Jarboe v. Hey

• Citation: 26 S.W. 968,122 Mo. 341
• Parties: Jarboe v. Hey et al
• Decision Date: 28 May 1894
• Court: United States State Supreme Court of Missouri

26 S.W. 968

122 Mo. 341

Jarboe v. Hey et al

Supreme Court of Missouri, First Division

May 28, 1894

Appeal from Jackson Circuit Court. -- Hon. E. J. Broaddus, Judge.

Affirmed.

F. W Griffin and C. H. Nearing for appellant.

(1) The money in the hands of the trustee must be regarded, in equity, as real estate and the administrator of Charles A Jarboe, has no title thereto. Note to Fletcher v Ashburner, 1 White & Tudor's Eq. Cas. 534; 4 Kent's Com. 50; 1 Scribner on Dower [2 Ed.], 457. (2) Charles A. Jarboe took an equitable fee simple in the lands devised in trust. Preston v. Brant, 96 Mo. 556; Chew v. Keller, 100 Mo. 362; Finlay v. King's Lessee, 3 Pet. 346; Johnson v. Jacob, 11 Bush (Ky.), 646; Jacob v. Jacob, 4 Bush (Ky.), 110; Collier's Will, 40 Mo. 287. (3) Whatever equitable estate and interest passed to Charles A. Jarboe under the will his widow is entitled to dower by implication. Johnson v. Jacob, supra; Jacob v. Jacob, supra.

Brumback & Brumback for respondents.

(1) We agree with the appellants that, although part of the trust estate is now real property and part cash and notes derived from the sale of real estate by the trustee under the power of sale given him by the will, still the whole goes as real estate because: First. It was originally real estate. Second. There was no equitable conversion of the real estate into personalty, the power given to the trustee to sell being optional, and not imperative, and a power of re-investment in real estate being given, the property for the purpose of distribution retains the characteristics of real estate. Third. When the trust fund, composed of both real and personal estate, is directed to be conveyed to the heirs of a certain person, the whole assets of the trust go as one fund and are distributed as if the whole were real property. Fabens v. Fabens, 141 Mass. 395; Merrill v. Preston, 135 Mass. 451; 2 Jarman on Wills [Randolph & Talcott's Ed.], p. 610, note 14; Collier's Will, 40 Mo. 323. (2) The widow of Charles A. Jarboe had no dower in the property, unless her husband was seized of an estate of inheritance therein, or unless John F. Jarboe was seized of such an estate to the use of Charles A. 1 R. S. 1879, sec 2186; 1 R. S. 1889, sec. 4513; Young v. Thrasher, 115 Mo. 229; Davis v. Evans, 102 Mo. 164; Davis v. Green, 102 Mo. 170. (3) The trustee, under the will of D. M. Jarboe, was seized of the whole estate, not for the use of Charles, but to protect the same against any use thereof by Charles, except in the event of the happening of a contingency that never occurred. Charles never having reformed, the trustee during the whole time was seized of the property in opposition to Charles and for the benefit of his heirs. Charles having no use in the property, his widow could have no dower therein. Warren v. Williams, 25 Mo.App. 23; 1 Washburn on Real Property [5 Ed.], p. 204; King v. Finlay, 3 Peters, 346; West v. Moore, 37 Miss. 114; Den v. Messenger, 33 N. J. L. 499; 2 Jarman on Wills [Randolph & Talcott's Ed.], p. 513, note 5; Cassem v. Kennedy, 35 N.E. 738; Lampert v. Haydel, 96 Mo. 439; Partridge v. Cavender, 96 Mo. 452; Kenyon v. Kenyon, 24 A. 787; Howland v. Clendennin, 31 N.E. 977; 1 Perry on Trusts, sec. 386a; Re Dull's Estate, 137 Pa. St. 112; 2 Perry on Trusts, sec. 508; 1 Perry on Trusts, sec. 254. (4) The heirs of Charles took as purchasers under the will. They took, not through Charles, for he had no estate in the property that he could have conveyed or devised to others, thus cutting out his "heirs." The heirs mentioned in the will acquired title as purchasers under the will directly from David M. Jarboe. They took because they were the persons designated to take upon the happening of a certain event, namely the death of Charles. 2 R. S. 1889, secs. 8838, 8911; Tesson v. Newman, 62 Mo. 198; Emmerson v. Hughes, 110 Mo. 627; Tiedeman on Real Property, secs. 505, 495; Rife v. Geyer, 59 Pa. St. 393. (5) The widow of Charles is not an heir within the meaning of that term as used in the will, but Agnes Jarboe is such heir and the whole property should go to her. Beach on Wills, sec. 294; Am. and Eng. Encyclopedia of Law, title, Heir; Bouvier's Law Dictionary, title, Heir; R. S. 1889, secs. 4465, 4513; 2 Scribner on Dower, p. 40, sec. 33; Rawle on Covenants for Title, secs. 5977; Mason v. Bailey, 14 A. 309; Dodge's Appeal, 106 Pa. St. 216; Irvin's Appeal, 106 Pa. St. 176; Eby's Appeal, 84 Pa. St. 241; Tillman v. Davis, 95 N.Y. 17; Platt v. Mickle, 137 N.Y. 106; Fabens v. Fabens, 141 Mass. 395; Merrill v. Preston, 135 Mass. 451.

OPINION

Macfarlane, J.

The purpose of this suit is to obtain the proper construction of the will of David M. Jarboe as it affected the disposition of certain real estate devised to plaintiff John F. Jarboe, as trustee, and of the proceeds of some of the land which had been sold by the trustee under power contained in the will. On the twenty-first day of February, 1884, the said David M. Jarboe made his will, by which, after some special bequests to his wife, he gave to her and his son John F. each, one undivided one-third of all his real estate. The remaining provisions of the will are as follows:

"Fourth. I further give, devise and bequeath to my said son, John F. Jarboe, the remaining one undivided third of all my real estate in trust, and direct that out of the profits of said undivided one-third of all my real estate, he shall purchase for Charles A. Jarboe, my youngest son,, two suits of suitable clothing a year and either pay to the said Charles A. Jarboe $ 25 a month in money, or use that amount per month in paying his board, as my said son John F. shall elect.

"Fifth. I direct that my said son John F. Jarboe shall have full power and authority to sell and convey any or all of the undivided one-third of my real estate named in paragraph four (4), at such time and for such sums as he shall deem best and to reinvest the amount or amounts so received in such manner as to him shall seem best.

"Sixth. I further direct that, whenever, in the opinion of my said son, John F., or his successors in this trust, my said son Charles A. has reformed and is capable of taking care of and using the same for proper purposes, he shall give to him, the said Charles A. Jarboe, $ 1,000, if there be so much in his hands arising either from the sale or growing out of the rents and profits of said undivided one-third of my real estate named in paragraph four (4).

"Seventh. I further direct that, at any time within one year after my said son Charles A. shall have received the $ 1,000 as provided for in the last preceding paragraph, he, the said Charles A., shall by his attention to business or general conduct and behavior convince my said son John F. Jarboe or his successor that he will not squander or waste the same, then he, the said John F. Jarboe, or his said successor shall convey to him, the said Charles A. Jarboe, all the undivided one-third of my real estate, named in paragraph four (4) remaining at such time unsold, also to convey to him any or all real estate, if any, which may have been purchased by moneys arising either from the sale or growing out of the rents and profits of said undivided one-third of my real estate named in paragraph four (4) and also turn over to him all moneys or securities in his hands arising from the same.

"Eighth. Should the said property so conveyed to the said John F. Jarboe in trust as aforesaid, never be conveyed or transferred to the said Charles A. Jarboe during his lifetime by the said John F. Jarboe, or his successor in this trust, then in the event of the death of said Charles A. Jarboe, said John F. Jarboe, or his successor in this trust, shall convey and transfer said property and all proceeds, rents and profits of the same remaining in his hands to the heirs of said Charles A. Jarboe.

"Ninth. I give my gold watch and chain to my said son Charles A. Jarboe, but direct that my executrix shall not deliver the same to him until by his conduct and behavior he shall satisfy her that he will keep and take care of the same."

The case was submitted on an agreed statement of facts, which may be briefly stated as follows:

The testator died in February, 1886, leaving his wife, Emily, and two sons, the said John F. and Charles A. surviving him, and no other descendants. His widow accepted the provisions made for her under the will. John F. accepted the trust imposed upon him by the will and took charge of the trust estate. Charles A. married in November, 1885. After the death of the testator Agnes Jarboe was born of the marriage of Charles A. and his wife. There were no other children of the marriage. The said Charles A. died intestate in March 1891, and left surviving him his widow, Ada Jarboe, and only one descendant, the said Agnes. R. M. Latshaw is the administrator of the estate of Charles A. Defendant Fred. C. Hey is the curator of the said Agnes.

After taking charge and management of the said trust estate, the said John F. Jarboe, as trustee, sold portions of the real estate, and has in his possession a portion of the proceeds thereof. Other of said lands are undisposed of. After the death of the said Charles his widow elected to take, in lieu of dower of the lands of her husband, the share of a child therein.

The said Charles A. Jarboe, in the opinion of the trustee, never reformed, and never became capable of taking care of, or using for proper purposes, any of the property and no part was given him by the trustee, except as in the third paragraph of the will directed. All parties interested are made parties to the suit.

The parties make claim to the trust estate under the will as follows: The widow, now Ada Kenworthy, makes claim to one-half of the entire estate. Latshaw, as administrator of...