residuary clause in Missouri

2002Our standard of review in construing the provisions of a will is governed by the principles of Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).

2002Our standard of review in construing the provisions of a will is governed by the principles of Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).

1999The court reasoned that “[b]e-cause the residuary clause of Testator’s will created the trust and the trust failed, Testator died intestate as to the residue of his estate.” Id.

1999Considering each trust instrument as a whole, In re McDonald Revocable Trust, 942 S.W.2d at 931 , and the intent of each grantor as gleaned from such instrument, we are convinced that the word “surviving” constitutes a condition precedent to any sibling taking under the residuary clause, determinable only at the death of Teddy without issue.

1999Furthermore, in Eamey v. Clay, 516 S.W.2d 59 (Mo.App.1974), this Court pronounced: [W]here an express private trust is gratuitously created by will and the property bequeathed or devised to create it proves to be larger in amount than is necessary to accomplish the purpose of the trust, the surplus is to be held upon a resulting trust for the estate of the settlor (Restatement, Second, Trusts § 430; Bogert, Trusts, 2d ed., § 469; Scott, Trusts § 430; Bogert, Law of Trusts § 76 4th ed. Hornbook Series), and if the sum constituting the resulting trust be not validly disposed of by will, it shoul

1994In Odom v. Langston, 355 Mo. 109 , 195 S.W.2d 463 (1946), plaintiffs, nephews and nieces of the testatrix, brought an action to have the residuary clause of the will ruled void.

1994In Odom v. Langston, 355 Mo. 109 , 195 S.W.2d 463 (1946), plaintiffs, nephews and nieces of the testatrix, brought an action to have the residuary clause of the will ruled void.

1984Id.

1984For application of the pro rata view, see In re Rosenzweig’s Will, 19 N.Y.2d 92 , 278 N.Y.S.2d 192 , 224 N.E.2d 705 (1966); In re Povey’s Estate, 271 Mich. 627 , 261 N.W. 98 (1935); In re Taylor's Estate, 213 Minn. 509 , 7 N.W.2d 320 (1942).

1984For application of the pro rata view, see In re Rosenzweig’s Will, 19 N.Y.2d 92 , 278 N.Y.S.2d 192 , 224 N.E.2d 705 (1966); In re Povey’s Estate, 271 Mich. 627 , 261 N.W. 98 (1935); In re Taylor's Estate, 213 Minn. 509 , 7 N.W.2d 320 (1942).

1984For application of the pro rata view, see In re Rosenzweig’s Will, 19 N.Y.2d 92 , 278 N.Y.S.2d 192 , 224 N.E.2d 705 (1966); In re Povey’s Estate, 271 Mich. 627 , 261 N.W. 98 (1935); In re Taylor's Estate, 213 Minn. 509 , 7 N.W.2d 320 (1942).

1984For application of the pro rata view, see In re Rosenzweig’s Will, 19 N.Y.2d 92 , 278 N.Y.S.2d 192 , 224 N.E.2d 705 (1966); In re Povey’s Estate, 271 Mich. 627 , 261 N.W. 98 (1935); In re Taylor's Estate, 213 Minn. 509 , 7 N.W.2d 320 (1942).

1984For application of the pro rata view, see In re Rosenzweig’s Will, 19 N.Y.2d 92 , 278 N.Y.S.2d 192 , 224 N.E.2d 705 (1966); In re Povey’s Estate, 271 Mich. 627 , 261 N.W. 98 (1935); In re Taylor's Estate, 213 Minn. 509 , 7 N.W.2d 320 (1942).

1984For application of the pro rata view, see In re Rosenzweig’s Will, 19 N.Y.2d 92 , 278 N.Y.S.2d 192 , 224 N.E.2d 705 (1966); In re Povey’s Estate, 271 Mich. 627 , 261 N.W. 98 (1935); In re Taylor's Estate, 213 Minn. 509 , 7 N.W.2d 320 (1942).

1979In the also cited case of Lewis v. Lewis, 345 Mo. 816 , 136 S.W.2d 66 (1940), the court held (as in the Hyde case, supra) that a devise to a daughter for her life and at her death to her bodily heirs created an interest contingent upon her having bodily heirs, but that a residuary clause of the will transferred the reversionary interest to testator’s widow, which was then a “vested contingent interest” (subject to being divested upon the daughter being survived by heirs of her body), which vested interest could be conveyed by the widow to the daughter, as was done, creating, in effect, a fee s

1979In the also cited case of Lewis v. Lewis, 345 Mo. 816 , 136 S.W.2d 66 (1940), the court held (as in the Hyde case, supra) that a devise to a daughter for her life and at her death to her bodily heirs created an interest contingent upon her having bodily heirs, but that a residuary clause of the will transferred the reversionary interest to testator’s widow, which was then a “vested contingent interest” (subject to being divested upon the daughter being survived by heirs of her body), which vested interest could be conveyed by the widow to the daughter, as was done, creating, in effect, a fee s

1978Evans v. Volunteers of America, 280 S.W.2d 1 (Mo.1955).

1977Upon these facts and aided by the adoption of Section 341 of the Restatement by Busch v. Dozier, supra, the residuary clause in Matthew’s will must be held to have intended to exercise the power in Mary’s trust. 6 The following excerpt from Busch v. Dozier, 375 S.W.2d at 31-32 , is apropos: “The American Law Institute, Restatement of Property, Sec. 341, states: ‘When the donee in a deed or will declares in substance that he exercises all powers that he has, this manifests an intent to exercise all such powers, including special powers.’ See also American Law of Property, Sec. 23.38; 72 C.J.S.

1977Upon these facts and aided by the adoption of Section 341 of the Restatement by Busch v. Dozier, supra, the residuary clause in Matthew’s will must be held to have intended to exercise the power in Mary’s trust. 6 The following excerpt from Busch v. Dozier, 375 S.W.2d at 31-32 , is apropos: “The American Law Institute, Restatement of Property, Sec. 341, states: ‘When the donee in a deed or will declares in substance that he exercises all powers that he has, this manifests an intent to exercise all such powers, including special powers.’ See also American Law of Property, Sec. 23.38; 72 C.J.S.

1977That instrument calls for a `reference' to the power, not a specific reference, and we think, agreeing with the judge below, that the residuary clause of the will is an adequate reference although it is inclusive of any power created by any instrument in the donee's favor." 346 N.E.2d at 915 .

1977That instrument calls for a ‘reference’ to the power, not a specific reference, and we think, agreeing with the judge below, that the residuary clause of the will is an adequate reference although it is inclusive of any power created by any instrument in the donee’s favor.” 346 N.E.2d at 915 .

1977The court's decision was based upon the Maryland Code, Art. 93, § 4-407 (1957, 1969 Repl.Vol.), providing: "`Subject to the terms of the instrument creating the power, a residuary clause in a will exercises a power of appointment held by the testator if, and only if, (i) an intent to exercise the power is expressly indicated in the will or (ii) the instrument creating such power of appointment fails to provide for disposition of the subject matter of the power upon its nonexercise.' (emphasis supplied)." 351 A.2d at 131-32 .

1977The court’s decision was based upon the Maryland Code, Art. 93, § 4-407 (1957, 1969 Repl.Vol.), providing: “ ‘Subject to the terms of the instrument creating the power, a residuary clause in a will exercises a power of appointment held by the testator if, and only if; (i) an intent to exercise the power is expressly indicated in the will or (ii) the instrument creating such power of appointment fails to provide for disposition of the subject matter of the power upon its nonexercise.’ (emphasis supplied).” 351 A.2d at 131-32 .

1970The residuary clause of the contested will, under which defendants Eaton take or claim, does not specifically devise any particular real property, 1 as did the will in Board of Trustees of Methodist Church of Nevada v. Welpton, Mo., 284 S. W.2d 580 ; the pleadings do not establish that Mrs. Robson died owning real estate, as was true in DeLaney v. Coy, Mo., 407 S.W.2d 902 ; and the inventory and ap-praisement of Mrs. Robson’s estate is not of record, so we may not be guided by that, as was the Supreme Court in Pasternak v. Mashak, Mo., 383 S.W.2d 760 .

1970The residuary clause of the contested will, under which defendants Eaton take or claim, does not specifically devise any particular real property, 1 as did the will in Board of Trustees of Methodist Church of Nevada v. Welpton, Mo., 284 S. W.2d 580 ; the pleadings do not establish that Mrs. Robson died owning real estate, as was true in DeLaney v. Coy, Mo., 407 S.W.2d 902 ; and the inventory and ap-praisement of Mrs. Robson’s estate is not of record, so we may not be guided by that, as was the Supreme Court in Pasternak v. Mashak, Mo., 383 S.W.2d 760 .

1970The residuary clause of the contested will, under which defendants Eaton take or claim, does not specifically devise any particular real property, 1 as did the will in Board of Trustees of Methodist Church of Nevada v. Welpton, Mo., 284 S. W.2d 580 ; the pleadings do not establish that Mrs. Robson died owning real estate, as was true in DeLaney v. Coy, Mo., 407 S.W.2d 902 ; and the inventory and ap-praisement of Mrs. Robson’s estate is not of record, so we may not be guided by that, as was the Supreme Court in Pasternak v. Mashak, Mo., 383 S.W.2d 760 .

1967As said in Shackleford v. Edwards, supra, 278 S.W.2d 1 . c. 781 [8] : “Now the same evidence which convinces us that there was a definite agreement between the Craw-fords to make mutual irrevocable wills also convinces us that those wills were to provide for the ultimate disposition of their separate properties which simultaneously were placed in an estate by the entirety.” See Mueller v. Buenger, 184 Mo. 458 , 83 S.W. 458 , where a residuary clause using language similar to that in the Grim joint will was held to contemplate after-acquired property.

1967As said in Shackleford v. Edwards, supra, 278 S.W.2d 1 . c. 781 [8] : “Now the same evidence which convinces us that there was a definite agreement between the Craw-fords to make mutual irrevocable wills also convinces us that those wills were to provide for the ultimate disposition of their separate properties which simultaneously were placed in an estate by the entirety.” See Mueller v. Buenger, 184 Mo. 458 , 83 S.W. 458 , where a residuary clause using language similar to that in the Grim joint will was held to contemplate after-acquired property.

1967Glidewell v. Glidewell, 360 Mo. 713 , 230 S.W.2d 752 , cited by appellants, simply recognized that there was not sufficient evidence from which to infer a contract to make joint and mutual wills.

1967Glidewell v. Glidewell, 360 Mo. 713 , 230 S.W.2d 752 , cited by appellants, simply recognized that there was not sufficient evidence from which to infer a contract to make joint and mutual wills.

1967As said in Shackleford v. Edwards, supra, 278 S.W.2d 1 . c. 781 [8] : “Now the same evidence which convinces us that there was a definite agreement between the Craw-fords to make mutual irrevocable wills also convinces us that those wills were to provide for the ultimate disposition of their separate properties which simultaneously were placed in an estate by the entirety.” See Mueller v. Buenger, 184 Mo. 458 , 83 S.W. 458 , where a residuary clause using language similar to that in the Grim joint will was held to contemplate after-acquired property.

1965In Ray v. Nethery, Mo., 255 S.W.2d 817 , the plaintiff filed suit seeking a declaration that he qualified as the beneficiary of the residuary clause of a decedent’s will, which bequeathed the property to the person or persons who took care of her in the future.