Court of Appeals of Missouri, Western District, Second Division
from the Circuit Court of Jackson County, Missouri The
Honorable Kathleen A. Forsyth, Judge.
Before: Karen King Mitchell, Presiding Judge, Cynthia L.
Martin, Judge and Gary D. Witt, Judge.
CYNTHIA L. MARTIN, JUDGE.
Alexander ("Alexander") appeals from a judgment
denying her petition to construe a trust to require
distribution to the descendants of the settlor's deceased
brothers' children. Because we agree with Alexander that
the trust created a remainder interest in settlor's
deceased brothers' children that was descendible and that
was not subject to the condition of survival, we reverse and
and Procedural Background
Stodder Harrison ("Settlor") formed a trust by
executing a trust agreement on March 18, 1947
("Trust"). The Trust was executed in Kansas. UMB
Bank, N.A., ("UMB") is the trustee of the Trust,
and has administered and continues to administer the Trust in
Jackson County, Missouri.
received monthly income from the Trust during her lifetime
according to Article One, section (a) of the Trust. Article
One, section (c) of the Trust provided that if Settlor
predeceased her son, William Stodder Harrison, Jr.
("Settlor's Son"), then monthly income from the
Trust would be paid to Settlor's Son during his lifetime.
died on May 31, 1962. Settlor's Son was living on that
date. Settlor's Son thus received monthly income from the
Trust until his death. Settlor's Son died on March 8,
One, section (e) of the Trust provided:
Upon the death of Settlor, or upon the death of Settlor's
son, Williams S. Harrison, Jr., whichever shall last occur, .
. . this trust shall terminate, and upon such termination,
the trust estate, including all increment and additions
thereto, shall be paid over, distributed and delivered per
stirpes to the lawful bodily issue of Settlor's son,
William S. Harrison, Jr., if any there be; and, if none, the
said remainder of the trust estate shall be paid over,
distributed and delivered to Settlor's brothers, R.H.
Stodder and F.G. Stodder. In the event either the said R.H.
Stodder or F.G. Stodder shall be deceased, upon the
termination of this trust as aforesaid, the share of said
brother shall be paid over, distributed and delivered to said
deceased brothers' children.
(Emphasis added). The Trust terminated by its plain terms on
March 8, 2013, when Settlor's Son died. Termination of
the Trust triggered the obligation to pay over, distribute
and deliver the remaining Trust assets as directed by Article
One, section (e). When the Trust terminated, Settlor's
Son had no bodily issue, and R.H. Stodder and F.G. Stodder
("Settlor's Brothers") were both
deceased. As a result, the highlighted language in
Article One, section (e) remained the only potentially
operative provision for distribution of the Trust assets.
the Trust terminated, all of Settlor's Brothers'
children were also deceased.However, those children had
children. Alexander is one of those children, as she
is the granddaughter of F.G. Stodder. Because the Trust did
not expressly specify the Settlor's intent should all of
Settlor's Brothers' children predecease the
Trust's termination, UMB petitioned the Jackson County
Circuit Court Probate Division (hereinafter "Probate
Court") for instructions on how to distribute the
Trust's assets. UMB did not take a position with respect
to the proper recipients of the Trust assets, but did name
known grandchildren of F.G. and R.H. Stodder in the petition.
The Probate Court advised UMB by letter that its petition did
not present a justiciable controversy because, according to
the court, the Trust "fail[ed] because there are no
designated beneficiaries." The Probate Court's
letter reasoned that the Trust "provided for
[Settlor's Brothers'] children, but made no provision
for [Settlor's Brothers'] more remote
descendants." Because the Probate Court refused to
entertain UMB's petition, summons and service packets
were never released, and the grandchildren of Settlor's
Brothers were never notified of the petition.
the Probate Court refused to consider its petition, UMB filed
a petition to reopen Settlor's probate estate in the
District Court of Johnson County, Kansas (the "Kansas
Probate Court") in order to distribute the assets from
the Trust through Settlor's estate. The Kansas
Probate Court scheduled a hearing on UMB's petition and
authorized delivery of notice to interested persons,
including Alexander. Alexander objected to the petition, and
moved to stay the Kansas proceeding to permit the Missouri
Probate Court to entertain a suit she filed concerning
distribution of assets from the Trust. The Kansas Probate
Court stayed its proceedings.
petition in the Probate Court sought to terminate the Trust
and to distribute assets per its terms, or alternatively to
modify the Trust. Alexander took the position that pursuant
to the Trust:
[T]he children of R.H. and F.G. Stodder held contingent
remainder interests that became vested upon the death of
[Settlor] . . . and [Settlor's Son] . . . . The remainder
interest held by the children of R.H. and F.G. Stodder passed
through their respective estates upon their death.
Accordingly, the heirs and devisees of R.H. and F.G. Stodder
have a direct, vested property interest in the Trust Estate.
The Trust did not fail. It passed property interests at the
time of its creation to specifically identified
beneficiaries, which have since vested.
Alexander's request, summons were issued and service was
had on each of the individuals identified as descendants of
R.H. Stodder and F.G. Stodder. The identified descendants
have not opposed Alexander's petition. UMB requested only
that judgment be entered consistent with the terms of the
Trust and Settlor's intent, expressing no position about
Alexander's proposed construction of the Trust.
January 14, 2016, without a hearing, advance notice, or the
benefit of evidence, the Probate Court entered a judgment
denying Alexander's petition ("Judgment"). The
Judgment found that the Trust terminated by its terms upon
the death of Settlor's Son on March 8, 2013. The Judgment
found that the "remaining relief requested, an order
construing the trust to provide for distribution of the
remaining trust assets to the descendants of the
[Settlor's Brothers'] children, is inconsistent with
the Court's understanding of the [Settlor's]
filed this timely appeal.
of Review/Choice of Law
court-tried probate case is reviewed under the standard of
Murphy v. Carron, 536 S.W.2d 30 (Mo. banc
1976)." In re Estate of Schooler, 204 S.W.3d
338, 342 (Mo. App. W.D. 2006). "Under that standard, the
probate court judgment will be sustained 'unless there is
no substantial evidence to support it, unless it is against
the weight of the evidence, unless it erroneously declares
the law, or unless it erroneously applies the law.'"
Id. (quoting Murphy, 536 S.W.2d at 32).
"'An appellate court will conduct de novo review of
questions of law, which includes determination of the meaning
of a trust instrument, and give no deference to the trial
court's judgment in such matters.'" B ...