Opinion
No. 41531
March 13, 1950. Motion for Rehearing or to Transfer to Banc Overruled, April 10, 1950.
Under a will which made alternative bequests "in case it is not possible for my brothers to inherit because of living in an enemy country" the property was properly distributed to the Alien Property Custodian. The identity of the brothers was sufficiently established in a pre-trial conference.
1. WILLS: Aliens: Enemy Aliens May Take Under Will. The public policy of Missouri permits enemy aliens to take under a will.
2. WILLS: Aliens: Seizure by Alien Property Custodian: Construction of Will: Rights of Alien Brothers as Devisees. A will providing alternative bequests "in case it is not possible for my brothers to inherit because of living in an enemy country" does not mean that the brothers must be entitled to immediate possession. The enemy alien brothers of the testator were entitled to inherit even though their inheritance had been seized by the Alien Property Custodian.
3. WILLS: Trial: Brothers as Devisees: Stipulation at Pre-Trial Conference Sufficient. There was a sufficient stipulation at a pre-trial conference that the persons named in the order of the Alien Property Custodian were the brothers of the testator.
Appeal from Ralls Circuit Court; Hon. Roy B. Meriwether, Judge.
AFFIRMED.
Roy Hamlin and Chester Davis for appellants.
(1) The Circuit Court of Ralls County erred in affirming the order of the probate court of said county on the final settlement and order of distribution. Appellant contends that the court erred in not finding the issues for and on their behalf. The law favors vested estates. Legg v. Wagner, 155 S.W.2d 146; Riley v. Kirk, 253 S.W. 50, 213 Mo. App. 381. (2) A will speaks as of testator's death. Legg v. Wagner, 155 S.W.2d 146. (3) If there is any doubt as to whether an estate is vested or contingent, the court will construe it as vested. Riley v. Kirk, 263 S.W. 50, 213 Mo. App. 381; Legg v. Wagner, 155 S.W.2d 146. (4) The intention of the testator in a will is presumed to be to prevent lapse of devise or legacy. Palmer v. French, 32 S.W.2d 591, 326 Mo. 710. (5) In the will of Estache Cibu, the only ones who could inherit as of the date of his death, as provided by Paragraph 7 of his will, were the Red Cross of Ralls County, St. Elizabeth Hospital of Hannibal, Blessed Sacrament Church of Hannibal and Ispos Apostol. Cockrell v. First Natl. Bank of Kansas City, 211 S.W.2d 475; Estey v. Commerce Trust Co., 333 Mo. 977, 67 S.W.2d 608. (6) In this case, the court is called upon to construe the will of Estache Cibu. A will is fairly susceptible of being construed into a testamentary disposal of testator's whole estate, will be so construed in preference to construing it to be a case of partial intestacy. Meiners v. Meiners, 179 Mo. 614; Nichols v. Boswell, 103 Mo. 151; Thompson v. Thompson, 115 Mo. 56; Garth v. Garth, 139 Mo. 456. (7) Again comparing with the present case, even by a literal interpretation of the word "possible," the certainty that the brothers if living and found would benefit is a remote possibility. Should the court find according to the recommendations of the executor and permit the property to go to the Alien Property Custodian, the property would be practically worthless to the brothers until and unless the brothers can convince the Alien Property Custodian that they should have it. While they might acquire a right to file a claim, they would not have the benefit of the property at the time of distribution under the will. Briant v. Garrison, 150 Mo. 655; Smoot v. Harbur, 209 S.W.2d 249. (8) The circuit judge erred in his construction of the vesting order, and in directing that all of the estate of Estache Cibu be turned over to the Alien Property Custodian instead of to these appellants. The vesting order, even if it was sufficient, is in the strict sense a "taking" on behalf of certain named individuals, the title to the property taken would be in the government and not in the named individuals. The matter might not be so important when or if the taking was necessary in order that the entire estate would vest at the earliest possible date. That the law favors an immediate vesting to prevent indefinite or doubtful claims to property ownership is recognized by a long line of decisions in Missouri. "Vesting" is the same as "taking" and "inheriting" is the same as "taking." In re Gartside Estate, 207 S.W.2d 273; Priedeman v. Jamison, 202 S.W.2d 900. (9) This is an equity case. In an equity case, the court is not bound by the finding of facts made by the court below, but must and should review the whole record and while giving just and proper consideration to the opinion of the chancellor who heard the evidence in the first instance, must decide all questions of fact anew and for itself. Punch v. Hipolite Co., 100 S.W.2d 878, 340 Mo. 53; Krug v. Brammer, 316 Mo. 891, 292 S.W. 702; Brightwell v. McAfee, 249 Mo. 562, 155 S.W. 820. (10) The court erred in refusing to permit the appellant to offer evidence in the circuit court of Ralls County, Missouri. General Code of Civil Procedure, Laws 1943, sec. 114.
Rendlen Rendlen, Sam Friedman and Sebastian Frisof for respondents Simion, John, Joseph and Visalon Cibu and Hannibal National Bank, Executor of Estate of Estache Cibu; Harry Carstarphen for respondent Executor.
(1) Aliens not residing in or not being citizens of the United States may inherit or take by devise real estate in Missouri. Sec. 15228, R.S. 1939. (2) It is the public policy of Missouri that personal property in Missouri may be transferred by will to an alien whether friend or enemy. There is no inhibition against willing personal property to an alien nor against the alien taking such property whether such taking be by will or inheritance. In re Rahn's Estate, 316 Mo. 492, 291 S.W. 120, 51 A.L.R. 877, certiorari denied, 274 U.S. 745, 71 L.Ed. 1325; Harvey v. Donohoe, 97 Mo. 141, 137 Am. Rep. 1330. (3) The testamentary bequest to testator's brothers is not "violative, or in contravention of the * * * Trading with the Enemy Act of Congress, or violative of the spirit and purposes of that act." In re Rahn's Estate, supra. (4) Trading with the Enemy Act (50 U.S.C.A. Sec. 30, 31 Appendix) does not prohibit alien enemies from inheriting real or personal property located in the United States. Clark v. Allen, 330 U.S. 801, 67 S.Ct. 1431, 91 L.Ed. 1633; In re Kielsmark Will, 188 Iowa 1378, 177 N.W. 690, 11 A.L.R. 156; In re Roeck's Estate, 195 N.Y.S. 505, affirmed 237 N.Y. 560; In re Sharpers Estate, 50 S.D. 232, 200 N.W. 355; In re Gregg's Estate, 266 Pa. 188, 109 A.L.R. 877, certiorari denied, 40 S.Ct. 396, 252 U.S. 59, 64 L.Ed. 730. (5) A Treaty of Peace between the United States and Rumania was signed at Paris, France, on February 10, 1947. Both countries ratified it. Rumania thereupon ceased to be and is no longer an enemy country nor are its nationals enemy aliens. The order of distribution of the probate court was made May 10, 1947, after the above treaty of peace was in effect. (6) The intention of testator must be followed by the courts. Sec. 568, R.S. 1939; Mezell v. Osman, 354 Mo. 321, 189 S.W.2d 306; English v. Ragsdale, 347 Mo. 431, 147 S.W.2d 653. (7) The Cibu brothers appeared in probate and circuit court by duly licensed and practicing attorney of Missouri. They are court officers and it is not necessary to show their authority to represent or appear for a said alien brother of testator unless the attorneys were duly called on to show their authority by due demand therefor. The presumption is that said attorneys were duly authorized to act for the clients whom they profess to represent until the contrary is shown. 7 C.J.S., p. 874, secs. 72, 73, Attorney and Client; Riley v. O'Kelly, 250 Mo. 647, 157 S.W. 566; Miller v. Assurance Co., 233 Mo. 91, 134 S.W. 1003. (8) The Ralls County Chapter of the American Red Cross, St. Elizabeth Hospital and the Blessed Sacrament Church did not appeal from the order of distribution of the Probate Court and same as to them is final and conclusive. State ex rel. Howe v. Hughes, 343 Mo. 827, 123 S.W.2d 105; State ex rel. Pepper v. Reynolds, 286 Mo. 126, 226 S.W. 550; Harter v. Petty, 226 Mo. 296, 181 S.W. 39. (9) The Federal government only claims the right of possession and administration of these bequests through and because they belong to the said four brothers. The judgments of both the probate and circuit court so hold and rule. Possession is vested in the Alien Property Custodian through the Attorney General of the United States for the purpose of administering it and for the said brothers on final disposition by our government. Clark v. Allen, 330 U.S. 801, 67 S.Ct. 1431, 91 L.Ed. 1633; In re Roeck's Estate, 195 N.Y.S. 505.
Harold I. Baynton, Acting Director, Office of Alien Property, Drake Watson, United States Attorney, James L. Morrisson and Robert B. McKay, Department of Justice Attorneys, for respondent Attorney General of the United States, as Successor to the Alien Property Custodian.
(1) Nonresident aliens have the right to inherit personal property bequeathed to them by a resident of Missouri. Sec. 15228, R.S. 1939; In re Rahn's Estate, 316 Mo. 492, 291 S.W. 120, certiorari denied sub nom. Martin v. Ahrens, 274 U.S. 745; Clark v. Allen, 331 U.S. 503; Henderson v. Calhoun, 183 S.W. 584; Deacon v. St. Louis Union Trust Co., 271 Mo. 669, 197 S.W. 261; Snow v. Ferril, 320 Mo. 543, 8 S.W.2d 1008; Central Union Trust Co. v. Garvan, 254 U.S. 554; Stochr v. Wallace, 255 U.S. 239; Commercial Trust Co. v. Miller, 262 U.S. 51; Cummings v. Deutsche Bank, 300 U.S. 115; Clark v. Uebersee Finanz-Korporation, 332 U.S. 480; The Antoinetta, 49 F. Supp. 148, affirmed 153 F.2d 138, certiorari denied 328 U.S. 863; Trading With the Enemy Act, 40 Stat. 411, as amended, 50 U.S.C. App. secs. 1-39. (2) "Inherit" as used in the will of Estache Cibu must be given its usual meaning. Meiners v. Meiners, 179 Mo. 614, 78 S.W. 795; Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672; Cockrell v. 1st Natl. Bank of Kansas City, 211 S.W.2d 475; Estate of Blak, 65 Cal.App.2d 232, 150 P.2d 567: Deering's California Probate Code, sec. 259; Oregon Civil Code, secs. 61-107; Black, Law Dictionary (3d Ed.), p. 963; Gibson, Aliens and the Law (1940), Appendix B; Konvitz, The Alien and the Asiatic in American Law (1946), pp. 148-170.
This is an appeal from the circuit court of Ralls County, Missouri, from an order of that court approving the final settlement and order of distribution of the estate of Estache Cibu, deceased, made by the probate court of that county.
On March 28, 1945, Estache Cibu died at Hannibal, Missouri. Two days prior to his death he executed his will, which was duly admitted to probate. By his will, the Hannibal National Bank was made executor of his estate. This bank was appointed executor by the probate court. At the time of deceased's death he had on deposit in that bank $9,249.96. It is the contention of appellants that under the third and seventh provisions of the will they are entitled to the fund that was on deposit in that bank. The provisions are:
[681] "Third. All my money in the Hannibal National Bank I give, bequeath and devise to my four brothers share and share alike, or the heirs of their bodies."
"Seventh. In case it is not possible for my brothers to inherit because of living in an enemy country, I give and bequeath this money as follows, to-wit: $100 to the Ralls County Chapter of the Red Cross, $100 to St. Elizabeth's Hospital, Hannibal, Missouri, $100 to the Blessed Sacrament Church, and $100 to Ispos Apostol. All of the balance in said bank to be divided equally among these mentioned in this paragraph."
The alien property custodian of the United States issued vesting order No. 8509 on March 26, 1947, and it was filed in the probate court of Ralls County on April 8, 1947. That vesting order states that he has found:
"1. That Simon (Simion) Cibu, John Cibu, Joseph Cibu, Visalon Cibu and Nicola Andrea, whose last known addresses are Rumania, are residents of Rumania and nationals of a designated enemy country (Rumania);
"2. That all right, title, interest and claim of any kind or character whatsoever of the persons named in sub-paragraph 1 hereof in and to the estate of Estache (Estachie) Cibu, deceased, is properly payable or deliverable to, or claimed by, the aforesaid nationals of a designated enemy country (Rumania);
"3. That such property is in the process of administration by the Hannibal National Bank, as executor, acting under the judicial supervision of the Probate Court of Ralls County, Missouri;
"And is hereby determined:
"4. That to the extent that the persons named in sub-paragraph 1 hereof are not within a designated enemy country, the national interest of the United States requires that such persons be treated as nationals of a designated enemy country (Rumania).
"All determinations and all action required by law, including appropriate consultation and certificate, having been made and taken, and it is being deemed necessary in the national interest.
"THERE IS HEREBY VESTED in the attorney general of the United States the property described above, to be held, used, administered, liquidated, sold or otherwise dealt with in the interest of and for the benefit of the United States."
On April 16, 1947, the Hannibal National Bank, as executor, filed its final settlement which was approved by the probate court on May 10, 1947, and distribution was ordered, including $2,069.27 each to Simon, John, Joseph and Visalon Cibu, who were found to be the brothers of the decedent. In compliance with vesting order No. 8509, the court ordered payment of these bequests to the Office of Alien Property Custodian, Department of Justice of the United States. As previously stated, this order and final settlement was approved by the circuit court on appeal.
At the time of his death, the deceased's brothers referred to in clause three of the will lived in Rumania. At that time they were alien enemies. Under the public policy of this state, they may inherit personal property. In re Rahn's Estate, 316 Mo. 492, 291 S.W. 120. In fact, section 15228 specifically provides that aliens shall be capable of acquiring real estate by devise or descent. Appellants do not contend otherwise but they do contend that since these four brothers are not entitled to immediate possession, then they are entitled to the money on deposit in the Hannibal National Bank, under clause seven of the will.
Appellants contend that the phrase, "in case it is not possible for my brothers to inherit because of living in an enemy country," of clause seven means that the four brothers must be entitled to immediate possession of this deposit to inherit it, and if not it goes to the other parties named in that clause of the will. Appellants say that the law favors vested estates, the present enjoyment thereof, and also the law favors a will that disposes of the entire estate instead of partial intestacy.
[682] Of course, these rules of construction apply if the will is ambiguous. However, the paramount rule in construing a will is that the testator's intent must govern unless contrary to some positive rule of law, and that intention must be ascertained primarily from the four corners of the will. If a will is unambiguous and leaves no room for doubt as to testator's intention, auxiliary rules of construction cannot be resorted to. St. Louis Union Trust Co. v. Kelley, 355 Mo. 924, 199 S.W.2d 344.
We think the word "inherit", as used in the will, must be given its ordinary meaning. It cannot be said that in this will it means immediate possession. The mere fact that the deposit was seized by the alien property custodian does not necessarily mean these four brothers will not receive it. When the will is read as a whole, we think it is plain and unambiguous, and means that if, by law, these brothers cannot inherit the property, then, and only then, the parties in clause seven will be entitled to the deposit in question. We have already shown these brothers can, under the laws of this state, inherit.
Appellants next contend in their brief that "the office of Alien Property Custodian, while reciting in his vesting order that he has `found' certain things, he did not state that he found the persons mentioned in paragraph one of the vesting order to be the four brothers of Estache Cibu, nor did he find that if dead that they had heirs of their bodies surviving them."
Pursuant to a motion by respondents, we ordered an additional transcript of a pre-trial conference, held before the trial judge, sent to this court, which order has been complied with by the clerk of the trial court. In part, it reads:
"BY MR. RENDLEN: We say that the four brothers named by Mr. Watson, in our best judgment and belief, are resident citizens and nationals of Romania during all of the time until now, Mr. Watson, in so far as we are informed and believe, and so far as we can admit that Nicolae V. Candea was a national of Romania during all of the time. Does that answer it?
"BY MR. WATSON: Yes. Now, I understand you, Mr. Davis, to make the same admission?
"BY MR. DAVIS: We make the same admission, not as to the fifth person but as to the four brothers, we do."
There were some statements to the effect that the fifth person named in the order, namely Nicola Andrea, also called in this conference Nicolae Candea, had purchased the interest of the testator's four brothers in his estate.
There can be no doubt that all parties to this litigation admitted before the trial judge at the pre-trial conference that Simon (Simion) Cibu, John Cibu, Joseph Cibu and Visalon Cibu, named in the vesting order, were the four brothers of the testator. We hold that this assignment of error is without merit.
From our examination of the record, we conclude that the trial court properly decided this case. The judgment of that court is, therefore, affirmed. All concur.