155 Mo. App. 227 | Mo. Ct. App. | 1911
(after stating the facts).— First: Although counsel for the respective parties, with the exception of the learned counsel representing Mrs. Anna Rubelmann, have devoted most of their very elaborate briefs and arguments to the consideration of the question of allowance to the trustees of commission, and as to whether Mr. Woerner, by reason of occupying the position of executor of the will of Mrs. Rosalie Wiegand, in claiming this fund from himself and his co-trustee, has forfeited his right as trustee and should be removed as such, the material and underlying question in the case arises over the proper construction of the fourth clause or item of the will of George Wiegand.
Two questions arise on this: First. How much are the trustees appointed under that clause entitled to deduct from the capital to pay the amount claimed to fall due between the death of George Wiegand and the death of his wife Rosalie, assuming that the annuity created by the trust is apportionable? Second. Is the annuity apportionable at all?
Taking up the first proposition, it is clear from the evidence in the case that down to' the 8th day of July, 1908, the fund was in the hands, not of the trustees but of Mrs. Rosalie Wiegand herself, as executrix of her husband’s will. The only period that the fund had been in the hands of the trustees during the lifetime of Mrs. Wiegand was between the 8th and the 24th of July, a period of sixteen days. It is a very singular line of argument that holds the trustees, as such, liable to the estate of Mrs. Wiegand for interest on the trust fund
The second proposition covering the law as to the-right of apportionment of an annuity, while, so far as’ we know, touched on by but one decision of the appellate courts of this state — that of Lynch v. Houston, infra — is a proposition settled by authority and a long-line of decisions by courts of other jurisdictions. That at common law the right of apportionment did not exist, admits of no argument; tha/t the common law, unless changed by statute, is in force in our state, is
In Manning v. Randolph, 4 N. J. L. 144, it is said that no principle is better settled than that if a bond be for the payment of an annuity at a date certain and the annuitant died before the day, the annuity of that year is lost, and that in the case before the “court, as in the case at bar before us, the deceased could not herself have recovered the annuity before its anniversary, if she had been living; that the day of payment had not then come, “and surely,” says the court (l. c. 145), “her administrators can have no greater right than she herself would have had.”
In Tracy v. Strong, 2 Conn. 659, l. c. 664, referring to the exception to the common law rule, it is said that
In Irving v. Rankine, 13 Hun (20 N. Y. Sup. Ct.) 147, the rule is stated in the same way; that at common law there can be no apportionment of annuities', citing among other authorities in support of this, Williams on Executors, 109; 3 Redfield on Wills, 184, sec. 13; 1 Story’s Eq. Jur., sec. 410. Repeating the rule and noting that there are but two exceptions to it recognized by the English' authorities, one being the case of an annuity for the support and maintenance of infants, the other for the support of a wife living separate and apart from her husband, the court says (l. c. 149) : “These exceptions have been allowed from the necessities of the case, as otherwise the infants in the one case, or the wife living upon a separate maintenance in the other, could not procure credit for necessaries from the time when one installment became due to the next, unless the creditor should choose to take the risk of the annuitant surviving until the next installment became due. These, however, are noticed as remarkable exceptions to the general rule; and it has been held that they were not applicable to the case of a married woman living with and supported by’ her husband; and we do not find that they have ever been extended beyond the two cases referred to.” In this case of Irving v. Rankine, it was claimed by the executor of the widow, the latter having-died and her executor suing as in the case at bar, “that
In Kearney v. Cruikshank, supra, a case arising before the adoption of the law of 1875 by the State of New York, after announcing the common law rule that an annuity payable yearly or for the year was not apportionable, the New York Court of Appeals, speaking through Judge Andrews, said (l. c. 97) : f‘We are not at liberty to decide the question in this case upon our notions of natural equity and justice, provided the settled rule of law fixes the rights of the respective par-, ties, and determines the question presented.” Stating the rule at common law, that annuities were not apportionable, subject only to the two exceptions of where the annuity was given by a parent to an infant child or by a husband to his wife living separate and apart from him, the Court of Appeals says (1 c. 98.) : “But with these exceptions, it was the uniform and unbending rule of the common law, recognized both by courts of law and equity, that annuities, whether created inter vivos or by will, were not apportionable in respect of time. This rule, it has been said, ‘proceeds upon the interpretation of the contract by which the grantor binds himself to pay a certain sum at fixed days during the life of the annuitant, and when the latter dies, such day not having arrived, the former is discharged from his obligation.’ (Lurnley on Annuities, 291.) It re-
In Chase v. Darby, 110 Mich. 314, it is said that the word “annuity,” which must be given its technical meaning unless something is found in the contract that indicates a different meaning was intended, carries with it the idea of an annual payment and that unless the rule of the common law is changed bv statute, annuities are not apportionable.
In Wiggin, Admr. v. Swett, 6 Metc. (47 Mass.) 194, l. c. 201, Chief Justice Shaw announces the general rule, both at law and in equity to be, “that where an annuity is payable on fixed days during life, and the annuitant dies before the day, the personal representative is not entitled to a proportionate part of the annuity,” and that where no day is named for the commencement of the year and by the will, the annuity given was payable quarterly, that the beginning of each year was the date of the death of the testator, and that the annuity, if payable annually, fell due on each recurring anniversary of that date and not before. . In that case the annuity was payable in quarterly installments, one quarterly installment due the 25th of May, the next falling due the 25th of the succeeding August. The beneficiary, however, died on the 22d of that August. Chief Justice Shaw held that in that event it fell within the general rule previously stated and not within the exceptions to the rule and that there could be no payment
In Dexter v. Flood, 121 Mass. 178, Mr. Justice Cray, then Chief Justice, has collated the authorities very fully, and treating of the general rule of the common law followed by chancery, that sums of money payable periodically at fixed times, are not apportionable during the intervening period, and calling attention to the difference in the application of this rule as to rents and legacies and annuities and agreements for interest or coupons on public securities on the one hand, and the rule applicable to interest upon promissory notes of individuals on the other, holds that in the former case the rule of apportionment does not lie while in the latter it does.
In Heizer v. Heizer, 71 Ind. 526, where a son, for a valuable consideration, agreed to pay his father during his life a. certain sum annually on a certain day of each year, the father died 20 days prior to the day on which the sum was payable. On suit being brought by his administrator to recover the proportionate part of such sum due at the time of his death, the Supreme Court of Indiana held, on a review of the authorities, that the sum thus contracted to be paid was an annuity; that at common law there can be no apportionment of an annuity, that the common law rule had not been changed by statute in Indiana, and that the administratrix could not recover.
In our own state the case of Lynch v. Houston, reported 138 Mo. App. 167, 119 S. W. 994, the decision by the Kansas City Court of Appeals, the opinion written by Judge Ellison, the case heretofore referred to, is the only one in our appellate courts to which our attention has been called or which we have found, discussing the question of an annuity. That learned judge holds that the general rule of common law, recognized also by the courts of equity, that an annuity is not ap
We are referred to the decision of the Kansas City Court of Appeals in the case of In re Estate Catron, 82 Mo. App. 416. We dismiss that from consideration as we do not think that it has any application whatever to the case at bar. It did not concern the question of the apportionment of a legacy, and was a case in which the executor in charge of the estate, having the whole of the estate in his possession, was called on to account for interest, the interest being the legacy. We had occasion to consider, and as- far as applicable, follow the decision of the Kansas City Court of Appeals in this Catron case in the case of Good Samaritan Hosital v. Mississippi Valley Trust Co., 137 Mo. App. 179, 117 S. W. 637. No such issues arise here.
These are the cases illustrating the law on this ■matter. Several of them are of very recent date, the Lynch case decided May 17, 1909. So that it can hardly be said that in modern times the rule has met with disfavor. It is suggested that we have a rule in our state, to the effect that all deeds, wills or other instru
A cardinal rule to be observed in the construction of wills is that the intention of the testator is to be sought out and when ascertained, that intention given effect. [Tisdale v. Prather, 210 Mo. 402, l. c. 407, 109 S. W. 41.] This is also a statutory requirement. [R. S. 1909, sec. 583.] When, however, technical words are used in a will, they are to be interpreted in their established legal sense, and so the testator is presumed to employ them, unless a contrary meaning is plainly intended by the context of the will, [Drake v. Crane, 127 Mo. 85, l. c. 103, 29 S. W. 990; Cross v. Hoch, 149 Mo. 325, l. c. 338, 50 S. W. 786.]
The word “annuity,” carries with it, in itself, the idea of a sum payable annually. An annuity, says Black, Law Dictionary, is “a yearly sum stipulated to be paid to another in fee, or for life, or years,” citing Coke-Littleton. Chancellor Kent, Lect. LII, par. V, *p. 471, states .that the principle underlying the rule that an annuity, like a rent charge, cannot be apportioned is, that it is an entire contract. So that treating of rent charge, which differs only from an annuity, in that it is a charge upon lands, while the annuity is a personal charge alone — if the tenant for life gave a
Turning from the law to the facts and contrasting the facts in the Lynch case with those in the- case at bar, no such intention- as found to exist in the Lynch case, to make the charge on the trust anything other than an annuity, can be' found in or gathered from a consideration of the fourth clause of this will now under consideration. It is clearly and unmistakably an annuity. It has all the attributes of an annuity. By the force of which term, and by law, the first payment thereof became due on the first anniversary of the death of the testator. Not before then. It is idle to claim in the case at bar, that this provision creating this trust was necessary to the support of the widow, or that it was so intended. Mr. Woerner himself testified that there was no reason why the trust fund should not have been turned over at the time it was, because, he said, the estate was entirely solvent; that the outstanding debts were very insignificant and whatever debts existed could be paid out of the residue of the estate. While the learned trial judge, incorrectly, as we hold, ruled out the inventory of the estate, its omission happens to
There is this also to be said: Mrs. Wiegand, during her life, does not appear to have drawn on the trust fund; she turned it over in full to the trustees. There are two inferences that may be.drawn from this: either she had it. invested and drew the interest, or she did not need the income. It, is not claimed that the income is needed-to pay off any debts contracted by Mrs. Wiegand. What is demanded is, that it shall go into her general estate for the benefit of her residuary legatee. Surely the testator in establishing the trust fund, had no such intention in mind. He had provided for that legatee by making her an equal participator with her two brothers, in the whole fund, less such part thereof as might, under this fourth clause, have been paid over to her mother. We therefore hold, construing this
Second. This brings us to a consideration of the question of credits and allowances. We are compelled to say that we think that the allowance of $1500 to these trustees, considering the time they held the trust fund until demand was made on them to turn it over, that is to say, from the 8th of July to the 3d or 5th of August, 1908; considering the shape in which that fund came into their hands, that is to say, interest paying bonds and a certificate of deposit, in an absolutely safe bank; considering the fact that the trustees were not required to give and gave, no bond and were therefore. saved the trouble, cost and expenses giving' a bond might have entailed, and considering the acts of these trustees which made this suit necessary, we hold that they are not entitled to the amount allowed, $1500) certainly not to the amount claimed which was $3000. On consideration, of all the facts in the case, we hold that a proper allowance to the trustees for their services down to final settlement and discharge, will be one-half of one per cent on the fund, that is to say $500.
We also think and hold that the trustees are entitled to a reasonable counsel fee. They were brought into court and made defendants, as trustees, and were necessary parties. While it was no part of their business to defend for the executor of Mrs. Wiegand, they were bound to make their appearance in court. We think that as covering services of counsel heretofore rendered and hereafter to be rendered in the circuit court, in connection with carrying out the order we will make herein, as well as for their services in this court, $250 is a reasonable allowance. When it is borne in mind that the amount actually in controversy here is only $2138.85, we think $250 a very liberal allowance for counsel.
Credit for taxes for the years the trustees are liable for taxes on the funds while in their hands should be allowed on presentation of proper vouchers showing payment by them. These are all the allowances which should be made against the fund. Deducting these, whatever remains of tbe trust fund with- its interest and earnings while in the hands of the .trustees, should be ordered distributed to the parties plaintiff and to Mrs. Rubelmann, in equal amounts, one-third each.
Third. This disposes of all matters except as to costs and those are largely determinable on consideration of the attitude of Mr. Woerner in the case and as one of the trustees. Referring to the connection of Mr. Woerner with the case, it appears that he was the attorney. for George Wiegand, deceased, and had written his will, and also represented Mrs. Rosalie Wiegand in the contest over that will and in the settlement which was effected between Mrs. Wiegand and the plaintiffs herein, the result of which was the dismissal of the contest and the confirmation of the will. He acted as attorney for Mrs. Wiegand in all her matters. He was also appointed executor of the will of Mrs. Rosalie Wiegand, who was his cousin. There was nothing whatever in these professional or blood relations of Mrs. Woerner to debar him from being trustee; to the contrary, it was entirely fit that he should be appointed as such. Nor had anything occurred that rendered his position as trustee under George Wiegand’s will and as executor of Mrs. Wiegand’s will antagonistic, until between the 3d and 7th of August, 1908. Being approached by one of the attorneys for plaintiffs, with a request for a distribution of the fund held in trust, Mrs. Rosalie
According to the testimony of Mr. Orr, the trust officer of thé Trust Company, in a conversation he had had with one of the counsel for plaintiffs, along about the 1st of August, 1908, Mr. Orr suggested to that counsel that if no agreement could be reached on the construction of the will over this matter of apportionment, that there could be a partial distribution and that
We are asked to remove Mr. Woerner as trustee. To remove one as trustee there must be a clear necessity for such act, a clear necessity for it, in order to save the trust property. “Mere error or even breach of trust, may not be sufficient; there must be such misconduct as to show want of capacity or of fidelity putting the trust in jeopardy.” [1 Perry on Trusts (6 Ed.), sec. 276, foot page 478.] We find no necessity for such action to save this trust fund, in the first place; and in the second place, we do not' find any such conduct on his part as to show either want of capacity or of fidelity, putting the trust fund in jeopardy. Our criticism of Mr. Woerner’s action is on the sole ground that he occupied an incompatible position here, when called on to act as trustee and as executor. We decline, by silence to admit that one can properly do that.
We notice this now as it concerns the question of compensation and of costs. This litigation arose over a desire to add to the estate of Mrs. Rosalie Wiegand. Mr. Woerner, as executor, insisted on the apportionment before distribution. His co-trustee agreed to this. That insistence brought on this litigation. It was solely in the' interests of the estate, of which Mr. Woerner was executor. The estate and the residuary legatee therein are the real parties to be benefited by the maintenance of the claim to the apportionment. Accordingly we direct that all the costs of this cause in the circuit court,- as
We will add that we are asked to disallow the claim of the Trust Company and of Mr. Woerner, as trustees, for any allowance for their services as trustees' or for counsel fee in this case. The rule is that a trustee who breaks the trust should be denied compensation for his services. [Newton v. Rebenack, 90 Mo. App. 650, l. c. 676.] We find no such breach here, but it is beyond ques-ion that where one of two or more trustees acts in harmony with his co-trustee in connection with an adverse claim of the latter, néither of them is entitled to com- • pensation. Without denying this rule, we do not think it proper to enforce it in this case, as the trustees acted in apparent good faith. We have placed the allowance to be made to them by the circuit .court at $500, which, under the facts in this case, is all we think they should Tie allowed.
The judgment and decree of the circuit court of the city of St. Louis is reversed and set aside, and the cause remanded with directions to the court that the cause be proceeded with as herein directed.