169 Mo. App. 335 | Mo. Ct. App. | 1912
This is a suit in equity. It involves a charge against a trust estate. The finding and judgment were for plaintiff and defendant prosecutes the appeal. ■<
Plaintiff is administrator of the estate of William, F. Crow, who was former trustee under the will of the estate now represented by defendant Park as his successor in trust. After the death of Crow, trustee under the will, defendant Park was appointed by the circuit court as his successor in trust. The original trustee, William F. Crow, after serving under the will for almost two years, departed this life without having made a settlement and before any compensation was allowed to him in that behalf. The present suit by the administrator of Crow, the prior trustee, against the trust estate is for an allowance in compensation for Crow’s services as trustee and for an expenditure by him for the services of an attorney rendered in the interests of the trust estate.
Camilla S. McManus, under whose will the trust was created, departed this life on November 16, 1905, at the city of St. Louis. By her last will, duly probated, she appointed plaintiff’s intestate, William F. Crow, trustee to manage and care for one-third part of her estate, with directions to pay the net income thereof as collected to the granddaughter of the testator, Camilla S. Walcott, during her life. The cestui que trust, Camilla S. Walcott, intermarried and her
It appears the entire estate of Mrs. McManus consisted of real estate valued at $837,000, besides something over $15,000 in personalty. This real estate consisted of about twenty separate pieces of property located at different places in the city of St. Louis, some of which were vacant, and many other pieces were occupied by tenants. While Crow, the trustee, .collected the rents through real estate agents, he devoted much time to looking after and caring for the estate. Among other pieces of property owned by the estate is the parcel of vacant ground between Pine and Laclede avenues and Vandeventer avenue and Sarah street in St. Louis. During the time of Crow’s incumbancy, condemnation proceedings were pending against the north front of this property and these largely engaged the attention of the trustee. A few months after he took charge of the estate, Thomas Ward McManus instituted a suit against Camilla S. Burrows and Crow, the trustee, with respect to a partition of all of the realty. Crow employed counsel to look after these matters .and to advise him with respect to the affairs of the trust estate. From a reading of the record, it is clear that, besides devoting a large portion of his own time to the trust estate, the trustee occupied much of the time of his counsel with respect .to those matters. It is obvious that the best
The trustee served in that capacity nearly two years and died without having made a settlement or received any remuneration whatever for the services of himself or the counsel employed by him. After the death of the trustee and the appointment of plaintiff Denvir as administrator of his estate, James P. Maginn, who had represented the trustee as attorney, filed a claim in the probate court for attorney’s fees amounting to $5,333.33, accrued through the services rendered by Maginn to the trustee in respect of the matters pertaining to the management of the trust estate. This claim was allowed and classified by the court against the estate of Crow, the deceased trustee, in the hands of his administrator, Denvir.
Thereafter, plaintiff, administrator of Crow,, instituted this suit against Park, trustee, Crow’s successor, and Camilla S. Burrows, the cestui que trust, and Thomas Ward McManus, remainderman, seeking to recover compensation for the services of Crow, trustee, and for the amount he had expended for the services of his attorney, Maginn, rendered to the trust estate. Upo'n hearing the evidence, the court found the issue and gave judgment for plaintiff for $1600 as compensation for the services of Crow, the trustee, and $5000 in' compensation for the employment of counsel.
By their answer, defendants Park, trustee, and Thomas Ward McManus, remainderman, denied the right of plaintiff to any compensation whatever, on the theory that Crow had mismanaged the estate, in that he h,ad omitted to pay the current taxes on the realty in the fall of 1906 and permitted penalties, amounting to $702.04, to accrue thereon, which penalties were paid off and discharged by defendant trustee upon his succession. Furthermore, this answer
It is urged, first, that the court erred in overruling defendant’s objection to the reception of any evidence under the petition because it was insufficient. It is obvious that the petition states a cause of action, when all intendments are allowed in its favor, as is the rule after verdict, and the argument now directed against it must fail. By pleading over as they did, defendants waived the objection now insisted upon. [Spurlock v. Mo. Pac. R. Co., 93 Mo. 530, 537, 6 S. W. 349.]
It is urged the court should have sustained defendant’s'objection to the introduction of evidence for the reason there is a misjoinder of parties in the petition, in making Thomas Ward McManus, the remainderman, a defendant to the suit. If the matter presents a case of misjoinder of parties, it was obvious on the face of the petition and was available to defendant by demurrer on that ground. [See sections 1800, 1801, 1802, R. S. 1909.] By answering the petition, defendants waived the point and it is not now open for consideration. [See Sec. 1804, R. S. 1909. See Crook v. Tull, 111 Mo. 283, 289, 20 S. W. 8.]
At the trial, the court permitted James P. Maginn, the attorney who had represented the trustee, to testify that Crow, trustee, had sought his advice and employed him pertaining to the litigation and other business of the trust estate. Maginn testified fully with great detail as to all of the services he rendered to the trustee, and it appears that all of the services were beneficial to the trust estate, and of no benefit whatever to the trustee, except as such. The testimony of this
Over the objection and exception of defendants, plaintiff introduced the records of the probate court showing that the claim of Maginn for attorney’s fees had been established against the estate of the former trustee, Grow, for the amount of $5333.33. It is urged that the court erred in permitting this judgment to be introduced in evidence in this cause, for it is said none of the defendants here were parties to thát proceeding. It is true that neither the trustee nor other defendants here were parties to that record, and it is true, too, that the judgment of the probate court establishing the claim of Maginn against the estate of Crow was without probative force in this case. However, the probate record was not admitted for the purpose of establishing the claim for attorney’s fees against the trust estate but merely as a circumstance or a link in the chain of evidence tending to show that the claim for attorney’s fees had been enforced against the estate of the prior trustee. It would have been proper for the .court to have excluded this record, as defendants were in no wise in privity with the judgment which it evinced against the estate of Crow, but, be this as it may, the. ruling complained of affords no ground for a reversal here, when it appears that the plaintiff’s right of recovery touching the expenditure for áttorney’s fees is abundantly established by other competent evidence in the record. The record is replete with evidence tending to show that Maginn counseled and advised the trustee about the matters pertaining to the trust for the whole period of his trusteeship, during which time he looked after the partition suit and condemnation proceedings before refer
It is argued that plaintiff is not entitled to recover tbe amount expended by tbe trustee for attorney’s fees except on tbe theory of a subrogation — that is to say, unless it appears plaintiff became subrogated to tbe rights of Maginn through paying Maginn’s claim established against Crow’s estate in tbe probate court. And it is said that the right of subrogation does not obtain. From a consideration of this argument, it is clear that defendant misconceives tbe theory of plaintiff’s case as to tbe item for attorney’s fees.
But it is argued, even though all of the compensation of the trustee be not denied, the amount of the penalties which were permitted to accrue through Crow’s omission to pay the taxes should be allowed in favor of defendants, on their counterclaim charged against the prior trustee and deducted from the amount of his compensation for services. There can be no doubt of the general proposition that a loss to the trust estate which occurs solely through the negligence of the trustee should be borne by him. [See 2 Perry on Trusts (6 Ed.), sec. 914.] From this it is urged the loss to the trust estate on account of the accrual of the penalties, amounting to $702.04, should be borne by the trustee, and it is said the point has been directly decided by this court in the case of Hildenbrandt v. Wolff, 79 Mo. App. 333. The case relied upon is not controlling, for the equities involved in that judgment were highly dissimilar. In that case, as in this one, the will creating the trust directed the trustee to collect the rents and pay. the net income over to the cestm que trust. There, the trustee paid the gross income from the rents over to the cestui que trust while in her last sickness and, therefore, he omitted to pay the taxes and permitted penalites to accrue thereon. The cestui que trust died and these penalties thus permitted to accrue became a charge upon the estate of the remainderman, for our revenue statutes declare the taxes and penalties on real estate to be a lien upon the land. Under the will in that case, as in this one, the trust estate, after the death of the cestui que trust, was to vest in another, or remainderman, acquitted of all charges whatever. The cestui que trust having died, the property passed to the remainderman, encumbered by the penalties permitted by the trustee to accrue. Because of this encumbrance thus entailed upon the estate of the remainderman, the court declared the