113 Mo. 348 | Mo. | 1892
This is a bill to remove defendant from the position of trustee of the property of three of the plaintiffs, Emma and Julia G-artside and Mrs. Matty Duffy, or to compel him to give bond for the faithful discharge of his duties. After a hearing the court dismissed the bill and plaintiffs appealed.
The undisputed facts are about these: Joseph Gart-side, father of the lady plaintiffs and of defendant, died
The estate left by the father consisted of considerable real estate in the city of St. Louis, and a large mining property in the state of Illinois. The coal mines in Illinois were owned by a stock company, ■organized under the laws of Illinois and were valued at $600,000, the deceased owning all the shares except a few given to each of his sons so they could be members of the company. The shares were each $100. The will provided that the widow should have the use of the dwelling house in St. Louis during her life, and an annuity of $5,000 a year; that each of the daughters, after they became of age, should have $1,000 a year, to be paid them yearly and to be finally charged to them in the distribution of the estate; that, when the youngest daughter became of age, then the estate should be equally divided among the children, after reserving enough to pay the widow’s annuity. But the shares of the four daughters were still to remain in the hands of the trustees, so that no husband could ever get control of it. The youngest daughter became of age (18) in August, 1882.
In 1882 Branch turned over to himself and defendant, as trustees aforesaid, about $500,000 worth of stock of the coal company and got credit for $25,000
After some litigation and a good deal of negotiation, partition of the estate as provided in the will was made in 1889, and deeds were duly executed conveying to defendant, as trustee, the real and personal estate allotted to the four sisters in severalty. In this partition the sisters obtained the annuities due them under the will, payment of which had not till then been made, and at the same time an agreement was entered into between all the parties by which it was stipulated that the sisters should receive the rents and income of their estate without molestation from the trustee, and
I. The court erred in not requiring defendant to give bond for the faithful discharge of his duties as trustee. Section 8685, Revised Statutes, 1889, provides that every trustee appointed by any last will, deed or other instrument of writing to hold, manage or dispose of any property for the use of another person may be required by the circuit court to give bond, ‘ ‘conditioned for the faithful execution of the trust/’ unless the will or other instrument creating the trust shall in express terms dispense with security. We may presume,
II. We think also that the court erred in not removing defendant from the trust for these reasons: First. He occupies antagonistic relations to the coal company property. He owns stock as an individual, as trustee, he holds the stock of his sisters, and he controls the business of the company as its president. He is, indeed, the company, being in full and complete control of it. He elects himself president and treasurer, and fixes and pays his own salary. He claims and-exercises the power to sell the property of the company and invest the proceeds according to his judgment, without regard! to the provisions of the will. The plaintiffs insist that the will prohibits him from selling the coal lands in Illinois and investing the proceeds except in real estate, United States bonds or bonds issued by the state of Missouri or by the county or city of St. Louis, and to this he replies that the lands and proceeds of the sale of the lands belong to the company, as such, that the stock of the company only belongs to the estate, and that he has not sold the latter or any part of it.
In view of the situation of affairs this is rather a fine distinction he makes. The stock of this company consists of six thousand shares and it is all 'held by the children .and widow of the testator,, except one share
The argument is that the beneficiaries have no right to inquire into defendant’s management of the corporate, property, and that, even if they had such right, it is evident ‘ They together represent too small a fraction of its stock to enable them to exercise control of the business and it is a sufficient answer to all their
Second. The second reason why the defendant should be removed from the trusteeship mentioned is the unfriendly and even hostile relations that exist between him and the cestui que trusts. Hostility between the trustee and the cestid que trust is not of itself a sufficient ground of removal, unless it appears that the action of the former is probably controlled or might be controlled by it. Some of the courts make a distinction between hostility growing out of the trustee’s fault, or partly out of his fault, and that growing wholly out of the fault of the cestui que trust. Conceding that such distinction is founded in reason, which is not clear to us, however, yet we think the evidence in this case shows conclusively that defendant is not entirely without fault.
The answer alleges that “it is true that, through the machinations and misconduct of plaintiffs, and especi
In our opinion the hostility of these parties and the-situation and nature of the property and their relations-to it make the continuance of defendant as trustee-incompatible with the best interests of the beneficiaries, and he should be removed. This position is supported, by authority and, it seems to us, upon principle, too. Perry on Trusts, sec. 276, and cases cited. Having-concluded that for the reasons given defendant ought to be removed from this trust we will not examine other-grounds urged for his removal by complainants, such as his violation of the provisions of the will in the sale of property and the investment of the proceeds thereof, his failure to pay the annuities due his sisters from 1882' to 1889, his refusal to permit an accountant to be-appointed by complainants to examine his accounts, and by compelling them to hire a lawyer to ascertain the state of their property, its management and income, and to commence legal proceedings for a partition of the estate under the will.
III. We do not concur in defendant’s contention that plaintiff’s petition is multifarious in joining therein, three beneficiaries, each owning estates in severalty. Plaintiffs have a common object, the removal of defendant from the trust, and common ground upon which they seek that object. Defendant is trustee of the-property of all of them, his conduct towards them and their property and his relations with them are the same. All having a common cause of action and common ground of relief may be joined in the same bill. Michael v. St. Louis, 112 Mo. 610
The judgment will be reversed and .the cause-