Mercantile Trust Co. National Ass'n v. Jaeger

HOLMAN, Judge. At the termination of the testamentary trust established by the will of Jacob L. Babler, deceased, a dispute arose between the co-trustees of the trust estate and the Attorney General, representing the State of Missouri (beneficiary of the trust), with respect to the amount of compensation due the trustees. On July 7, 1966, the trustees filed a declaratory judgment suit seeking an adjudication of the disputed question, and later the same day the Attorney General filed a similar suit for the same purpose. The cases were consolidated and tried with the result that a judgment was entered specifying that the trustees were entitled to $190,730 additional compensation. Attorneys fees and expenses were also allowed in the total sum of $26,173.52. The appropriate representatives of the State of Missouri have duly appealed. This appeal was originally heard in Division One where an opinion was adopted but the case was subsequently transferred to Court en Banc because of the dissent of one of the judges. Additional briefs were filed and the cause was re-argued and resubmitted. The Division opinion failed of adoption en Banc and the cause was assigned to the undersigned. Portions of the statement of facts in the aforementioned opinion are here adopted without the use of quotation marks. The will of Jacob L. Babler, after providing for the payment of his debts, funeral expenses, etc., and for numerous specific bequests, left the remainder of his estate to two individuals, his brother Henry and one Richard J. Weidert, in trust for the use and benefit of the Dr. Edmund A. Babler Memorial State Park in St. Louis County. The trustees were given broad investment and managerial powers in handling the trust estate. In Item Fifteen, after reciting that he had deeded several hundred acres of land to the state as a public park and after expressing the purpose and use of the trust (to assist the state in maintaining, beautifying, further developing, and perhaps enlarging the park), testator continued as follows: “After paying compensation to themselves as herein provided, and all other charges and expenses incident to the administration of the trust estate, the Trustees, or the survivor of them, are hereby authorized to use and expend all or any part of the ‘net’ income and revenue derived from said trust estate and not to exceed seven percent (7%) of the annual book value of the then corpus of said trust estate, for such general improvements, or projects of a recreational nature in the ‘DR. EDMUND A. BABLER MEMORIAL STATE PARK,’ as in the opinion and discretion of the Trustees, or the survivor of them, seems advisable under the then existing circumstances; it being understood, however, that any net earnings not used and expended for the purposes aforesaid, during the current year, shall, at the end of the year, be added to and become a part of the corpus of the trust estate. Should the Trustees, or the survivor of them, not withdraw and expend the full seven percent (7%) of the corpus of the trust estate in any year, then the unused portion of said seven percent (7%) for that year shall be cumulative and may be used the following, or any subsequent year or years.” Item Sixteen provided: “This trust shall continue and endure for twenty (20) years, from and after the date of my death. On the twentieth anniversary, or as soon thereafter as practical, following the date of my death, I direct that the trust herein created shall cease and — 729 — terminate, and the entire remainder of the trust estate then in the hands of my trustees, or the survivor of them, both corpus and unused income and revenue, shall forthwith on receipt thereof, be paid over, transferred and conveyed to the then Treasurer or Acting Treasurer of The State of Missouri, to be used and expended under his supervision by the then State Park Authority, exclusively for the maintenance, beautification, further development and possible enlargement of the ‘DR. EDMUND A. BABLER MEMORIAL STATE PARK.’ ” Item Seventeen provided: “I direct that during the administration of my estate in the Probate Court, and during the duration of the trust herein created, the trustees shall not engage the services of anyone in any way related to them, or the survivor of them. “The Trustees shall receive as compensation for their services hereunder, seven percent (7%) of all disbursements of income and corpus made by them, to be divided equally between them. Should the services of either, or both Trustees be terminated during the course of any year, by death, resignation or incapacity, such retiring Trustee shall receive a pro-rata part of that year’s compensation, based on the months of service rendered, it being understood that a fractional month shall be considered as a full month.” Provisions were made for the substitution of trustees in case of failure to act, incapacity, death, or resignation, and for alternate trustees. Mr. Weidert declined to act and the corporate trustee took his place. During the course of the administration Henry J. Babler died and Mary Anne O’Brien was substituted in his place. Item Twenty-Five designated Mr. Babler and Mr. Weidert, the named trustees, as executors and fixed as compensation for their services as executors “a fee of two percent (2%), instead of the regular statutory fee of five percent (5%) on all personal property and on money arising from the sale of real estate. Inasmuch as the Executors herein appointed are also named Trustees of the trust fund herein created, I feel that the two percent (2%) herein authorized as Executors’ fees, is fair and reasonable.” The will was executed in July 1942. Testator died on May 31, 1945. The first regular analysis of the assets of the trust (in 1948) revealed a valuation of $760,000. At termination of the trust on May 31, 1965, the value of the trust estate, corpus, and unexpended income was $2,724,714.27. During the course of the 20-year administration approximately $800,000 was expended from income and principal for park purposes. A part of that sum was taken from corpus. The exact percentage was not shown. The average yearly gross income of the estate was $38,000. The average market value of the entire trust during the 20-year period was $1,396,000. During the 20-year period the trustees took commissions, from time to time, in the sum of 7% of the expenditures, totaling $56,066.54, of which Mercantile received $28,033.27 and the individual co-trustees received $28,033.-27. After May 31, 1965, the trustees credited themselves with commissions in the sum of $95,365 each, or a total of $190,730. Commissions paid by the trustees to themselves or reserved thus totaled $123,398.27 each. Testator, a lawyer by profession, did not practice law. He devoted his time to his philanthropies, investments, and private business affairs. He prepared his own documents, deeds, notes, leases, etc. over a period of many years. Meticulous in the preparation of his will, he caused a lawyer of his acquaintance to conduct research on various phases of the problems involved, consulted at length with the lawyer, and had him submit proposed drafts of various provisions of the document. The preparation of the will took several months. During that time he counseled with at least a dozen outstanding persons, including a circuit judge, the state attorney general, several lawyers of wide experience, experts in the field of wills and trusts, and a number of — 730 — distinguished conservationists, including the Secretary of the Interior, the Director of the National Park Service, and the head of the State Park Board. The preliminary drafts numbered four before testator was satisfied with the final draft. He personally dictated the will, including the punctuation. He carefully chose his trustees from persons in whom he had special confidence, and in detailed fashion provided for successor or alternative trustees in various contingencies. He took pains to limit the type of securities in which the trustees were permitted to invest and cautiously provided that loans on real estate not exceed in amount 50% of the cash value of the security. He prohibited the trustees from directly or indirectly profiting personally from the trust administration, except for the compensation provided for them. He cautioned his trustees to have a written contract for any legal services required and to make specific arrangements as to fees and compensation with attorneys, admonishing that “under no circumstances, should attorneys be engaged without a definite written understanding, made in advance, as to what their charges will be.” After the suits were filed it was stipulated by the parties that the trustees would retain the amount of the disputed compensation during the pendency of the litigation but would proceed to pay over and transfer to the State Treasurer the remainder of the trust assets. It was further stipulated, however, that the Treasurer would set up a separate fund of $50,000 as a reserve against attorney fees, expenses, and court costs that might be allowed against the trust. At the trial the defendants offered in evidence, and the court admitted, the schedule of fees of Mercantile in effect at the time Mr. Babler’s will was written. It provided that in testamentary trusts the trustees’ commission is five percent on income “as and when distributed” and five percent “on the market value of the principal of the trust estate, including real estate, whenever the same is distributed by the trustees.” Our main task on this appeal is to determine the meaning of the following part of Item Seventeen of the will: “The Trustees shall receive as compensation for their services hereunder, seven percent (7%) of all disbursements of income and corpus made by them, to be divided equally between them.” The specific issue presented is whether the trustees are entitled to a commission of 7'% of the corpus of the trust at the termination thereof. All parties attach considerable significance to the meaning of the word “disbursements” as used in that part of the will. In that connection the trial court made specific findings that “the word ‘disbursements’, in ordinary usage and as used in Item Seventeen of the will of Jacob L. Babler, deceased, includes the conveyance, transfer and distribution of trust corpus to remaindermen upon termination of a trust. In using the word ‘disbursement’ in Item Seventeen of his will, Jacob L. Babler intended that term to include property transferred to the beneficiary, the Treasurer of the State of Missouri, on termination of the trust. The term ‘disbursement’ as used in Item Seventeen of the will of Jacob L. Babler, deceased, is not restricted to sums paid from the funds of the estate in the nature of expenses and expenditures in its preservation, management and conduct, but it also includes moneys or funds or property of any kind paid over to the person entitled to the estate, the Treasurer of the State of Missouri, on termination of the trust. The proper meaning and construction of the will of Jacob L. Babler, deceased, is that the plaintiffs, Mercantile Trust Company National Association and Mary Anne O’Brien, as Co-Trustees, were entitled to receive and are entitled to retain from the trust assets and to divide equally between them the sum of $190,730.00 as compensation for their services as such Co-Trustees, said sum being seven percent (7%) of $2,-724,714.27, the value of the trust assets upon termination of the trust on May 31, 1965.” In Commerce Trust Co. v. Weed, Mo.Sup., 318 S.W.2d 289 l.c. 294, we said that “[i]n the construction of wills our pri — 731 — mary duty is to determine ‘the true intent and meaning of the testator.’ [§ 474.430 RSMo 1949, V.A.M.S.] All technical rules of construction are subservient to the paramount rule that the intention of the testator shall control unless it violates some established rule of law. Legg v. Wagner, Mo.Sup., 155 S.W.2d 146. In performing our task we must consider the will as a whole and not give undue preference to any particular clause. ‘When the intent of the testator is found, the proper construction of the will is solved.’ McMillan v. Barnard Free Skin & Cancer Hospital, 304 Mo. 635, 264 S.W. 410, 413. Moreover, we are mindful that ‘The infinite variety of expressions and the differing shades of meaning so often attached to identical words or phrases when employed by the makers of wills in a context and under circumstances peculiar to the context of the will of each testator and the circumstances under which it was written make prior decisions construing similar words or phrases of far less value as precedent than those of other fields of litigated controversies.’ Hereford v. Unknown Heirs, etc., 365 Mo. 1048, 292 S.W.2d 289, 293.” In ascertaining the intent of the testator this court should, as nearly as possible, put itself in the position of testator and view the situation from his standpoint. And, we should recognize the “fundamental rule of construction that words used by the testator are to be understood in their ordinary sense, unless a different meaning is indicated by the context of the will, or by the circumstances of the case.” Obetz v. Boatmen’s Nat. Bank of St. Louis, 361 Mo. 221, 234 S.W.2d 618, 622. Appellants contend that the proper construction of Item Seventeen is that the compensation of the trustees was provided on an annual basis only and that they were entitled to an annual commission of 7% on all disbursements of income and corpus made during the year; that they are not entitled to a commission on the corpus at the time the trust is terminated and its assets paid over to the State Treasurer; that if testator had intended such compensation he would have specifically so stated or, at least, would have used the word “distribution” which indicates the transfer of assets at termination. They state that this is a case of first impression in this state and perhaps in the nation. In final analysis they rely entirely upon the provisions of the will (rather than decided cases) to support their contentions. For reasons hereinafter stated we have concluded that the findings of the trial court were correct and that testator intended that the trustees should receive a commission of 7% on the value of the trust assets at the time of the termination of the trust. It is true that the word “distribution” is generally used in designating the payment or delivery of assets at the termination of probate estates because that has long been the word used in the statutes relating to those estates. However, the word “disbursement” is a more general word and includes distribution. We find the definition of these words and their use in the cases to be helpful as indicating that testator may thereby have been familiar with such meaning when he wrote his will. The word “disburse” is defined in Webster’s Third New International Dictionary as “to expend * * * pay out * * * distribute.” Substantially the same definition appears in the Second Edition of that work. In 26A C.J.S. pp. 967, 968, “disburse” is defined as follows: “In its general usage, the word usually has reference to the paying out or the expending of moneys or currency. In a particular connection, it has been held that the term is not restricted to sums paid from the funds of an estate in the nature of expenses and expenditures in its preservation, management, and conduct, but that it also includes moneys or funds or property of any kind paid over to the person entitled to the estate * * We also find that the word “distribute” is not always used in the cases in referring to the paying out of funds at the termination — 732 — of a trust or probate estate. In the following cases the word “disburse” is used in describing the transfer of remaining assets at the termination of both trust and probate estates: Loud v. St. Louis Union Trust Co., 313 Mo. 552, 281 S.W. 744 [12]; In re McKinney’s Estate, 351 Mo. 718, 173 S.W.2d 898 [6]; In re Shelton’s Estate, 338 Mo. 1000, 93 S.W.2d 684; Estey v. Commerce Trust Co., 333 Mo. 977, 64 S.W.2d 608 [10], and Vorderstrasse’s Estate v. Haumueller, Mo.App., 266 S.W. 1019 [1]. It is reasonable to assume that testator, a lawyer particularly interested in probate and trust law, was familiar with that use of the word “disburse.” In that connection, see also In re Gallen, D.C., 18 F.Supp. 683. In considering testator’s concept of the meaning of the words “disburse” and “distribution” we think it is significant that in Item Sixteen of the will, in providing for disposition of the assets at termination, he did not use the word “distribute” but stated that the remainder of the estate should be “paid over, transferred and conveyed.” It is also significant that in Item Fifteen, in dealing with the duties of the trustees in regard to the use of the income and a possible percentage of the corpus for maintenance and development of the park, the testator repeatedly used the phrase “use and expend.” This would tend to indicate that when he later used the word “disbursements” in relation to trustees’ commission he intended it to be a broader, more inclusive word than “expend.” We are also, impressed by the fact that testator provided for a commission of only 2%, instead of the statutory 5%, for his executors because of the fact that they had also been named as trustees of the trust estate. That would indicate that he considered that he had provided for generous compensation for the trustees. Seven percent of the annual expenditures and of the corpus on termination is a generous commission, as indicated by the fact that the Mercantile schedule provided for a five percent commission. If appellants’ contentions are correct the total compensation would have been an average of $1,400 per year for each trustee. When we consider the size of the trust estate, and the fact that it included many items of real estate located in a number of states, that amount would certainly not appear to be generous compensation. These facts would indicate that testator did not intend that the compensation be so limited. Although testator undoubtedly had great confidence in the trustees he named, both primary and contingent, he nevertheless, being a careful and cautious man, made numerous provisions to govern their conduct and to avoid any actions on their part which would have been detrimental to the estate. He provided in detail the type of investments they were authorized to make; he specified that they should not “receive any profit to themselves, either directly or indirectly, in connection with the administration of the trust estate, except the compensation hereinafter provided for them”; that they should not purchase securities from themselves or in any other manner by which they might profit; that they should not employ anyone related to them; that if Miss O’Brien became a successor co-trustee she should cease to draw other compensation (apparently for stenographic services) from the estate; and also set out in detail the method to be used in employing attorneys. As heretofore indicated, the will provided a method by which the trustees could have expended all of the trust corpus during the existence of the trust. If, as appellants contend, testator intended that the only commission the trustees would receive was on annual expenditures of income and corpus, he surely would have anticipated that the trustees might be tempted to make unnecessary or lavish expenditures of corpus in order to increase their compensation. In that event, certainly this careful man would have included some specific provision by which he would have at least made an attempt to safeguard against that contingency. The fact he did not indicates to us that he did not intend to so limit the compensation. — 733 — It should again be noted that testator plainly provided that the trustees should receive as compensation “seven percent of all disbursements of income and corpus.” We recognize, however, as contended by appellants, that it would be possible to conclude that such referred only to annual expenditures since the trustees were authorized to use a part of the corpus each year. It is our view, however, that the word “disbursements” is so broad and general that in ordinary usage, and as used here, it would be intended and understood to include the transfer of the corpus of the trust estate on termination. We think that a very convincing factor bearing on the testator’s intention is the fact that there existed in the St. Louis area a general custom (where the instrument creating the trust did not provide to the contrary) that trustees would receive as compensation a percentage of the corpus upon termination of the trust. That payment is not merely to compensate for paying out the assets but is in part delayed compensation for prior services during the existence of the trust. These facts are shown in part by Mercantile’s Schedule of compensation, and were also conceded by appellants’ counsel at the time of oral argument. This custom is in accord with the general rule. See Scott on Trusts, wherein it is said that “[t]he ordinary practice with reference to the compensation of trustees is to give the trustee annual or periodic commissions based on a percentage of the income received and paid out. This is paid from income. In addition they are entitled ordinarily to a percentage of the principal, payable on the distribution of principal,” Vol. III, § 233.3, p. 1921, and 90 C.J.S. Trusts § 400 b, p. 734, wherein it is stated that “[a]s a general rule a trustee is entitled to a reasonable allowance on the corpus of the trust as to which their fiduciary duties have terminated.” Testator, having a tremendous interest in the subject of trusts, was undoubtedly aware of the existence of that custom and had he not intended that his trustees receive a commission on the entire corpus on termination we think he would have definitely stated that they should not receive such a commission and thus would have prevented any doubt concerning the matter. As heretofore indicated, we rule that the testator intended that the trustees receive a commission on the entire corpus of the trust estate upon its termination and that the findings and judgment of the trial court in that regard were correct. The attorneys for the trustees filed applications for the allowance of attorney fees and expenses. These were heard and sustained. The trial court allowed the firm representing Mercantile the sum of $16,500 for legal services and $173.52 for expenses. The attorney for Miss O’Brien was allowed $9,500. The appellants contend that the trial court erred in making the allowances because the services rendered were for the personal benefit of the trustees and not for the benefit of the trust estate. We will not set out the evidence presented because the appellants do not question the amount of the allowances. No case has been cited which involves the precise situation here presented. The rules involved are well settled, but the difficulty arises in applying the appropriate rule to the facts. In Jesser v. Mayfair Hotel, Inc., Mo.Sup., 360 S.W.2d 652, 658-659, it is stated that “[wjhere ambiguity exists in a trust instrument resulting in a legitimate controversy as to the proper distribution of the trust fund or administration of the trust, the party instituting an action to construe the instrument is entitled to his fees and expenses even though he may benefit personally by the outcome of the litigation. Hereford v. Unknown Heirs, Mo.App., 306 S.W.2d 648, 650; Coates v. Coates, Mo.App., 316 S.W.2d 875, 878 [2]; Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157. See also Leggett v. Missouri State Life Ins. Co., Mo., 342 S.W.2d 833, 936 (61]. The plaintiffs’ interests as beneficiaries in the fund did not disqualify them from having their attorneys’ fees and expenses allowed.” — 734 — The rule is stated in somewhat different language in Coates v. Coates, Mo.App., 316 S.W.2d 875, 877, 878, as follows: “It is a well-settled doctrine of equity that a trust fund should bear the expense of its own administration. In conformity with this doctrine it is the general rule that where doubt arises as to the true or proper construction of an instrument by which a trust is created and there are different claimants, the trustee may bring a proper action, such as for a declaratory judgment, setting forth the facts * * * and praying the order of the court in regard to the correct construction of the trust instrument and its proper execution. In such cases the expenses of the litigation * * * are properly charged upon the fund. The litigation is regarded as indispensable to the proper administration of the fund, it being necessary that all persons having interests therein or making claims thereto should be made parties, and * * * their several rights and claims be judicially determined and set at rest.” See also Trautz v. Lemp, 334 Mo. 1085, 72 S.W.2d 104 [1]; St. Louis Union Trust Co. v. Kaltenbach, 353 Mo. 1114, 186 S.W.2d 578 [14, 15]; Kingston v. St. Louis Union Trust Co., 348 Mo. 448, 154 S.W.2d 39 [7], and Lang v. Taussig, Mo.App., 194 S.W.2d 743 [2, 8]. We think it is also a fair conclusion, from a reading of the cases, that courts of equity are more inclined to allow attorney fees to trustees than for individual claimants. And, the case of Hereford v. Unknown Heirs, Mo.App., 306 S.W.2d 648, indicates that courts are more inclined to allow attorney fees in cases involving wills creating trust estates than in suits involving an ordinary will construction. We have concluded that the court properly allowed attorney fees and expenses in this case. The suit was filed after the parties had arrived at an impasse in the dispute over the issue we have heretofore decided. The trustees were contending they were entitled to a commission on the corpus at termination. The State Treasurer contended otherwise and was refusing to accept the transfer of the trust property unless all the assets (including the $190,730 in dispute) were delivered to him. In that situation the trust estate could not be finally terminated and the assets delivered to the State Treasurer until this question was determined by the courts. It was therefore reasonable and, in fact, essential that the suit be filed. That the trustees had a reasonable' basis for making their claim would seem to be demonstrated by the fact that the trial judge and this court have agreed with them. We have also recognized that appellants had a reasonable basis for their position. It is our view that the ambiguity in the will before us related to the administration of the trust and hence comes within the rule heretofore stated, which permits the allowance of fees and expenses in settling such questions even though the trustees may benefit personally by the outcome of the litigation. It was not the fault of the trustees that the will was ambiguous in the respect involved. We think it is just as important that the wishes of the testator be carried out concerning the compensation of the trustees as it would be if there were a dispute between two remaindermen relating to a division of the corpus. As indicated, we rule that the court properly allowed attorney fees and expenses in this case. In addition to opposing the allowance of attorney fees on the merits appellants have raised two other points of a somewhat technical nature. First, it is said that fees may not be allowed because the trustees did not follow the cautionary instructions in the will to the effect that the employment of attorneys should be by written contract with the compensation agreed upon in advance. We doubt that that provision would be applicable in the situation before us. However, in any event, this defense was not pleaded, is not supported by proof, and cannot be raised for the first time on appeal. — 735 — The remaining' point is that the court erred in sustaining the applications because they were filed by the attorneys, while allowances of this nature are properly made to the litigants and not to the lawyers. It is true that in discussing a different situation we made the statement, in Nelson v. Mercantile Trust Co., Mo.Sup., 335 S.W.2d 167, 175, “that in this type of case attorney fees and expenses are allowed to the litigant and not to the lawyers.” We have, however, approved the allowance of attorney fees directly to the attorneys as, for example, in Jesser, supra. We regard this point as relating to form rather than substance. The applications were obviously filed with the knowledge and approval of the trustees and we cannot see that any of the parties would benefit if we should remand the case in order that the procedure suggested be followed. We accordingly rule this point against appellants. This court has been asked to make an allowance of attorney fees and expenses for services rendered to the trustees on this appeal. We are authorized to make such allowances. Mercantile Trust Co. v. Muckerman, Mo.Sup., 377 S.W.2d 355. The attorneys briefed and argued the case in Division One and, after it was transferred to Court en Banc, filed an additional brief and argued the case again. A statement has been filed which shows the time spent by the attorneys in briefing and arguing the case. The attorneys for Mercantile have also expended a total of $808.55 for the printing of the two briefs. We have concluded that a reasonable additional allowance to the firm of Thompson Mitchell Douglas Neill & Guerri would be $7,725, and to John Grossman $2,625. The judgment is affirmed. It is also ordered and adjudged that the firm of Thompson Mitchell Douglas Neill & Guer-ri be paid an additional sum of $7,725 for services as attorneys for co-trustee Mercantile on this appeal, and the sum of $808.-55 for expenses advanced; that John Grossman be paid the additional sum of $2,625 for services rendered as attorney for co-trustee Mary Anne O’Brien on this appeal. It is further ordered that all allowances for attorney fees and expenses, and all costs in the trial court and in this court, be paid out of the separate fund of $50,000 held by the State Treasurer for that purpose. FINCH and MORGAN, JJ., concur.