Harbison v. James

• Citation: 2 S.W. 292,90 Mo. 411
• Parties: Harbison, Administrator, Appellant, v. James et al
• Decision Date: 06 December 1886
• Court: United States State Supreme Court of Missouri

2 S.W. 292

90 Mo. 411

Harbison, Administrator, Appellant, v. James et al

Supreme Court of Missouri

December 6, 1886

Appeal from Jackson Special Law and Equity Court. Hon. R. E. Cowan Judge.

Reversed.

John S Harbison and Frank Titus for appellant.

(1) Complainant's exceptions to the testimony contained in the depositions of the witnesses for defendant Anderson should have been sustained, and the evidence excluded, on the grounds set out in the complainant's motions. (2) Complainant herein is the proper party to bring suit for the estate of his testator. R. S., sec. 3463; 43 Ind. 203. (3) The words, "wish" and "desire," used by B. M. Hall in his will, manifest the intention of the testator, and, with the other terms used by him, gave his widow, Mary F. Hall, but a life estate, and made her trustee for the beneficiaries named in said will. This is established, complainant contends, by an overwhelming current of authority. Perry on Trusts, secs. 112, 114; Hill on Trustees [4 Am. Ed.] 73; 2 Redfield on Wills, 729; 1 Redfield on Wills, p. 679, sec. 21; 2 Sugden on Powers [Ed. 1856] 165; Foote v. Sanders, 72 Mo. 616; King v Matthews, 69 Mo. 520; 14 Mo. 391; Wead v. Gray, 8 Mo.App. 515; Anderson v. Hall's Adm'r, 80 Ky. 91; Carr v. Estill, 16 B. Mon. 3, 12; Collins v. Carlisle's Heirs, 7 B. Mon. 14; Arnold's Heirs v. Arnold's Heirs, 11 B. Mon 86, 87. See, also, Smith v. Bell, 6 Pet. 68; Brant v. Mining Co., 93 U.S. 326; Wilson v. Moore, 2 M. & K. 127; Malin v. Keighley, 2 Vesey, Jr., 333; 5 Maddox, 123; Wright v. Atkins, 17 Vesey, 255; 19 Beavan, 298, 478; Ayer v. Ayer, 128 Mass. 575; Gifford v. Choate, 100 Mass. 346; Hall v. Otis, 71 Maine; Fox v. Rumery et al., 68 Maine, 121; Pickering v. Langdon, 22 Me. 413; Burleigh v. Clough, 52 N.H. 267; Brasher v. Marsh, 15 Ohio St. [N. S.] 103. (4) The words, "portion of my estate remaining undisposed of," used in the devise to Mary F. Hall, mean, and can be taken only to mean, in connection with the context of the will, a life estate in the first taker, and that she holds in trust for the other legatees named therein. Authorities supra; Burt v. Herron's Heirs, 66 Pa. St. 400; Coates' Appeal, 2 Barr [Pa. St.] 129, 136; Read v. Watkins, 16 Cent. Law Jour. 406; Downey v. Bissell, 4 F. 55; Dehoney v. Taylor, 79 Ky. 79; Giles v. Little, 104 U.S. 291; Henderson v. Blackburn, S.Ct. Ill. [1882], 15 Rep. 142. (5) Defendant Anderson claims the fund in controversy by virtue of a pledge or mortgage from Mary F. Hall, the tenant for life. That a power "to sell and reinvest," given said Mary by the will of her husband, gave her no power to mortgage the estate, is believed to be universally held by the latest and best authorities. Kinney v. Matthews, 69 Mo. 520; Turner v. Timberlake, 53 Mo. 371; Hoyt v. Jacques [Mass. 1880], 10 Reporter, 636; Downey v. Bissell, 4 F. 55; 28 Alb. Law Jour. 436; Wilson v. Ins. Co., 16 Reporter, 111. (6) The defendant, Anderson, claims under conveyance from Mary F. Hall. This conveyance contains no reference to the will of the testator, and when, as in this case, she being a donee under the will, and having an interest, only her interest could pass by such conveyance. Turner v. Timberlake, 53 Mo. 378; Pease v. Iron Co., 49 Mo. 124; Owen v. Switzer, 51 Mo. 322; 2 Story's Eq., [12 Ed.] sec. 1062, note a. The taking of the James note and deed of trust in the name of Mary F. Hall as payee enured to the benefit of the estate. Fosbrooke v. Bolgy, 1 M. & K. 226; 9 Rep. 633. The executrix could only bind herself by any contract she may have made with Mrs. Anderson. She could not bind or give away the assets of her testator. 1 Parsons on Notes and Bills, 161. Nor is complainant estopped by any such acts of the devisee for life from showing the truth. Brant v. Coal Co., 3 Otto, 326. (7) If defendant, Kate C. Anderson, had the means of acquiring a knowledge of Mary F. Hall's title to the property in her hands coming from decedent's estate, or if said Anderson knew the facts concerning the same, she takes no title. Duncan v. Jaudon, 15 Wall. 155; Smith v. Ayer, 9 Rep. 633. And that defendant Anderson had such knowledge is proved as well by her testimony as by the fact that she was an attesting witness to the will of said B. M. Hall, her name then being Kate C. Huffman. Whatever is enough to excite attention, put on guard, or call for inquiry, is notice of everything to which such inquiry might lead. Kitchen v. Railroad, 69 Mo. 265; Kennedy v. Green, 1 Myl. & K. 722; Cox v. Milner, 23 Ill. 476; Ringgold v. Waggoner, 14 Ark. 69; Slattery v. Rafferty, 10 Cent. Law Jour. 313, and note thereto; 9 Rep. 633; Bank v. Lange, 7 Rep. 589; Sugden on Vendors, ch. 17, sec. 2; see, also, Trefts v. King, 18 Pa. St. 157; 1 Daniel on Neg. Inst. [1 Ed.] sec. 174; 1 Parsons on Notes & Bills, 175, 183; Edwards on Bills & Notes [2 Ed.] side p. 689; Knouf v. Thompson, 4 Harris [Pa.] 363; 9 Rep. 681; 72 Mo. 314; 70 Mo. 580; 69 Mo. 122; 62 Mo. 226; 46 Mo. 147; 44 Mo. 465. (8) Mrs. Mary F. Hall was a trustee under the will, and had no right to pledge the property, which the testimony shows she held but in trust, and defendant, Anderson, having due and sufficient notice of such facts, is bound by all the legal consequences resulting. Taney's [Cir. Ct.] 310; Duncan v. Jaudon, 15 Wall. 165; 100 Mass. 382; Smith v. Ayer, 9 Rep. 633; Fisher v. Brown, 104 Mass. 259; Gaston v. Bank, 29 N.J.Eq. 98; Sprague v. Cocheco Co., 10 Blatch. 173; Bank v. Duncan, 8 Blatch. 430; Porter v. Parks, 49 N.Y. 564; Central Nat'l Bank v. Ins. Co., [Sup. Ct. U. S.] 13 Cent. L. J. 410. Though the pledgee receives the legal title the general property is in the pledgeor. Garlick v. James, 12 Johns. 148; 5 Blackf. 320; Building and Loan Association v. Conover, 14 N.J.Eq. 219. Defendant, Anderson, has no equitable status in this case, and has no rights herein, the death of her pledgeor before she had taken any steps to enforce against such pledgeor her supposed security, destroying any right as against complainant herein. Wilson v. Little, 2 N. Y. [2 Comstock] 443; Porter v. Parks, 49 N.Y. 564; Sitgreaves v. Bank, 49 Pa. St. 359. An assignment of note of testator for the private debt of an executor is a fraud on the estate of the deceased, and passes no property to such assignee with notice, even though the latter paid value. 11 S. & R. [Pa.] 377, 388; 2 Sm. & M. 687, 696; 7 Sm. & M. 498; 5 Md. 219; 4 How. [Miss.] 237; Smith v. Ayer, 9 Reporter, 633; 1 Parsons on Notes & Bills, 158; 9 Cow. 320. The assets of the estate may be followed into whatsoever hand they may be found by complainant. 1 Roper on Legacies, 439, 456; 2 Redf. on Wills, 559; 2 Vern. 616; 4 Madd. 332, 359.

James F. Mister for respondents, Kate C. Anderson, and administrator of Mary F. Hall.

(1) The will devises the property to Mary F. Hall out and out. Even where there is a devise expressly stated to be for life, with the power to sell and reinvest, and a further devise of the estate remaining undisposed of, any disposition of the estate during life would be good, and there could be no claim by the subsequent devisees beyond what should remain undisposed of at the death of the first devisee. On the point of the valid and effectual exercise of this power of disposition, the case of Hazel v. Hagan, 47 Mo. 277, seems to be conclusive. Bryant v. Christian, 58 Mo. 98; Turner v. Timberlake, 53 Mo. 371; Harris v Knapp, 21 Pick. 413; Boyer v. Allen, 76 Mo. 498; 1 Jarman on Wills, * 879, note 2, and cases; Downie v. Downie, 9 Bissell, 353; Lewis v. Palmer, 46 Conn. 454. (2) Here there is a devise of the entire estate, with express and implied power of sale, and this will pass a fee, unless, by express words, a life estate only is made to vest. Hazel v. Hagan, 47 Mo. 277; Green v. Sutton, 50 Mo. 186. The devise over in such case is void. Green v. Sutton, supra; Redfield on Wills [3 Ed.] part 2, p. 659, and cases cited; Boyer v. Allen, 76 Mo. 498; Stewart v. Walker, 72 Me. 145; Jones v. Bacon, 68 Me. 34; Hall v. Preble, 68 Me. 100; Roseboom v. Roseboom, 81 N.Y. 356; Campbell v. Beaumont, 91 N.Y. 464; Sears v. Gunningham, 122 Mass. 538; Pendleton v. Bell, 32 Mo. 100; Jecko, Trustee, v. Taussig, 45 Mo. 167; Parnell v. Parnell, L. R. 9 Ch. div. 96; Ramsdell v. Ramsdell, 21 Me. 288; Musselman Estate, 39 Pa. St. 469; Williams v. Parker, 84 N.C. 90; Wharton v. Moragne, 62 Ala. 201; Davis v. Boggs, 20 Ohio St. 550; State ex rel. Haines v. Talson, 73 Mo. 320; Allen v. Claybrook, 58 Mo. 131; Campbell v. Jones, 65 Mo. 439. (3) Mrs. Hall has made no other disposition of the property than was contemplated by the will. She contracted the debt fairly and legitimately, and for her own comfort and support. If she had sold or exhausted the whole estate it would have been a valid exercise of the power conferred upon her by the will. Turner v. Timberlake, 53 Mo. 371; Carr v. Dings, 58 Mo. 400; Hazen v. Hagan, 47 Mo. 277; Owen v. Ellis, 64 Mo. 77; Campbell v. Jones, 65 Mo. 439; Boyer v. Allen, 76 Mo. 498; Harris v. Knapp, 21 Pick. [Mass.] 413; Paine v. Barnes, 100 Mass. 470; Dodge et ux. v. Moore, 100 Mass. 335; Gifford v. Choate, 100 Mass. 343; Hale v. Marsh, 100 Mass. 468; Stuart v. Walker, 72 Me. 145; Copeland v. Barron, 72 Me. 206; Burleigh v. Clough, 52 N.H. 267; French v. Hutch, 28 N.H. 331; Jackson v. Robbins, 16 Johns. [N. Y.] 537; Roseboom v. Roseboom, 81 N.Y. 356; Downie v. Downie, 9 Bissell [C. C. R. U. S.] 353; Lillard v. Robinson, 3 Littell [Ky.] 415; Dorsey v. Dorsey, 9 Md. 31; Lewis v. Palmer, 46 Conn. 454. The following are the Missouri cases bearing on the points involved in this case: Gregory v. Cowgill, 19 Mo. 415; Foote v. Saunders, 72 Mo. 616; Boyer v. Allen, 76 Mo. 498; Hazell v. Hagan, 47 Mo. 277; Turner v. Timberlake, 53 Mo. 371; Bryant v. Christian, 58 Mo. 98; Greenet v. Sutton, 50 Mo. 186; ...