20 Mo. App. 616 | Mo. Ct. App. | 1886
Lead Opinion
delivered the opinion of the court.
The last will of George R. Jacobs, deceased, contained the following devise: “I give and devise the next, or middle lot, and the store house thereon * * * to the said John Byrne, Jr., and E. L. Haydel, of St. Louis county, in trust, and for no other purpose, for the use and benefit of my three sons, Wm. H., Charles A., and Junius, in equal shares, as long as they may all live, with power in my said three sons to use and enjoy
John Byrne, Jr., declining to act, the defendant took charge of the property, under the will, in 1878. In April, 1885, the beneficiary, Junius Jacobs, for an expressed consideration of five thousand dollars, conveyed by deed to the plaintiff “all the income, rents, issues, and profits now due to me, and hereafter to become due to me in any manner, arising from, and accrued and to accrue from the property” described in the will.
The trustee refused to recognize the validity of this-conveyance as affecting the rents to accrue, whereupon the plaintiff filed his bill in equity against Mm for an accounting. The defendant answering states that at the date of the'conveyance from Junius Jacobs to the plaintiff, he had no money in his hands due to the said Junius Jacobs. Ele further answering prayed the court to construe the provisions of the will as far as they related to-the rents, issues, and profits of the real estate, and to make a decree for the guidance of the trustee.
Upon the trial, it apjjeared that the trustee had in Ms hands $163.96 belonging to Junius Jacobs, of which amount $71.25 was collected since the institution of the
The decree thus rendered can be upheld only by conceding two propositions: first, that in a proceeding for periodical accounting, the state of the account at the date of the trial, and not at the date of the institution of the suit, determines the right of the parties; and, next, that the limitations contained in the will were void as being in restraint of alienation.
On the first point, the true rule appears to be that where the action is one for final accounting, the court shopld have the account finally and fully stated up to the day of trial, in order that the decree may finally adjust the respective rights of the parties, and avoid the necessity of re-opening the account. Where, however, the relations between the trustee and the beneficiary are such that the rights of neither can be fully determined by the decree, and the bill seeks merely a periodical account, then the decree should determine 'the rights of the parties only as they were at the date of the institution of the suit. There is nothing in the latter case which takes it out of the common rule that the judgment or decree must be based upon the rights of the litigants, determined by conditions existing at the date of the institution of the suit. Farrell v. Fritschle, 30 Mo. 190.
We mention this because the question arises upon the record, and, although not of primary importance, will necessarily have to be met on a final disposition of the cause. Our judgment, however, is based upon a broader ground, and on one that goes to the foundation of the whole proceeding.
The trial court, assuming that Junius Jacobs hada life estate in the equitable right that had been devised to him, applied the doctrine that one of the necessary legal incidents to a life estate is the right of alienation,
We had this question before ns at the present term in a controversy arising between the beneficiary’s creditors and the trustee, in Pickens v. Dorris (ante, p. 1). We upheld the creditors’ right there, on the sole ground that the will expressed no intention of the testator to withdraw the property devised from the claims of the beneficiary’s creditors ; but we also intimated what our decision would be if the expressed intentions of the testator on that subject were clear.
Here the intention of the testator admits of no doubt. It is expressed in clear and unambiguous terms. The question for us is: shall we give effect to that intention, or shall we frustrate it, because it is opposed to a rule of law never fully recognized in this country, and recently repeatedly repudiated by courts of the highest dignity and learning, as a rule opposed to the dictates of reason and conscience alike ?
It is said in Brandon v. Robinson (18 Ves. 433), that a donor creating a life estate could not take away its incidents, among which are the power of voluntary and involuntary alienation. That is the settled rule in England. ■ Yet it is conceded even there that if the gift or devise contain a condition of cesser upon bankruptcy of the donee or devisee, or upon an attempted alienation, or if the estate created is a mere use at the discretion of the trustee, the restraint is valid.
What sound public policy can there be which upholds the restraint in one case and avoids it in the other ? Upon what ground can the law tolerate conditional fees or freeholds, where the violation of the condition determines the estate, and yet refuse to uphold them when a violation of the condition is not fraught with such dire result? What folly to say that one may annex conditions to his gift, which destroy it, but not such as simply regulate it! It is such artificial reasoning, founded on no sound principle, that has brought upon the law the merited distrust of intelligent laymen.
This doctrine was reaffirmed in Hyde v. Woods (94 U. S. 523 [bk. 24 L. Ed. 264]). The supreme court of the United States is, therefore, fully committed on that side of the question. That court, in its relations to us, is not a foreign tribunal. Its opinion is of more than mere persuasive authority, and the argument advanced by the court is so clear and convincing that we would be inclined to yield to it, oven if the case stood alone and unsupported.
Such, however, is not the case. We believe that the weight of authority in this country is with the supreme court of the United States, as the weight of reason ^ unquestionably is. Such has always been the rule in Pennsylvania (Fisher v. Taylor, 2 Rawle 33 ; Thackara v. Mintzer, 100 Pa. 151), and has been recognized as the true rule, in regard to trust estates at least, in a number of other states (Broadway Nat. Bank v. Adams, 133 Mass. 170; Stieb v. Whitehead, 111 Ill. 247 ; Nickell v. Handly, 10 Gratt. 336; Pope's Ex'r v. Elliott, 8 B.
In this state the question, so far as it affects trust estates, has never been expressly adjudicated. The cases of Dougal v. Fryer (3 Mo. 40), and Clamorgan no. Lane (9 Mo. 447), which are relied on by the appellant, furnish no authority either way, as they were determined by the fact that the terms of the conveyance under consideration were valid under the Spanish law, which was in force when they were executed.
Nor is the case of McDowell v. Brown (21 Mo. 57, 59), which is relied on by the respondent, in point. In that case the conveyance under consideration .affected a legal estate. The court arguendo intimates that the condition in restraint of alienation was void, but places its conclusions equally upon the more substantial ground that the construction adopted by the court executes the intention of the grantor nearer than any other interpretation.
Whatever may be the prevailing rule in England, it is undeniable that a difference between legal and equitable estates in that regard is recognized in this country. The distinction is clearly drawn both in Sparhawk v. Cloon (125 Mass. 266), and Broadway National Bank v. Adams, supra. For that reason, among others, I am of •opinion that the case of McDowell v. Brown furnishes no insurmountable obstacle to upholding the trust in the present case, in accord with the clear and unmistakable intention of the testator.
I am of opinion that the decree of the trial court herein should be reversed, and a decree for the defendant entered in this court. In this opinion Thompson, J., •concurs.
In the opinion of Lewis, P. J., however, this decision is opposed to the previous decision of the supreme court, in the case last named.
It is, therefore, ordered that the cause be certified to the supreme court, in conformity with the provisions of
Dissenting Opinion
Dissenting.
I find nothing in the general reasoning of my learned associates from which I can withhold my concurrence, but for reasons which will hereafter appear, T feel compelled to dissent from their conclusion.
The circuit court, assuming that Junius Jacobs had a life estate in the equitable rights that had been devised to him, applied the doctrine that one of the necessary legal incidents to a life estate is the right of alienation ; that the policy of the law forbids restraints upon alienation, and hence the limitations in the wil] against the power of transfer by the devisee were void. This is, substantially, the settled English doctrine. Brandon v. Robinson, 18 Ves. 433.
The rule is alike applicable to estates for life and estates in fee. It is held, however, that if the conveyance provides for a cesser of the estate granted, or a limitation over to another person upon the happening of a particular event, as bankruptcy, attempt to alienate, etc., full effect will be given to the cesser or limitation. Said Lord Eldon, in the case just cited: “ There is no •doubt that property may be given to a man until he shall become a bankrupt. It is equally clear, generally speaking, that if property is given to a man for his life, the donor can not take away the incidents to a life estate ; and, as I have observed, a disposition to a man until he shall become bankrupt, and after his bankruptcy over, is quite different from an attempt to give to him for his life, with the proviso that he shall not sell or alien it. If that condition is so expressed as to amount to a limitation reducing the interest short of a life estate, neither the man nor his assigns can have it beyond the period limited.” We have thus two distinct classes of cases : (1) Where the conveyance for life or in fee prohibits alienation in general or specific terms, but creates no
There is a series of very high American authorities which seem to ignore the distinction just noted, in its relation to cases where there is an absolute gift by the grantor, through a trustee who is to hold the legal title, of income and profits to a beneficiary, with a proviso that he may not anticipate or alienate them, and that they shall never in any manner become liable for his debts. In Nichols v. Eaton (91 U. S. 716), the will provided for a cesser and limitation over, in case the beneficiaries should “alienate or dispose of the income to which they were entitled under the trusts of the will; or if, by reason of bankruptcy or insolvency, or any other means whatsoever, said income could no longer be personally enjoyed by them respectively.” The specific effects of the cesser and limitation over, as above defined, were strongly urged in the argument. But in the characteristically able and thorough opinion by Miller, J., and in a large array of authorities from which he quotes at length, a recognition of this condition, as essential to the conclusion reached, seems tobe carefully avoided. The operative efficacy of the restraint upon alienation, voluntary or otherwise, is placed upon broad and general grounds which demand no aid from any provision for cesser or limitation over.
Two cases have been decided by this court, whose leading features were nearly parallel with those of the present case, though neither depended for its determination on the question just referred to. Montague v. Crane (12 Mo. App. 582), was a case of cesser and limi
In McDowell v. Brown (21 Mo. 57), the English rule is fully recognized in its application to a conveyance in fee. Said Judge Leonard: “ The intention, of this grantor may have been, and probably was, to vest the whole property, the absolute dominion over the lot, in her daughter, with all the rights and incidents of an ownership in fee simple, stripped only of such power of alienation on the part of the daughter as would prevent its descent at her own death, upon her own children, the grantor’s grandchildren. Such an intention, however, is inconsistent with the rules of law, and for that reason can nob prevail, no matter how obvious it may be.”
In McIlvaine v. Smith (42 Mo. 45), Judge Holmes, after quoting a remark from Lord Eldon, adds: “Nor,
In the present case, the will contains no provision for a cesser of the estate, or a limitation over. Hence, I deem the decision of my learned associates on this question contrary to the foregoing decisions of the supreme court. I make no objection to other points in the majority opinion.
