Appeal, No. 86, March T., 1960, from decree of Orphans' Court of Mercer County, June T., 1958, No. 152, in re trust of Jane St. John Booth, deceased. Decree affirmed.
Harry D. Martin, with him James A. Stranahan, III, Isaac J. Silin, and V. H. Elderkin, Jr., for appellant.
Philip E. Brockway, with him G. Carroll Stribling, of the Missouri Bar, and Brockway & Brockway, for appellee.
Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE COHEN.
This is an appeal from the decree of the orphans' court dividing a fund between the appellant and the estate of the appellant's deceased brother.
In 1937 Jane St. John Booth created an inter vivos trust in which she retained for herself and after her death gave to her daughter, Louise St. John Booth, a life estate in the net income with power to invade the corpus. The settlor further provided that upon the death of the survivor of her daughter Louise or herself the principal of the fund, together with any undistributed
income (after the payment of several specific gifts), should be divided into seven shares,*fn1 one of which was to be paid to "Mary Maud Henninger... and in the event of her prior death then in equal shares to her children...."
The settlor further provided in "Article III" of the trust agreement as follows: "The Donor reserves the further right, and from and after the death of JANE ST. JOHN BOOTH the same right and privilege is extended to LOUISE ST. JOHN BOOTH, to be exercised exclusively by her, to modify, change, add to and eliminate any of the provisions of item (d) of Article I hereof, either as to the named beneficiaries by way of elimination or by the addition of other beneficiaries thereto or by increasing or decreasing the amounts to be paid to them at the time fixed for distribution; it being the intent and purpose of the Donor that none of the named beneficiaries shall be presumed to have any interest in the fund held hereunder, either vested or contingent or otherwise prior to the death of the survivor of JANE ST. JOHN BOOTH and LOUISE ST. JOHN BOOTH. In the exercise of this reservation, any modification or change of the schedule of payments as provided by item (d) of Article I hereof shall be directed in writing in the form of an Amendment to the Declaration of Trust signed by the Donor during her lifetime and thereafter by LOUISE ST. JOHN BOOTH which, when filed with the Trustee, shall be incorporated as a part of the said indenture." (Emphasis supplied).
Jane St. John Booth died November 9, 1946, without having amended the indenture of trust. Louise, however, on July 26, ...