Wyatt v. Stillman Institute

• Citation: 260 S.W. 73,303 Mo. 94
• Decision Date: 07 March 1924
• Docket Number: 23240
• Parties: SADIE WYATT et al., Appellants, v. STILLMAN INSTITUTE
• Court: United States State Supreme Court of Missouri

260 S.W. 73

303 Mo. 94

SADIE WYATT et al., Appellants, v. STILLMAN INSTITUTE

No. 23240

Supreme Court of Missouri

March 7, 1924

Motion for Rehearing Denied March 7, 1924.

Appeal from Dunklin Circuit Court; Hon. W. S. C. Walker Judge.

Reversed and remanded (with directions).

Orren Wilson and McKay & Jones for appellants.

(1) The court erred in finding that the plaintiffs herein had no title, interest or estate in the lands in controversy. Williams v. Lobban, 206 Mo. 411; Enueberg v Carter, 98 Mo. 647; Coil v. Insurance Co., 169 App. 634; Brooks v. Roberts, 195 S.W. 1021; Deal v. Lee, 235 S.W. 1055; Dowd v. Bond, 199 S.W 956; Barr v. Stone, 242 S.W. 664; Maynor v. Land & Timber Co., 236 Mo. 728; Riley v. O'Kelly, 250 Mo. 657; Toler v. Edwards, 249 Mo. 161; Charles v. White, 214 Mo. 211; Lantz v. Caraway, 50 L. R. A. (N. S.) 34; Waldemeyer v. Loebig, 183 Mo. 373. (2) The court erred in finding the fee-simple title to the lands in controversy vested in H. B. Pankey, trustee, he not being a party to the action nor having entered his appearance therein. Brooks v. Roberts, 195 S.W. 1021; Deal v. Lee, 235 S.W. 1055; Dowd v. Bond, 199 S.W. 956; Barr v. Stone, 242 S.W. 664; Maynor v. Land & Timber Co., 236 Mo. 728; Riley v. O'Kelly, 250 Mo. 657; Toler v. Edwards, 249 Mo. 161; Charles v. White, 214 Mo. 211. (3) The court erred in ordering a sale of the premises in controversy, for the reason that said court was without jurisdiction in this cause to make said order, and there was no pleading or evidence justifying such judgment. (a) It is clear the bequest to the Institute is not a gift. The intent is clear to attempt to create a trust. Musser v. Musser, 281 Mo. 649; Buchanan v. Kennard, 234 Mo. 117; Crow ex rel. v. Clay County, 196 Mo. 234; Festorazzi v. Church, 25 L. R. A. 360; Re Ingersoll, 12 N.Y.S. 103; Nichols v. Allen, 130 Mass. 211, 39 Am. Rep., 445; Maught v. Getzendanner, 65 Md. 527, 57 Am. Rep. 352; McHugh v. McCole, 40 L. R. A. 724; Re Schouler, 134 Mass. 426; Gibbs v. Rumsey, 2 Ves. & B. 294; Hopkins v. Grinshaw, 165 U.S. 739. (b) Whether or not the will created a valid trust is to be determined by the law of the domicile of the legatee and where trust was to be performed, and not by the law of the testator's domicile. Musser v. Musser, 281 Mo. 649; 40 Cyc. 1052; Hailey v. McLanius Est., 112 Miss. 705; Arrow Smith v. Children's Hospital, 21 Pa. Dist. 943; Sickles v. City of New Orleans, 80 F. 874; Hope v. Brewer, 18 L. R. A. 464; Congregational Unitarian Soc. v. Hale, 29 A.D. 396, 51 N.Y.S. 704; Maples v. American Home Missionary Soc., 33 Hun, 360; Re Sturges, 59 N.Y.S. 783, 48 A.D. 624, 62 N.Y.S. 1148; Re Lang, 30 N.Y.S. 388; Matter of Leo-Wolf, 55 N.Y.S. 650; Matter of Robertson, 51 N.Y.S. 502; Chamberlain v. Chamberlain, 43 N.Y. 424, 433. (4) The court erred in finding that, under the will, the Stillman Institute is entitled to the proceeds of the sale of the real estate in controversy. Authorities supra. (5) The court erred in finding that the power given to the executor under the will survived the final settlement of the estate, and that same could now be exercised, the court being without jurisdiction under the pleadings in this case to render such judgment. Donaldson v. Allen, 182 Mo. 647; De Lashmutt v. Teetor, 261 Mo. 436.

Hugh B. Pankey and T. R. R. Ely for respondent.

(1) On the death of testator, by the terms of his will, the title immediately became vested in Bettie Birthright for life and the fee in David B. Pankey as trustee of the gift for Stillman Institute and likewise as trustee of gift of disposal for Bettie Birthright. (a) The will creates a power to sell coupled with an interest in Bettie Birthright. It was the intention that David B. Pankey be vested with the fee-simple title and to hold said fee-simple title in trust in order to make disposition of two gifts, the first being for him to sell said property and give the proceeds to Bettie Birthright if she desired to do so either for the interest of the estate or for her comfort, and second to hold said title in fee for Stillman Institute and all property not sold by him as trustee at widow's election be sold and given to Stillman Institute. Therefore, there was a personal executorship and trusteeship intended to be created, and the making of the final settlement by David B. Pankey had no effect on the power of sale conveyed to said David B. Pankey, as that power survived the final settlement made by him as official execution. Crews v. Crews, 240 S.W. 151; In re Dwyer's Estate, 231 S.W. 672; Donaldson v. Allen, 182 Mo. 626, 640; DeLashmut v. Teetor, 261 Mo. 412; Stewart v. Jones, 219 Mo. 614; Gibson v. Gibson, 280 Mo. 519; Hazel v. Hagan, 47 Mo. 277; Littleton v. Addington, 59 Mo. 275; Foote v. Sanders, 72 Mo. 616; Lloyds, 44 Mo.App. 670. (b) David B. Pankey or his successor acted in the dual capacity as executor and trustee and the power given in this will is coupled with an interest. Dunbar v. Sims, 283 Mo. 256; Trigg v. Trigg, 192 S.W. 1015; Underwood v. Cave, 176 Mo. 1; Board of Trustees of Westminster College v. Dimmitt, 113 Mo.App. 81; Burford v. Aldridge, 165 Mo. 419; Swabey v. Boyers, 274 Mo. 332; (2) The will provides for the appointment of a trustee on the failure of David B. Pankey to act or inability to act. The nomination of this trustee was made, but even without such a provision in a will the testator's intention would not be allowed to be defeated because of the failure to name a trustee. A trust will never be allowed to fail for want of a trustee. The circuit court has jurisdiction in the case of a vacancy to supply a trustee created by a will. Robinson v. Crutcher, 277 Mo. 1; Swabey v. Boyers, 274 Mo. 332; Buckley v. Monck, 187 S.W. 31; Brandon v. Carter, 119 Mo. 572, 581; Rothenberger v. Garrett, 224 Mo. 191; McQuitty v. Wilhite, 218 Mo. 586; Griffith v. Whitten, 252 Mo. 667; Smith v. Black, 231 Mo. 681; Jones v. Jones, 13 N.J.Eq. 236; Mo. Baptist Sanitarium v. McCune, 112 Mo.App. 332; Garesche v. Levering Investment Co., 146 Mo. 436; Sec. 7048, R. S. 1919. (3) The will created a valid charitable trust. Robinson v. Crutcher, 277 Mo. 1; Musser v. Musser, 218 Mo. 649; Jones v. Patterson, 271 Mo. 1; Schneider v. Kloepple, 270 Mo. 389; Catron v. Scarritt Collegiate Inst., 264 Mo. 713; Strother v. Barrow, 246 Mo. 241; Mott v. Morris, 249 Mo. 137; Buchannon v. Kennard, 234 Mo. 117; Lackland v. Walker, 151 Mo. 210. (4) The respondent, Stillman Institute, and the Tuscaloosa Institute are one and the same institution with the same purposes and the change in name was known to the testator may years prior to his death. Robinson v. Crutcher, 277 Mo. 1; Schneider v. Kloepple, 270 Mo. 389; Mott v. Morris, 249 Mo. 137; Catron v. Scarritt Collegiate Inst., 264 Mo. 713; Lackland v. Walker, 151 Mo. 210; Barkley v. Donnelly, 112 Mo. 561. (5) The proceeds of realty given in this will makes the beneficiary take as legatee as a constructive conversion took place of the realty into personalty. (a) The conversion of realty into personalty took place at the death of Bettie Birthright. Underwood v. Cave, 176 Mo. 1; Burford v. Aldridge, 165 Mo. 415; Board of Trustee of Westminster College v. Dimmitt, 113 Mo.App. 81; Campbell v. Johnson, 65 Mo. 439. (b) Equity will re-convert property where beneficiary is given the proceeds of the sale of real estate on the beneficiary's election, and the beneficiary under this equitable re-conversion may take the property itself instead of the proceeds derived from the sale of said land. Gilbreath v. Cosgrove, 193 Mo.App. 419; Griffith v. Whitten, 252 Mo.App. 627; Nall v. Nall, 243 Mo. 247; Trigg v. Trigg, 192 S.W. 1011; Albert v. Sanford, 201 Mo. 117; DeLashmutt v. Teetor, 261 Mo. 412; 40 Cyc. 1764. (6) The purpose of this testator was clearly that he desired all of his property, not disposed of by his widow, to go to the respondent. The purpose of the law is to give effect to every wish and intendment expressed in the will of the testator. Payne v. Reece, 247 S.W. 1006; Shee v. Boone, 243 S.W. 882; Cook v. Higgins, 235 S.W. 807; Collins v. Whitman, 283 Mo. 383; Dunbar v. Simms, 283 Mo. 356; Huntington Real Estate Co. v. Megree, 280 Mo. 41; Gillilan v. Gillilan, 278 Mo. 99; Schneider v. Kloepple, 270 Mo. 389; Priest v. McFarland, 263 Mo. 229; Burnet v. Burnet, 244 Mo. 491, 505; Gibson v. Gibson, 239 Mo. 490; Edgar v. Emerson, 235 Mo. 553, 560; Underwood v. Cave, 176 Mo. 1; Grace v. Perry, 197 Mo. 562; Cross v. Hock, 149 Mo. 338; Garland v. Smith, 164 Mo. 16; Sec. 555, R. S. 1919.

OPINION

Ragland, J.

This is an action under the statute to determine title to real estate. The land in controversy consists of 406 acres and is situated in Dunklin County. Charles Birthright, who was a resident of that county and who died there December, 1911, is the admitted common source of title. He left a widow, but no descendants. The plaintiffs are his collateral heirs. By the following paragraph of his will he made disposition of his entire estate:

"Second I give and bequeath to my beloved wife, Bettie, all of my property of whatsoever character, real and personal, to hold and to enjoy so long as she shall live. And should she at any time deem it to be to the interest of the estate, she shall notify the executor thereof of her wishes and he shall sell said property so designated at either private, or public sale, upon such terms as may seem to him best, and at her death: the executor hereinafter named, is instructed and empowered to sell all of said property, both real and personal, at either public, or private sale, on such terms as may be deemed by him best, and the proceeds thereof I direct to be given to the Tuscaloosa Institute at Tuscaloosa, Alabama, to be used by it in educating young colored men for the ministry; provided...