Ames v. Scudder

• Citation: 11 Mo.App. 168
• Parties: LUCY V. S. AMES, PLAINTIFF, Appellant, v. WILLIAM H. SCUDDER ET AL., DEFENDANTS, Appellants.
• Decision Date: 22 November 1881
• Court: Court of Appeal of Missouri (US)

11 Mo.App. 168

LUCY V. S. AMES, PLAINTIFF, Appellant,

v.WILLIAM H. SCUDDER ET AL., DEFENDANTS, Appellants.

St. Louis Court of Appeals, Missouri.

Nov. 22, 1881.

1. Where trustees under a will are empowered “to pay and discharge the several legacies * * * in money or in real or personal property, or both, in such manner and at such valuations” as shall seem to them “fair and just,” an entry upon the books of the firm of which one of the trustees is a member, crediting the legatee with a sum in cash equal to the assumed value of certain lands, is insufficient to pass title to the land to such legatee.

2. Under such a will, in order to vest title to particular land in a legatee or to create a special trust in the trustees for such legatee in such lands as they may assign him in payment of his legacy the divestiture, or the trust, must be declared by some memorandum in writing which will satisfy the statute of frauds.

3. A court of equity in adjusting property rights must treat the titles as it finds them, whether properly set forth in the pleadings or not.

4. Compound interest will not be charged against negligent trustees, where the facts do not indicate a withdrawal of the funds from their legitimate channels of accumulation, or a realization by the trustees of profits on the assets, and do not raise a presumption that the assets would have been increased by a more strict adherence by the trustees to their line of duty.

5. Commissions on cash disbursements duly approved, will not be denied trustees, where there is no such mismanagement as to cover up or diminish the fund, and no appropriation of it, or its proceeds, by the trustees, to their own use.

6. Where a will empowers the trustees thereunder to set apart stocks to a legatee in lieu of other property, a designation or setting apart of such stocks by the trustees to such legatee vests the title thereto in him.

7. Where the will places certain acts within the discretion of the trustees, who have exercised that discretion and have consummated its purpose, courts of equity will not set it aside and substitute their own discretion.

8. Where the value of property set apart to a legatee is not fixed in accordance with the will, such valuation may be corrected by a court of equity.

9. Where an allotment has been made, the legatee will be treated as the owner of the property thus allotted from that date until the sale by an order of the court.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

HITCHCOCK, LUBKE & PLAYER, for the plaintiff: “The execution of a power must be according to the substantial intention and purpose of the party creating the power; not restraining or lessening it by a narrow or rigid construction, nor by a loose and extended interpretation dispensing with the substantial object which was meant to be performed.”-- Jackson v. Veeder, 11 Johns. 169; Aleyn v. Belchier, 1 Ld. Cas. Eq. 573, and notes; 2 Perry on Tr., sects. 508-511, 511a, and cases cited; Trustees, etc., v. Northampton, 10 Allen, 498; 1 Story's Eq. Jur., sect. 106; Wormley v. Wormley, 8 Wheat. 442; Cloud v. Martin, 1 Dev. & B. 397; Cocke v. Minor, 25 Gratt. 246; Yosti v. Loughran, 49 Mo. 599. The best attention must be personally given by the trustee to the objects of the trust.-- Brickenkamp v. Rees, 69 Mo. 426; Stoffel v. Schroeder, 62 Mo. 149; Bales v. Perry, 51 Mo. 452; Haydel v. Hurck, 5 Mo. App. 274. Being joint trustees, both qualified and acting, neither one alone could exercise any discretionary power conferred upon both; and any alleged exercise of such discretion by one, without the actual concurrence and judgment of the other, would be void.--2 Washb. on Real Prop. (4th ed.) 660, 661 [^*322]; Graham v. King, 50 Mo. 22; Bales v. Perry, 51 Mo. 451; 1 Perry on Tr., sect. 408; 2 Perry on Tr., sects. 509, 779, and cases cited; Franklin v. Osgood, 14 Johns. 553; Berger v. Duff, 4 Johns. Ch. 369 (per Kent, Ch.), and cases cited. The valuation of the lands ““““set apart” was not a just valuation and was not arrived at by a proper exercise of the discretion of the trustees; and as to the question of fraudulent interest in “setting apart” the lands at such valuation, it is not necessary that fraud should appear by direct or positive proof, but that it may be established by inference from all the circumstances.-- The State v. Estel, 6 Mo. App. 10; Hopkins v. Siebert, 58 Mo. 201; Burgert v. Borchert, 59 Mo. 83. Trustees cannot invest trust-moneys in personal securities, and “in the absence of express authority, the employment of trust-funds in trade or speculation, or in a manufacturing establishment, will be a gross breach of trust.”--1 Perry on Tr., sects. 453, 454; In re Davis, 62 Mo. 453; Williams v. Petticrew, 62 Mo. 460, 472. As already shown, the intent of the testator was that said legacies should all be paid as soon as possible, consistently with realizing the utmost value of the estate, but the postponement of the payment was in no case to exceed five years. During that period the trustee was not “obliged” to pay any legacy; but after that the permission of delay expired by limitation. Moreover, since the discretionary powers of management, sale, investment and payment of the legacies in property instead of money, were each and all of them simply means towards the end designed, of making the most of the estate for the payment of said legacies in not more than five years from the testator's death, it follows that these powers also expired at the end of five years, and the court itself could not thereafter resuscitate the powers so expired and dead.-- Jackson v. Jansen, 6 Johns. 73, 81; Sharpsteen v. Tillou, 3 Cow. 651; Devaynes v. Robinson, 24 Beav. 86, 94; 4 Kent's Comm. 331, and cases cited. Assuming these views as correct, the familiar doctrine is at once applicable, that equity treats that as done which ought to have been done.--1 Story's Eq. Jur., sect. 64q; Craig v. Leslie, 3 Wheat. 577; De Peyster v. Clendining, 8 Paige Ch. 305; Fletcher v. Ashburner, 1 Bro. C. C. 479; Kirkman v. Miles, 13 Ves. 337; Haxton v. Corse, 2 Barb. Ch. 506; Smith v. Kearney, 2 Barb. Ch. 533. And even though the time of sale is discretionary with executors or trustees under a power, yet where there is a power to sell, and a sale is necessary to effect the intent of the testator, it is held that an immediate conversion in equity takes place, and the discretion as to the time of sale has no effect upon the question.--1 Ld. Cas. Eq. 1164, 1166, and cases cited; Martin v. Sherman, 2 Sandf. 341, 343; Stagg v. Jackson, 1 Comst. 206, 212. It has been repeatedly held that, if, after a breach of trust, the estate depreciates in the trustee's hands, he must make good the loss individually.--2 Story's Eq. Jur. sect. 1061a; Devaynes v. Robinson, 24 Beav. 86, 94; Newhall v. Wheeler, 7 Mass. 189; Hovey v. Glover, 2 Hill Ch. 515; Voorhees v. Melick, 25 N. J. Eq. 523; Cocke v. Minor, 25 Gratt. 246. And while courts of equity do not ordinarily give damages, such relief is constantly granted by way of compensation and to avoid circuity of action, both under the old chancery practice and under the Code.--2 Story's Eq., sect. 749c; 794, 799; Holland v. Anderson, 38 Mo. 55; Ames v. Gilmore, 59 Mo. 537, 541. “Where a trustee uses funds in his own business, or appropriates them, rendering no account, he is liable for undisclosed profits. A mere omission to invest is distinguished from a case where the trustee has had the use of money.”-- In re Camp, 6 Mo. App. 564 (citing Williams v. Petticrew, 62 Mo. 472; Barney v. Saunders, 16 How. 542; Hook v. Payne, 14 Wall. 252; 1 Am. Ld. Cas. ^*3, ^*535; Moore v. Beauchamp, 5 Dana, 77; Comegys v. The State, 10 Gill & J. 186). Not only is this a sound rule, but the true reason thus given for it is laid down in the following cases, to each of which the appellant respectfully asks the particular attention of this court, if any doubt should arise as to abandoning the line of decisions already established in this state.-- Rowen v. Kirkpatrick, 14 Ill. 11; Schieffelin v. Stewart, 1 Johns. Ch. 620; Jansen v. Hapgood, 10 Pick. 78; Evartson v. Tappen, 5 Johns. Ch. 517; Fay v. How, 1 Pick. 528 (see cases in note); Garrett v. Carr, 1 Rob. (Va.) 213, 214; Voorhees v. Strothoff, 6 Halst. 145, 151, 162; Dunscomb v. Dunscomb, 1 Johns. Ch. 508; Torbet v. McReynolds, 4 Humph. 215; Paul v. Simmons, 6 Geo. 271, 272; Clemens v. Caldwell, 7 B. Mon. 171, 176; Wright v. Wright, 2 McCord, 203; Lyon v. Magagnos, 7 Gratt. 377.

J. M. & C. H. KRUM and BROADHEAD, SLAYBACK & HAEUSSLER, for the defendants: The record shows no ground for interference with the allotment of stocks by the trustees. The will granted to them an unrestricted discretion. No fraud on the part of the trustees having been shown, their valuation of property cannot be interfered with by the courts.-- Hawley v. James, 5 Paige, 485; Cowles v. Brown, 4 Call, 477; Fonty v. Fonty, 1 Bailey Eq. 518, 529; Arnold v. Gilbert, 3 Sandf. Ch. 556; Mason v. Mason, 4 Sandf. Ch. 623; Banner v. Storm, 1 Sandf. Ch. 357; Hawes Place Society v. Trustees, 5 Cush. 457; Williams's Appeal, 23 J. P. Smith, 249; Graeff v. De Turk, 8 Wright, 527; Smith v. Wildman, 37 Conn. 384; Beloved Wilkes's Charity, 7 Eng. L. & Eq. 75; Mason v. Jones, 3 Edw. Ch. 498; Cooper v. Williams, 4 Ohio, 286; Walker v. Walker, 5 Madd. 424; Morton v. Southgate, 28 Me. 21; Chew's Executor v. Chew, 28 Pa. St. 17; Frenchv. Davidson, 3 Madd. 396; Lee v. Young, 2 You. & C. Ch. Cas., chap. 532; Haydel v. Hurck, 72 Mo. 253. The trustees executed the power for the end designed. The trustees acted in good faith in setting apart the property to Henry Ames, Jr.-- Noonan v. Lee, 2 Black, 508; Moore v. Greene, 19 How. 69; Voorhees v. Boursteel, 16 Wall. 29. The point made upon the will, as having imposed a limitation of time upon the exercise of the discretion vested in the trustee, is without merit. To sustain it, the court will have to remodel the will to meet a contingency not in the...