Pugh v. Hayes
| Decision Date | 23 January 1893 |
| Citation | 21 S.W. 23,113 Mo. 424 |
| Parties | Pugh, Appellant, v. Hayes et al |
| Court | Missouri Supreme Court |
Appeal from Franklin Circuit Court.--Hon. Rudolph Hirzel, Judge.
Affirmed.
J. C Kiskaddon for appellant.
(1) A use, a trust and a confidence is one and the same thing, and if an estate is conveyed to one person for the use of, or upon a trust for another, and nothing more is said, the statute immediately transfers the legal estate to the use and no trust is created. 1 Perry on Trusts [4 Ed.] sec. 298; Terry v. Colber, 11 East, 377; Right v Smith, 12 East, 454; Broughton v. Langley, 2 Salk. 679; Parks v. Parks, 9 Paige (N. Y.), 107; Revised Statute, 1889, ch. 168; 1 Sanders on Uses [2 Am. Ed.] * 86, et seq. (2) No precise form of words is necessary to declare a use. "A very slight thing," or, "words, though very improper," will serve the purpose. Nightingale v. Ferrar, 3 P. Will. 206, 208. And if the trust is to permit or suffer the cestui que use to receive rents, profits, etc., the statute executes the use. Waggstaff v. Smith, 9 Ves. 520; Doe v. Biggs, 2 Taunt. 109; Gregory v. Henderson, 4 Taunt. 772; Laurens v. Jenney, 1 Spear (S. C.) 356. (3) In this case "the income of said lands shall go to and be for the use of my beloved wife." A use has been defined to be the equitable right to take the "profits" of an estate. Sloan v. Baker, 8 Mass. 438; People v. Supervisors, 4 Hill (N. Y.), 20; Simm's Appeal, 44 Pa. St. 345; Betts v. Betts, 4 Abbott's New Cases (N. Y.) 317, 400. (4) There is nothing in the will giving the executor any control over the lands in Missouri. The moment he purchases the lands his power ceases. (5) And, where the necessity of protecting the present or future estate ceases, the statute immediately executes the use. Thus, where property is settled on a married woman to her sole and separate use, as soon as the marriage relation terminates by death or otherwise the statute executes the use. Roberts v. Moseley, 51 Mo. 282; Baker v. Nall, 59 Mo. 265. (6) It was the duty of the executor to invest the money in accordance with the terms of the will. 2 Perry on Trusts [4 Ed.] sec. 452, 460, 461. (7) From whatever source the purchase money of land comes, if it was intended to be for the benefit of one person, and some other person uses it to purchase land in his own name, then the latter person holds the legal title in trust for the first. 1 Perry on Trusts [4 Ed.] secs. 124, 125, 127; Kelly v. Johnson, 28 Mo. 249; Miller v. Davis, 50 Mo. 572; Key v. Jennings, 66 Mo. 356; Shaw v. Shaw, 86 Mo. 594. (8) And the cestui que trust can call on the trustee to execute the trust, or to declare the uses under which he holds the legal title, and if such declaration is within the statute of uses the legal title is immediately vested in the cestui que trust. 1 Greenleaf Cruise, * 338; 1 Perry on Trusts, [4 Ed.] sec. 165a; 1 Sanders on Uses [2 Am. Ed.] * 86, et seq.; Walden v. Skinner, 11 Otto, 577. (9) Such resulting trust can be sold on execution against the cestui que trust. Ranken v. Harper, 23 Mo. 579; Bobb v. Woodward, 50 Mo. 95; Lionberger v. Baker, 88 Mo. 447; Gentry v. Robinson, 55 Mo. 260; Morgan v. Bouse, 53 Mo. 219. (10) Property held in trust is liable for the debts of the cestui que trust. Bispham's Equity, sec. 61; McIlvaine v. Smith, 42 Mo. 45; Pickens v. Dorris, 20 Mo.App. 1. (11) Nor can the liability of the estate to sale under execution be avoided on the ground that it was given in lieu of dower, for dower consummate is in this state vendible under execution against the dowress. Waller v. Mardus, 29 Mo. 25. (12) To prevent property given under a will or settlement being charged with or liable for the debts of the donee, the instrument must expressly declare that intention. Lampert v. Haydel, 20 Mo.App. 616; Pickens v. Dorris, 20 Mo.App. 1; McIlvaine v. Smith, 42 Mo. 45.
T. A. Lowe for respondents.
(1) Where a power is given by will or deed to an executor of trustee, the execution of which is not contrary to law or public policy, and which is free from fraud, and the trustee is in the act of and is willing to execute the trust according to direction, then courts will not interfere with such trustees, nor direct a different disposition of the property or estate than that intended by the testator or donee of the power and property, but will give effect to the intent of the testator. 4 Kent's Commentaries [8 Ed.] pp. 326, 327; 1 Perry on Trusts, secs. 359, 386a; 2 Perry on Trusts, secs. 508, 509, 510, 511; Owens v. Switzer, 51 Mo. 322; Owens v. Ellis, 64 Mo. 77; Coil v. Pitman's Adm'r, 46 Mo. 51; Haydel v. Hurck, 72 Mo. 253; Lambert v. Haydel, 96 Mo. 439; Partridge v. Cavender, 96 Mo. 452. (2) There was no restraint upon alienation by the then expectant widow, for the testator bestowed absolutely nothing upon her which she could alien. He simply conferred a naked power upon the executor to convert the realty into money and loan or invest one third of it in stocks, or reinvest in other lands in Missouri, showing an evident intention of withholding from her both the legal title as well as the control of his property, and thus placing the property beyond the reach of her creditors, and his widow from the vicissitudes of fortune. The intention of the testator is to be gathered from the whole scope of the will. Section 8916, Revised Statutes, 1889. Courts shall have due regard to the directions of the will, and the true intent and meaning of the testator. In Lambert v. Haydel, 96 Mo., the court say: "The effectuation of the gift just as the author intended it to be effectuated." Smith v. Hutchinson, 61 Mo. 83; Allison's Ex'r v. Channey, 63 Mo. 279; Bozarth v. Bozarth's Ex'r, 24 Mo. 320; Collier's Will, 40 Mo. 287; Hazel v. Hogan, 40 Mo. 277. (3) This property having been devised to an executory trustee by a dying husband and father, inspired by the holiest sentiments of the human heart, and being reasonable in extent and duration, with no motive to defraud, he had a right to place his property in such a position as to amount to a restraint upon both the voluntary alienation by the object of his affection and bounty, and by proceedings in invitum, and such trusts have judicially prevailed as against judicial sales, as shown by the following authorities: 1 Perry on Trusts, sec. 118, p. 127; Bramhall v. Ferris, 14 N.Y. 44; White v. White, 30 Vt. 342; Rife v. Geiger, 59 Pa. St. 393; Wells v. McCall, 64 Pa. St. 207; Norris v. Johnson, 5 Pa. 287; Vaux v. Parke, 7 Watts & Sergeant's Reports, 19; Clute v. Bool, 8 Paige, 83; Boswell v. Anderson, 1 Patton & Heath's Reports (Va.) 185; Bush's Appeal, 33 Pa. St. 85; Thackara v. Mintzer, 100 Pa. St. 151; Nichols v. Eaton, 91 U.S. 716. (4) The appellant purchased the land subject to all the conditions of the trust, and, if the respondent, Mrs. Black, could not alien the land nor sell or assign the income or usufruct of the land, then the purchaser cannot. 1 Perry on Trusts, sec. 346, and authorities cited; Gritchell v. Kreider, 12 Mo.App. 503. (5) It is not an invariable rule that the instrument creating the trust should contain an express restraint upon the voluntary or involuntary alienation of the trust property. Executory trusts without such restraint have been upheld in Pope's Ex'rs v. Elliott, 8 B. M.; Leavitt v. Beirne, 21 Conn.; White v. White, 30 Vt., and very slight in Bramhall v. Ferris, 14 N. Y.; Hill v. McRea, 27 Ala. 175; and Rife v. Geiger, 59 Pa. St., cited under third proposition. (6) If the court should hold that the property, for aught contained in the will, was vendible upon execution, then, it is maintained that all the elements necessary to impress the estate with the homestead character were present under section 2689, Revised Statutes, 1879, in force at the time of the sale, and she was entitled to the possession of the whole until the homestead should be set off. (7) That the law at the time of making the will applicable to this case as expounded by the courts of the state (Pa.) where the will was made, though not of controlling force, will have great influence here in construing the provisions of the will. Skouten v. Wood, 57 Mo. 380; Johnson v. Gawtry, 83 Mo. 339, and cases cited.
OPINION
The plaintiff prays for a decree declaring the defendant, Alfred Hayes, seized of one hundred and fifty acres of land in trust for the defendant, Barbara Black, for the term of her natural life, and that the trust be executed by vesting such life estate in him as the purchaser of the property at an execution sale on a judgment against Barbara. The trial court dismissed the bill.
The record, as it stands, discloses the following facts: Thomas S. Black, a resident of the state of Pennsylvania, died testate in December, 1870, and the will was duly probated in that state. The testator empowered and directed his executors to sell all of his real and personal property, and then says "And when the whole of my estate shall be converted into money as aforesaid, then I will and direct that, after the payment of my just debts and funeral expenses, one full third part or share of my estate shall be placed by my executors at interest on good real estate security, or in such United States bonds, bank stock or railroad stock, as may be deemed best by my said executors, or, with the consent of my wife, Barbara, my executors are authorized and directed to invest the same in whole or in part, as may be them be deemed advisable, in lands in the state of Missouri, the interest of which said moneys, or the income of which said lands, constituting as aforesaid, the one third of my estate, shall go to and be for the use of my beloved wife, Barbara Black, during all the term of her natural life, which is to be in...
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