Huntington Real Estate Co. v. MegareeHuntington Real Estate Co. v. Megaree
- TRUSTEE: Active Trust: Legal Title. The trustee of an active trust, with power to convey or to terminate the trust, created by will, is vested with the legal title to the lands by it devised to him for the use and benefit of designated persons.
- WILL: Vested Trust Estate: Remainder: Devise to Children and Heirs After Death. The will devised testator‘s property to a trustee for the benefit of certain children and declared that “in case of death of either of my children the share of such deceased child shall be transferred or paid to the heirs at law of such deceased child.” At the time of testator‘s death all his children were living. Held, that said provision of the will became inoperative as to such “heirs,” the rule being that, in the absence of a contrary provision, the title vests upon testator‘s death; and as the will gave the trustee power to turn over the property to the children at any time after testator‘s death, no title vested in the heirs of such children, but the equitable title, and not simply a life estate, vested in the children named, and no remainder in their heirs.
- ————: ————: ————: ————: Unambiguous Words. A devise to a trustee for use of children will not be cut down to an equitable life estate, with an equitable remainder in their heirs, unless the language used clearly indicates that such is the testator‘s intention.
- LIMITATIONS: Trust Estate. Adverse possession under color of title for a period of ten years vests the fee simple title of land in the occupant; and the rule applies against the trustee, in whom the legal title was vested by will, and against the beneficiaries of the trust fund, who were vested with the equitable title.
Appeal from St. Louis City Circuit Court.—Hon. William Kinsey, Judge.
AFFIRMED.
Appellants, grandchildren of testator, who died in 1882, cannot be precluded by the Statute of Limitations through adverse possession of respondent‘s predecessors in title beginning in 1890, because: (1) Under the will appellants were remaindermen after a life estate. Where property is left to children, and in case of their death, the share to go “to the heirs at law” of any deceased child, an estate for life is created in the children and a remainder in the grandchildren. Bradley v. Goff, 243 Mo. 95. Courts will follow the manifest purpose and intent of a testament. Even though the first taker has a power of disposal, it is not inconsistent with the creation of a life estate and remainder over. Gibson v. Gibson, 239 Mo. 490; Schneider v. Kloepple, 270 Mo. 389; Freeman v. Maxwell, 262 Mo. 13; Trigg v. Trigg, 192 S. W. 1014. It follows that, being remaindermen, they are not barred by the Statute of Limitations. Armor v. Frey, 253 Mo. 474; Hernden v. Yates, 194 S. W. 49. (2) The interposition of the trustee, under the terms of the will, does not alter the case upon the theory that the trustee represented the remaindermen as well as the life tenants. This for the reasons: (a) The trustee did not take a fee-simple title. A trustee will take “exactly that quantity of interest, whatever it may be, which the purpose of the trust and its proper execution may require and no more.” Young v. Hyde, 255 Mo. 509. Here Donovan‘s duties as trustee for the life tenants consisted essentially in the handling of “income” or “sums” of money. (b) Assuming that the “purposes of the trust and its proper execution” required the fee in the trustee, nevertheless the trust is active as to the life tenants only. As to the remaindermen the trust is purely passive and consequently upon the termination of the life estate the real estate “automatically vests in fee in the remaindermen by force of the Statute of Uses.” De Lashmutt v. Teetor, 261 Mo. 440. Here Donovan owed no duty to the remaindermen
Rodgers & Koerner for respondent.
(1) Adverse possession under color of title for a period of ten years vests title in fee simple.
RAILEY, C.—This is an action to quiet title under Section 2535, Revised Statutes 1909, to the following described real estate, to-wit: Lot in Block 40 of Wm. C. Christy‘s Addition, in Block 938 of the City of St. Louis, fronting 91 feet on the north line of Lucas Avenue, by a depth northwardly of 144 feet and 7 1/2 inches to an alley, bounded east by Twenty-first Street. Appellants and respondent deraign title from Ann T. Yarnall, the common source, who acquired the property in 1847.
“It is hereby stipulated and agreed by and between counsel that the following constitute the facts embodied in the bill of exceptions, duly filed in proper time in the above-entitled cause. This statement is for the purpose of shortening the record and presenting the matter as concisely as possible to the court for its consideration.
“Title to the property here involved was acquired by one Ann T. Yarnall by deed recorded May 3, 1847, in the Recorder‘s Office in the City of St. Louis, in Book 14, at page 140.
“In 1867 suit on a special tax bill, issued against said property for sewer improvements, was brought by the City of St. Louis to the use of the contractor, and said Ann T. Yarnall was made a party defendant and was served by publication. Judgment was rendered by default for $399.12, and the property was sold under execution to one Joseph M. O‘Shea, the sheriff‘s deed to said O‘Shea being dated July 20, 1867.
“By deed dated September 8, 1869, said O‘Shea conveyed said property to John F. Gibbons.
“In May, 1882, said John F. Gibbons died testate, his will being duly admitted to probate by the probate court in the City of St. Louis, and being recorded May 26, 1882, in Book 0, at page 216.
“‘After my debts and above bequests are paid, I give and bequeath all of my estate, real and personal and mixed, to Joseph T. Donovan, in trust, for my father, Thomas T. Gibbons, my mother, Bridget Gibbons, and my beloved children, viz.: Mame Eugenia Gibbons, David William Gibbons, John T. Gibbons and Joseph Gibbons. My father and mother having together a child‘s share in said trust estate. The said Joseph T. Donovan shall invest the funds of said trust estate either in improved real estate in City of St. Louis or in
loans on real estate situated either in the City or County of St. Louis. One-fifth of the income from said trust estate shall be paid annually to each child or if it be a minor, for or on account of its support, clothing and maintenance, or to the said minor as my said trustee may think proper.
“‘One-fifth of the income from said trust estate shall be paid to my father during his natural life, and upon his death to my mother. The said trustee may, however, if he thinks proper, pay to either of my children or to my father or mother any part or all of the sum held by him in trust for such child or parent. All sums in excess of the income paid shall be charged as an advance of the principal to the one receiving same and the income from such share shall be reduced in proportion to the reduction of the principal.
“‘After the death of my father and mother the share then held in trust for them shall thereafter be held in trust for my sister, Lizzie, if she is then living, but if she is dead, it shall thereafter be held in trust for my children.
“‘After the death of my sister, Lizzie, if she shall survive both my parents, the funds then held, in trust, for her shall thereafter be held, in trust, for my said children.
“‘In case of death of either of my children the share of such deceased child shall be transferred or paid to the heirs at law of such deceased child.’
“The inventory of the estate of the said John F. Gibbons was offered in evidence and the property here involved is not listed therein.
“The said John F. Gibbons left him surviving his father, Thomas T. Gibbons; his mother, Bridget Gibbons; his sister, Elizabeth, or Lizzie Gibbons; his daughter, Marie Eugenia Gibbons, and his three sons, David William Gibbons, John T. Gibbons and Joseph Gibbons; that the said Thomas T. Gibbons, Bridget Gibbons and John T. Gibbons (son of said testator, John F. Gibbons) have died since the death of the said testa-
tor, the said John T. Gibbons, son of said testator, dying intestate, without issue and unmarried; that since the death of said John F. Gibbons, his said sister, Elizabeth, or Lizzie Gibbons, has married one W. B. Grace, and his said daughter, the said Marie Eugenia Gibbons, has married one George R. Smith and has had six children by said marriage, viz., George R. Smith, Jr., Mary Eugenia Smith, Lucile Claire Smith, Gibbons Smith, Clarence Smith and Helen Smith; that said George R. Smith, Jr., has since married defendant, Frances Smith; that said David William Gibbons has died intestate and unmarried since the death of the said testator, John F. Gibbons; that the said Joseph Gibbons (son of John F. Gibbons) is living and has never been married.
“In 1871 the said property was sold for general taxes and two collector‘s deeds thereto were executed by the then Collector of the City of St. Louis, C. Maguire, to one N. D. Allen. The first of said deeds was dated July 17, 1871, and the second July 18, 1871.
“In 1878 said property was again sold for general taxes and a collector‘s deed conveying the same, dated November 29, 1878, was executed by M. A. Rosenblatt, the then Collector of the City of St. Louis, to the said N. D. Allen.
“In 1883 it was apparently thought that the last above mentioned collector‘s deed was defective, and in order to correct the same another deed dated January 17, 1883, was executed by N. C. Hudson, the then Collector of the City of St. Louis, to the said N. D. Allen.
“Said N. D. Allen and wife conveyed the said property to W. D. Griswold by deed dated January 29, 1879. After the execution of the above mentioned deed of correction from Hudson, Collector, to Allen, said N. D. Allen and wife executed another deed to said property dated January 22, 1883, again conveying said property to the said W. D. Griswold.
“Said W. D. Griswold and wife conveyed said property to Laura G. Smith by deed dated April 29, 1879.
“Said Laura G. Smith died testate in 1905, devising said property to her four sons, William D. G., Hamilton, Ralph L. and Huntington Smith.
“Said William D. G., Hamilton, Ralph L. and Huntington Smith, by deed dated May 20, 1911, conveyed said property to the Huntington Real Estate Company, plaintiff in this case.
“It further appears that at one time the City of St. Louis instituted a suit to widen what was then Twenty-second Street, but is now Twenty-first Street, and in the condemnation proceedings instituted for that purpose in the Land Commissioner‘s Court of the County, now the City, of St. Louis, judgment for benefits was rendered against said property. Said judgment not being paid, execution was issued to the City Marshal of St. Louis and said property sold under execution. The City of St. Louis was the purchaser at the sale and has heretofore conveyed whatever interest it acquired to plaintiff in this case.
“The evidence further shows that since January, 1890, plaintiff and its predecessors in title have been in open, notorious, continuous, adverse possession of the property in question, paying all taxes, making all repairs and, through their tenants, being in actual occupation. There is no evidence as to who was in possession of the premises prior to 1890, except such inference, if any, as may be drawn from the above admitted facts. It is agreed that the aforesaid tax deeds and instruments of conveyance did not in themselves pass indefeasible title to plaintiff and its predecessors in title, but gave color of title only. Plaintiff‘s present claim to indefeasible fee-simple title is based upon the Statute of Limitation and the aforesaid adverse possession of said premises by it and its predecessors in title under color of title conferred by the tax deeds and other instruments of conveyance above mentioned.”
Appellants claim title through the will of John F. Gibbons, who died testate in 1882.
On October 11, 1915, a decree was rendered in favor of respondent. In due time, appellants filed their motion for a new trial, which was overruled and the cause duly appealed by them to this court.
I. This is an action under Section 2535, Revised Statutes 1909, to quiet title to the real estate heretofore described. Ann T. Yarnall is the common source of title. By virtue of a suit upon a special tax bill, instituted in 1867, title came in due course to John F. Gibbons in 1869. The latter died testate, in May, 1882, and his estate was duly administered in the Probate Court of the City of St. Louis, Missouri. The real estate in controversy was not inventoried as a part of said estate. Appellants claim title through the will of said John F. Gibbons. Respondents claim title, by adverse possession, and the Statute of Limitations. This controversy arises over the construction of that portion of the will of said Gibbons set out in the foregoing agreed statement of facts. By virtue of the will, Donovan became the trustee of an active trust and, as such trustee, was vested with the legal title to the property in controversy. [Maxwell v. Growney, 213 S. W. 427; Lawson v. Cunningham, 275 Mo. l. c. 146, 204 S. W. 1100; Higbee v. Brockenbrough, 191 S. W. 994; Freeman v. Maxwell, 262 Mo. l. c. 24; Webb v. Hayden, 166 Mo. 39; Garland v. Smith, 164 Mo. 1; Simpson v. Erisner, 155 Mo. 157; Schiffman v. Schmidt, 154 Mo. 204; Walton v. Ketchum, 147 Mo. 209; Pugh v. Hays, 113 Mo. l. c. 431-2; Ewing v. Shannahan, 113 Mo. l. c. 193-4; Norcum v. D‘Oench & Ringling, 17 Mo. 117-8; 1 Sanders on Uses & Trusts
We are cited by appellants to De Lashmutt v. Teetor, 261 Mo. 412; Luquire v. Lee, 121 Ga. 624, and Young v. Hyde, 255 Mo. 496, 512, as presenting a contrary view, but in neither of these cases did the trustee have the power, as in the case at bar, to convey the entire trust estate to the beneficiaries at any time he may have deemed it advisable to do so.
When John F. Gibbons, the testator, died in 1882, his father, mother, sister, daughter and three sons, constituting those mentioned as beneficiaries in the will, were all living. The will provides, that: “The said trustee may, however, if he thinks proper, pay to either of my children or to my father or mother any part or all of the sum held by him, in trust, for such child or parent.” By the very terms of the will, the trustee, upon the death of John F. Gibbons, could have terminated the trust, by turning over to testator‘s father and testator‘s four children all the property belonging to the estate. In order to do that, he must have been clothed with the legal title to the property, by the terms of the will.
Regardless of the law in other jurisdictions, we are satisfied with the rulings on this subject as announced in foregoing authorities.
II. That portion of the will heretofore mentioned, concludes as follows:
“In case of death of either of my children the share of such deceased child shall be transferred or paid to the heirs at law of such deceased child.”
That is to say, by way of illustration, if testator‘s daughter, Marie Eugenia Gibbons, was dead, at the time of testator‘s death, and left two children, the latter
In Howard v. Howard, supra, at page 993, the second clause of the will reads: “Second. I will and bequeath to Augustus Howard, one-fourth of all my real and personal property.” After making a similar provision for Peter G. Howard, in the fourth clause, the following appears: “It is also both my will and desire that Lenora E. Howard, Alpheus Howard and Peter G. Howard act as guardian (after my death) for Augustus Howard, giving to him every twelve months the interest or proceeds of his fourth of my estate. This is done to keep Augustus Howard from spending or squandering same, and should said Augustus Howard die then my will is that his share of my estate be legally divided amongst his heirs.” It was held that Howard took an absolute estate in fee, under the will, and a number of cases were cited in support of the above conclusion.
In Henderson v. Calhoun, 183 S. W. 584, we had under consideration clause 8 of the will of William Calhoun, of Johnson County, Missouri, who died in 1882, which reads as follows: “8th. After all expenses are paid the balance of my estate I bequeath to Margaret A. Calhoun, Sarah Jane Boyd, Robert A. Calhoun, and William Calhoun and their heirs to be equally divided among the same, and if any of them die without issue their portion to revert to their brothers and sisters and to share and share alike.” In construing the above clause, on page 586, we said: “The will of William Calhoun, taken as a whole, indicates upon its face an intention upon the part of said testator to dispose of all
The principle announced in the above cases is consistent with the power given the trustee to turn over the property at any time he might deem proper after testator‘s death.
In Middleton v. Dudding, supra, the testator had conveyed to his wife an absolute fee simple title to the property by the express terms of the will. Testator and his wife were childless, and some two years after the execution of the will he evidently became dissatisfied with the arrangement which had been made, as the property would go to his wife‘s relations, if she died without issue. He thereupon added a codicil to the original will, using the following language: “And I further state, should my wife Annie die without a will or having disposed of above property, one-half of property shall go to Bessie Watkins . . . and the other
The opinion in Gibson v. Gibson, 239 Mo. l. c. 506, so strongly relied on by appellants, after reviewing many authorities, contains the following: “In what we
With the opinion in the Middleton-Dudding case confronting us, we would not feel justified in holding that any of testator‘s grandchildren are equitable remaindermen, in the real estate aforesaid and, especially so, in view of the fact that the parent is still living. [
IV. Having heretofore reached the conclusion that Joseph T. Donovan, the trustee, became vested with the fee simple legal title to said estate, and the first takers the equitable fee simple title in said land, it remains to be determined whether respondent has become the legal owner of said real estate by limitation and adverse possession. The agreed statement of facts contains the following:
“The evidence further shows that since January, 1890 plaintiff and its predecessors in title have been in open, notorious, continuous, adverse possession of the property in question, paying all taxes, making all repairs, and, through their tenants, being in actual occupation. There is no evidence as to who was in possession of the premises prior to 1890, except such inference, if any, as may be drawn from the above admitted facts. It is agreed that the aforesaid tax deeds and instruments of conveyance did not in themselves pass indefeasible title to plaintiff and its predecessors in title, but gave color of title only. Plaintiff‘s present claim to indefeasible fee simple title is based upon the Statute of Limitations, and the aforesaid adverse possession of said premises by it and its predecessors in title under color of title conferred by the tax deeds and other instruments of conveyance above mentioned.”
Adverse possession under color of title, as described in the stipulation, for a period of ten years, vested the
V. The trustee, having been barred by limitation and adverse possession, all the beneficiaries mentioned in said will are likewise barred. [Ewing v. Shannahan, 113 Mo. 188, l. c. 201-2; Walton v. Ketchum, 147 Mo. l. c. 219; Schiffman v. Schmidt, 154 Mo. 204, l. c. 212; Meeks v. Olpherts, 100 U. S. l. c. 569; Waterman Hall v. Waterman, 220 Ill. l. c. 576-7; Cushman v. Coleman, 92 Ga. l. c. 774-5; 1 Ruling Case Law, sec. 80, p. 754, and cases cited.]
a. The trustee, so far as the record shows, made no effort to take possession of the land in controversy, although he held the legal title thereto. Nor does it appear that the first takers, who held the equitable fee simple title, ever requested the trustee to obtain possession of said property or to assert title thereto. If the trustee does not perform his duty, the beneficiaries are not without a remedy in equity to require him to do so. [Norcum v. D‘Oench & Ringling, 17 Mo. l. c. 118.] In this case, both the trustee and beneficiaries stood by and permitted plaintiff to acquire, by adverse possession, a good title to the land in question.
VI. We have endeavored to consider all the material questions presented in the record before us. The trial court found the issues in favor of respondent and entered its decree accordingly. The judgment thus rendered was for the right party, and is therefore affirmed.
White and Mozley, CC., concur.
PER CURIAM:—The foregoing opinion of RAILEY, C., is hereby adopted as the opinion of the court. All the judges concur.