Bank of Commerce v. Chambers

• Decision Date: 26 November 1888
• Citation: 10 S.W. 38,96 Mo. 459
• Parties: BANK OF COMMERCE v. CHAMBERS et al.
• Court: Missouri Supreme Court

10 S.W. 38

96 Mo. 459

BANK OF COMMERCE v. CHAMBERS et al.

Supreme Court of Missouri.

November 26, 1888.

1. TRUSTS — INCOME PAYABLE TO CESTUI QUE TRUST — RIGHTS OF CREDITORS.

An income, given by the will of the wife to the husband on condition of his executing a release of his estate by the courtesy, which he executes accordingly, is subject to the claims of the husband's creditors, notwithstanding the provisions of the will to the contrary. Distinguishing Lampert v. Haydel, 9 S. W. Rep. 780.

2. EQUITY — JURISDICTION — SEQUESTRATION OF INCOME OF TRUST-ESTATE.

Though a judgment creditor of the husband may sell under execution the husband's estate by the courtesy, yet, as the release will remain a cloud on the title, the removal of which will require a decree in equity, and as the case is one of fraud and of trust, and as the creditor may go to a court of equity for a construction of the provision of the will for the husband, he may properly resort to a court of equity for relief in the first instance, at his election.

Appeal from St. Louis circuit court; SHEPARD BARCLAY, Judge.

Suit by the Bank of Commerce against B. Maziere Chambers and Julius S. Walsh to sequester the income of an estate held by Walsh in trust for Chambers, a judgment debtor of the plaintiff. A demurrer to the petition was sustained, and, plaintiff declining to plead further, judgment dismissing the petition was rendered, from which it appeals.

Albert Arnstein and J. P. Maginn, for appellant. Hitchcock, Madill & Finkelnburg, for respondents.

SHERWOOD, J.

The petition in this cause, omitting formal parts, is as follows: That on the 8th day of April, 1881, in a case, No. 55,867, in the circuit court of the city of St. Louis, in the state of Missouri, being a case of it, the Bank of Commerce, as plaintiff, against B. M. Chambers and Margaret F Smith, defendants, it recovered judgment against Chambers and Smith for the sum of $5,134.35, and costs, which judgment was therein ordered to bear interest at the rate of 10 per cent. per annum from its date; that thereafter, to-wit, on the 18th day of May, 1881, the plaintiff caused an execution to issue on said judgment, which execution was No. 150, returnable to June term, 1881; that said execution was directed and delivered to the sheriff of the city of St. Louis, and was by him duly returned on the 6th day of June, 1881, nulla bona; that thereafter, to-wit, on the 19th day of October, 1882, in another case, 56,939, in the circuit court of the city of St. Louis, state of Missouri, being the case of it, the Bank of Commerce, as plaintiff, against B. Maziere Chambers and R. Graham Frost, as defendants, it recovered a judgment against B. Maziere Chambers, who is a defendant in the present suit, and R. Graham Frost, for the sum of $5,514.37, and costs, which judgment was therein ordered to bear interest at the rate of 10 per cent. per annum from date; that thereafter, on the 2d day of January, 1884, the plaintiff caused an execution to issue on said judgment, which execution was No. 135, returnable to February term, 1884; that said judgment was directed and delivered to the sheriff of the city of St. Louis, and by him duly returned on the 14th day of February, 1884, nulla bona. And plaintiff further says that nothing has been paid on either of the above-mentioned judgments; that none of the defendants in either of said cases has any property or effects of any kind subject to execution and levy. And plaintiff says that Mrs. Marie C. Chambers, the wife of defendant B. Maziere Chambers, died on the 9th day of December, 1883, in the county of St. Louis, state of Missouri; that she made a will, which was duly probated in the probate court of St. Louis county, on the 20th day of December, 1883; and a certified copy thereof was filed in the office of the recorder of deeds of the city of St. Louis, state of Missouri, in Book 723, p. 81, on the 24th day of December, 1883; that among other provisions immaterial to this case the said testatrix gave the income of property worth half a million dollars, which income is now $20,000 per annum, to the defendant Walsh, in trust for the defendant Chambers, during his natural life. The language of the will on this point is as follows:

"Seventh. All of the rest and residue of my estate, real, personal, and mixed, whereof I shall die seized, entitled, or possessed, I give, bequeath, and devise to my brother Julius S. Walsh in trust, that he manage, hold, and dispose of the same during the natural life of my husband; that quarterly he pay the net rents, issues, and profits arising therefrom into the proper hands of my husband alone, or such person or persons as he, my husband, by any order in writing, may, for that purpose, appoint, and after the death of my husband to convey to such person or persons for such estates and in such portions as would by the laws of Missouri, then in force, be declared to be my rightful heirs had I survived him: provided that such heirs be descendants of mine, they, or the survivors of them, shall have only a contingent estate in the property thus inherited, to become vested only on his or hers, the survivor, attaining majority. And upon the death of any one the inheritance to be declared to the exclusion of my husband, my desire being that my estate shall remain in my family; if it cannot, among my descendants. And I give to my said trustee the power to sell or to convert any part of the trust property, and the proceeds thereof, to reinvest in such real or personal estate, or in such securities, as to my said trustee may seem expedient and discreet; or to employ the same in the improvement of any portion of my real estate, giving, also, to my said trustee power to lease over for a term of years, not exceeding thirty. But, in every instance of such sale, conversion, lease, or improvement, the written consent of my husband thereto to be first had and obtained, and without such consent no exercise of powers herein conferred to be valid; my object, and my only object, and I have by the creation of this trust none other than that, because of...