7 Mo. App. 501 | Mo. Ct. App. | 1879
delivered the opinion of the court.
In April, 1843, defendant Charles Bobb, who is the father of all the other parties beneficially interested in this cause, conveyed to Miss Hannah Letcher, now Mrs. John D. Stevenson, for the expressed consideration of $10,000, a considerable quantity of real estate situate in the city of St. Louis. It does not satisfactorily appear that any consideration was really paid. Miss Letcher was a relative, and an inmate of Charles Bobb’s household, enjoying his entire confidence. It appears to have been his wish to place this property in her hands in order to secure it against possible vicissitude in his own affairs, and so that it might be ultimately enjoyed by his wife and children. At that time his children were three, — Charles L., John H., and William H., all infants of tender years. Afterwards, and prior to January, 1845, William H. died, and a daughter, Lucy G., now the defendant Lucy G. Taylor, was boru. In January, 1845, Miss Letcher, being about to marry, executed and delivered a deed conveying all of the property remaining in her hands to Charles Bobb, as .trustee, for the sole use and benefit of Mary H. Bobb, his wife, and John H., Charles L., and Lucy G. Bobb, his children, with power to sell or dispose of the same as the beneficiaries might direct. Miss Letcher had previously sold some parcels of the real estate, and held notes of the purchasers, secured by deeds of trust. These notes went into the possession of Charles Bobb, who collected the proceeds. There were certain other notes, known as the Kelly and Sellick notes, which, with the deed of trust securing their payment, were in December,
The present suit was commenced in 1859. Its general objects are, to restrain the defendant Charles Bobb from further acting as trustee, or in any manner disposing of or interfering with the property ; to compel an accounting for his receipts and disbursements as trustee and to divest the entire legal title out of the trustee and cause it to be vested in the cestuis que trust. After a lengthy trial upon preliminary issues, and two successive references, the whole occupying a period of more than eight years, the Circuit Court decreed substantially according to the prayer of the second amended petition.
The first question to be here considered arises upon the prayer of defendants, Charles Bobb, George L. Bobb and his sister Cora S. Taylor, for a reformation of the deed of January, 1845, from Hannah Letcher to Charles Bobb, trustee. It is claimed that the real intention of the parties was to establish a trust for the benefit of Mary H. Bobb, wife of Charles Bobb, and of all their children then in being or thereafter to be born, but that the scrivener, by mistake and without authority, inserted the names of the then living children only. As the deed now stands, John H. Bobb, Lucy G. Taylor, and the representatives of Charles L. Bobb, who have died since the institution of the suit, are each entitled to six-twentieths of the estate, while George and Cora, who were born after the execution of the deed, can claim only one-twentieth part each, as heirs of their mother, Mary H. Bobb, who died in 1853. A reformation of the deed as proposed would give to the defendants George and Cora shares equal with those of the other beneficiaries.
As to what was intended at the execution-of the deed, there is a direct conflict in the testimony given by the parties themselves. Charles Bobb, the grantee, swears
In the year 1854, Charles Bobb was actively managing the trust property. He was, or should have been, familiar with his duties as trustee. The creation of the trust, and the incidents of its contrivance, were then comparatively fresh in his recollection. If he cared about keeping correct accounts and properly preserving the rights of his cestuis que trust, their several and respective shares and titles, as originally established, must have been at least occasional subjects of contemplation. In that year a suit was instituted by Charles Bobb, as trustee and guardian, together with his children, John H., Charles L., Lucy G., Cora S., and George L. Bobb, against John D. Stevenson and wife, to procure a reformation of the deed of January, 1845, so
Defendants claim that there was error in the court’s refusal to allow Charles Bobb to answer certain questions touching his intentions in the execution of the deed to Hannah Letcher, and in the taking of the deed from her. Such intentions would not be admissible unless they were shown to have been understood and shared in by the other party. It is not pretended that there was proof of these facts. But whether this were so or not, no injury could result to defendants from the exclusion complained of. The same witness testified so fully “that his intention was that all his children, born and to be born, should share equally under the conveyance,” that defendants’ counsel take strong grounds upon this testimony as conclusive proof of the facts stated.
It is urged that ‘ ‘ courts of equity are ever eager to secure equality amongst children, and to preserve the younger from the greed or rapacity of their elder brethren.” The case of Phillips v. Phillips, 50 Mo. 608, is cited as an example. The assumed parallel with the present case fails in essential particulars. A father, having three children, conveyed the bulk of his lands to his eldest son, in consideration of love and affection. When asked why he did not make a deed to each child, he answered that his son would “ never defraud his brother and sister.” This was contemporaneous with the execution of the conveyance. After the father’s death, the son sought to have the title confirmed in him, alleging the loss of the deed. The Supreme Court held that he would be entitled to the relief only upon condition that he would secure to the brother and sister, or their heirs, their proper shares in the property. Here the court undei’took to effectuate the manifest intention of the father when he made the conveyance; The son took the deed with a full understanding of that intention. But in the case before us the testimony fails to
Counsel for defendants comment with severity on the spectacle of a son pursuing his impoverished father for the last dollar that the strong arm of the law may wring out of a provision whose early source was in the parent’s bounty and affection for his children. If this be really a just view of the subject, and if it be revolting to the common sentiment of humanity, such considerations can yet have no influence wijth a properly constituted court, where the law of the case is plain. Mere sentiment is not law. The defendant Charles Bobb, while owner of the property, made an irrevocable disposition of it, as he had a perfect right to do. The possible legal consequences were all before him, and his judgment was his own. In the exercise of this no court could have dictated his course, and the usurpation of authority would be no less flagrant if, in defiance of vested rights, one should now undertake to correct or modify what he at last discovers to have been an unwise conclusion. These views apply equally to the alleged hardship upon the younger children. If no moral influence suffices to restrain the plaiutiff’s hand from the entire fruits of his father’s supposed improvidence, we know of no statute or common-law rule which may compel him to a fraternal sharing with the losers.
It is contended for defendant, that as no consideration was in fact paid for the conveyance from Charles Bobb to
Objection is made that the trustee was improperly held accountable for certain notes, the beneficiaries’ title to which was shown by recorded conveyances, without proof of actual delivery to the cestuis que trust. The requirement of manual delivery in order to a transfer of personalty is always subject to such modifications as may be exacted by the situation of the property or of the parties. The beneficiaries were infants, and Charles Bobb was their natural guardian. There could be no good reason for placing the notes in the hands of the infants. The delivery by Hannah Letcher to their guardian and trustee was a delivery to them. As to the notes transferred by Charles Bobb to his children, his possession of them as self-appointed trustee and guardian was the only practical assertion possible of the wards’ beneficial dominion over the property.
Some other questions are raised upon the record, but the most of them are subordinate to those already disposed of, whose solution practically determines the former also. The remainder depend chiefly on the facts proved before the referee. The testimony, which is said to cover more than five thousand pages, is not preserved in this record, and every presumption must therefore be in favor of the finding of the referee and the Circuit Court’s affirmance thereof. To this class belongs the question upon the computation of interest with annual rests. To justify such a computation, there must have been not merely a neglect to account,