269 Mo. 298 | Mo. | 1916
This suit was instituted in the St. Louis City Circuit Court on the 13th day of June, 1908, by a petition in equity filed by George A. Cornet and Tillie Cornet, his wife, against. Henry L. Cornet as trustee under the last will of Francis Cornet, deceased, and in his individual capacity. The relief asked was that the court decree that plaintiff George A. Cornet was entitled to appoint and dispose of the estate devised and bequeathed to him in said will by his father, the testator therein; that, a certain deed executed by the said George A. Cornet to the defendant, his brother, dated January 14, 1892, be cancelled and declared void for fraud; that the defendant be removed as trustee under said will; that an accounting be taken of the trust estate, and that the defendant pay over to the said George A. Cornet what shall appear to be due to him upon such accounting.
The answer put in issue the fraud charged in the petition and averred that the instrument of January
The cause having been put at issue by replication, was tried and the bill dismissed upon the merits. An appeal was taken by the plaintiffs to this court, where, upon hearing, the judgment dismissing the bill was reversed and the cause remanded to the St. Louis Circuit Court with directions that the said deed of January 14, 1892, be set aside; that the defendant be removed as trustee; that a successor be appointed to administer the trust according to the provisions of the will and that an accounting be had as prayed.
The opinion of this court, with its directions, setting forth the issues and findings in detail is published in the 248th Missouri Report at pages 184 to 243 inclusive. This renders it not only unnecessary but improper that we should incumber our records with a restatement of the same matters to which we shall refer in this opinion.
Upon the return of the cause and on June 20, 1913, the circuit court entered its decree in accordance with the directions of this court cancelling the deed of January 14, 1892, removing the defendant as trustee under the will of Francis Cornet, appointing the St. Louis Union Trust Company successor to the trust, and appointing B. D. Kribben, Esq., special master to settle the accounts of the removed trustee and determine all issues relating thereto. Thereupon the new trustee entered its "appearance, accepted the appointment, and is appellant and respondent in connection with the original plaintiffs. This court directed, and it was, in pursuance of such direction, ordered, among other things: “That said Henry L. Cornet be allowed the legitimate expenses paid or incurred by him as such trustee on account of said trust property, in-
The will of Francis Cornet was executed January 31, 1891, and the testator died December 20th of the same year in his seventy-second year, leaving surviving him his widow and six children, including the plaintiff George A. Cornet and the defendant Henry L. Cornet.
The defendant took possession of his estate, both real and personal, of which the share of George A. Cornet was one-seventh. Upon the division of the personal estate, the defendant, as his trustee, received Leavenworth bonds of the par value of fourteen thousand dollars, with accrued interest amounting to three hundred and three dollars and thirty-three cents; Ray County bonds of the par value of twenty-five hundred. dollars, with one hundred and forty dollars interest' accrued; and one hundred and thirty-five dollars and ninety-seven cents in cash, aggregating $17,0-79.30. After the execution of the deed of January 14, 1892, he proceeded from time to time to sell real estate devised by the will, realizing for tbe share of George A. Cornet $7629.20. These amounts, aggregating $24,708.50, constitute the investment fund in the hands of the defendant trustee, which, with the income of real estate unsold (some of which still remains undisposed of), constitute the subject of the accounting, to which all the errors assigned by parties to this appeal are directed.
The defendant testified in his own behalf in the hearing before the master. He said, in substance, that he was, during the time covered by the trust, a
Certain loans were made through the office of Cornet & Zeibig for which commissions were charged by that firm against the trust fund, amounting to $298.75. This was disposed of by the special master in his report as follows:
*308 “Tour special commissioner finds that the ■ trustee received one-half of these commissions in the distribution of the profits of the firm of Cornet & Zeibig, and that he is not entitled thereto and should be excluded therefrom, but that he is entitled to credit in his accounting to the other half thereof which Zeibig received for his services, amounting to $149.38.”
The plaintiff contends that the trustee should not only be charged with interest at the rate of six per cent per annum, compounded annually, on the loans made to the Standard Realty Company, but he should also be charged with the further sum of .$260.50 which seems to be admitted as the amount of the usual commissions charged to borrowers by loan brokers for obtaining such loans, and renewals thereof. This was disallowed by the special master in his report.
The special master charged the trustee with the amount of interest received by Cornet & Zeibig on the amount of the trust fund included in their average monthly bank balances, but refused to charge interest at the legal rate, either simple or compound, for which the plaintiff contended. He allowed the trustee, commission at the rate of five per cent on the income from investments of the personal property received by him under the will, amounting to $899.08, and also commission at the rate of two-and-a-half per cent on the corpus of the personal estate turned over to. the new trustee, amounting to $426.18.
Among the investments made by the trustee were' certain bonds called the Alton Bridge bonds; being two bonds, each' of the par value of $1000, bearing interest at five per cent, purchased by him in 1894 for $1840, making an income rate of five and twenty-eight hundredths per cent. These were a part of an authorized issue of $1,000,000, of which $600,000 at least were sold, and were secured by first mortgage on a railway bridge with its terminal, under construction across the Mississippi River at Alton, Illinois. Its prospect of earnings consisted of what is called in the record a “contract” with the Chicago, Burlington & Quincy
Another investment for which the defendant trustee sought credit consisted of nine bonds of $1000 each, bearing interest at six per cent, purchased by him for $9,555. These bonds were purchased at various times between March 1, 1900, and November 27, 1906, inclusive. They were a part of an issue of $1,500,000 by the State of Jalisco, Mexico, to aid the city of Guadalajara in that state, in the construction of a municipal water-plant, and seemed to have been founded upon bonds of the city in an equal amount. Interest payment had been stopped on these bonds under circumstances which are lightly touched upon in the testimony, but enough is disclosed to indicate that it was payable in gold in New York City, and that some law had been enacted in Mexico discouraging the exportation of gold, which rendered the rate of exchange so high that the state refused to transfer it. The special master found that these bonds were not a proper investment and ought not to be charged against the trust estate, .but that their cost, with unpaid interest, should be charged to the trustee, who would thereby become entitled to the securities. The court sustained an exception of the defendant to this recommendation, and allowed them as a credit to the trustee.
It sustained the findings and recommendations of the special master in all other respects. ■
(1) In refusing to allow him credit as against the ■ trust fund for the costs and expenses of this litigation as already stated.
(2) In not allowing him credit for all sums re-, ceived hy Cornet & Zeibig for making loans for the trustee.
(3) In -refusing to allow him compensation for the sale of real estate.
(4) In refusing to allow him' commission upon the corpus of the fund derived from the sale of real estate.
The errors assigned by the plaintiffs, including the St. Louis Union Trust Company, are:
(1) In refusing to charge the trustee with either compound or simple interest on the uninvested assets of the trust estate remaining in his hands from time to time, as we have stated.
' (2) In refusing to charge the trustee with compound interest on the Standard Realty Company loans.
(3) In refusing to charge the trustee with commissions of two and one-half per cent on loans and one per cent on renewals made by him to the Standard Realty Company.
(4) In refusing to charge the trustee with the entire commissions received by Cornet & Zeibig for making the loans to which we have already referred.
(5) In allowing the trustee compensation by way of commissions, amounting to $898, on income from his investments of the personalty, and $446.18 by way of commission on -the corpus; of the personal estate turned over to the new' trustee.
(6) The refusal of the court to order that the trustee make good the investment in the Alton Bridge bonds.
(7) The refusal of the court to require the trustee to make good the Jalisco bonds. ’•
The defendant says that this is essentially a suit to secure a construction of- the Francis Cornet will for his guidance in the administration of the trust. Every suit at law or in equity, involving a title or right depending upon the meaning of a will, involves also its construction; yet such a suit does not involve the special jurisdiction of a court of equity in construing wills. If it did, the unsuccessful defendant in ejectment or in a suit to quiet title would often he entitled to have his costs taxed against the property involved. The construction of the will in such cases is simply in the redress of the wrong charged’ whether the suit he at law or in equity. It has been truly said “that the special equitable jurisdiction to construe wills is simply an incident of the general jurisdiction over trusts,” and that the courts exercise such jurisdiction when it is moved on behalf of an executor, trustee, or cestui que trust, to insure a correct administration of the power conferred hy a will. [Pomeroy’s Equity Jurisprudence (3 Ed.), sec. 1156 and cases cited.]
The twofold purpose of this suit was to set aside a deed obtained by the defendant trustee from his brother, for alleged fraud in securing its execution, and to remove the trustee on account of the fraud. An accounting by the trustee to his successor or his beneficiary was a necessary incident of this latter remedy. There is nothing in it calling for the exercise of the special jurisdiction of the court to construe wills. It required only the exercise of the general jurisdiction of courts of equity over trusts and trus
It is not necessary that we go into the details of the fraud, for all questions as to that have been put at rest by the former judgment of this court. [Cornet v. Cornet, 248 Mo. 184.] The only feature of the will which concerns us is the attempt of an affectionate father to protect a son who was subject to the alcoholic mania to such an extent that he would periodically unfit himself for the transaction of business, and, like most other people similarly afflicted, become improvident and rash in his expenditures. There is nothing in the evidence which seems to indicate that he had become a helpless inebriate, or that his father, at any time while living, despaired of his reformation. He had another son, the defendant, whose habits seem to have been unexceptionable, and who had for more than ten years been engaged in the loan and real estate business, and was intelligent and active. Under these circumstances the father made the will in question, and his policy toward his less fortunate son, plainly expressed in that instrument, was to confide to the care of the more fortunate and capable one the possession and management of the equal share of his property he desired to leave to the other, so that he would, neither by neglect nor improvidence, be without some means of support during his life. The father evidently contemplated that he might marry and have children and issue of his own, and used, in providing for the succession, the broad words of inheritance prescribed by the common law for the creation of a fee. The use of any words conferring a title upon the trustee, or power of disposition over the realty, was carefully avoided, and the door of opportunity for a normal life was left carefully open.
The principal fraud charged in this case was, in substance, that the defendant, in procuxing*the deed of January 14, 1892, had fraudulently taken advaxxtage of the fiduciary relation to his brother George created by the will, to secure from the latter the legal title in
These questions could not be determined, without examining and construing the will for the purpose of determining to what extent the defendant had violated the trust with which it had clothed him. He had absorbed the title to all the property, both real and personal, leaving his beneficiary with no interest whatever except the bare right to receive such portion of the income as he should see fit to pay him, instead of investing it otherwise, as permitted by the fifth clause of the will. It put his nose to the grindstone, if we may be allowed so homely an expression, and enabled his trustee to keep it there until the time when he himself would perhaps participate as heir in what was left. If the will itself did all these things then the deed was harmless and the construction of the will constituted the principal task of the court in this case, and the disposition to be made of the deed itself the principal duty.
The defendant, so far from joining in a request for such construction and showing a disposition to regulate his administration of the trust accordingly, repudiated the trust by the fraudulent deed under which
If the amount of the corpus of the fund now on hand is .as well invested as was the fund received by the trustee in 1892, his administration has been creditable, the amount of loss of capital negligible, and reasonable claims for compensation for services in producing such a satisfactory condition would be founded in sub-, stantial equities.
It is said, however, that the present condition of the fund is unsatisfactory, and that an amount equal to more than seventy-six per .cent of this entire personal estate-is invested in securities which have ceased to be productive and are now in great jeopardy. This complaint refers to the “Jalisco” bonds, representing an investment of $9555, and the “Alton Bridge” bonds, representing an investment of $1840. Both the plaintiffs and the appellant trustee contend that neither of these investments is such as a court of equity will approve for trust funds of this character, and that the defendant should be required to take them for his own account, and to reimburse the fund with cash. In determining this question we should proceed with the utmost care, for whatever we may say will, no doubt, be invoked for the guidance and protection of other trustees or their beneficiaries, not only in this jurisdiction, but wherever our utterances receive consideration.
The will contained no special direction with respect to investments. It simply directed the trustee “to manage such trust fund, and to make the same productive in such manner as he may deem most safe and advantageous.” It is not nor can it be said that this conferred any other or different power than to use his best judgment in investing in such securities as are approved by the rules of equity as investments for trust funds, and the testator carefully recognized one of those rules by prescribing safety as the first element to be considered.
We have selected the foregoing instances of well established rules governing the investment of trust funds from many we might mention, to illustrate, the application of the definition of “diligence and prudence” given us by defendant as applicable to these investments. It is tersély stated by the Supreme Court of Pennsylvania as follows: ‘ ‘ Common skill and common prudence, as is said in the many cases cited, are all that the law demands of a trustee; that is, the common skill and prudence of an investor of money to be safely kept with such reasonable income as is commensurate with safety of the principal.” [Hart’s Estate, 203 Pa. St. l. c. 486.] It means the skill and prudence of the investor of money to be safely kept and invested for others. In Mattocks v. Moulton, 84 Me. 545, the Supreme Court of Maine expressed the same idea as follows: “True, she left the investment of the trust estate to his judgment, but it was to his judgment as trustee, enlightened and guided by the approved rules applicable to the investment of trust funds, not to his uninformed, personal judgment exercised without reference to legal rules and principles.” It goes without saying that in making these investments the first element to be considered is safety. This does not mean-simply that in the honest course of events the security will be paid. It means that its payment may be enforced through the operation of governmental power to which the trustee has rightful access, and without recourse to 'the laws and governmental machinery of foreign nations. Without this element of value the subordinate one of income becomes uncertain.
It will not be. contended for a moment that the fact that the credit of our sister Republic of Mexico, or of the States which composed that Federation, was such that they were compelled to pay a higher rate of interest than that prevailing in our own country would be a good reason for a trustee to seek investments there. The record is meager with respect to other reasons. It seems that Little & Hays, brokers of St. Louis, had $300,000 of these bonds for sale and recommended them highly, both by word of mouth and in a circular; that the Mississippi Valley Trust Company was interested as an equal partner in the profit of these sales and álso recommended them, and placed one or more of them in one of its trust funds;
The defendant does say, however, in praise of the securities, that at the time they were bought “ President Diaz was in undisputed command of the situation in Mexico, and in so far as the most prudent investors could see, bonds of the rich State of Jalisco were as safe an investment as bonds of any American State.” We understand from this, his contention to be that President Diaz in the saddle so seasoned the credit of that country that it justified him in going thousands of miles into a foreign country and among a strange people to .obtain for his brother an investment in six per cent bonds at a premium of six points. This justifies a word as to the attractive financial conditions involved in the supremacy of the distinguished President in control.
The repudiation by Mexico of interest on its public debt in 1861 is remembered by some of us. More of us remember the train of woes more direful and numerous than those that the elopement of the fair and fickle Helen brought upon her own unfortunate country, which followed. Maximillian came and went. The interest was paid in the blood of the people, and Diaz came into politics as opponent of Juarez, his chief, in the election for President and was defeated. When Juarez died and his successor had been fairly elected Diaz took the field against him at the head of a great army, driving him from the country, and making himself provisional president; and in that capacity, in 1877, elected himself President under a constitutional provision which limited him to one consecutive term. This he obeyed, retiring until the next election, was
There is no doubt that the- defendant was perfectly honest in his faith in the Diaz regime when making this investment, but the evidence shows that he was not
We have already said that it is not a sound discretion for trustees to invest the trust fund in mere personal securities. Nor is it a sound discretion to subscribe trust funds to new enterprises of which the results are necessarily experimental. [1 Perry on Trusts (6 Ed.), sec. 459.] This investment violated both these rules. The corporation issuing the bonds was organized for the purpose of constructing an independent railway bridge across the Mississippi River at Alton, Illinois. It was purely experimental. The bonds were a part of the original capitalization to provide money for the erection, and the bridge was still incomplete. Whitaker & Company were the financial promoters of the scheme. According to the testimony of one of the members of that company the bonds were “predicated” upon a supposed unsecured personal contract with the Chicago, Burlington & Quincy Railway Company to use the bridge for crossing trains at that point when
The fate of the additional $500 of new bonds, issued, apparently, to equalize the interest of the fours and fives, was explained by the special master at the trial as follows: “There evidently was a reorganization of the concern in June, 1901, and on January 2, 1903, Mr. Cornet received $400 and $12.50 interest upon interest, which is accounted for down to the reorganization of the company, and there was substituted for those bonds other bonds at four per cent, which continued down to the present time. There were bonds issued in lieu of interest January 2, 1903; it must have been at the time of the reorganization, interest on the five-per-cent bonds and interest on delinquent interest was all accounted for.” Thus the trustee paid himself the interest out of the principal of his security, and the two bonds now in the corpus of the fund represent what is left after the performance of this financial feat.
In making the original investment the defendant took no advice other than that of the promoting brokers. He did not consult his beneficiary — in fact he testifies that he never consulted him, because he did not think he was obliged to under his trusteeship._ He chose arbitrarily to assume the entire responsibility.
While an independent bridge, founded upon the general traffic of a great commercial city like St. Louis, may be immensley profitable, the only evidence in the record upon that question applicable to this transaction is to the effect' that such a project is uncertain and speculative; and when it is “ predicated” on the promise of a single railway company to use it, we wonder why that company did not build it. It is unnecessary for us to enter this field of speculation. It is only necessary to say that we see no reason why the defendant’s successor should be required or permitted to accept these bonds for his beneficiary, and we hold that the defendant must replace the money so invested, with interest at the rate of five per cent per annum on the , face of the original bonds.
The trial court following, in its interlocutory decree, tho ruling of this court upon the former appeal, directed that the defendant “be allowed the legitimate expenses paid or incurred by him as such trustee on account of such trust property, including reasonable compensation for whatever services he has performed for the trust estate under the direction of said will.” Going to the will itself for information on this point we find that it appointed the testator’s widow and the defendant joint executors, and the defendant qualified and made final settlement, but we do not find that his co-executor joined with him in the execution of the will, and while the special master states in his report that he had examined the settlement we are not favored with any statement as to what it contains. We will assume therefore that they received the compensation allowed by statute for the administration of the entire persona] estate.
The will, a copy of which is included in the report of this case upon the former appeal, to which we have already referrqd, contains two provisions on the subject of compensation. The first, in item three, refers only to the management of the real estate prior to its division among the "devisees, and affords little light upon the question we are now considering. Item four provides,
This last item, it will be seen, covers the entire subject of the compensation of the trustee for the management of both real and personal property. The testator was careful to provide that both his expenses and compensation were to be deducted from each quarterly installment of the income as it should be paid, and was equally careful to omit that requirement in providing that upon the decease of the beneficiary the corpus of the estate should go to his heirs. It was his evident intention plainly expressed, that all expenses of administration of the trust should be paid from the income as it proceeded, and that the body of the fund should be kept intact. The same language refers as well to the real as to the personal estate, and leaves no. room to doubt the intention of the testator to apply the same rule of compensation to both. We must assume that the testator was aware of the legal right of the executors to a commission on the amount of the entire personal estate that went into their hands, and in the light of such knowledge the scheme of compensation which he provided seems to us to have been an intelligent and practical one; but should we construe the
In this case a long and arduous litigation has been necessary to preserve and protect the rights of the beneficiary with reference to the matters involved in the trust, and we can do no less than to see that the corpus of the fund remains intact as the foundation of a more satisfactory administration. The item of compén- ¡ sation at the rate of two and a half per cent on the / corpus of the estate, amounting to $426.18, will there-/ fore be disallowed.
last five years of the administration the bank paid the firm two per cent interest on its monthly balances. The plaintiff, contends that this amounted to a conversion of the trust fund and that the trustee should be charged compound or at least simple interest at the rate of six per cent per annum on these balances. This contention was disallowed, and the court allowed the interest actually received.
This question should he considered in connection with the finding of the referee, in which, after a careful
As an abstract proposition this is a fair statement of the law, but it needs much trimming to fit it accurately to the proposition before us. The money was not used by the defendant, but was loaned to a corporation having a distinct entity both in fact and in law. Were the rule inflexibly applicable to such a case the loaning of trust money to a corporation in which the trustee owned a single share of stock would, however profitable and advantageous to the estate, subject him to all the pains and penalties attached to a wilful breach of trust. The personal credit of the trustee has nothing to do with the security, for the corporate entity is hedged about by the law of its creation with a credit founded upon its own capital, and the landed security is all that would be exacted from a stranger. Although • the situation- might, like most other innocent circumstances, be used to cloak a fraud, it does not intrinsically differ from the purchase of
The plaintiff also contends that the trustee should be charged with a reasonable commission upon each of these loans and its renewals. We see no reason why this should be done that does not inhere in every transaction in which the trustee goes directly to the borrower to make a loan without the intervention of a broker. No broker seems to have intervened in this case, although the transaction, like all other transactions involving the trust fund, was entered upon the books of Cornet & Zeibig, where all accounts relating to the fund were kept. The point is a shadowy one and, in our opinion, without merit.
The special master bases his action upon the ease of Gamble v. Gibson, 59 Mo. 585, l. c. 593, from which he quotes as follows: “He [an executor] may employ the services of an agent or attorney, if necessary, and pay for them out of the estate, hut if he undertakes to act in such capacity himself for the estate he can receive no compensation. • The rule is so strict that it has been held that if the trustee has a partner, and employs such partner, no charge can be made by the firm. [Authorities cited.] But if the trustee is excluded from all participation in the compensation, then his partner may be paid for services like any other person.” We are unable to concur in the reasoning by which the learned master arrives at his conclusion. Without questioning the statement quoted from Gamble v. Gibson, supra, intimating that if the trustee has a partner he may be employed for compensation to render services included in the duties of the trustee, we merely suggest that the question was not then before the court as it was in Condict v. Flower, 47 Mo. App. 514, in which a different conclusion seems to have been stated. This case must, however, stand upon its own facts. Cornet & Zeibig were loan brokers. These services were performed in the regular course of its business. It does not appear that Zeibig had any personal connection with the transaction, while it did come directly within the duty of Mr. Cornet as trustee. It does not matter 'what settlement they made as to the division of the amount received from the trust fund in payments of this commission. We have no power to so revise the partnership contract between them that when one-half this fee must be re
This view does not, however, reach the real question at' issue, which is whether or not under the will which provides only for the payment of actual expenses and reasonable compensation, the trustee is entitled to this or any other sum in addition to the commission of five per cent upon the gross income, which should include these commissions, for making and renewing these particular loans. The value of the services has been fixed by contract as between the trustee and the borrower, but not as between him and his beneficiary, and we see no reason why these particular investments should be made the basis for special compensation to the trustee in addition to the five per cent allowed upon the gross income. It stands upon the same footing, in that respect, as all" other loans.
For the reasons stated the judgment of the circuit court is reversed and the cause remanded with directions to proceed to final judgment in accordance with the conclusions stated in this opinion,
The foregoing opinion of Brown, C., is adopted as the opinion of the court.