150 Mo. App. 537 | Mo. Ct. App. | 1910
This is a proceeding in equity for an accounting. The court found the issue for plaintiff and gave judgment against defendant for $1,284.57. Defendant prosecutes the appeal.
One of the plaintiffs is trustee under the will of Robert Anderson, deceased, and successor to defendant’s testator who formerly occupied the same position of trust under the will. The other plaintiff is Robert Spain Anderson, cestui que trust under the will of his father, Robert Anderson, and as such is the real party in interest; for the accounting is sought in his favor. Defendant is the executrix of the last will of Smith P. Galt, who in his lifetime was the original trustee under the will of Robert Anderson, to the usé of plaintiff, Robert Spain Anderson, the cestui que trust.
It appears that Robert Anderson departed this life some time prior to April 1, 1892, and by his last' will settled a trust estate in favor of his son, Robert Spain Anderson, with remainder over in event of his death to the heirs of said Robert Spain Anderson, if any, and in
Smith P. Galt entered upon the discharge of the trust in April, 1892, and discharged the duties thereof until the time of his death, June 2, 1905. During all of those years he looked after the property, collected or caused to be collected the rents, made repairs; paid the insurance, etc., and paid different sums of money to the cestui que trust and others for him. After the death of the trustee, William Baggot was appointed his successor in trust, in accordance with the will of Robert Anderson, and some time thereafter, he, together with Robert Spain Anderson, the cestui que trust, instituted this suit for an accounting against the defendant, who is executrix of the last will of Smith P. Galt, the original trustee. The court made an order on defendant to state an account of the trust which was complied with. To the account thus stated, plaintiffs filed certain exceptions and the cause was continued from term to term, but finally heard and disposed of by a judgment in which the exceptions to the trustee’s account were
Since the appeal was perfected to this court, William Baggot, trustee, has departed this life and his ' death has been suggested here. The case iioav stands revived in the name of Fred D. Oellien, who has been substituted as trustee under the will.
In the statement of account, as prepared and filed by defendant, it was shown that there remained a balance in the hands of the executrix to the credit of the trust estate of $881.62. This much is conceded and there is no controversy with respect to this matter, hut in a claim for compensation to the trustee this amount is sought to be absorbed. Plaintiffs insist they are entitled to a further amount of $701.05 which the account of the trustee shoAvs Avas paid out by him as penalties accrued because of the non-payment of the current taxes accrued on the property during the years 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902. They insist tile account should be surcharged to such extent. The argument is that as by the terms of the will declaring the trust the trustee was directed to pay the funds to the cestui que trust out of the net income of the estate, it devolved upon him, of course, to first pay the taxes on the property and not permit penalties to be levied against it for their non-payment. The statement of account shows that during a portion of the years mentioned the income from the property had materially decreased and practically all of the money Avas paid by the trustee to the cestui que trust, which occasioned the taxes to lapse and the penalties to accrue. There can be no doubt that there is a technical breach of the trust Avith respect of this matter, for, beyond question, it was the duty of the trustee to first pay the taxes from the income of the property and make no payments to the
“Mr. Galt, she must have this money, taxes or no taxes, repairs or no repairs. She is suffering and so am I and as you have let us have so very little the past year you certainly ought to give her twenty-five dollars to get clothes.”
On February 19', 1899, the cestui que trust wrote the trustee:
“Pay up part of the back taxes, but if you haven’t sufficient funds for all, Mrs. A. is distressed in mind and body as well as myself. I. bespeak for her kind treatment at yoúr hands and trust you will arrange to pay her a certain amount commencing March 1st, for the next three or four months at least, on the first of each month, and thereby lift a load from the mind of
“Your struggling ward,
“R. Spain Anderson.”
It is conceded that because of appeals such as these the trustee was led to forego paying the taxes, to the end of advancing money for the relief of the cestui que trust and his wife. As a result of the taxes remaining unpaid, of course the penalties accrued and in the amount of $701.05. It appears that afterwards when suit was about to be instituted against the property for the taxes, the trustee advanced as much as fifteen hun
There can be no doubt that a trustee may reimburse himself out of money in his hands belonging to the estate for advancements. [2 Perry on Trusts (5 Ed.), sec. 185.] Prom the statement of the account filed, it appears the trustee had reimbursed himself out of funds which might rightfully have been paid to the' cestui que trust or life tenant for the amount of something over fifteen hundred dollars which he advanced for the purpose of paying up the back taxes and accrued penalties. After the trustee’s reimbursement, as indicated, there still remained, besides the original capital or corpus of the estate, a balance in his hands of $881.62, funds of the estate from rents. It is therefore clear the reimbursement of the trustee was had from funds which otherwise would have been paid to Robert Spain Anderson, the life tenant, and therefore under no possible theory could the remainderman be affected thereby or the corpus of the estate impaired. The capital or corpus of the estate remained intact throughout and so continues. The case of Hildenbrandt v. Wolff, 79 Mo. App. 333, relied upon by plaintiff is not in point; for there the trustee had neglected to pay taxes on the trust estate and instead paid the money over to the life tenant during her last sickness. The life tenant died and the unpaid current taxes were therefore an incumbrance
We have examined and pondered over the question with respect to the' trustee’s compensation and feel that the trial court’s ruling thereon should be affirmed. It appears the defendant introduced no evidence whatever on this matter and relies wholly upon that given by plaintiff. The evidence introduced by plaintiff on this question, as reproduced in .the abstract, is not clear and may bear two or three different constructions. In view of this fact, we defer to the judgment of the trial' court who had the witnesses before it. Though the compensation allowed seems to be meager, we are not inclined to enlarge it without all of the proof before us.
The judgment should be modified by deducting $701.05 paid by the trustee as penalties on the taxes and, after such modification, affirmed for the balance due. The item of $701.05 surcharged by the trial court will be reinstated in the account and the deduction from the amount in defendant’s hands as compensation to the
It is therefore ordered and adjudged that the plaintiffs have and recover of defendant, for the use and benefit of the trust estate, the sum of $583.52, with six per cent interest thereon from the date of the judgment of the circuit court and that the costs of this appeal be taxed against the plaintiffs. It is so ordered.