2 S.W. 400 (Mo. 1886), Jones v. Shepley

Citation:2 S.W. 400, 90 Mo. 307
Opinion Judge:Sherwood, J.
Party Name:Jones, Appellant, v. Shepley, Trustee, et al
Attorney:D. T. Jewett and W. M. Eccles for appellant. John D. Davis for respondents.
Case Date:December 06, 1886
Court:Supreme Court of Missouri

Page 400

2 S.W. 400 (Mo. 1886)

90 Mo. 307

Jones, Appellant,


Shepley, Trustee, et al

Supreme Court of Missouri

December 6, 1886

Appeal from the St. Louis Court of Appeals.


D. T. Jewett and W. M. Eccles for appellant.

(1) The deed of Glasgow, in 1858, of the land to Jones and wife, created them tenants of the entirety, and as our statute then was, the survivor took the whole. Garner v. Jones, 52 Mo. 71. Upon familiar principles of equity, the money arising from the land goes to whomever the land would have gone. (2) When the object of the trust fails by reason of lapse or otherwise, or by death of the donee, the property reverts to the donor. Hill on Trustees, marginal pp. 114, 134, 136. (3) These resulting trusts for the benefit of the heirs of the testator, are, on the principle claimed here, viz.: resulting to the donor or his heirs. For, if the legatee die before the testator, or any other condition precedent to the vesting of the property, the legacy lapses, and is not payable to the executor or administrator. 2 Williams on Ex., marg. p. 1036, et seq. (4) The collateral heirs cannot enforce a voluntary trust made for the benefit of the wife. The general rule is, that parties seeking to enforce the trust must be those that come strictly within the reach of the consideration of the marriage, or who claim through them as the wife or husband, or their issue; but mere volunteers or collateral relations cannot interfere. 1 Perry on Trusts, pp. 451, 452, sec. 367; Bleeker v. Bringham, 3 Paige's Chy. Rep. 246. It is now held that even a wife or a child cannot enforce a purely voluntary executory contract or settlement. 1 Perry on Trusts, 453; Halloway v. Headington, 8 Simons [Eng.] 325. (5) The trustee cannot change the trust; he must carry out the intention of the donor, and if he cannot the trust fails. 2 Perry on Trusts, pp. 344-6, secs. 726, 727, 729. In the case at bar, the object of the trust has failed; it is impossible to carry out the trust. This is, therefore, a resulting trust to Lewis Jones; for the object of the trust, which was for the benefit of his wife, has wholly failed by her death. 4 Kent's Com., 307, at top, marginal in late editions. So, if it appear that the gift was for a particular purpose, and this purpose cannot be carried out, his gift must go to his next of kin, and if the gift cannot vest in the donees for the reason that they cannot be found, the court cannot appoint other donees. 2 Perry on Trusts, p. 344, sec. 726. (6) A deed by a man to his wife, at common law, is void, and can only...

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