Albert v. Sanford

• Decision Date: 22 December 1906
• Citation: 99 S.W. 1068,201 Mo. 117
• Parties: ALBERT et al. v. SANFORD et al., Appellants
• Court: Missouri Supreme Court

99 S.W. 1068

201 Mo. 117

ALBERT et al. v. SANFORD et al., Appellants

Supreme Court of Missouri, Division One

December 22, 1906

Appeal from Bollinger Circuit Court. -- Hon. Robert A. Anthony Judge.

Reversed and judgment entered here.

Bond Marshall & Bond and Wm. H. & Davis Biggs for appellants.

(1) The heirs do not take a vested interest under the will. They as a class take an executory devise, with power in the trustees to appoint which of the heirs shall have the property, and the estate in the heirs could not vest until the appointment was made. 1 Sudg. Pow., chap. 2, sec. VI. 2, 106; 2 Idem., chap 10, sec. VI. 2, 158; 4 Kent's Com., 316; 2 Hill Real Prop., 557; 1 Sudg. Pow., ch. 7, sec. V., 538; 1 Jarm. Wills, 762; 1 Rop. on Leg., 337; 2 Sudg. Pow., 23, 260; Harding v. Glyn, 1 Atk. 469; Penn v. Lord Baltimore, 3 Ves. 198; Pope v. Whitecombs, 3 Merivale Eng. Ch. Rep. 689; Duke of Marlborough v. Godolphin, 2 Ves. Sr. 78; Hill on Trusts, 493; Boyle v. Bishop of Petersborough, 1 Ves. Jr. 299; McGhie v. McGhie, 2 Mad. Ch. 533; Maddison v. Andrews, 1 Ves. Sr. 57; Ford v. Rawlins, 1 Sim. & Stu. 328; Feynham v. Webb, 2 Ves. Sr. 208; Walsh v. Wallinger, 2 Russ. & M. 81; Needham v. Smith, 4 Rus. 318; Bruce v. Denison, 6 Ves. 391; Daniels v. Davison, 16 Ves. 256; Adams v. Beekman, 1 Paige Ch. 632; Drake v. Peel, 3 Edw. Ch. 251; 22 Am. and Eng. Ency. Law (2 Ed.), 1091. (2) The power of appointment being in the trustees to be exercised in favor of those of the children who in their judgment were most in want of it, authorized the appointment of the estate to the surviving members of the class, to-wit, Linus Sanford, or to him and such others of the class as fulfilled the requirements of the will, and this power was personal and discretionary and could not be controlled by the courts, except for fraud, which is not even charged here. 22 Am. and Eng. Ency. Law (2 Ed.), 1133, 1137, 1138; Wood v. Wood, L. R. 10 Eq. 220; St. John v. Gibson, 12 Jur. 373; Cambridge v. Rous, 23 Beav. 574; King v. Warren, 32 Beav. 111; In re Pattison, 5 Manitoba 274; Higginson v. Keer, 30 Ont. 62; Walls v. Campbell, 2 Gill. 112; Hicks v. Ward, 107 N.C. 392; In re Linzee, 23 Beav. 241; Beck's Appeal, 116 Pa. St. 547; Manning v. Screven, 56 S.C. 78; Sutton v. Southern, 5 L. J. Ch. 185; New v. Potts, 55 Ga. 420; Irvin v. Farmer, 19 Ves. Jr. 86; Holloway v. Clarkson, 2 Hare 521; 4 Kent, 345; 2 Sudg. Pow. 253-256; 1 Rop. Leg., 68; 2 Harm's Wills, 70. The act of the surviving trustee in retaining to his own use the fund and in claiming the right to do so, was tantamount to an appointment to himself as the only surviving member of the class, and was a good and sufficient exercise of the power. Warner v. Ins. Co., 109 U.S. 357; Lane v. Lane, 64 L. A. R. 849, and especially note p. 850. (3) The rules of law applicable to vested or contingent remainders have no application to this case, for this was an executory devise of an indeterminate interest, to members of a class to be selected by the trustees. 2 Minor's Inst., p. 331, 332, 337; Fearne's Rem., 3 N. (C.) 9, 216; 2 Bl. Com., 164, 169 N. 10; 24 Am. and Eng. Ency. Law (2 Ed.), 389. (4) Even if the heirs took a vested interest, that interest was subject to divestiture by the exercise of the power of appointment in the donees. Thorington v. Hall, 111 Ala. 323; Carson v. Carson, 62 N.C. 57; Smith v. Hardesty, 88 Md. 387; Meyers v. Safe Deposit Co., 73 Md. 423. (5) The interest of the children under the will is in the nature of an executory devise and not a vested interest. 2 Minor's Inst., 374. The interest of each of the children depended upon the exercise of the power of appointment in the donees, and that power was limited by the consideration of the wants of the children respectively, and involved a personal discretion which it is still possible for the donees of the power to exercise, and is therefore beyond the power of the courts so long as the donees act bona fides. Hazel v. Hagan, 47 Mo. 281; Hill on Trustees, 488, 493; Pink v. DeThusey, 2 Mad. 157; French v. Davidson, 3 Mad. 396; 2 Lewin on Trustees, marg. page 613; 2 Perry on Trusts (4 Ed.), sec. 508; 1 Jarm. Wills (6 Ed.), marg. page 369; Flint on Trusts & Trustees, sec. 214; Raikes v. Ward, 1 Hare 445; 2 Sudg. Pow., marg. page 253; Kennerly v. Kennerly, 16 Jur. 649; Salter v. Powell, 15 S. & R. (Pa.) 188; Horwitz v. Norris, 49 Pa. St. 218; Brown v. Higgs, 5 Ves. 505. (6) Collier Will Case, 40 Mo. 289, considered. 1. This case was improperly decided on the facts in judgment and the opinion is wholly unsupported by the authorities cited. 2. The conclusions reached are in direct conflict with the express terms of the will. 3. The conclusion that the death of some of the principals of the class takes away from the donees of the power the right to make a difference among the children as to the quantum of interest they were to take, is unsupported by any precedents in the law, and in conflict with the provisions of the will. 4. The conclusions that the power of the trustees was limited so as to vary the character or modify the disposition by the child of the part assigned to him, was in direct conflict with the provisions of the will that the shares or portions set apart to the children should be held by them in their own several rights, under the full and perfect legal title, to them and to their heirs, executors, administrators and assigns forever. But, even if the Collier Will case was properly decided, it is inapplicable to the case at bar. 1. Because the Collier will expressed a desire that the children should share equally in the estate, except under certain contingencies; whereas, the Sanford will contained no such expression of desire and no such limitations upon the discretion of the trustees, but on the contrary left the share each child must have to be determined by the trustees upon the consideration of which child was most in want and gave the trustees as much power in that regard as the testator would have had if living. 2. This court has clearly declared in Jarboe v. Hey, 122 Mo. 350, that it would not follow the Collier Will case except where a vested estate was conferred upon the children, and clearly intimated a doubt as to the correctness of the decision in that case. (7) The trial court should have allowed defendant's claim of $ 2,700 for the support of the widow and Mrs. Hunt and her four children, and should have charged the same against their interest in the estate. Martin v. Campbell, 35 Ark. 137; Hinson v. Williamson, 74 Ala. 180. (8) The circuit court should have allowed the one thousand dollars paid by defendant to extinguish the judgment against John Albert, for that payment was at the request of Mrs. Albert, one of the children, and saved to her a home of the value of at least three thousand dollars which she and her children have since enjoyed, and should have charged that amount against her share of the estate. The circuit court was inconsistent in allowing the $ 374 advanced by defendant to Phil Hunt, Margaret Rowe and Teresa Albert, and in refusing to allow this one thousand dollars. There is no difference in principle between the two. (9) The circuit court erred in charging the defendant with interest. Courts exercise equitable control in such matters and only charge interest when the circumstances of the case require it. In re Davis, 62 Mo. 450; Camp v. Camp, 74 Mo. 192; Cruce v. Cruce, 81 Mo. 676; Madden v. Madden, 27 Mo. 544; Clyce v. Anderson, 49 Mo. 37; Booker v. Armstrong, 93 Mo. 49; Meyers v. Meyers, 98 Mo. 263; 28 Am. & Eng. Ency. of Law (2 Ed.), 1078; 11 Am. and Eng. Ency. Law (2 Ed.), 1211. The burden is upon those claiming interest to show that the circumstances are such as in good conscience demand it. Wall v. Walker, 37 Cal. 424. Interest is not chargeable as a matter of course and the executor or trustee may show cause against it. Wither's Appeal, 16 Pa. St. 151; Colt v. Colt, 33 Cal. 279. There is no reported case wherein interest has been charged against one who had an interest in the fund and who claimed the sole right to the fund, although the claim was a mistaken one. The other heirs are estopped by their laches from claiming interest in this case. (10) Defendant is entitled to reasonable attorney's fees. Section 223, Revised Statutes 1899, expressly allows such fees. In re Estate of Meeker, 45 Mo.App. 186; Jacobs v. Jacobs, 99 Mo. 427; Scudder v. Ames, 142 Mo. 232.

Albert C. Davis for respondents.

(1) The widow, Mary, and the children of Henry Sanford each took a vested interest under the will. Collier's Will, 40 Mo 287; Bull v. Bull, 8 Conn. 47; Chew v. Keller, 100 Mo. 368; Tindall v. Tindall, 167 Mo. 227; O'Day v. Meadows, 194 Mo. 618; Longmore v. Broom, 7 Ves. Jr. 124; Brown v. Higgs, 8 Ves. Jr. 561; Pierson v. Garnet, 2 Bro. C. C. 226; Harding v. Glynn, 1 Atk. 469; Malin v. Keighley, 2 Ves. Jr. 335; Paul v. Compton, 8 Ves. Jr. 380; Parsons v. Baker, 18 Ves. Jr. 476. (2) Linus Sanford, the surviving child of and donee of the power, no longer has the power of appointment. 22 Am. and Eng. Ency. Law (2 Ed.), 1134-1135. (a) All the children, except Linus Sanford and the widow of Henry Sanford, died before the execution of the power. (b) The will particularly gives the names of the appointees, viz.: "To Mary Sanford, my wife, and Linus Sanford, my son, . . . in trust for themselves as heirs of mine, and the other three heirs, namely, my son Pearl, my daughters Rowena Hunt and Theresa Albert." And this is not a gift to a class, but to individuals. 30 Am. and Eng. Ency. Law (2 Ed.), 718; 6 Id. 108. (c) There are none of the appointees alive except Linus, the donee of the power, and he can no longer distribute to the dead nor discriminate between the living and the dead. Collier's Will, 40 Mo. 327. (3) A given...