Boone County National Bank v. Edson

Margaret Tello’s will established a trust in favor of her daughter, Lois Tello. The will provided that the trust terminated upon Lois’s death and that any remaining trust assets should be distributed to Lois’s surviving children. The will provided further that if Lois died without surviving children, the assets should be distributed among Margaret’s sisters, Jessie Moore and Dorothy Edson. The last two sentences of paragraph III-G in the will stated, “In the event that my sister, Jessie P. Moore, predeceases me, I desire that her share go to my other sister, Dorothy Edson. In the event that the said Dorothy Edson predeceases me, I give, devise and bequeath her share” to Kathie Kalmowitz, Judith Edson, and Carol Thompson (defendants). In 1971, Margaret died. In 1972, Jessie died without any children. In 1984, Dorothy died with one surviving child, Merrill Edson. Dorothy’s other son, Frederick Edson, Sr., who had died in 1984, left four children, Kathie Kalmowitz, Judith Edson, Carol Thompson, and Frederick Edson, Jr. In 1986, Lois died without any children. The trustee, Boone County National Bank (plaintiff) filed a petition to construe Margaret’s will. Based on a deposition of the lawyer who drafted the will, Kathie Kalmowitz, Judith Edson, and Carol Thompson claimed that the will contained a mistake and that the last two sentences of paragraph III-G should have used the word “her” or “Lois” instead of “me.” If that were the case, Kathie Kalmowitz, Judith Edson, and Carol Thompson would be entitled to share in the corpus. Otherwise, Merrill would be entitled to share under intestacy laws because the will did not provide for any further distribution of the trust assets if Margaret’s sisters predeceased Lois. The trial court ruled that the lawyer’s deposition was inadmissible and ruled in Merrill’s favor. Kathie Kalmowitz, Judith Edson, and Carol Thompson appealed.