96 Mo. 459 | Mo. | 1888
The petition in this case, omitting formal parts, is as follows: ‘ ‘ That on the eighth day of April, 1881, in a case numbered 55,867, in the circuit court of the city of St. Louis, in the state of Missouri, being a case of it, the Bank of Commerce, as plaintiff, against B. M. Chambers and Margaret F. Smith, defendants, it recovered judgment against Chambers and Smith, for the sum of five .thousand one hundred and thirty-four dollars and thirty-five cents ($5,134.35), and costs, which judgment was therein ordered to bear interest at the rate of ten (10) per cent, per annum from its date ; that thereafter, to-wit, on the eighteenth day of May, 1881, the plaintiff caused an execution to issue on said judgment, which execution was numbered 150, returnable to June term, 1881'; that said execution was directed and delivered to the sheriff of the city of St. Louis, and was by him duly returned on the sixth day of June, 1881, nulla bona; that thereafter, to-wit, on the nineteenth day of October, 1882, in another case, 56,939, in the circuit court of the city of St. Louis, state of Missouri, being the case of it, the Bank of Commerce, as plaintiff, against B. Maziere Chambers and R. Graham Frost, as defendants, it recovered a judgment against B. Maziere Chambers, who is a defendant in the present suit, and R. Graham Frost, for the sum of five thousand five hundred and fourteen dollars and thirty-seven cents ($5,514.37), and costs, which judgment was therein ordered to bear interest at the rate of ten (10) per cent, per annum from date; that thereafter, on the second day of January, 1884, the plaintiff caused an execution to issue on said judgment, which execution was number 135, returnable to February term, 1884; that said judgment was directed and delivered to the sheriff of the city of St. Louis, and by
“And plaintiff says that Mrs. Marie C. Chambers, the wife of defendant B. Maziere Chambers, died on the ninth day of December, 1883, in the county of St. Louis, state of Missouri; that she made a will which was duly probated in the probate court of St. Louis county, on the twentieth day of December, 1883 ; and a certified copy thereof was filed in the office of the recorder of deeds, of the city of St. Louis, state of Missouri, in book 723, page 81, on the twenty-fourth day of December, 1883; that among other provisions immaterial to this case, the said testatrix gave the income of property worth half a million dollars ($500,000), which income is now twenty thousand dollars per annum ($20,000), to the defendant Walsh, in trust for the defendant Chambers, during his natural life.”
The language of the will on this point is as follows :
“ Seventh. All of the rest and residue of my estate, real, personal and mixed, whereof I shall die seized, entitled or possessed, I give, bequeath and devise to my brother Julius S. Walsh, in trust, that he manage, hold and dispose of the same during the natural life of my husband; that quarterly he pay the net rents, issues and profits arising therefrom into the proper hands of mj husband alone, or such person or persons as he, my husband, by any order in writing may for that purpose appoint, and after the death of my husband, to convey to such person or persons, for such estates and in such portions, as would by the laws of Missouri, then in force, be declared to be my rightful heirs had I survived him ; provided, that such heirs be descendants of mine, they or the survivor of them shall have only a contingent
“And plaintiff further says that the defendant Chambers had an estate by the curtesy in the real estate of his deceased wife, from which, if he had retained it, he would have had an income of at least fifteen thous- and dollars ($15,000) per annum, which said income would have been subject to seizure and sale upon execution by plaintiff, to satisfy its judgment hereinbefore set forth.
“Plaintiff further states that, for the purpose of hindering, delaying and d efrauding plaintiff, and for the purpose of securing to his own use an estate which he said Chambers believed to be secure from attack and seizure by plaintiff herein, he did, heretofore, to-wit, on the thirtieth day of December, 1883, by deed, duly recorded in the office of the recorder of deeds of the city of St. Louis, state of Missouri, and in book number 714, page 525 thereof, convey his said estate by the curtesy, as required by the will of his wife, to the defendant Julius S. Walsh, in consideration of the provision in his favor in the said will of his wife. And plaintiff further says that the defendant Walsh has accepted the position of trustee for defendant Chambers, under the will of the latter’s wife, and by reason of the conveyance of the estate by the curtesy to him by defendant Chambers, he said Walsh pays over to said Chambers, quarterly, as such trustee, the income of the trust estate, to the amount of five thousand dollars ($5,000) per quarter.
“ And plaintiff further says that the deceased testatrix did not leave, and never had, any equitable separate estate; that she inherited the property she left from
‘ ‘ Wherefore plaintiff prays that defendant Chambers be enjoined from receiving, and defendant Walsh be enjoined from paying him, any of the income provided for in the will of Mrs. Marie C. Chambers, until the plaintiff’s judgments are satisfied ; and that defendant Walsh be ordered to pay plaintiff, in part satisfaction of them, each quarter of a year, the income of the estate of which he is trustee for defendant Chambers, until they, said judgments, are fully satisfied-; and that such further relief be granted plaintiff as to the court may seem proper.”
A demurrer was successfully interposed on the grounds that the petition did not state facts sufficient to constitute a cause of action, and did not state facts sufficient to entitle plaintiff to equitable relief. The plaintiff declining to plead further, final judgment was entered_djsmissing his petition, hence this appeal.
I. /The object of this proceeding, as is apparent from the petition, is to sequester the income of an estate held by Julius S. Walsh as trustee for the defendant Chambers, under and by virtue of a trust created in his favor by the will of his late wife, and to apply such income to the payment of two judgments, each for about five thousand dollars, recovered by plaintiff against the defendant Chambers and others.1
III. But there are some circumstances connected with this particular trust deserving of consideration, as to whether they do not take it out of the operation of the rule announced in the case just cited, that trusts may be created in favor of a person which will be inalienable by him, and out of the reach of his creditors, though there be no limitation .over, or cesser, and no discretionary power of payment lodged in the trustees, if such trust be created by the gratuitous act of a third person, with a view to the support and maintenance of the beneficiary during life. That decision and the class to which it belongs rest in a large part upon the distinct ground that a creditor is not defrauded, and therefore has no cause of complaint because the owner of property, in the free exercise of his will, so disposes of it that the object of his bounty, who parts with nothing in return, has a sufficient income provided for and applied to his life support.
In the case at bar the beneficiary did part with something in return. But for his compliance with the express condition in the will, by the surrender of his curtesy in his wife’s estate by deed, as the petition recites, duly recorded, the income provided for his use would never have become his. This stands confessed by the demurrer. He therefore occupies the attitude of a purchaser of that income, as much so as does a wife who receives a conveyance of land in consideration of the relinquishment of her dower in other property of her husband. Woodson v. Pool, 19 Mo. 344; Novelty Mfg. Co. v. Pratt, 21 Mo. App. 171; Bispham’s Prin. Eq. 157; 2 Perry on Trusts [3 Ed. J sec. 635; Garbut v. Bowling, 81 Mo. 214. The two cases are absolutely parallel. Regarding, then, the defendant in the light of a purchaser of the income bestowed upon him by the will of
IV. Something has been said about the" plaintiff having a remedy at law by proceeding to sell the curtesy estate. It is true he might have done this, taken a sheriff’s deed, brought an action of ejectment, and on the trial have shown the fraud, and thus have succeeded, but in the end the deed made by defendant Chambers to defendant Walsh would still have remained a cloud upon the title, requiring a decree in equity to have it removed. This would give equity jurisdiction in the first instance in order to avoid a multiplicity of suits, and afford full and complete relief in a single proceeding. Harrington v. Utterback, 57 Mo. 519.
V. Besides, the petition discloses a case of fraud and of trust, both of which are ancient grounds of equitable jurisdiction. And when such jurisdiction is original and ancient, it is not ousted by the mere fact that a court of law can afford an apparently adequate relief. Pratt v. Clark, 57 Mo. 189; Stewart v. Caldwell, 54 Mo. 536.
VI. Moreover, plaintiff had a right to go into a court of equity to have it construe the clause and have it enforce the trust created by the will and the facts alleged in the petition, and the prayer for general relief authorized such action by the court.
VII. Finally, the plaintiff had its election to resort either to the fund it did, in order to compel payment of its judgment, or it might have resorted to the property alleged to have been fraudulently exchanged for that fund.
Therefore, judgment reversed and cause remanded, with directions to enter a decree for plaintiff, should the facts turn out as admitted by the demurrer.