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05/12/95 ESTATE ARTHUR E. BECK v. DOROTHY L. ROETHE

May 12, 1995

IN RE ESTATE OF ARTHUR E. BECK, DECEASED (LUTHERAN FAMILY & CHILDREN'S SERVICES OF MISSOURI, PETITIONER-APPELLANT,
v.
DOROTHY L. ROETHE, EXECUTRIX OF THE ESTATE OF ARTHUR E. BECK, DECEASED, RESPONDENT-APPELLEE).



Appeal from the Circuit Court of Perry County. No. 89-P-50. Honorable Robert N. Gandy, Judge, presiding.

As Corrected May 22, 1995.

The Honorable Justice Goldenhersh delivered the opinion of the court: Rarick and Welch, JJ., concur.

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Petitioner, Lutheran Family and Children's Services of Missouri, appeals from an order of the circuit court of Perry County which determined that petitioner was not a successor to the Lutheran Orphan Home, the named legatee, and therefore had no right to one-fourth of the residuary estate of decedent, Arthur E. Beck. Petitioner contends that: (1) the trial court improperly construed article 7 of the will when it determined that the bequest of one-fourth of the decedent's residuary estate to the Lutheran Orphan Home lapsed; and (2) the trial court erred when it denied petitioner's motion for attorney fees. We affirm.

I.

Arthur E. Beck died testate on September 8, 1989. His will, executed on April 29, 1982, and the codicil, executed July 1989, were admitted to probate in the circuit court of Perry County on September 19, 1989. Dorothy L. Roethe, decedent's niece, was appointed executrix of his estate. Roethe is also respondent herein. On June 10, 1992, a partial distribution of the residual estate was made to three of the residuary legatees. No payment was made to Lutheran Orphan Home because the executrix had determined that a latent ambiguity existed with respect to the orphan home. The executrix concluded that because no entity named Lutheran Orphan Home, Paris, Missouri, ever existed, the bequest to that legatee lapsed.

The clause relevant to the controversy here is article 7 of decedent's will. It directs payment of the residue of the estate to four Lutheran organizations which include: Southern Illinois District Church Extension Fund, Trinity Lutheran Church at Conant, Lutheran Laymen's League, and Lutheran Orphan Home, Paris, Missouri. Each legatee is to receive one-fourth of the residuary estate. The testator provided that should any of the named legatees merge with or be succeeded by another organization, "then the share above bequeathed to such legatee shall go to the organization resulting from such merger or succession." Further, should a bequest to any legatee named in article 7 lapse, the testator provided for an alternative distribution scheme. Additionally, article 7 provides that the executor is to determine whether any legatee named in article 7 has merged, been succeeded, or ceased to exist. The executor's determination would be binding on all legatees.

On December 14, 1993, respondent filed a petition for leave to make distribution. Petitioner filed an answer and objection to respondent's petition. The trial court held a hearing on petitioner's objections in January 1994.

At the hearing, Lloyd Middleton, decedent's attorney, testified that he drafted all of decedent's wills, which include the will at issue here and three previous wills dated July 19, 1966, December 19, 1975, and April 9, 1979. Each of the wills included a residuary clause which disposed of the residue between four Lutheran organizations. The Lutheran Orphan Home, Paris, Missouri, first appeared in the second (1975) will. This will contained similar language regarding contingencies if a legatee had merged with or been succeeded by another organization. Middleton testified that, in preparing the first (1965) will, he wrote to each of the four proposed residuary beneficiaries to verify their status and to ensure that each was correctly named in the will. However, in the second (1975) will in which Lutheran Orphan Home, Paris, Missouri, was named as a residuary beneficiary, Middleton did not verify its status and name. Middleton stated that he did not verify the orphanage's status because the testator and his wife were both present at the conference on that will and Mrs. Beck provided written information to Middleton which sufficiently verified that the orphanage was correctly described by the phrase used in the will - Lutheran Orphan Home, Paris, Missouri. Middleton recalled that the documents were printed and that "some of them were possibly in the nature of solicitations." According to Middleton, neither the testator nor his wife ever discussed an orphanage in Des Peres, Missouri. Furthermore, Middleton testified that the phrase "Lutheran Orphan Home, Paris, Missouri," definitively expressed the testator's intention.

Regarding the history of the orphanage, the Lutheran Orphan Home, Des Peres, Missouri, was erected in 1868 and was operated by the Society of the German Lutheran Hospital and Asylum (the Society). Sometime in 1914, the Society changed its name to Lutheran Charities Association of St. Louis, Missouri. The Lutheran Orphan's Home was operated by the Society for Homeless Children under the umbrella of the Lutheran Charities Association. Specifically, the Lutheran Charities Association operated the orphanage as a separate branch and with a separate board. On June 24, 1964, a deed was executed by Lutheran Charities Association conveying the property on which the Lutheran Orphan Home was located to Lutheran Children's Services, which subsequently became known as Lutheran Family and Children's Services. During 1967, the Lutheran Orphan Home closed. Thus, in 1982 when the final will was executed, the Lutheran Orphan Home had ceased operations. To date, petitioner has not operated an orphanage in Missouri. The record further reveals that an entity named Lutheran Orphan Home, Paris, Missouri, never existed. The orphanage at Des Peres was the only orphanage ever operated under the auspices of the Lutheran Charities Association in the State of Missouri.

On March 11, 1994, the trial court entered its order finding that the residuary bequest to the Lutheran Orphan Home had lapsed, and the court denied petitioner's motion for attorney fees. Petitioner appeals.

II

The first issue presented for our review is whether the trial court erred in determining that the bequest of one-fourth of the decedent's residuary estate to the Lutheran Orphan Home lapsed. We agree with the trial court's ...


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