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Pennington v. Vonier

Court of Appeals of Missouri, Southern District, First Division

December 6, 2019

BOYD A. PENNINGTON, individually and as Successor Trustee of the JAMES W. GRESHAM LIVING TRUST, Plaintiff-Appellant,
v.
SAIDEE ANN VONIER, individually, and as Trustee of the JAMES W. GRESHAM LIVING TRUST, Defendant-Respondent.

          APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable Dean G. Dankelson, Judge

          WILLIAM W. FRANCIS, JR., J.

         Boyd A. Pennington ("Pennington") appeals from the trial court's judgment, after a bench trial. Finding no merit to Pennington's two points, we affirm the trial court's judgment.

         Facts and Procedural History

         James W. Gresham ("Gresham") created and executed the "James W. Gresham Living Trust" ("Trust") on January 31, 2011. Gresham, as Trustor, was to receive all the income and principal of the Trust estate as he directed. Gresham also had the right to amend or revoke the Trust at any time, other than in times of disability. The successor trustee, Southwest Missouri Bank, was given the "same rights, powers, duties, discretions and immunities as if it had been named as initial Trustee[.]" Under "Section 4. Exercise of Trustor's Rights and Powers by Others" of the Trust, Gresham reserved "[t]he power to amend, revoke or terminate the trust created by this trust agreement[.]"

         Saidee[1] Ann Vonier ("Vonier") married Gresham on July 15, 2013.[2] Pennington is Vonier's biological son, and Gresham's stepson. Gresham amended the Trust four times during his lifetime, with the primary changes being designated beneficiaries and changes of successor trustees. Gresham's fourth and final amendment was executed on July 29, 2013, whereby Gresham made the following changes:

FIRST:
The first paragraph of Article I, Section 1, Parties to the Trust is hereby amended to read as follows:
'This Trust Agreement dated 31 of January, 2011 is made by James Gresham, as Trustor, and James Gresham and Saidee Ann Vonier, as initial Trustees.'
SECOND:
Article III, Section 4 'Designated Successor Trustees' is hereby amended to read as follows:
'Upon the death or disability of JAMES W. GRESHAM or SAIDEE ANN VONIER, the other shall serve as successor trustee. Upon the death or disability of both JAMES W. GRESHAM or SAIDEE ANN VONIER, then they shall be replaced by BOYD PENNINGTON.'
THIRD:
Article IV, Section 4 is amended to read as follows:
'The power to amend, revoke or terminate the trust created by this trust Agreement is personal to the Trustor, but after his death, may be exercised by the Successor Trustee.'
FOURTH:
Article VI, Section 2 as it appears in the Third Amendment to Trust Agreement and the Corrected Third Amendment shall be deleted. In its place shall be the following: The Trustee shall pay or apply for the benefit of Saidee Ann Vonier during her lifetime all or such part of the ...

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