*1 Yol. 282 Langan.
Hartnett v. evi- that and all not this pleaded. It is pleaded case, not custom should such usage dence to show tending and this For present petition. have been under the admitted in view be reversed, have to error will judgment think admitted, we erroneously the evidence which was matter not may remanded. be (a be It case should taken to steps can further be ruled) proper that noAv may complained Other matters meet the situation. not be discussed. and need a appear trial, new a usage if there such cus- that say was Suffice toit a so found satisfac- warnings tom as jury by make case pleading could evidence, plaintiff a tory It and custom. usage proving only shows, negligence record that far as the present way, so can be of defendants shown. and the reversed cause re-
Let judgment except Woodson, J., absent. concur, All manded. al., et MARY Appellants, HARTNETT
GEORGE Administratrix of Estate GRACE LANGAN, al.; et LANGAN, PETER CONNEL- WILLIAM LY, Appellant. One, June
Division Rate: Ratification. of Named Where the Surrender 1. INTEREST: eight per maturity per interest until five cent bear note was to maturity, payee, after all thereafter, received the in- and the cent receipt a the note due and wrote recited terest date, accepted per per from that five cent draw five was to annually five all until her cent is thereafter by legal representative; if the maker of be collected can money supposed was an individual it for debt called the note part payee, it was a by whereas a trust due his father estate, only payee life remainder- in which fund benefit, given accept by treating the note as must men, thereby they ratify it, payee changing held act it as maturity cent. to five rate interest after Remain- Ratification Settlement Life Tenant: FUND: 2. TRUST original given widow trustee’s note was dermen. Where a pnder part sole impression benefit SUPREME COURT OF MISSOURI. payee fund, principal that she owned given up the note was taken to make the full amount of the payee only whereas the interest and in- entitled *2 during life, come and after her death was turned her it over remaindermen, they the trustee for the and and he come into court part they claiming fund, it as a must it of the trust as the take payee it, received as the amount the trust due. full of fund Compensation. 3. -: Title of Trustee’s Heirs: Devolution: The original heirs of do not take title to a trustee trust fund which dissipated, up- has been for then there is fund no trust to devolve property upon personal passes, on them. If the fund trust is it death, (if the trustee’s into the of his hands administrator there bailee, one), as is not as an heir. If the trustee’s heirs voluntarily dissipated by giving recreated the fund trust did notes to life tenant and not claim to or administer hold creating the same the instrument cannot by afterwards title assert devolution as heirs of the trustee. In case, a-ny therefore, they any are entitled such to receive com- not pensation preserving returning or the trust fund as successors the trustee. of 4. FEES: Allowance for COUNSEL Estate Debtor. The debtor anof although not an fees, estate is allowance of counsel entitled it necessary becomes for him to due into amount a court of equity relieving property mortgage and seek its aid from a securing the debt. of 5. FOREIGN DEBT: Title Administrator Trustee: Power to foreign Collect: Counsel Fees. A administrator has title a no to* by mortgage upon note from of State secured citizens domestic property, right receipt it; trustee, collect and nor and a who powers wholly derives his to collect administer a trust fund foreign court, power from an order of a has no more to collect or receipt foreign for such a note has than administrator; a if evidencing a note fund is debt con- lost sequence necessary it becomes for the debtor'to resort to a court equity property of mortgage to have his from domestic relieved securing note, fees, he is entitled to counsel not for the suit brought primarily for his own benefit. TRUST FUND: Increment. If the trust fund was not in the used purchase conveyed of the trustee to wife, wife, beneficiaries gave are entitled not to recover who debt, her .note any profits of settlement the balance of the property. addition to the debt her from realized the sale of the Contingent 7. WILL: Remainder: When Title Vests. The sixth clause will, probated give, bequeath “I read: and devise my niece, Langan, Winefred for life the other half residue Vol. body, estate, de- or in my remainder in the heirs of her fee issue, her fee to remainder fault her then of such death taking father, mother, equally, or their sisters brothers contingent per stirpes.” remain- Held, created clause der, Wine- the death determined until could not be heirs, bodily died and as she fred or leave whether would upon leaving death in such her the title no such heirs vested living per as were and sisters their heirs her brothers death, sister, stirpes, prior inter- took to her no and her who died only property, child of a est in the did the husband deceased nor mother, right father, her sister. such deceased The and title dy- upon wholly contingent Winefred’s brothers sisters descendants, ing living could not be ascer- that fact without contingent death, consequently remainder tained until her life, them, only during did not vested vest living at time death in as were them living deceased.
. those who were then in the heirs of of Deceased Remainderman. remainder 8. -: -: Heir mother, of the will to devised said clause Winefred’s *3 (cid:127) equally, per stirpes, was sub- or their heirs and sisters brothers ject contingency, they remainder to take the to another were death, they only they if living at her because case portion per stirpes, their to take their heirs were deceased purchasers; by if a remainder- descent, not as heirs but as only of heirs death at the time of man was Winefred’s dead only title, child and if the took the such deceased remainderman previously of father said deceased remainderman had died of prior nothing. if sister of said Winefred died So said child took died, only prior death, also of sister and then the child her death, take could not child not and the said did to Winefred’s nothing by heir, and transmitted as her mother’s will father, heir his wife. and he was inheritance to her not one is -: Inheritance Dead. As no heir 9. -: living, so are one. the dead of no Right -: of Husband of 10.-: Deceased Remainderman. the terms of the will the title Where under could not until vest bodily tenant, leaving the death if the life without died equally, or descendants was vest in her brothers sisters per stirpes, preceded own, , their heirs death and her sister’s died, prior only and then an child of deceased also sister death, the life tenant’s under the Descents and Dis- Statute of (Sec. 1909) 332, R. S. sister tributions the heirs such deceased descendants, father, mother, sisters, or were her brothers their living at the time of the if tenant’s there were such life nothing. her husband took SUPREME COURT OF MISSOURI. If Fees. 11. -' — : -: Tenant Heir: Life As Administration mother, brothers, gives will a remainder to the life tenant’s heirs, contingent upon sisters, without sur- her death viving bodily descendants, nothing inheritance she takes they prior own, death them their death for until nothing, consequently, and her nothing; her devisee took nothing unpaid except interest and administrator is entitled to up income time of her death. Appeal City from St. J. Louis Circuit Court.—Eon.
Hugo Judge. Grimm, (in part). Affirmed Campbell, S
Ford Bruce Bond Jones, A. 8. P. Hugh Murray, Langan, Mary V. Administra- Grace Langan; Langan; Estate trix Peter Mary Langan, Fran- Grace Executrix of John Will Langan, Langan; James Langan, M. cis Arthur C. Owen Mignon McNally, Langan, Sterling Bond, and Fred P. Schlafly, Trustee. objec-
(1) overruling The court erred tions to .under the the introduction of evidence plaintiffs’ plain- petition ground amended on the bring whereby have no could tiffs ground petition and on the amended does suit, action not state in sufficient to constitute cause facts power plaintiffs. behalf of the cannot trustee personal representatives heirs, be exercised *4 they expressly assigns are authorized donee unless grantor Commerce, Mason Bank of to do so. v. Perry, App. 51 451; Bales Mo. Hook v. v. 278; 16 Mo. Fuller 2866, R. See. S. Dyer, 218; 1909; 47 Mo. v. Titley Wilson, Miss. 127; v. 53 63 Clark 78; Miss. Davis, administering Duty 425. Beav. Wolstenholme, v. 7 pass death, on trustee’s estate, not, does trust receiving however, on trust latter, executor, charged together property, the testator’s with preserve duty it intact for as a bailee with 282 Yol. APRIL TERM, '475 1920. turning when true owner and of trustees over to new Mississippi appointed. legally are rel. State v. ex Valley Ewing 472; 113 Shanahan, Trust 209 Mo. Co., v. (2) sustaining Mo. 196. the ob- The court erred jection under evidence introduction of plaintiff’s petition suffi- facts did not state because it cient to in that the constitute cause of action petition (1st) failed amount to state in that the full principal note secured on the last (2nd) de- tendered, the deed of trust had been Schlafly, tendered the costs trustee, had been fendant (3rd) satisfaction of the of trust deed satisfy Co., 63 Ins. Dtmkin Life had refused to same. v. Phelps App. v. Mo. Clark, 152; Mo. Dodson 49 v. 257; App. 70 Mo. v. Relfe, 20 Mo. McCormick 479; McDonald, Kingston Strong 389; 125 Mo. v. Wil- Newell, v. 391; County, 56; 107 Mo. 14 Mo. Henderson v. Cass son, 116; Reyburn, (3) The intention Mo. 595. 37 Bertold v. Tighe, expressed will, in the testator, prevail. 487; Mo. 211 Dickerson, Dickerson v. must Ryland, 108 Mo. 256 McGuire v. 440; Eckle v. Mo. More, Whittlesey, v. DeLassus v. 55 Mo. Emison '255; 274; Kroeger, 245; v. 219 Mo. Mo. Buxton Gatewood, 375; 71 210 Tisdale v. Long Prather, Mo. 519; 107 Timms, v. court was circuit 4650, R. S. Sec. Mo. 407; the time of right holding will, under (nee Langan), October death Winefred body, having dying of her ever issue without Langan, surviving at her Peter Will- brothers, Langan, Langan to one- each entitled iam John ques- said sixth clause trust fund under fourth of the surviving brother, of her children dead that the tion, and Langan, to one-sixteenth each entitled James question, clause. said sixth fund the Burham, Ducker v. 490; Dickerson, 211 Mo. Dickerson v. Long 20 165; ex rel. v. Mo. State 922; Prewett, Maguire 267; 108 Mo. Moore, Mo. v. Timms, 512; v. Whittlesey, 55 Gate- 254; Mo. DeLassus Emison v. Kroeger, 240; 219 Mo. Burton v. 371; Mo. wood, *5 476 SUPREME COURT OF MISSOURI. Langán.
Hartnett v.
y. Ryland,
Taylor
Eckle
Mo.
93
Adams,
256 Mo.
v.
451;
App. 280; Oates
Emerson v.
v. Seibert,
et Tibbets Green Sanders é Connolly. (1) Upon surviving the death sole a trustee appointment legal before a title successor, property subject of the real held vests trust to the per- trust in the and the trustee, title of the personal representatives, sonal persons. Ewing exclusion of Shanahan, 113 Mo. Upon may the death of trustee the de- upon heir or administrator until volve new trustee Yol. 282 *6 appointed. Ed.) Pomeroy’s Jnrisp. (3 Eq. sec.
is 3 (2) 1061,note plaintiffs 5. in were entitled The ease this upon payment of the release of the deed of trust the. principal per interest the balance of cent note and five being thereon, and en- court, the full amount into decree, equitable (a) titled to They a were within equity, equity “that rule and that who do he must seeks imposed price these it terms the decree will he as the of gives (h) them.” note been extended Because the per maturity after and note interest, at five cent maturity, so far were informed as knew, belonged McCabe, to Winefred that' believed, payment she had note after its extended of this maturity, (c) Schlafly, belonged If trustee this note as all of the decree of case, defendants accepted court, had, trustee, Illinois then he five as per maturity interest on after its and had cent note eight maturity, not insisted after its cent as and after the acted trustee before death of both Wine- (d) payment The into tender fred due on the note and five interest the balance agreement of extension note, under the of the thereon extinguishment equity an the note and also the was in Yogel, mortgage . Kline 90 239; v. Mo. Whe- lien of App. Gilsey, Reilly, Gilsey Mo. 565; lan Mo. v. 198 v. (3) App. ex- Furth, 171 Mo. The 505; v. Yenev respects parties, litigation, penses all of such charged upon attorney client, as between the together with the fees estate, trustees. whole n Sandusky Sandusky, 265 Mo. Redfield on 219’; 495, Ed.), p. (4Wills Appeal from the Court Circuit SMALL, C. substantially City we The facts find Louis. of St. follows: Tighe, Carlyle, a resident Clin- In leaving a County, died, will, Illinois, the 6th clause ton (cid:127) n follows: aswas of which “ n 6th. bequeath my give, and devise to niece, I Langan life the half of the residue Winefred MISSOURI. SUPREME OF COURT body, my heirs remainder in fee to the estate, remainder default at her death then of such issue, equally, mother, fee to brothers sisters stirpes.” taking- per duly probated duly in Illinois will was copy Probate Court St. certified thereof filed County At the time June Louis Tighe undivided death, said owned an one-half Streets in a the corner of Fourth Market lot at property men- embraced within This was St. Louis. thereby said Winefred 6th clause, tioned so that Langan, entitled McCabe, was Winefred afterwards passed remainder fee estate life therein, *7 parties provided said in clause of said 6th as to will. being- in interest before
In all the 1869, County ren- of St. of the Louis court, Court Circuit property was partition which the decree dered a proceeds, $27,859.67, to-wit, one-fourth sold and appointed paid Hartnett, Michael J. over to Hartnett “to be said trustee, as cause, said court Winefred Mc- the benefit of out or invested loaned specified in others McCabe, and all of John wife Cabe, ’’ Tighe. The further ordered will of William give upon receipt bond sum, said Hartnett of said that, approved by court, which $33,000 sum in Maguire and Cath- with did, Constantine he afterwards Philips, J. Hartnett re- Michael Said sureties. erine as Louis, until his death St. mained trustee During time, continued Mrs. McCabe year all this Carlyle, her six reside Illinois, supposed income per per sum the annum on said cent under said made, trustee, he had thereof, which Upon Hartnett, the death court. order years insol- been was and for some had proved he purposes. his own After fund for used the vent George plaintiff, Hartnett, son, W. his death the nothing knowing Hartnett, widow, Catherine trusteeship of the father hus- character Vol. supposing
band, bnt that ho Mrs. McCabe owed individually, thereon sum, continued to they gave McCabe, and notes property encumbered their secure St. Louis Mrs.. McCabe. The widow made a dated October note, Cook, to Thomas F. a deed $12,859.67, Maguire, note, trust to H. trustee, James secure years 3, 1904, which was due five after bear- December per eight ing per maturity, annum before five cent per maturity, property per annum at after on Spruce Second and her individual which was Streets, property, prior' and which to her mar- she had owned riage. plaintiff, George the same W. at Hartnett, years time made a note for $15,000,due five Cook per after five 3, 1904, November with cent interest maturity, bearing eight annum cent after before maturity, one-half note on undivided secure said an interest in and Walnut These Sixth Streets. in- in the name of but were made *8 requested him turn and over Louis the St. Hartnett (Mrs. McCabe), he did, to her which and securities took (cid:127) receipt reading therefor, from her a follows: -as “ (Duplicate) George promissory of Hartnett note “Received W. 26, 1904, dated of Thomas F. $12,859.67, of order Oct. signed by by Cook, Hartnett secured Catharine deed and date, in which same Hartnett of of Catharine is Maguire part, party first James H. of party of the the ¿nd part, party Cook, Thomas second F. third promissory part. note $15,000, Also received dated signed by 1904, Cook, to order of Thomas F. 27, Oct. George by and secured same W deed trust of SUPREME COURT OF MISSOURI. party (unmarried)
date, Geo. Hartnett of. which W. second Maguire, party part, H. the first James part, That party part. of the third and Thos. Cook, F. held of trust were these notes, secured deeds George for McCabe for trustee Hartnett as Winefred W. possession of money in the McCabe cash of Winefred George Hartnett. W. W. “George Hartnett, ‘ ‘Winefred McCabe.'’ appraisal property was Afterwards, an plaintiff, security insufficient, found and George of trust on other Hartnett, made deed another W. Sterling property, P. Bond, 14, 1905, dated November beneficiary. It con- trustee, Winefred Bridgeton, veyed in the town estate St. certain real County. given security as additional It was Louis previously made and he had note $15,000 both previously mother had made to note $12,859.67 Cook widow, Mrs. McCabe. Catharine delivered time, made similar at the same deed of Hartnett, also security, by she transferred trust, as additional Washington residence at 2909 Ave- her homestead paid Thereafter, nue St. Louis. always rate on both notes, Mrs. McCabe five maturity, as well annum, after as be- May up plaintiff,'George 1911, 16, fore, when W. sold his one-half interest Hartnett, Sixth property paid $18,500, Walnut Streets delivering the-money $15,000note, McCabe,’and individually, receiving by her, deed release executed deed, releasing of trust sold. On George May prop- Hartnett, also sold the proceeds Bridgeton, erty in out of the paying prior all thát was left after $1,019.67, receipt mortgages thereon, took her therefor, read- ing as follows: May
“Received, Mo., Louis, 22, 19.il, St. of Catha- ten nineteen rine 67/100 hundred dollars, being note for $12,859.67, on account me held *9 Vol. 1920.' by cor- property northwest trust on on secured deed Spruce ner Mo. Louis, Streets, St. Second payment note above account amount reduces on per per drawing interest five cent $12,859.67 $11,840, annum from June
“$1,019.67. Wineered McCabe.” payment in- it was made, At the same time this attorney. by'Mrs. note, itself, dorsed McCabe’s at the note, Hartnett interest on $964.47 receipt, samé took is as -time, follows: May “Received, Louis, Mo., 22, 1911, Catha- St. sixty-four dol- nine hundred and Hartnett, rine 47/100 being eighteen due me to months’ interest full lars, June note at five
3, 1911, an- $12,859.67 on num. from The above the note Catharine being secured of trust $12,859.67, deed Hartnett property on Spruce on northwest comer of Second Street Mo.
Street, Louis, St. “$964.47. Wineered McCabe.” Bridgeton prop- Mrs. McCabe also then released erty Mrs. Hartnett’s homestead from deed securing the note of Mrs. Hartnett’s $12,859.67. capacity. This release was also made her individual During transaction, this the note for $12,859.67seems to lost have been mislaid, as was never afterwards or. properties found. The encumbered the son were conveyed years him the father several before, with understanding conveyance verbal was made purpose looking “for the out for Mrs. McCabe’s trust.” Philips,
Mrs. surety as devisee her husband’s bond, trustee, received property suffi- gave the note she cient Mrs. McCabe, as Mrs. descended Hartnett’s we But, evidence heirs. find gave when she not, note, or at did time, know of Philips, bond, that Mrs. existence of or she, MISSOURI. COURT OE SUPREME *10 Langan.
Hartnett v. Philips, liable manner as devisee of Mrs. was thereon. proceeding in the Court
On Circuit 8,1914, June appointed County, Schlafiy Clinton Fred Illinois, 6th the trustee for all beneficiaries under clause the Tighe, said the the will of said and was ordered moneys, Mrs. all court to McCabe demand take and amounting hands, $28,- choses etc.-, required action, to give sum 784.33. the He bond being giving Upon as such trustee. bond $50,000, being money duly qualified, sum, over the said took G-eorge from Mrs. McCabe. Hartnett securities, W. July sent his for the interest check due Schlafiy, returned 3, 1914, but it was him said re- questing Schlafiy, payable him make to his, check as trustee. Hartnett visited McCabe at Car- lyle, ap- Schlafiy him and she informed been had pointed right pay that it in- trustee, and was all accordingly terest to him, which Hartnett took did, and Schlafiy’s receipt therefor, Thereafter, as trustee. by George Schlafiy, interest was Hartnett W. as January, trustee, some time until said when principal balance, inter- desired est, due on $12,859.67note, secure the release of property, securing still deed on his mother’s developed said note. It then nbte could not found was lost been seen never since the partial payment $1,019.43 had been made thereon. Thereupon, January plaintiff, George 10,1917, Schlafiy said tendered to $351.81 interest at five principal, annum, pay- $11,840, ment of note, which he claimed was the full amount said due, surrender demanded note and release securing being of trust it. The deed note lost, Schlafiy agree it, surrender and did could.not tendered after time Mrs. McCabe’s death was sufficient. A bond for the lost note was also spoken agreement of, but was reached. no Yol. brought plaintiffs January
Thereupon, on 19, 1917-, Schlafly making beneficiaries all suit known will, and claimants under clause 6th making legal representatives, also parties name, persons and all claimants, all such beneficiaries and representing unknown, as were claiming "them, under unknown, parties stat- as defendant, notifying publication them made to be ute, and caused required by our statutes. suit, petition, which set filed an amended substantially principal up narrated. facts above *11 alleged petition that Michael J. Said said discharged trustee, “nor such never plaintiffs were been as in as heirs at successors herein, law, and discharged provi- from the terms trust, said ever plain- by That said decree. sions of said created trust for trustees, tiffs such secured the trust herein, as said during use and benefit said Winefred they under the terms of life, quired that said re- are trust pay beneficiaries, over here- defendants principal in of said and the inter- trust named, said thereon said since death of that accrued "Wine- est fred McCabe.” alleges petition
The substance that de- up conflicting fendants* claims to sums set and take said proper given, of the be different views construction to plaintiffs said will. Also, clause of that were not 6th sums were trust funds informed that'said said turning were deceived over will, said note and money property; McCabe, as her individual accounting entitled to an are from her administra- Schlafly, tor, Slater, defendant defendant, Fred also well as trustees of who, their own wrong. plaintiff’s petition prayer of the that the Tighe, said clause in the construe 6th ofwill said rights
and determine interested there- in, distribution of the fund order in, court accord- ingly. Schlafly Also, decree said account for COURT MISSOURI. SUPREME OF inor
pay paid into to him court all funds over persons en- may so over that the same hands, plaintiffs by That court. thereto, as titled decreed discharging Michael J. of said have decree Also as trustee. bond, Hartnett and on his the sureties trust note that said decree cancel and deed plaintiffs trust recover $12,859.67. Also out compensation as suc- for their services funds reasonable in paying over said father cessors to their sáid attorney’s fees costs, entire and for their relief. petition, filing January 19, At the of the time court, to, leave allowed payment into tender of said court, did which note, $12,211.66, the sum of afterwards deposited in the National order of court Bank of Com- special deposit, drawing as a two Louis, merce St. per annum. Langan, Mary Defendant administratrix, Grace .and other named filed answer defendants, certain attorneys, Campbell Jones, Bruce A. P. Ford & S. up They as a set counterclaim answer, Bond. against plaintiffs, that the effect, *12 George Hartnett, plaintiff, made W. deeds the upon property, Mrs. McCabe and secure was to by purchased with Michael J. the trust funds large profits were in from which that hands, made; profits belonged trust fund in‘addition to the plaintiffs principal .the thereof, liable, which were accounting against an defendants ask and whom the and They alleged judgment in answer, said therefor. also Tighe been construed said had de- will of a County, in Court Clinton Illinois, cree Circuit bringing prior plaintiffs’ of the suit commenced to said court had and that de- suit, determined that said said trust fund, the owners of and were fendants were in said under in certain share said will entitled to fund proportions, answer sets out which and which the was lower determined correct. That court decree Vol. given
full said faith to Illinois credit must be and the United court’s under Constitution decree dispute States. And that matters in between parties said fund shares interest adjudicated already in Illinois. been decree said Schlafly, as* Schlafly, Fred Defendant, Fred and McCabe died that Mrs. trustee, answer, stated having ever 9, 1916, October without body, previous and Langan, Catharine sister, and brother James mother, Langan departed also stated II, had this life. It George Hartnett, the $12,- note of $15,000 given re- Hartnett, note of Catharine were 859.67 original lost the trust been fund, store which had given Mrs. Michael J. and were trustee, possession hold, thereof, hold did preserved the said for whomsoever should upon her That to it death. at the entitled Novem- County, term, of the Circuit Court of Clinton ber proceeding in all the beneficiaries in a Hlinois, which defendants, will clause 6th said plaintiff, was construed Mrs. McCabe said appointed Schlafly hold to take said will said required by possession McCabe, funds January 27, That said decree will. .made said Schlafly, gave as re- defendant, That bond quired possession money took choses constituting said funds of Mrs. action That court determined such trustee. them as holds proportion all the ór binding and said decree is funds, suit had That said Illinois commenced, them. cause prior thereof, informed the com- this suit. mencement Connolly separate filed defendant
.The claiming as husband and his de- that, heir answer, *13 Langan Connolly, II. Catharine wife, ceased Connolly, daughter, both of whom heir of Winefred SUPREME COURT OP MISSOURI. pre-deceased to four Mrs. McCabe, he was entitled twenty-firsts of estate.
The Public Slater, answer of the defendant Prank of Administrator, claimed that as administrator of in this State, estate was entitled McCabe, on. on of accrued account $210.49 which had said funds from 3, 1916, 9, 1916, June October date McCabe. His answer also death Mrs. took 6'th created a. the view clause of will taking vested remainder named as and if issue, so, death without thirty-fifths Mrs. McCabe, herself, was entitled two one of the heirs of her father, mother, brother sister, who died before did.
Proper pleadings putting were filed all the various parties, plaintiffs claims of the defendants, is- sue. have not undertaken to set We out even tire sub- language pleadings, stance of the of the different but! only portions a bare outline of the material thereof. pleadings may Other facts evidence stated in the opinion. be hereafter into referred course below pay court into decreed that (in addition to the $1075.44 amount suit) less such commencement as the amount Bank should as interest on said sum Commerce, deposit thereupon, with said bank; the note $12,859.67 deed made Mrs. Catherine plaintiffs, mother of should Hartnett, be deemed cancelled and satisfied, and that the heirs of Michael J. Hartnett, Catherine deceased, Philips, surety Catharine deceased, of the bond of said Michael J. Hartnett, as trustee, also should be discharged liability any from all defendants in plaintiffs prayed denied case; other relief against against for. The court decreed the relief asked plaintiffs by Mary Langan the defendants, Grace et in their al., but found cross-bill; and decreed for said holding as to the construction of the will, defendants, they were entitled to the fund in court under the *14 1920; Yol. Langan.
Hartnett v. de- Tighe; 6th and that clause will of said Mulcahy, no took Connolly fendant Kate will; Frank defendant interest under said charge of estate of Slater, Administrator, Public interest had no McCabe, deceased, said Winefred except Mrs. due amount interest $207.20, said fund her note, at McCabe on Hartnett’s time Mrs. ap- All the is, death, Mrs. McCabe’s death. Mulcahy. except pealed, Slater defendants, pay- question I. whether tender first is The was suffi- $12,211.66 ment into controversy. on the note cient to due amount only per per annum, If five the note bore at cent interest (cid:127) was , the tender after McCabe’s Mrs. ^ ' interest time, if bore but, after sufficient, ' eight per per was annum, the tender rate at the cent controversy was October insufficient. dated note originally due or be- for on 1904, $12,859.67, was 26, years 1904, at with interest 3, fore December five maturity, per per until and after ma- cent five turity annum_ per eight per It secured annum. at cent of even date with the note real estate deed of trust Spruce City Streets, Louis on Second and St. Hartnett, the individual which was marriage. note another It, before owned plaintiff, George by $15,000 son, made for paid years suit several Hartnett, which was before good given brought, Mrs. McCabe make $27.859.67, her son which Mrs. Hartnett and the sum of father, Michael the husband and J. believed years many during held in lifetime for individually. personally Mrs. and owed nothing how They the trust or terms knew about persons any or was or that created, it arose, interested therein. Carlyle, County, Illi- McCabe lived at Clinton always paid and her on son interest
nois. Hartnett personally, maturity, to her after their these notes at rate five annum. before, well SUPREME COURT OP MISSOURI. May On 22, 1911, Mrs. Mrs. McCabe Hartnett (besides $1,019.67 five to June due per cent), reducing ber note tbe amount due gave $12,859.67 to $11,840. a re- She Mrs.’ ceipt May paid, dated money 22,1911, so set out our and which concludes facts, statement as follows: *15 payment
“The above on reduces the amount account per of note drawing of $12,859.67 to cent $11,840, five per interest annum 3, 1911. June “$1,019.67 Wineered McCabe.” express This is an Mrs. McCabe’s statement of writing, by payment May made on 22, the on 1911, that day $1,019.67 that there $11,840 is balance left against due on her note Hartnett, draw interest following, per from June 3rd that June at five 3,1911, is, per cent paid to which annum, interest date had been the at the long same time. Thereafter, as as she lived, Schlafly, appointed also, after he was trustee County, Circuit Court of Clinton Illinois, 1914, always until her paid death collected and were per at the rate five cent annum. Al- though given the note was Mrs. McCabe for her benefit only, given the remaindermen now seek treat it as they their also. If must so, benefit take it she held as it ratify changing of Mrs. act in- originally maturity, terest it after bore to five per annum June after point,
We must find this therefore, in favor of the plaintiffs deposit they in court that when brought owing suit was sufficient that was all wrong the note. The lower court was therefore payment holding into court was insufficient. Although given II. note was Mrs. McCabe impression it Hartnett, was for principal benefit, sole she owned the of the well fund, as as interest or income trust thereof always it received, which she had was still, afterwards Vol. remaindermen, Schlafly,
turned over as trustee _ claiming aas now in court are on. (to- par£ note Said trust fund. saa(j 0f gether with was note $15,000, son’s brought) before this suit Mrs. McCabe taken given by up full amount Mrs. Hartnett make owing by remainder- trust fund the father. The men it, must take as received it, Mrs. McCabe as full amount fund. No mistake error trust charged Therefore, or shown to exist as amount. right declaring decree was the heirs Philips, surety on Michael J. Hartnett discharged lia- such from all bond, as trustee, upon payment upon bility the note of the amount due question, plaintiffs which we hold have done. The
IV. heirs Michael J. fund. successors as trustee of the trust dissipated, 1st: fund Because, the trust had been there nowas them as trust devolve fund to being per heirs. 2nd: “ x - *16 Title Trustee’s property, have would existed, sonal had it Heirs, custody passed adminis into the one), (had there been trator said Michael J. Hartnett Dyer, Admr., [Hook, to heirs. v. bailee, as not 472.] Mo. v. 209 ex rel. Trust Co., Mo. State 214; 47 voluntarily George sur plaintiff, 3rd: mother and his fund he created rendered trust the years before several hands into the or administer claim hold and did to not any time. will at same re- plaintiffs not entitled to Therefore, the restoring preserving compensation or for any ceive trustee. their to fund as successors trust plaintiffs any allow entitled to were the Nor IV. expenses bringing attorneys’ for or fees ance for plaintiffs true, It suit. is prosecuting this to a re order secure valid obliged bring the suit to from the hen of the property deed trust. lease 490 SUPREME COURT OF MISSOURI. (cid:127) y. Langan. foreign nor
A right title administrator has no to receipt citi note from or collect Pee“sel zens of this State and secured App. this [Crohn State. Richard Bank, 712; v. 137 Mo. Naylor’s son Busch, Moffatt, v. Mo. Admr. 187; v. McCarty 29 Mo. v. Bartlett 126; 480; v. Mo. Hall, 13 Hyde, App. 490; Mo. State ex rel. v. 187 Mo. Bruce, 614-15.]
Schlafly, deriving powers from trustee not Tighe, provision the will of no which made testator, simply such trustee, but from the order County,. Circuit Court no more of Clinton Illinois, power receipt or title for the balance due collect question, on the note and deed of than would n foreign power administrator. The of both is derived wholly ap they laws where state are pointed, operate beyond and those laws do limits of such [Curtis Smith, state. v. Blatch. Scudder 537; Ames, v. 89 Mo. l. c. McPike v. 522; McPike, 111 Mo. supra.] l. c. 225-6; and authorities, Schlafly legally Before note, could collect said appointed should been have trustee a court supra.] [Curtis Smith, State. v. plaintiffs legally paid
But. while the could not have Schlafly, they the note directly could have it difficulty remaindermen entitled it, if there was uncertainty determining they who were, deposit money could due on the note court and parties equity, make all to a claimants suit in and ask satisfy cancel note the deed of trust, as did do. As we understand the authorities, including Sandusky Sandusky, 265 Mo. 219, relied upon by plaintiffs, only executor or other appointed provisions carry out the of a will *17 who are allowed counsel fees suits for the construction any In will. we know of event, no case which the debtor estate or those claiming of an or him, have been her, although here, entitled held to such allowance, necessary was for them to the amount ¡aid into to seek equity court due a court Vol.
Hartnett relieving property incumbrance their from
the debt. brought, primarily, for benefit suit was
This In plaintiffs the defendants. and not for that of plain- cases, such are not allowable counsel fees ruling. right in so court tiffs, the lower was up in the V. to the counterclaim or cross-bill set As against Langan Mary et answer of defendants Grace al., plaintiffs. the al- This based counterclaim is ’ legations Michael ancestor, that said answer _ Hartnett, in certain funds invested the trust J. large
real estate which he or realized from profits, en- are which the beneficiaries said fund principal to in fund. We titled addition to of such carefully. that examined the It shows have evidence any property. said Michael J. Hartnett died without property, pieces years be- a number of That which two conveyed conveyed to fore his death to be he caused wholly, George largely, not son, if paying he $15,00.0 used the latter in Mrs. McCabe. The evidence sustain does property purchased property or claim Michael J.' Hartnett with such trust fund, spent probably to time in fund time living expenses, reasons, was one of the by shown which induced evidence, mortgage give her make the note suit to good right debt. The lower husband’s against finding defendants counterclaim the said against plaintiffs. cross-bill question arising VII. The next is one between The defendant, defendants William Con- themselves. nolly, Connolly, is the father Winefred Langan Connolly, was Catharine a sister mother, Connolly daughter, Mrs. McCabe. Both died McCabe. Winefred, before Mrs. Remainder' claims an Connolly, therefore, Heirs as fnI1(jag -¿be Purchasers. daughter, beir of his deceased gabj having after that of her occurred her death *18 SUPREME COURT' OF MISSOURI. y. Langan. 6th mother. In the' words, his contention that clause of will a remainder created vested subject remaidermen mentioned, heirs, therein and their upon McCabe; to be divested birth Mrs. of issue to any therefore, children, Mrs. McCabe never had said remainder his divested, so never vested Langan Connolly; wife, sister, Catherine McCabe’s and right took a vested own interest her also took as an heir of her father, mother and who died before did; death, his wife’s descended daughter, daughter dying and his before Mrs. hand, On inherited her interest. the other Langan Mary said defendants, Grace et aL, assert during will any created no vested remainder in one only contingent the life of Mrs. McCabe, remainder (in in such of the remaindermen mentioned in the will leaving issue) case Mrs. McCabe died without as were alive at the time of her or if in the dead, heirs per stripes, living of the deceased remaindermen, tipie McCjabe’s agree death. We this con- Connolly, and that said tention, therefore, has rights 6th clause no under said will. Said 6th clause is as follows: my bequeath niece, Wine- give, and devise
“6th. I Lang,an the residue of life other half fred body, heirs or in fee to my remainder estate, her death remainder issue, at of such in default equally, brothers and mother, sisters fee stirpes.” taking heirs or their follow- since, ever made, When this will p. (1 R. S. 1855, statutory in force provisions ing 2874): 2873, R. secs. 7; S. secs. 6 tenements, in lands or remainder a Where “Sec. otherwise,. or by deed limited, be chattels, shall goods or heirs, person without effect on death take ‘heirs’ the words body, issue, or without or heirs or issue heirs mean construed shall be ‘issue’ as ancestor. person named living death at the Vol.
“Sec. a remainder shall he 7. Where limited hody, person of a to whom heirs, per- given, premises estate the same shall life shall estate, sons on the termination of the life who, body be the of such tenant *19 heirs, life, or heirs purchasers, by of the shall virtue be entitled to take as remainder so limited them.”
Under said remainder to the heirs Section contigent body of the McCabe, Mrs.' remainder, it “could not be told” heirs such “would because who contingent be until her remainder death, when in fee [Godman under the will would vest.” Simmons, v. Hughes, 627.] 113 127-8; Mo. l. c. 110 Mo. Emmerson v. And under “in said Section words default of living issue her death,” at meant without issue Mrs. at [Faust’s McCabe’s Admrx. 30 Birner, v. death. Mo. Naylor 414; v. 109 Mo. Godman, 543; Yocum Siler, v. 281; Mo. Pauk,
160 v. 200 Mo. l. 82.] Gannon c. Con statutory provisions strued view of the in every tention which rides down testator,t construing consideration a will, said 6th means clause Langan is to Winifred life, the devise remain living to her der fee descendants at her or death, living if she no decendants at her then the have death, in fee to her father, remainder brothers mother, living, taking if or then if sisters, dead, their heirs, stirpes. any Mrs. never had children nor McCabe living the time their descendants of her at living, if had children their descendants then they taken and her would have fee per stirpes sisters, or their mother, brothers heirs rights taken no title Their would whatever. have contigent wholly dying title were McCabe’s Mrs. leaving which descendants, without could not be ascer consequently, and, until she died, the estate tained brothers and father, mother, sisters, their heirs contigent per stirpes, remainder was a and did not vest during lifetime of Mrs. them, living only of them as were vested at the time 494 SUPREME COURT OF MISSOURI. [Godman
of her 127-128; death. v. 113 Mo. Simmons, Dickerson 211 v. Mo. other author- Dickerson, 483; and supra.] ities, infra daugh Connolly, neither
Therefore, nor anything ter, as her heir, took 6th clause pass to their because inheritance, would heirs they [Dickerson died before Mrs. McCabe. v. Dicker son, Mo. 483; DeLassus Gatewood, 380; Mo. v. Hughes, Krueger, Emmerson v. 110 Mo. Buxton 627; ] l.Mo. c. 240. Indeed, the remainder broth mother, to the father, stirpes, ers and sisters, or their was sub ject another contingency besides dying leaving without fath reason: The issue—for only er, brothers and sisters mother, to take the remainder in living they case time McCabe’s death, if because were then deceased, *20 portion stirpes, their heirs to take their were not as purchasers heirs descent, but under as the will. Kroeger, [Buxton v. 219 l. 256-7.] c. At the time Mo. impossible the will was say made, it to such remaindermen would survive Mrs. McCabe, and one was to no take as such remaindermen did who Consequently, her. survive for this reason, too, such contingent, remainder was and vested in none of such except remaindermen those who Mrs. survived McCabe. Mo, Hughes, [Emmerson 110 Emison v. 617; Whittle sey, supra.] l. c. Mo. also 258; authorities, being doubly contingent
The remainder, thus taking vesting only upon or effect the death in such of the remaindermen or their heirs living, as' were then who were to take the de- heirs portion ceased remaindermen’s under will persons or were, who been, would have the heirs deceased remaindermen at the time the remain- der or at the date Mrs. vested, death. A McCabe’s deceased heir of such remaindermen, of course, could nothing, fake, not in because existence when the estate living, no one is heir vested. As to may so be n Yol. the date said, one. At dead are heirs no her.daughter,, Connolly Mrs. Mrs. McCabe’s death, not, did daughter not, both being dead, could she could as under will, take mother’s heir her father inheritance nothing her transmit have or then, not the heir of his wife. would Who, (Mrs. the time of her Connolly been the Mrs. at being all then dead? McCabe’s) death, her descendants Distributions Section Our Statute Descents as then as now, provided, R. course S. descent, follows: children or decendants
“First, their or if there no children their equal parts; second, then father, mother, descendants, brothers if third, sisters and their descendants in equal parts; there be no children, descendants, their mother, descendants, nor then sister, brother ” wife;' the husband or ... therefore,
Under language plain statute, Connolly’s brothers, living Mrs. and the de- surviving then brother would be her heirs dead,’ scendents time of because Mrs. Mrs. Con- McCabe’s no living decendants, then had and her father nolly (leaving of her brothers descen- one mother, Consequently, were dead. share Con- dants) taken would have been alive when nolly 6th passed clause to her sur- died, the living decendents, stirpes brothers viving deceased, and not brother husband. rule did circuit must, court, therefore, We *21 Connolly, was to no part defendant, William entitled in controversy. the fund Mrs. McCabe' but a estate YTI. life nothing nothing said will could inherit her and preced- sister, death mother, brother whose reason her the death,
ed in- being contingent terests surviving her, Lif^Tenart effect because took died never before MISSOURI. SUPREME COURT OF Langan Mc- as Mrs. Mulcahy, did. Kate Consequently, received the admin- devisee, nothing, public and Cabe’s charge istrator the estate unpaid up entitled to the nothing, except him. which the court allowed death Mrs. of Mrs.- McCabe’s both At time VIII. the and one sister, and mother brother her father one her leaving surviving descendants, dead, Peter the brothers John, William, only children of deceased brother James. Peter and Therefore, John, Bemaüidermen. each entitled to one-fourth interest fourth vested remaining trust and the found and decreed the court children James, below. questions There are raised between
IX. many parties court, respective validity Ill County, Circuit Court of Clinton the decree clause construing willj said inois, of said - pass for us to discuss or necessary ^ no^ ^ Decree said construed those because we have questions, will and rights parties thereunder, determined Court, the same as Circuit the said Illinois did so de in favor we have defendant, of whom all affirm cided, decree validity Illinois things.
X. We, therefore, judgment reverse cir- remand with herein, case directions cuit judgment herein, its so as to decree modify deeds of of said Hartnett, origi- note and Catharine $12,589.67, mentioned nally petition, satisfied and paid, cancelled, without fully thereon than payment further mon- paid into court ey already by them, tendered fully said trust satisfied, and the also, Michael J. trustee, Maguire, and Constantine Philips sureties Catherine *22 - 497 Vol. Williams v. Schaff. discharged from fully
on his their heirs, be bond, and liability costs All court all on further account thereof. against be defendants, should decreed and be out of said fund court. appoint- right Schlafly has as trustee
Defendant no fund, said ed the Illinois court to collect receive authorizing judgment iu is erroneous and the below in interest him defendant Still, to so. do objection reason, make for that here said decree no binding consequently, consent will be thereto, Schlafly far as are concerned. them, so may appointed by lower court as as considered Hartnett, trustee, and, such, as successor of Michael J. directed. receive out funds as authorized ruling understanding, not we disturb With do receiving Schlafly of the lower court as disbursing respects, In all trustee. as except decree of the indicated, above circuit is affirmed. Ragland, GG..,
Brotvn concur. opinion foregoing PER CURIAM:—The Small, opinion adopted of the court. C., All of the except Woodson, judges J., absent. concur, Re- SCHAFF, A. v. CHARLES E. JAMES WILLIAMS Railway Kansas Missouri, & Texas Com- ceiver pany, Appellant. One,
Division June Injury Way Lodging 1. NEGLIGENCE: Work: Another Town: plaintiff Necessity: go Sufficient Evidence. Where ordered sema- Savannah to assist a foreman in the. construction of a phore having quitting finished work time and intend- day, any. ing to finish it the next the foreman said “there isn’t place stay up in-Savannah; we will to McAlester and run return 282 Mo..—82 notes Cook, security McCabe, tended as for Mrs. and afterwards George Carlyle plaintiff, went to ten- W. to Mrs. she told that she McCabe, them him dered prefer keep her, would the securities for as his him. But, afterwards, father had done before accompanied by 1905, October, 10th of attorney, upon George Bond, defendant' as her called