Lemp v. Lemp

175 S.W. 618, 264 Mo. 533, 1915 Mo. LEXIS 93

• Court: Supreme Court of Missouri
• Decided: April 1, 1915
• Status: Published

Opinions

GRAVES, P. J.

This is an action in equity whereby it is sought to have the court declare a precatory trust. Plaintiff is the only child of Frederick W. Lemp, deceased. William J. Lemp, the father of the said Frederick W. Lemp, died leaving the following will:

“I, William J. Lemp, hereby make, publish and •declare this as and for my last will and testament, hereby revoking all previous wills. I direct the payment of my debts and the closing of administration on my estate as rapidly as the law will permit.

“I give, bequeath aud devise to my wife, Julia Lemp, all my property, real and personal or mixed, wheresoever situate or by whatsoever title held, absolutely.

“I make no gift here to my children, Annie L. Konta, William J. Lemp, Louis P. Lemp, Charles A. Lemp, Hilda L. Pabst, Edwin A. Lemp and Elsa J. Lemp, and I make no gift here to my grandchild, Marion Lemp, having perfect confidence that my wife will without any request on my part, and none such is here made, do best for them.

“I hereby appoint William J. Lemp, Jr., Louis P. Lemp and Charles A. Lemp and Edwin A. Lemp or either or any of them that may accept and qualify my executors or executor without bond.

“In witness whereof, I have hereunto set my hand this 1st day of February, 1904.”

Frederick W. Lemp departed this life in 1901, and his father, William J. Lemp, died in February, 1904. In 1906, Julia Lemp, the widow of William J. Lemp, died leaving a will. In that will is found the following clause:

“4. As I have heretofore purchased from Irene Lemp, widow of Frederick W. Lemp, and from Marion Lemp, her minor daughter, acting by her curator, substantially all of the property held and coming to both from my deceased son, and inasmuch as, in consequence of the terms of said purchase, I deem the estate of the mother and child such as to reasonably secure to said Marion Lemp an adequate amount of property as one of my grandchildren, it is my will that neither the said Irene Lemp nor Marion Lemp shall receive any part of my property or of my residuary estate.”

This clause of the Julia Lemp will is no doubt the mainspring of the present action. The petition in the case is quite lengthy and no good purpose would be served in setting it out in full. The crux of the case will be found in tbe following excerpts from tbe petition. Paragraph four of the petition thus reads:

“Your petitioner further states that in and by the-said foregoing last will and testament of the said ’William J. Lemp, deceased, all of the real estate and personal property owned by him at the time of his death was given, devised and bequeathed to. Julia Lemp, who was his wife, in trust, for the purpose of being conveyed or transferred by her, the said Julia Lemp, to the persons therein named, to-wit: Annie L. Konta, William J. Lemp, Jr., Louis F. Lemp, Charles A. Lemp, Hilda L. Pabst, Edwin A. Lemp and Elsa J. Lemp (all of whom are children of said William J. Lemp and said Julia Lemp, his wife), and Marion Lemp, the plaintiff herein (who is the grandchild of the said William J. Lemp, deceased) and the said Julia Lemp, his wife, subject to the right of the said Julia Lemp to use and enjoy the income therefrom or such portions thereof as might be necessary during the natural life of said Julia Lemp. ’ ’

Paragraphs 5 and 6 set out the will and matters material to the will of Julia Lemp. Paragraphs 7 and 8 thus read:

“That the said Julia Lemp, deceased, in and by her foregoing last will and testament pretended to carry out and execute the said trust imposed upon her by the terms and conditions of the said last will and testament of the said William J. Lemp, deceased, and in pretended pursuance thereof, she gave, devised and bequeathed the whole of said property so given, devised and bequeathed to her by the said last will and testament of the said William J. Lemp, deceased, to William Lemp, Jr., Annie L. Konta, Louis Lemp, Charles A. Lemp, Hilda L. Pabst, Edwin A. Lemp and Elsa J. Lemp, now by marriage to one Wright, Elsie J. Wright, giving and bequeathing to each of' them a one-seventh part thereof, and placing upon the shares so given, devised and bequeathed to Annie L. Konta, Edwin A. Lemp • and Elsie J. Lemp, now Elsie J. ’Wright, such restrictions by way of trusteeship and •otherwise, as in her judgment was best for them; but thereby giving, devising and bequeathing no part or parcel of said property so given and bequeathed to her as aforesaid to this plaintiff, Marion Lemp.

“Plaintiff further represents that in truth the said Julia Lemp, deceased, should have in compliance with the command of the said William J. Lemp, deceased, as expressed in his said last will and testament, divided all of said real estate and personal property so given, devised and ‘bequeathed to her in trust, as aforesaid, into eight equal parts, and should have given, devised and bequeathed a one-eighth part thereof to each of the said persons mentioned in the said last will and testament of the said William J. Lemp, deceased, to-wit: One-eighth part thereof to the said William J. Lemp, Jr., one-eighth part thereof to the said Annie L. Konta, one-eighth part thereof to the said Louis Lemp, one-eighth part thereof to the said Charles A. Lemp, one-eighth part thereof to the said Hilda L. Pabst, one-eighth part thereof to the said Edwin A. Lemp, one-eighth part thereof to the said Elsie J. Lemp, now Elsie J. Wright, a one-eighth part thereof to Marion Lemp, the plaintiff herein, placing upon the shares of each such restrictions 'as in her .judgment would have been best for them.”

The prayer of the petition is as follows:

“Forasmuch therefor as the petitioner is without remedy save in equity, plaintiff prays that it may be adjudged and decreed by this court that all of the real estate and personal property, choses in action and other rights belonging to the said William J. Lemp, deceased, in his lifetime, and which were in the possession or under the control of the said Julia Lemp •at the time of her death, be declared to be in trust for the persons named in the will of the said William •J. Lemp, deceased, including this plaintiff, in equal parts or shares; and that an accounting be had under the directions of this honorable court of all the property left by the said Julia Lemp, deceased, as well as the profits and gains received therefrom, and that said William J. Lemp, Jr., Annie L. Konta, Louis P. Lemp, Charles A. Lemp, Hilda L. Pabst, Edwin A. Lemp, Elsie J. Lemp, now Elsie J. Wright, William Lemp and Charles A. Lemp, Louis P. Lemp and Ed win A. Lemp, as executors of the last will and testament of William J. Lemp, deceased, and William J. Lemp, Charles A. Lemp and Edwin A. Lemp as executors of the last will and testament of Julia Lemp, deceased, and the said William J. Lemp and Charles A. Lemp as trustees for Annie L. Konta, and the said William J. Lemp and the said Charles A. Lemp as trustees for Edwin A. Lemp, and the said William J. Lemp and Charles A. Lemp as trustees for Elsie Lemp, now Elsie J. Wright, be declared to convey to the plaintiff a one-eighth part of the real estate and personal property received by them under the last will and testament of the said Julia Lemp, deceased, as well as the one-eighth part of all the profits derived therefrom, and that your petitioner may have such other and further relief as in equity is just.”

Prefatory Trust: Rules of Construction.

I. The use of precatory words in wills has been a source of annoyance to the courts, and, owing to the appearance of extremely harsh eases from time to time, ]ias occasioned some extreme views/ thereby producing a contrariety of opinion to some extent. The same words have been given different meanings in the opinions. To be more explicit, given words in some, wills have been held not to create a trust, and the same words in others have been held to create a trust. Words in one will have been held to be imperative, whilst the same words in another will have been held not to be imperative. These divergences of opinion, however, can be accounted for in a large measure by the use of different hinds of words in other portions of the wills. The doctrine as applied to precatory words in a will is thus aptly expressed in 40 Cyc. 1734 et seq.:

“The question whether precatory words, that is, words of expectation, hope, desire, recommendation, etc., will operate to create a trust is purely one of definition, and where the will itself does not determine the sense in which the testator used them, is one for a lexicographer rather than a judge. If such words are used in their primary sense, it is obvious, or should be, that they can impose no obligation upon the first taker. If, however, the rest of the will shows that the words are really imperative, and that beneath the veil of courtesy there lurks a positive order, then the trust should be effectuated. In the nature of the thing, this is all the so-called ‘ law ’ that this question can involve. But these obvious facts have been overlooked. The courts have been eager to give unnatural and wrongful meanings to words whose significance is commonly well understood, and the result is a hopeless confusion in the decisions, and that utter absence of principle which inevitably follows the abandonment of right principle. However, it is said that, according to the earlier cases, when property is given absolutely to any person, and the same person, is, by the giver, who has power to command, recommended or entreated or wished to dispose of that property in favor of another, the recommendation, entreaty, or wish is held to create a trust, if the words are so used that, upon the whole, they ought to be construed as imperative, and if the subject-matter and the objects of the recommendation be certain. The more modern rule, however, is that, in order that a trust may arise from the use of precatory words, the court must be satisfied, from the words themselves, taken in connection with all the other terms of the disposition, that the testator’s intention, to ere-ate an express trust was as full, complete, settled, and sure as though, he had given the property to hold upon a trust declared in the ordinary manner. Applying this rule, it is clear that the same words may have wholly different meanings when read in the light of the context. Thus the expression of a ‘wish’ may or may not create a trust; and so with ‘desire,’ and similar words. The question in every case is whether they express merely the testator’s wish, or whether they express his will. A trust is created if it clearly appears that the words were used in an imperative sense; hut this only where the testator’s desires can he ascertained with reasonable certainty, the subject and the object being clear. Sometimes the testator explicitly states the sense in which precatory-words are used, and in such case of course his express intention governs. Where the testator shows that he knows how to create a trust by doing so in clear and apt words in one part of the will, the use of precatory words in another clause is strong evidence that no trust was there intended. And where an absolute estate or interest is in terms given, precatory words which follow are usually treated as expressions of wish rather than of will, so that no trust is created.”

So that after all, the real question is to ascertain the intent of the testator, as such intent can be gathered from the four corners of the will. When the courts are called upon to declare what is sometimes denominated a “precatory trust” the real thing to be done is to find and declare the intent of the testator in making the will. Some opinions seem to grasp hold of the term “precatory trust” as if it were a distinct and sacred matter, surrounded, as it were, with a halo of mystery. The simple and single question involved in all cases is, what was the intent of the testator ? Did he by the words used intend to create a trust? This intent must be determined under the ordinary and usual rules of law applicable to the construction of wills. For a court to declare or hold that there is such a trust, is but for the court to say that it construes the intent of the testator to be the creation of a trust estate rather than an absolute estate. If by the language of the will there appears an intent to create a trust, then a trust should be declared. The intent of the testator is the pole star in the construction of all wills. We can therefore dismiss from our minds the hallowed ideas of “precatory trusts, ’ ’ and take up the will of William J. Lemp under the usual rules of construction, and try to determine from the will whether or not there was an intent to create a trust estate. This we shall do.

Will: Unequivocal Absolute Estate: Cut Down by Subsequent Equivocal Clause.

II. At the very outset we are confronted with this language: “I give, bequeath and devise to my wife, Julia Lemp, all my property, real and personal or mixed, wheresoever situated or by whatsoever title held, absolutely.” Shortening this expression of the will he gave all of his property to his wife absolutely. That this clause of the will created an absolute estate in the wife there can be no question. Can we say, under the usual rules of will construction, that any subsequent clause of this will cut down and modified-the estate thus granted absolutely. We think not. In Sevier v. Woodson, 205 Mo. l. c. 214, we said:

“We take it to be well-settled law that where a certain estate is granted in plain and unequivocal language in one clause of a will, the same cannot be lessened or cut down by a subsequent clause of the will, unless the language used in such subsequent clause is as clear, plain and unequivocal as the language of the first grant. ’ ’

So too in the later case of Gibson v. Gibson, 239 Mo. l. c. 506, we said:

“In what we have above expressed we do not wish to be understood as holding that what would otherwise be a fee in the first taker can be cnt down to a less estate by ambiguous words, or words not as clear and strong as those in the devise to the first taker.”

There is bnt one subsequent clause to be examined in determining whether or not the absolute estate created by the first clause, supra, has been cut down or reduced. Leaving out the names of the parties mentioned in this clause, it reads: “I make no gift here to my children, . . . and I make no gift here to my grandchild, . . . having perfect confidence that my wife will without any request on my part, and none such is here made, do best for them. ’ ’

If it was the intent to create a trust by this clause of the will, and thereby cut down the absolute .estate granted in the first clause, do the words used measure up to the standard prescribed by the books? The.question of real intent we discuss later, but at this point, it might be conceded that the purpose of the testator was to cut down the absolute estate, yet can we say he has so cut it down under the usual rule for the construction of wills, which we have quoted, supra? We say not. The language used in this last clause does not measure up to the standard fixed by the rules. The language used in this subsequent clause is not “as clear, plain and unequivocal as the language of' the grant,” and for that reason is not sufficient in law to cut down, modify or change the absolute estate created by the first clause. To use the words of Sherwood, J., in Small v. Field, 102 Mo. l. c. 127, the absolute estate created by the first clause of this will has not been cnt down nor qualified “by words as affirmatively strong as those which conveyed the estate to her.”

From this angle of the law it is clear that this will granted to Mrs. Lemp an absolute estate, and that no other part of the will is sufficient in law to cut down or reduce that estate. We take next the intent of the testator.

wm: Testator’s intent.

III. "Was there ever intent upon the part of William J. Lemp to create a trust estate? We think not. A trust estate is the subject of a gift. He expressly states in the will: “I make no gift here to my children” and “I make no gift here to my grandchild.” Clearly the word “here” means in this will. It could refer to nothing else. It might be said that he thereby indicated that he had previously made gifts, and it might be further said that he might have had in mind future gifts to be made before the will became effective. To my mind these words clearly show that he was not aiming to create either absolute or trust estates, so far as his children or grandchild, were concerned, by this will. Had it been his purpose to give them his property in the shape of a trust estate, he would never have said, “I make no gift here.” The use of these expressions in the will show that he was not trying or intending to give them an interest in his property, either absolutely or conditionally, in trust. When the explicit language of this second clause is taken in connection with the plain, direct, positive and unqualified words of the first clause, it must be held that there was no intent to convey by the will any interest in his property to his children or grandchild. It is true that he expresses confidence in his wife and says that she ‘ ‘ will without request on my part ... do best for them,” but he saw fit to put all matters at rest, as to his dictation of what she should do, by placing in the will, where the stars above appear, the phrase ‘ ‘ and none such is here made. ’ ’ This clause following the words “request on my part” is a direct statement to the effect that he does not even request the wife to make any particular disposition of her own property — for such it would become under the terms of the will.

So that when we consider this will in its breadth and length — from all of its four corners — there are no words in it tending to show an intent upon the part of the testator to create a trust in favor of his children and grandchild. Every earmark of the.instrument is against such construction. Let us review for a moment: (1) we have a positive absolute estate given the wife; (2) we have the express declaration that he was not giving anything to the children or grandchild in the will, and (3) an express recognition of the estate being absolute in the wife by the testator saying that he would not even suggest to, or request of, the wife any definite division of her own property, when she came to dispose of it. Taken as a whole, the will fails to show an intent to give anything to any person save to his wife. It does express absolute confidence in her, but such an expression does not, under the other language of this will, tend to show an intent to create a trust estate.

But going further to the will as a whole for the purpose of determining the intent of the testator, let us see the ridiculous attitude the testator would be placed in by the contention of plaintiff. If this will creates a trust estate at all, it put every dollar’s worth of property of which testator died seized into that trust estate. The will undertakes to and does dispose of the whole estate, so that if a trust was intended for the benefit of the children and grandchild, it would make them beneficiaries of the entire estate, without a single property provision for the wife. It is not reasonable to think that a man who had expressed such a confidence in his wife intended to leave no actual property to her, or property for her use. It will not do to say that he intended her legal fees as trustee to be her part of his vast estate. Men with the implicit confidence in the wife, as we find expressed in this will, are not prone to cut off that wife without a dollar which she could point to as' her own. If the contention of the plaintiff is correct as to the intention of "William J. Lemp, then he has done this almost unthinkable thing. He has left this wife, who enjoyed that confidence, without a dollar, save what might be gleaned by way of fees for executing a trust. When all the language of this will, precatory words and others, is considered it cannot be said that there appears any intent to create a trust estate in the children and grandchild. Had he had such an intent he could have found apt words to have expressed it, but such apt words are not in this will. We see no need of going further. A discussion of what similar words mean, as used in other wills, can add but little light, because in each the words have different settings when the whole instrument is read.

Nor does the disposition made of the property by the wife deserve comment. If it passed to her by the will, as we hold that it did, she had the right to dispose of it as to her seemed proper. If her action in so disposing of it would have tended to shock the confidence of the husband, had he been living, it would not change the terms of his grant in the instrument which gave her title. Plaintiff’s petition stated no cause of action, and the action of the trial court was right.

Let the judgment be affirmed.

All concur-, Bond, J., in the result, and Woodson, G. J., in a separate opinion.