20 Mo.App. 616 (Mo.App. 1886), Lampert v. Haydel

Citation:20 Mo.App. 616
Opinion Judge:ROMBAUER, J.
Party Name:JACOB LAMPERT, Respondent, v. F. L. HAYDEL, Appellant.
Attorney:J. K. HANSBROUGH, for the appellant: C. P. & J. D. JOHNSON, for the respondent:
Judge Panel:In this opinion Thompson, J., concurs.
Case Date:February 09, 1886
Court:Court of Appeals of Missouri
 
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Page 616

20 Mo.App. 616 (Mo.App. 1886)

JACOB LAMPERT, Respondent,

v.

F. L. HAYDEL, Appellant.

Court of Appeals of Missouri, St. Louis.

February 9, 1886

APPEAL from the St. Louis Circuit Court.

Transferred to the Supreme Court.

J. K. HANSBROUGH, for the appellant: Under the will, Junius Jacobs could not dispose of his interest in the rents and profits, in advance of their being paid over to him by the trustee; and his assignment of the same is void. Dougal v. Fryer, 3 Mo. 40; Clamorgan v. Lane, 9 Mo. 447; Langdon v. Ingram's Guardian, 28 Ind. 360; Stewart v. Brady, 3 Bush. 623; 1 Wash. Real Prop. (4 Ed.) *54, sec. 45, et seq.; Blackstone Bank v. Davis, 21 Pick. 42; Montague v. Crane, 12 Mo.App. 582; Nichols v. Eaton, 91 U.S. 716 (bk. 23, L.Ed. 254); Hyde v. Woods, 94 U.S. 523 (bk. 24, L.Ed. 264); Spindle v. Shreve, 9 Biss. 199; Broadway Nat. Bank v. Adams, 133 Mass. 170; Pacific Nat. Bank v. Windram, 133 Mass. 175; Thackara v. Mintzer, 100 Pa. 151; Swaby's App., S.Ct. Pa. 18 Rep. 350; Stieb v. Whitehead, 111 Ill. 247; Leavitt v. Beirne, 21 Conn. 1; Nickell v. Handley, 10 Gratt. 336; Pope's Ex'r v. Elliott, 8 B. Mon. 56; White v. White, 30 Vt. 338; Campbell v. Foster, 35 N.Y. 361. The defendant was entitled, under the facts in this case, to an allowance out of the trust funds sufficient to cover his reasonable and necessary expenses incurred in defending this suit, and having the will construed. Whit. Pr. Mo. 576, sect. 451; 2 Perry, Tr., sects. 891, 894, 899, 902, ch. 30 (3 Ed.); Hill, Tr. Am. notes, *552, *555, *557; 1 Redf. on Wills (Ed. 1876) *493, sect. 4; Rogers v. Ross, 4 Johns. Ch. 608; Bliss v. American Bible Society, 2 Allen 334; Drew v. Wakefield, 54 Me. 291; Matter of Turner, 48 Mich. 369; Dodge v. Williams, 46 Wis. 70; Will of John Meuerer, 44 Wis. 392.

C. P. & J. D. JOHNSON, for the respondent: The testator did not limit the equitable life estate created by the will, in a way to prevent Junius Jacobs, one of the devisees and plaintiff's grantors, from disposing of his interest therein. Brandon v. Robinson, 18 Ves. 433; Rochford v. Hockwan, 10 Eng. L. & E. 64. See, also, Graves v. Dolphin, 1 Sim. 66; Lear v. Leggett, 2 Sim. 479; Shee v. Hale, 13 Ves. 404; Piercy v. Roberts, 1 Milne & K. 4. At law, any property, real or personal, that a man owns may be alienated by him, or may, unless specially exempted by statute, be taken for the payment of his debts; and no form of grant or devise can enable the grantee or devisee to hold the estate without its being subject to alienation, attachment, or execution. Sparhawk v. Cloon, 125 Mass. 266; Blackstone Bank v. Davis, 21 Pick. 43; Tillinghast v. Bradford, 5 R.I. 205; Dick v. Pitchford, 1 Dev. & B. Eq. 480.

OPINION

ROMBAUER, J.

The last will of George R. Jacobs, deceased, contained the following devise: " I give and devise the next, or middle lot, and the store house thereon * * * to the said John Byrne, Jr., and F. L. Haydel, of St. Louis county, in trust, and for no other purpose, for the use and benefit of my three sons, Wm. H., Charles A., and Junius, in equal shares, as long as they may all live, with power in my said three sons to use and enjoy equally the rents, issues, and profits thereof during their natural lives. When all three of my said sons have died, it shall be the duty of said trustees or their successors in office, to convey this lot and the store house thereon, in fee simple to the descendants or heirs at law of Wm. H., Charles A., and Junius, in equal portions, per stirpes. As long as any of my three sons, just named, survive, the said trustee shall hold said property in trust for the use and benefit of the survivor or survivors, and the descendants or heirs at law of the deceased. * * * My object in making the foregoing disposition of my St. Louis property, and in attaching the limitations aforesaid, is to secure to my children a certain annual income beyond the accident of fortune and bad management on their part, and with this end in view, to take away from them the power of disposing of the same, or of creating any liens thereon, or of making the same liable in any way for their debts."

John Byrne, Jr., declining to act, the defendant took charge of the property, under the will, in 1878. In April, 1885, the beneficiary, Junius Jacobs, for an expressed consideration of five thousand dollars, conveyed by deed to the plaintiff " all the income, rents, issues, and profits now due to me, and hereafter to become due to me in any manner, arising from, and accrued and to accrue...

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