Arnold v. Brockenbrough

• Decision Date: 19 March 1888
• Citation: 29 Mo.App. 625
• Parties: NANNIE D. ARNOLD, Respondent, v. ALICE T. BROCKENBROUGH, Appellant.
• Court: Kansas Court of Appeals

29 Mo.App. 625

NANNIE D. ARNOLD, Respondent, v. ALICE T. BROCKENBROUGH, Appellant.

Court of Appeals of Missouri, Kansas City.

March 19, 1888

APPEAL from Boone Circuit Court, HON. G. H. BURCKHARTT, Judge.

Reversed (except as to parties not appealing ).

Statement of case by the court.

This is a proceeding to subject certain personal property, as the separate property of the defendant, Alice, to the payment of two promissory notes executed by her, with her husband, W. N Brockenbrough, and H. W. Yancey as sureties to the plaintiff. The action grows out of the following state of facts: Mrs Eleonora S. Thomas, the mother of Alice, by her last will and testament, devised and bequeathed her property, consisting of lands and money, to her two children, the said Alice, and her son, John S. Thomas. The said W. N. Brockenbrough intermarried with said Alice, was a dissipated, improvident man, and it was the purpose of the parties to secure to said Alice the enjoyment of the estate to her own use and benefit. Accordingly, Mrs. Thomas designated the defendant, Robert L Todd, the executor of her will and the trustee for said Alice. The will authorizes the executor to sell the property, at his discretion; and out of the proceeds, after the payment of debts, to pay to her son, John S. Thomas, first, the sum of five hundred dollars, after which the residue to go, one-half to said Alice and the other half to said John S., the estate of said Alice to go to said Todd in trust for her. The will directed the said Todd, as trustee, " as may in his judgment best promote the interests and comfort of Alice and her family, either to invest the trust fund in a suitable home, taking the title to himself as trustee, and allowing Alice and her family to use, occupy, and enjoy the same, or the rents thereof, during her life; or to loan it at interest, or to invest it in interest-bearing securities, and to pay Alice annually, the income and profits during her life. In whatever mode it is used, at the death of Alice, said trustee is directed to convey the same to the children of said Alice, if she shall leave children living at her death; but if said Alice shall leave no children surviving her, then said trustee shall convey the same to my son, John S. Thomas, in fee-simple."

The testatrix died in 1883, and Todd qualified as executor. In the fall of 1883, he sold the property at public sale, in Boone county; at this sale Alice purchased some furniture, and some other personal property, of inconsiderable value, giving her and her husband's note therefor, with one C. C. Branham as surety. On the fourteenth day of March, 1884, the said John S. Thomas, who resided in the state of California, made and executed, in said state, a deed of gift for said five hundred dollars coming to him under the said will, to the defendant, J. Scott Branham, in trust for Alice Brockenbrough. This deed declared, that: " This conveyance and transfer are made to said Branham, as trustee for my sister, Alice, and he is hereby authorized to use said sum, either by loaning it, or investing it, in whole or in part, and paying out the interest or principal thereof in such manner and for such purposes, as in his (the trustee's) judgment, will best promote the comfort of Alice T. Brockenbrough and her children, taking to himself, as trustee, and holding the title of all property bought with this fund, and allowing said Alice the use of such property, he being the sole judge of how this fund shall be used, with the single exception that no part of it shall be used to pay any existing debts, by whomsoever contracted."

On the twenty-second day of April, 1884, John S. Thomas, in the state of California, made and executed another deed to said J. Scott Branham, whereby he conveyed to him, in trust for said Alice, the residue of his interest, under his mother's will, which deed of gift contained the same trust provisions as the one above named. The said trustee, Branham, accepted the trust.

About the first of March, 1884, Mrs. Brockenbrough applied to the plaintiff to rent her farm, near Columbia, Boone county. The evidence tends to show, on the part of the plaintiff, that she was unwilling to rent her farm upon the personal security of Mrs. Brockenbrough and husband; that Mrs. B. represented that she would have ample means, under the provisions of her mother's will, to pay this rent; that plaintiff made inquiry of Todd, the executor, and from him learned that Mrs. B. would have sufficient income, under the will, to make such payment. She also made inquiry of the defendant, Branham, shortly afterwards, from whom she learned the same fact. Mrs. B. and husband had then gone into the possession of the farm. Neither Todd nor Branham would sign the notes for the rent. Plaintiff took the notes of Mrs. B. and husband, with the defendant, H. W. Yancey, as surety. The evidence further shows that after Branham came into possession, as such trustee, of the property so given by John S. Thomas, he bought certain work stock, wagon, and some farming implements, and placed them on the farm for the use of Mrs. B., as authorized by the deeds. He also paid for the property bought by Mrs. Brockenbrough at the executor's sale.

Todd had loaned out, at some time during his administration under the will, some money, designed for the benefit of said Alice. At the time of the institution of this sut he had not made his final settlement as executor. The defendant, Alice, having paid only a part of the notes executed to plaintiff, and the balance remaining past due and unpaid, the plaintiff brought this action in September, 1885, to subject the property so bought by Branham, and the interest on the money loaned out by Todd, to the payment of plaintiff's claim. The circuit court gave judgment in personam against the makers of the notes, and further decreed that Todd, as trustee, pay over to plaintiff all interest which he might collect on the money loaned out for Mrs. B., provided the judgment was not satisfied out of the personal property bought and paid for as aforesaid by Branham, which the decree directed to be sold and applied to the satisfaction of the debt in question. Todd, Branham, and Mrs. Brockenbrough have appealed.

S. TURNER, for the appellants.

I. The sole question presented by the record is, whether or not the trust fund created by Mrs. Thomas' will, and the deeds from John S. Thomas, constitute a " " separate estate," in the beneficiary; and the solution turns upon the construction of these instruments. It is conceded that if Mrs. Brockenbrough had in those funds, or the property bought with them by the trustee, Branham, what may properly be termed a " separate estate," she might charge such funds or property with her debts. (1) A married woman's legal estate consists of property as to which the title is vested in her, and which she can, with the concurrence of her husband, dispose of by deed or otherwise. (2) A married woman's " trust estate," technically speaking as contradistinguished from her legal estate on the one hand and her technical " separate estate" on the other, is property held by trustees for her, under an active, vital, operative trust, usually created by will or deed, the title of the trust property, its management, investment, control, and the jus disponendi generally being confided to the trustee, and the power of disposition withheld from the cestui que trust. (3) A married woman's " separate estate" consists of property, real or personal, held by her for her sole and separate use, free from the control of her husband, and not liable for his debts, but in respect to which the jus disponendi is vested in her solely, as between herself and husband. And such an estate may be held to her use by a trustee who is a mere depository of the title, with no active or continuing duty, and with power of disposition in the beneficiary; and this estate may be created by will, or deed, or parol, and it also, under our law, exists, in certain cases, by force of the statute. Rev. Stat., sec. 3296. The " estate" or interest of Mrs. Brockenbrough, in the trusts created by the will and deeds aforesaid, belongs to the second class of estates above mentioned, i. e., they are technical trust estates as contradistinguished both from " legal" and " separate" estates. Even the powers and duties of the trustees are limited, restricted, and clearly defined. They are active, vital, and continuing trusts. The title, the control, the possession, the entire handling and disposition of the trust property or fund is given to the trustees, and all power of controlling or disposing of it is positively withheld, by both the will and the deeds, from the cestui que trust. The terms of the instruments named clearly define the objects of the trust, the intent of the donors, and the limitations of powers entering into the execution of the trust, and such instruments are to be strictly construed and pursued. Parsons on Cont. [7 Ed.] top page 120; Story's Eq. [6 Ed.] sec. 1276; Hill on Trustees, 175; Boles v. Perry, 61 Mo. 449; Graham v. King, 50 Mo. 22; Kim v. Weippert, 46 Mo. 532. A married woman cannot charge an estate with her debt, of which she has not the jus disponendi, for " charging" is " " " " disposing" of it, and the power of disposition is the crucial test of a separate estate, and if the instrument creating the estate precludes her exercise of such power, then it is not a separate estate which she may charge. Schouler on Husband and Wife, secs. 202, 225, 226; Bank v. Taylor, 50 Mo. 186; Kim v. Weippert, supra. The purpose of the donors was, as is clear, both from a fair interpretation of the instruments and the evidence in the case, to make a safe and lasting provision for Mrs. Brockenbrough and her children; and so...