French v. Mastin
| Decision Date | 07 December 1885 |
| Citation | 19 Mo.App. 614 |
| Parties | HENRY FRENCH, TRUSTEE, ET AL., Appellants, v. THOMAS H. MASTIN, TRUSTEE, ET AL., Respondents. |
| Court | Missouri Court of Appeals |
APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, Judge.
Affirmed.
Statement of case by the court.
John Harris, in 1867, divided the northwest quarter, section twenty, township forty-nine, range thirty-three, in Jackson county, Missouri, into eight twenty acre lots, for the purpose of division among his eight children. Said lots were numbered from one to eight. His daughter, Sarah Ann Behan, plaintiff in this case, was to have lot five, but before the deed was made to her, and while the title was still in the father, John Harris, John S. Harris, son of John Harris, made a sale of said lot five to W. R. Bernard. John Harris, then, instead of making the deed to said lot five to his daughter, Sarah Ann Behan, made it direct to said Bernard. The consideration for said deed to Bernard was a house and lot in Westport, Missouri, conveyed by Bernard and wife to John S. Harris, trustee, for Sarah Ann Behan, and $1,000, paid to John S. Harris as trustee aforesaid.
John Harris died leaving a will, which was duly probated August 18, 1873. The will is as follows:
“I, John Harris, of the town of Westport, county of Jackson, and state of Missouri, do make and publish this my last will and testament, hereby revoking all former wills by me made.
First.--I give and bequeath to my beloved wife, Henrietta, all of the moneys, choses in action and personal property of every kind and nature; the moneys and choses in action, however, to be taken, collected, and held by my executors, and by them loaned out on good security, the interest and income arising therefrom shall be paid over from time to time to my said wife, and also so much of the principal as may be necessary for her support, maintenance and comfort, to the end that she shall not be in want of any of the comforts of life or dependent on anyone.
Second.--I give, devise and bequeath all of my real estate and whatever amount, if any, there may be in the hands of my executors at the time of the death of my wife, as follows:
The one-eighth thereof to Joel Lipscomb, husband of my deceased daughter, Henrietta; the one-eighth thereof to John J. Mastin, husband of my daughter, Julia; the one-eighth thereof to Charles E. Kearney, husband of my daughter, Josephine; the one-eighth thereof to William R. Bernard, husband of my daughter, Susan; the one-eighth thereof to Seth E. Ward, husband of my daughter, Mary Frances; the one-eighth thereof to Thomas H. Mastin, husband of my daughter, Elizabeth, and another eighth thereof to Seth E. Ward, to have and to hold in trust for the use and benefit of my daughter, Sarah Ann Behan; and the part of the real estate so held by him he is authorized to sell, on such time and terms as he shall see fit, and the proceeds thereof and the funds that may otherwise come into his hands he may loan out, and the interest thereon and so much of the principal as he shall deem necessary for the support and comfort of her and her family he may pay over to her from time to time as her necessities may demand. Or he may re-invest such funds, if deemed best, giving to her the use or proceeds of such property, and he may sell so often as he thinks best, and at her death whatever, if anything, there be left, shall be equally divided between her children. And the remaining one-eighth thereof I give and bequeath to Thomas H. Mastin, to have and to hold in trust for the use of Anna Harris, wife of my son, John S. Harris, and her children by my said son, and the real estate so given to the said trustee he is authorized to sell and convey whenever he shall deem best, and on such terms as he may see fit, and the proceeds thereof, and such other funds as may come into his hands, he may invest in other property, and that again, from time to time, sell; or he may loan all or any of such funds, and the interest arising therefrom pay over to her as it is earned; or, if, in his judgment, it will be proper, he may pay over to her the whole or any part of such funds, and her receipt therefor shall be a full and complete acquittance to such trustee. Whatever of such funds, if any, or of such property that shall remain in the hands of such trustee at the death of my said daughter-in-law shall go to and be divided equally between the children of my said daughter-in-law, by my said son, John S. Harris.
In the case of the death of either of said trustees, it shall be competent for any court of record in said county, on the application of my said daughter or daughter-in-law, in their respective cases, to appoint a new trustee, and so soon after as any vacancy shall occur, and such new trustees shall have the same power, authority, and discretion in their respective persons as is herein delegated to the trustees hereby appointed.
Third.--In case the devisees hereinbefore mentioned shall not be willing, or shall be unable to divide the real estate in kind, and for that purpose the said trustees are hereby authorized to execute and deliver, and to accept and receive any and all needful deeds of release, and to select the portion so given to them in trust, then my executors are authorized and empowered to sell on such terms as they may see fit, all my real estate, or such part as may not be divided in kind, and the proceeds thereof divided as hereinbefore devised and on the same terms.
Fourth.--Before any division of funds shall be made by my executors, all that portion of the indebtedness of my son, John S. Harris, to my daughter, Mrs. Behan, which shall remain unpaid, with the interest thereon, being now about eight hundred dollars, more or less, shall be deducted from the amount, so as aforesaid, going to Thomas H. Mastin, trustee, as before stated, and the same paid to Seth E. Ward, trustee for Mrs. Behan.
Fifth.--I nominate, constitute and appoint T. H. Mastin and S. E. Ward executors of this my last will and testament.
Signed and witnessed twenty-sixth of March, 1873.
JOHN HARRIS.”
The land devised by John Harris to his children was undivided at his death. It was afterwards divided by the children and the trustees, by execution of quit claim deeds, as the will provided it might be done.
On the third of March, 1882, by an order of the circuit court of Jackson county, Seth E. Ward was removed as trustee for Sarah A. Behan, and Henry French was appointed in his stead.
The plaintiffs claim that by the will of John Harris, the father, the indebtedness due from John S. Harris, the son, to Sarah Behan was made a charge upon the real...
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