182 Mo. 626 | Mo. | 1904
This is a proceeding in equity to construe the will of Thomas Allen, deceased, to have the trust created by the will terminated and dissolved, to require the trustees to account, and to have the real estate covered by the trust partitioned.
The facts, which are practically conceded, are these :
Thomas Allen was a prominent citizen of St. Louis, was a lawyer, the president of a railroad, a man of large fortune and had been a member of Congress. Pie died testate, in 18S&, leaving his widow and seven children, to-wit, the plaintiffs, Elizabeth L. Donaldson and Alice Maud Allen, since intermarried with Louis Lombard, and the defendants, William Russell Allen, Thomas Allen, George W. Allen, Annie L. Allen, since intermarried with Louis Chauvenet, and Bradford Allen,
By the terms of his will the testator gave his widow his homestead in Pittsfield, Massachusetts, and likewise his homestead in St. Louis, for life. He also gave her absolutely the household furniture, carriages, horses and other personal property at both places. He further gave her for life, a lot on Main street, between Market and Chestnut streets in' St. Louis; he also gave her for life, whatever ground he owned on the east side of Carondelet avenue, near the arsenal, in St. Louis, and his farm of two hundred and seventy-two acres near Pittsfield, Massachusetts; also certain books, pictures, etc., absolutely. He also gave her absolutely one hundred thousand dollars in cash, and one hundred thousand dollars in the five per cent consolidated bonds of the St. Louis & Iron Mountain Railroad Company. He also gave her absolutely all the real estate conveyed to him by Joseph J. Clark, lying in the city of St. Louis and in the county of Jefferson.
He authorized his executrix and his executors to divide the property known as the Southern Hotel, by forming it into a corporation composed of his seven children, and dividing the stock equally among them. He gave certain specific legacies and forgave certain debts due him. The will then provided as follows:
“The residue of my estate, real and personal, which I may own at the time of my decease, it is my will shall be disposed of and bestowed as follows: The several stocks and bonds which may be held by me in corporations and all other of my notes, bonds and mortgages (excepting notes given me for accruing rents), and money, I desire may be divided into seven equal parts, or shares, and given in kind as far as practicable to each of my seven children, viz.: Elizabeth L. Donaldson, William R. Allen, Thomas Allen, Jr., George W. Allen, Bradford Allen, Annie L. Allen, and Alice Maud*636 Allen, in equal parts as far as may be, excepting the shares of stock which I may hold in the St. Louis Globe-Democrat Job Printing Company, which I give and bequeath to my son Bradford Allen, in addition to the share above mentioned. I desire and direct also that my executors shall take fifteen of my second mortgage bonds of the St. Louis & Iron Mountain Railroad Company of one thousand dollars each and set apart and hold the same for the use and benefit of my daughter, Alice Maud Allen, paying over to her or to her use the semiannual interest thereon until she arrive at the age of twenty-one years, at which time I desire that said fifteen bonds be given her absolutely, and this in addition to the share above mentioned. And as to any real estate wherever situate, other than that above disposed of, 1 give and bequeath the same to my executors hereinafter named, in trust, to be held, improved, leased, sold, or otherwise disposed of as to them may seem best for the use cmd benefit of my own children above-named in equal shares, with the following exceptions : Desiring that my homestead in Pittsfield, which has been as to the major part in my family.for over one hundred years, should continue to be held and occupied by one or more of my descendants as long as may be, it is my will that, after the decease of my wife, if she survives me, the same homestead shall be sold and conveyed to whichever of my children shall be willing to give the most therefor, the sum to be paid to be divided equally among my children, the purchaser or purchasers deducting his or hers or their shares therefrom.”
He then appointed his wife, Ann R. Allen, and his sons, "William R. Allen and George W. Allen, the executrix and executors of his will, without bond.
The will was admitted to probate in 1882, and the executrix and executors entered upon their duties. The exact value of the estate is not disclosed by the record, although it does appear that the trust property is only a small part thereof, and is of the value of $100,000 to
It further appeared that while the defendants were acting as executors a piece of real estate was sold for one thousand dollars, and the same was not brought into their accounts. This sum with the interest thereon, aggregating $1,420, the plaintiffs claim judgment against the defendants for. The facts are conceded, but the defendants show that it was an innocent oversight, and the court so found. The court found that as the estate is indebted to the defendants, as above shown, in an amount exceeding twenty thousand dollars, it would be inequitable to charge the defendants with this $1,420, and the plaintiffs assign this ruling as error.
The trial court allowed the defendants $1,066.25 compensation for their services rendered since the final
The trial court entered a decree terminating the trust, ordered a partition of the Missouri property; appointed a receiver to collect the rents and have the custody of the property pending the suit, and ordered the* defendants to convey the property lying in other States to the several parties, one undivided one-seventh to each. The court refused to. hold the defendants liable for the loss caused by the Wallace defalcation, or to enter judgment against them for the $1,420, and allowed them $1,066.25 commissions as aforesaid.
The defendants, appealed from the decree terminating the trust, etc., and the plaintiffs appealed from the decree refusing to charge the defendants with the Wallace defalcation and with the $1,420, and allowing the defendants the $1,066.25 commissions.
I.
The principal question in this case is as to the right of the plaintiffs to have the trust terminated, and the property partitioned.
The plaintiffs contend that the trust attached to the office of executor and that upon the final settlement of the estate, the trust ceased. The court took this view. On the other hand the defendants contend that the trust is a personal one and involves a discretion, and that the purposes of the trust have not been accomplished, and hence the court erred- in terminating the trust, appointing a receiver and decreeing partition.
The determination of this question involves the construction of that clause of the. will which creates the trust.
It will be noted that the great bulk of the estate is directly disposed of either absolutely or for life, and that the clause to be construed is found in the residuum
This is the sole provision of the will relating to the trust. Now, it is in the lights as they appeared to the testator that we must gather his intention.
Briefly stated, the plaintiffs claim that under the decisions of this court in Littleton v. Addington, 59 Mo. 275, and Francisco v. Wingfield, 161 Mo. 542, the trust was an official and not a personal one, and ceased when the executorship ceased. While on the other hand, the defendants claim that under the decisions of this court in Hazel v. Hagan, 47 Mo. 277; Owen v. Switzer, 51 Mo. 328; State to use of Watts v. Boon, 44 Mo. 254, the trust was a personal one, involved the exercise of a discretion and continues until the purposes of the trust are accomplished. Both parties supplement their contention with reference to cases in other jurisdictions which they claim establish the correctness of their contention.
In Hazel v. Hagan, 47 Mo. 277, the testator, John W. Hughes, directed his wife to raise and educate his three children. The will then provided as follows: “Further, for the confidence I have and the obligation I leave resting on my beloved wife, I will and bequeath
In Owen v. Switzer, 51 Mo. 322, the testator devised to his wife, “all my property, real and personal, moneys and effects, of whatsoever nature they may be, owned by
In Turner v. Timberlake, 53 Mo. 371, the testator appointed the wife his executrix of his will, and directed her to pay his debts, adding, “and for that purpose I desire my wife to sell or have sold, either at public or private sale of lands, forty-five acres” (describing them). He then devised to his wife and children “the remainder of all my lands, negroes and other property, and all of my estate and effects whatever, that may remain after liquidation of my just debts, to be disposed of by my wife, Elvira. S. B. Turner, in any way she may think best, so "that the property or its effects may be appropriated to her use and benefit during her natural life, and at her natural -death the remainder of the property or its effects may be appropriated to the use and benefit of my two children.” The controversy arose over a deed
In Bryant v. Christian, 58 Mo. 98, it was held that when the will devises a life estate to the widow with power to manage, dispose of and enjoy, and power to dispose of one-half of the property by her will, the widow took only a life estate in the whole with the usufruct and testamentary power to dispose of one-half of the property by will. Hazel v. Hagan was cited, but it was said: “It was held that a devise of an estate with the power of disposal would pass the fee. But the learned judge, in delivering the opinion, was careful to insert the qualification, ‘ there being no express estate for life limited to the devisee.’ ”
Hazel v. Hagan was cited in Railroad v. Green, 68 Mo. l. c. 177, but not upon the point here involved. It was likewise cited in Bean v. Kenmuir, 86 Mo. l. c. 670. So it was cited upon another point in Walton v. Drumtra, 152 Mo. l. c. 496.
On the other hand in Littleton v. Addington, 59 Mo. 275, the will provided: “I give and bequeath to my wife, Diana Branscom, the proceeds of the sale of all my property, both real and personal, requesting that she appropriate a sufficient sum out of said property or proceeds to educate my children, Rachel, Joseph E., Emma J., and Charles Arthur, to have the use of said proceeds during her natural life, or while she remains my widow; 3rd, it is my wish that my executors shall
In Francisco v. Wingfield, 161 Mo. 542, the testator appointed his wife and one Ehoads, executrix and executor of his will, wherein he gave his wife a life estate in certain personal and real property and then directed as follows: “I will the remainder of my land being on the south side of the road above named, and the Faucett tract be sold by my executors, the money arising from the sale of said land to be loaned out, and that my wife be permitted to use the interest of the same in assisting her in the raising of and educating of my younger children. After the death of my wife I will that my executor is fully authorized and empowered to take charge of all my property both real and personal that is on hand, and to sell and dispose of the same either at public or private
The rules deducible from the cases in this court
Second. Ordinarily, an executor or administrator has no power to sell the real estate except upon order of the probate court, to pay debts. But if the will expressly and absolutely directs the executor to sell the-real estate, without vesting any discretion in the executor, and to apply the proceeds to the payment of debts or to distribute them, then the power adheres to the office of executor and is not personal, and must be exercised during the continuance of the executorship, for in such cases the proceeds of the sale of the real estate become personal assets of the estate and are a proper subject of administration and distribution by the probate court.
It will be of no profit to analyze the numerous cases from other jurisdictions cited by counsel. In many of them the particular phraseology of the will is resorted to to determine whether the trust is official or personal, as, if the grant of power is general to the executor without specially naming what executor, it is held to attach to the office and may be exercised by the executor named or by an administrator de bonis non with the will annexed, whereas if the grant of power is to the executor by name, or “hereinafter named,” it is held to be personal, and can not be exercised by an administrator de
Without further elaboration, therefore, it follows that as the power granted by the will of Thomas Allen vested the donees of the power with a discretion, the power was personal and not official and it survived the final settlement of the estate by the executors. But the power so conferred was not perpetual, and the donees are subject to the control of a court of equity.
The real estate that fell into the trust estate or that would fall into it, was somé land in St. Louis and Illinois, which produced a revenue, and a half interest in about six thousand acres of unimproved land in Arkansas.
The purpose of the testator in so coupling the productive with the unproductive real estate was clearly to provide a means of supplying the necessary carrying charges for the unproductive property, until it had an opportunity to enhance in value. The evidence shows that the trust property yields about $4,000 a year and that the carrying charges are about $2,000 a year. The unproductive land was worth two dollars and a half an acre, or $15,000, when the testator died, and is worth about three dollars an acre, or $18,000, now. The interest of the estate is one-half. This portion of the trust property is, therefore, increased in value from $7,500 to $9,000, or.$1,500 in about twenty years, and the carrying charges of the whole trust property has amounted to forty, thousand dollars. The evidence does not. show what proportion of the carrying charges is properly chargeable to this unimproved property. But it is fair to say that unimproved property that has increased in value only fifty cents an acre in twenty years is a very
For this reason the decree of the trial court in terminating the trust was right. The decree of partition followed naturally and properly. There was no apparent necessity for the removal of the defendants as trustees and the appointment of a receiver, for the decree found that the testamentary trustees had properly administered the trust otherwise. But as this involved only a question of which trustee should earn the compensation allowed and as there has arisen quite a bitterness between the several beneficiaries, it can not be said that the trial court exercised such an unwise discretion in this regard as would constitute reversible error. Especially is this true when it is remembered that the whole matter was then in the hands of the court, and that the power of the defendants as trustees under the will had been ended and the trust declared terminated, and the property ordered to be partitioned. The res was then in custodia legis, and it was competent for the court to appoint its own agent to manage it and collect the rents issuing from it. This action involved no reflection upon the integrity or management of the trustees appointed by the will.
As the purposes of the trust had been accomplished, or found to be impossible, and as the trustees were personally in court, it was competent and proper for the court to require the trustees to convey to the beneficiaries the trust property which was without the territorial jurisdiction of the court, and which a decree of the court could not divest out of the trustees. This has been the
It follows that the judgment of the circuit court must be affirmed upon the defendants’ appeal.
II.
The plaintiffs appealed from the ruling of the circuit court refusing to charge the trustees with the Wallace defalcation of $3,758.33, and refusing to charge them with the $1,420, and allowing them $1,066.25 commissions as trustees on disbursements made by them since the final settlement of the estate.
Whatever may be the rule in other States, it is the law in this State that a trustee is only required to exercise such care in managing the trust property as an ordinarily prudent man would exercise in the management of his own property, and as such men usually employ agents to attend to ministerial duties, such as to collect their rents, so trustees have a right to employ such agents, and if they exercise ordinary care in the selection of such agents they are not liable for the defalcations of such agents. [Bates v. Hamilton, 144 Mo. 1; Anderson v. Roberts, 147 Mo. l. c. 493.]
The evidence clearly and conclusively shows that the selection by the trustees of Wallace as their agent to collect and deposit the rents was a proper selection. The testator and every member of the family selected him to perform like services for them, and in addition entrusted large sums of money to his keeping. He deceived them all. But it would be queer equity which would hold the trustees liable for trusting where all of the parties had done the same, and to a much greater degree, as is shown by the fact that his defalcation of the trust funds was only for $3,758.33, while his total defalcation from the whole funds of the family amounted to over one hundred thousand dollars. There was no error in the ruling of the circuit court in this regard.
The allowance of the $1,066.25 commissions on disbursements since the final settlement was proper and followed as a necessary corollary to the finding that the trustees had faithfully administered the trust.
The judgment of the circuit court is therefore affirmed upon the plaintiffs’ appeal.