119 Mo. App. 349 | Mo. Ct. App. | 1906
Plaintiff was incorporated, under the general laws of the State, November 4, 1889, with a capital stock of one hundred and fifty shares, of the par value of ten dollars per share. Mathew T. Barkley was the owner of one hundred and forty-six shares. James P. Wood, Alexander C. James and Judge Reuben F. Roy, and defendant J. R. S. McCune, each owned one share. The stock was non-dividend paying, and the stockholders named above composed the first board of directors. Barkley was president of the board. On August 16,1890, Barkley made his last will, by which he devised to McCune, as trustee, the one hundred and forty-six shares of his stock in the association, and other personal property aggregating over and above the value of the stock, the sum of $21,747.82 in trust for the association. The devise and its purpose are thus expressed in items 17, 18 and 19 of the last will of Barkley:
“Item 17. I hereby give and bequeath to James R. S. McCune, as trustee in trust and to his successors in this trust forever, for the use and benefit of Barkley Cemetery Association, all of my 146 shares of membership in said Barkley Cemetery Association. Said trustee and his successors shall receive said 146 shares or memberships and shall vote the same at all meetings of the stockholders or boards of directors of said association with the same force and effect as though I were personally present and voting said memberships myself, and in all respects to look after the general welfare of said Association with the same care and diligence that I would do were I living.
“Item 18. I hereby give and bequeath to J. R. S. McCune, as trustee in trust and to his successors in this trust forever for the use and benefit of Barkley Cemetery Association, all of my bank stocks, or shares in the capital stock of any and all banks. Said trustee and his*351 successors shall receive in charge said bank stocks and shall vote said stocks at all meetings of said banks with the same force and effect as though I were personally present and voting the same myself. Said trustee shall also receive any and all dividends on said bank stocks and shall pay the same, that is to say said dividends, forthwith to the treasurer of Barkley Cemetery Association, to be used by said Cemetery Association according to its articles of incorporation thereof.
“Item 19. In order to further provide for the permanent endowment of Barkley Cemetery Association, a charitable and benevolent association, founded principally by me, I give and bequeath to J. R. S. M'cCune as trustee and to him and his successors in trust for the use and benefit of Barkley Cemetery Association forever all the rest, residue and remainder of my estate not hereinbefore specially bequeathed. Said trustee shall receive from my executors said above mentioned residue and remainder of my estate and shall with all diligence invest the same in prime stocks, bonds or real estate security, and he and his successors shall keep' the same invested or re-invested and out of the annual interest, dividends or profits arising from such investments, said trustee shall pay all costs, expenses, fees and commissions allowed by law or order of the court for the management and annual settlement of the trust estate created in the seventeenth, eighteenth and nineteenth items of this my last will, and the remainder of said annual interest, dividends or profits arising from such investments shall be paid over by said trustee each and every year to the treasurer of Barkley Cemetery Association to be by said association used in improving and ornamenting said cemetery. It being expected by me that a reasonable portion of said funds will always be used by said Association in beautifying and adorning Barkley Block in said cemetery.”
As its name indicates, the purpose of the associa
This proceeding is to remove MeCune, as trustee, and appoint some other person in his stead. The grounds assigned for his removal are as follows:
“That at the time of the making of said last will and testament said James B. S. MeCune was a resident of said city of New London, Missouri, and a stockholder in said association, and owned a lot for interment purposes in said cemetery.
“That since the making of said last will and prior to the death of said Mathew T. Barkley, to-wit, on or about the first day of January, 1892, the said James B. S. MeCune moved his place of residence from said city of New London to the city of Bowling Green, Pike county, Missouri, twenty-five miles distant, where he has ever since resided and now resides, and that said trustee has ever since said last-named day ceased to be interested in the welfare of said city of New London, and the community around it or in the welfare of said cemetery, and that ever since said removal of his place of residence said James B. S. MeCune has entertained a feeling of dislike and enmity toward the community of said city of New London, which feeling of dislike and enmity is in great measure reciprocated by said community, and that the owners of lots in said cemetery are opposed to said MeCune remaining as such trustee.
“That by said last will and testament there was also devised to said James B. S. MeCune as trustee one hundred and forty-six shares of the capital stock of said association in trust for the use and benefit of said Bark*353 ley Cemetery Association and to vote the same at all meetings of the stockholders or board of directors of said association.
“That the entire capital stock of said association consists of one hundred and fifty shares of the nominal par value of ten dollars per share, which said stock is non-dividend paying, said corporation being a purely charitable, institution. That said one hundred and forty-six shares of said stock are now held by said McCune as such trustee.
“That the remainder of said capital stock is held as follows: One share by John S. Wood, one share by said James R. S. McCune, and one share by Alexander C. James, and one share by Reuben F. Roy, and that the fact that said trustee resides remote from said city of New London is the source of great inconvenience and annoyance in the management of the affairs of said association.
“That since the beginning of said trust said association has received from said trust fund the sum of about eighty-seven hundred dollars, while the amount of compensation claimed by said trustee up to the date of the filing of his last annual settlement herein, to>-wit, on the -day of October, 1902, is about the sum of thirty-nine hundred dollars, an amount grossly in excess of reasonable compensation to said trustee for his services.
“Your petitioner further states that a suitable trustee resident of said community of New London can be found who will discharge the duties of said trusteeship under good and sufficient bond and without compensation of any kind.”
The answer admits the facts above stated, denies all other allegations of the petition, and denies the authority of the attorneys for plaintiff (Roy and Hayes) to file the petition or prosecute the suit.
1. James P. Wood died after the death of Barkley, and his brother, John g. Wood, became and now is the holder and owner of the one share of stock issued to James P. Wood, and is also a director of the association and secretary and treasurer of the board. Wood testified that the board of directors had not directed this suit to be brought, and that he had never been consulted about it and had never given his consent to the bringing of the suit. He also testified that since the death of Barkley there had been but four stockholders in the association and consequently but four directors (the charter provides for five directors), that McCune, James, Boy and himself constituted the board and they met, as a rule, once a year. James was not called as a witness by either party. On this evidence, the defendant insists that the suit was not authorized by the association, and for this reason should have been dismissed. An attorney at law is an officer of the court and is not required to produce a warrant of attorney to show that he is authorized to bring a particular suit or to appear as an attorney in any case pending in the court. His professional obligations raise the presumption that he has such authority. [Yalle v. Picton, 91 Mo. 207, 8 g. W. 860; Robinson v. Robinson, 32 Mo. App. 88.] Defendant introduced evidence to overcome this presumption. The trial court must have found this issue against him, since the judgment shows on its face that the court disposed of the case on its merits, which it could not have done had it found the suit was not authorized by the plaintiff. We are not disposed, nor do we feel justified, on the slight evidence introduced by the defendant, to make a contrary finding and dismiss the suit.