119 Mo. 572 | Mo. | 1894
A sufficient outline of the caséis given in the preliminary statement.
1. The first assignment Of error disputes the correctness of the ruling of the trial court touching the standing of the plaintiff as trustee under the will of Dr. George R. Jacobs.
By that will another person was originally named as trustee, but plaintiff was substituted in his stead by the action of the circuit court upon a proceeding for that purpose. That action defendants attack on the ground that Mr. Price, who was named as trustee in the will, was not a party to the proceeding.
By the statute of Missouri (R. S. 1889, sec. 6561) adopting the great body of the common law as part of our jurisprudence (so far as it is not repugnant to our local positive law), our courts are invested with certain general powers, sometimes called inherent, in respect of
Among them is the power to appoint a trustee when a trust has been created by will, as in the case at bar, and for any cause there is need of a person to perform it. For it is a rule of chancery jurisprudence, which has passed into a maxim, that a trust will never be allowed to fail for want of a trustee.
There is a statute providing for the summary appointment of trustees in certain states of fact (R. S. 1889, secs. 8683, 8684); but those sections do not by their terms purport to apply to trusts under wills.
Moreover, it is settled law in this state that a statutory jurisdiction, or remedy, does not extinguish an ancient jurisdiction of the courts of equity over the same subject, where there is nothing in the statute to indicate such a legislative purpose.
The circuit court therefore had jurisdiction, in case of a vacancy, to supply a trustee to assume the trust defined by the will of Dr. Jacobs in his devise for the benefit of his soh and grandchildren.
But was there a vacancy? The petition of the beneficiaries alleged that there was; charging that Mr. Price had refused and declined to accept the trust. ■ The court, acting on their allegations, necessarily must have found them to be true, by its order appointing plaintiff as trustee.
If there was a vacancy on account of Mr. Price’s . refusal to accept the trust (as stated in the petition), the title to the trust estate never vested in him. In that event he was not a necessary party to the proceeding for the appointment of the trustee to fill the place he had declined.
“If a bill should contain, allegations, which show that persons, who otherwise would ordinarily be
Our code sheds no light on this point, leaving the question, who are “necessary” parties, open for construction. R. S. 1889, sec. 1993.
Acceptance of a trust'is necessary to the vesting of title in the trustee. It may often be implied or established by inference. But there is absolutely nothing before the court in the present case' on which to base an inference that Mr. Price ever accepted the trust in question.
Disclaimer may be established by acts, or by non-action, long continued (Trask v. Donoghue (1826), 1 Aikens, 370; In matter of Robinson (1867), 37 N. Y. 261); and, when found by a competent court, dispenses with the necessity of making the disclaiming trustee a party to the proceeding to supply one.
Should a new trustee be appointed upon a false suggestion to the court, the original trustee, or any other interested person, injuriously affected thereby, might, undoubtedly, proceed (by direct methods) to set the court right. But a regular appointment, at the instance of beneficiaries, certainly can not be successfully attacked collaterally by one standing in the attitude of the present defendant, Mr. Carter. He claims no title derived through Mr. Price. His only right in the estate is as the purchaser of such interest as John T. Jacobs enjoyed as beneficiary. The latter was one of the petitioners for the appointment of a trustee.
Ve coincide, for the above reasons, in the opinion of the learned trial judge, that Mr. Price was not a necessary party to the proceeding in which plaintiff
2. But it is then insisted* that the proceeding is fatally defective, because the minors therein were not represented by any guardian, curator or next friend, as required by law.
There are at least two answers to that proposition■
First. The father of these minors was their natural guardian. R. S. 1889, sec. 5279. He was joined with them as plaintiff, and was authorized (in the absence of any showing that they had a curator) to represent them in all legal proceedings. R. 8.1889, sees. 1997, 5298. The- fact of this relationship appeared on the face of the petition for the appointment, and so there was a substantial compliance with the requirements of law.
Second. Our statute of amendments declares that a judgment shall not be stayed or reversed (and for stronger reason can it not be avoided collaterally) on the ground that any party under twenty-one years of age appeared by attorney, if the verdict or judgment be for him. R. S. 1889, sec. 2113; Robinson v. Hood [1878], 67 Mo. 660.
Having thus considered all the objections to the validity of the appointment of plaintiff as trustee, we conclude that the trial judge was entirely correct in holding that appointment good against the collateral attack that has been made upon it.
3. - The instruction for plaintiff as to the extent of the recovery is next challenged, because it is supposed to warrant a verdict for the full rental value of the premises, whereas it is said, that defendant, Mr. Carter, was at least entitled to one-fourth thereof as successor to the rights of John T. Jacobs under the will of his father.
The instruction reads as follows:
“The court instructs the jury that, if they find for*584 the plaintiff, the measure of damages should be the rental value of the land from the seventh day of March, 1888, to the present time, not to exceed $2,000, and the jury should find for the monthly rents, not exceeding $100 per month.”
It may be that this language is susceptible of the construction defendants seek to put upon it. But, on the other hand, the result leaves it very plain that the jury were not misled by it, in the particular complained of, as will appear.
Along with it was another declaration by the court, given at defendants7 instance, to this purport, viz.:
“The court instructs the jury that, under the pleadings and the evidence in the case, defendant is entitled to the possession of an undivided one-fourth of the land in question, whether the deed from Dr. Jacobs to John T. Jacobs was delivered or not, and the verdict, in no event, could be for plaintiff for more than three-fourths of the land.77 And the verdict of the jury is in these words:
“We, the jury, find for the plaintiff as to the three-fourths of land described in the petition, and we assess the damages of plaintiff at the sum of $1,200, and we further find the value of the monthly rents and profits of'said three-fourths of said land to be $33 1-3.77
The evidence as to rents and profits is not preserved for review. The bill of exceptions states that the plaintiff gave evidence tending to prove the issues on his part, and the defendants, on ’their part. We must hence presume the verdict supported by sufficient testimony. Johnson v. Long (1880), 72 Mo. 210.
But, beyond that presumption, the verdict plainly indicates, on its face, that the jury found for plaintiff only for a three-fourths interest in the property, and thus intended to, and did, give defendants the full benefit of the rule of recovery stated in their own
The verdict and judgment certainly conceded to defendants all they can justly claim on that point.
This court 'is not authorized to reverse a judgment on account of any error of the trial court which, in the result, was not prejudicial to the substantial rights of the adverse party on the merits. E. S.- 1889, secs. 2100, 2303.
The assignments of error are not' sustained.
The judgment should be, and is, affirmed.
