89 Mo. 411 | Mo. | 1886
On April 18, 1843, the defendant, Charles Bobb, conveyed to Miss Hannah Letcher nine parcels of land in the city of St. Louis. This deed is in the usual form and expresses no trust. On the twenty-third of January, 1845, Hannah Letcher conveyed the same property, except three parcels which had been sold to Charles Bobb, in trust for the sole use and benefit of Mary H. Bobb, wife of said Charles and their children, Charles L., John H., and Lucy G-. Mary H. Bobb died in 1853. There had been born to her and Charles Bobb) since the
1. Of the many reasons assigned to set aside the final and interlocutory decrees, some of them relate to rulings on the pleadings previous to the second amended petition. Those prior pleadings are to be regarded as .abandoned. None of these complaints go to this amended petition or the defendant’s pleadings filed subsequently thereto, and hence, the rulings complained of need not be considered.
2. The trustee now claims that he should have had a credit of ten thousand dollars, because that amount is recited as the consideration in the deed from him to Hannah Letcher. The conceded fact is that no consideration was ever agreed to be paid. Besides this he does not appear to have made any such a claim in the tried court, and it cannot be made here for the first time, even if t had any shów of right.
3. Two other objections are to the effect, that’ the deed of 1843, to Hannah Letcher, was without consideration, and, therefore, left the estate in defendant divestel
Besides this, Charles Bobb joined in the deed of 1845. He does not deny the express trust created by that deed; on the contrary, by his answer he asserts, and in the most solemn form affirms, the trust. Indeed, he asks that the trust deed may be reformed so as to place the two after born, children upon a footing equal with those named therein, whereas, now they only inherit shares in their mother’s interest.
But the trustee does contend that the plaintiff’s case made by the bill is made to stand on the deed of 1843, while the decree, he insists, is made to rest on the trust deed. As to the deed of 1843 the petition does allege, that while it was made without any trust being expressed, yet it was fully understood between Miss Letcher and Mr. and Mrs. Bobb, that she was to hold the legal title for Mrs. Bobb and her children then living. But the petition goes on and sets out the deed of trust, the decree correcting the same, and the interests of the parties thereunder, the sale of property and collection of rents thereafter.
4. Miss Hannah Letcher, now Mrs. Stevenson, was-an intimate and trusted friend of Mr. and Mrs. Bobb, . staying sometimes at their house, and it was for this reason she was requested to, and did take the deed. She executed the deed of trust before her marriage She says that Charles Bobb requested her to take the deed of 1843, for the benefit of his wife and children, Charles-L., John II., and William II.; that Mrs. Bobb was opposed to mailing the deed, saying that she thought the property was safer with her husband, and they might have more family, when Charles said he would attend to that. Mrs. Stevenson says when the deed of trust was made, William was dead, and Lucy had been born, and she understood Lucy was to take the-place of William. The whole tenor of her testimony is opposed to the theory of any mistake. Chaiies Bobb testified that he made the deed of 1843 to satisfy the fears of his wife; that he had been compelled to take an interest in a boat, and was about to go on the river, and she was afraid he would become embarrassed; that when Hannah Letcher was about to get married, he-talked the matter over with his wife, and they concluded to take the property back, and that the understanding was, she would convey it to him in trust for his wife and their children, born and to be born. This effort to-correct the deed of trust is made for the first time some twenty-four years after it was made. Besides this, the petition of Charles Bobb, to have the deed corrected, in the matter before mentioned, and which was sworn to by him, sets out the interests of the parties, including those of George and Cora, precisely as if there had been no mistake in the respect under consideration. During all this time he had administered the trust on
5. The farther objection to the decree is that the trustee was charged with six per cent, interest on balances in his hands compounded annually. Whether a trustee should be charged with any interest upon moneys in his hands, and if he is, then at what rate, must depend much upon the particular facts of each case. As to surviving partners and administrators where there has been no delay in collecting and paying out the funds, they are not to be charged with any interest. Gregory v. Menefee, 83 Mo. 413. But in this state it has been held where the administrator used the moneys not for the interests of the estate, but for his own purposes, he might be charged with the highest rate of.interest. In re Davis, 62 Mo. 454. And on moneys in his hands, and not reported but used by himself he should be charged with tenper cent, interest •compounded annually. Williams, Adm'r, v. Petticrew, 62 Mo. 472. Again where there was unreasonable delay in making settlements ten per cent, with three rests in fifteen years was approved. Scott v. Crews, 72 Mo. 268. The doctrine that compound interest may be,exacted by way of a punishment for breach of trust, has recently been repudiated by this court. Cruce v. Cruce, 81 Mo. 684.
In Perry on Trusts, section 471, it is said: “If he (the trustee) has so mingled the money and the profits with his own money and profits that he cannot separate and account for the profits that belonged to the cestui que trust, the cestui queHrust may have legal interest computed with annual rests, in order to compound it.” Again, “The burden is on the trustee to show that
On the other hand the same referee reports that the attention given by the trustee to this property did not seriously interfere with his other business; that he carried on his private business in connection with the trust and the accounts of the trust were largely commingled with his own. He was engaged in trade, in warehousing, in lending money, in improving other property, and for a time in mining. It would seem no accounts of the' trust funds were kept for a large portion of the time,, and no accurate accounts were produced. It is true the interlocutory decree did direct the referees to compound interest on balances annually at ten and at six per cent, per annum, so that in reality they never passed upon the rate of interest to be charged or when or how often compounded. The final decree, however, finds that these balances were used by the trustee from time to time for-his own profit by loaning the same at a high rate of interest and by otherwise employing the same for his individual benefit without accounting for the profits so-realized, and it then proceeds to adjudge him accountable for interest on the balances at six per cent., compounded with- annual rests.
The judgment of the court of appeals is affirmed.