Berry v. Stigall

• Decision Date: 06 May 1907
• Citation: 125 Mo. App. 264,102 S.W. 585
• Parties: BERRY et al. v. STIGALL.
• Court: Missouri Court of Appeals

102 S.W. 585

125 Mo. A. 264

BERRY et al. v. STIGALL.

Kansas City Court of Appeals. Missouri.

May 6, 1907.

1. TRUSTS — TESTAMENTARY TRUSTEES — EXPENDITURES.

Where a will directed that testator's minor children should be maintained from the rents of the real estate, which consisted of a farm, and the executrix was authorized to take full control of the land, and on her death defendant was made trustee of the estate, it was proper for him to use rents for making repairs and for taxes, and he was properly allowed compensation and an attorney's fee.

2. SAME — AMOUNT OF COMPENSATION.

The compensation of one appointed by the court as trustee to execute the provisions of a will must be limited to reasonable bounds, yet it is not necessarily the 5 per cent. allowed by statute to administrators and executors.

Appeal from Circuit Court, De Kalb County; A. D. Burnes, Judge.

Proceedings by Thomas Berry and others for the removal of William M. Stigall as a trustee executing the will of John Berry, deceased. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

L. F. Henry and K. B. Randolph, for appellants. W. H. Haynes, for respondent.

ELLISON, J.

This proceeding has for its purpose the removal of defendant as trustee executing the provisions of a will, and for an accounting by him. On trial in the circuit court the defendant prevailed, and plaintiffs duly perfected their appeal.

John Berry died testate in the year 1893, leaving a widow and the plaintiffs, who are his children. His will contained the following provisions:

"Section 1. To my beloved wife, Clarissa Berry, I give and bequeath all of my personal estate, with full power to use and dispose of the same for the purpose of paying all of the debts owing and contracted by me.

"Sec. 2. To my said wife, I devise and bequeath full power and control of all lands and real estate of which I may die seised, until our youngest child shall become of legal age, and from the rents and profits of said lands to support and maintain and educate our minor children.

"Sec. 3. Upon our youngest child living becoming of legal age, I give and bequeath all the remainder of my estate, real, personal and mixed, in equal proportions share and share alike, to the heirs of my body and hers, viz.: Thomas, Louisa, James, Maida, Killian, Charles, Carey, and Carry, and my said wife. I hereby appoint my beloved wife and our son Thomas, executors of this my last will and testament, hereby revoking all former wills by me made."

The widow failed to qualify as executrix, and shortly afterwards died, and Thomas Berry, one of the plaintiffs, was duly appointed administrator. He afterwards made final settlement. Afterwards defendant was appointed "trustee of said estate under the will." Defendant, as such trustee, took charge of the real estate, consisting of a farm and improvements. The charge made against defendant is that he violated his trust by wasting the rents and profits of the estate and administering its affairs contrary to the directions of the will. At the death of John Berry, four of his children were minors, and one of them was still under age at the commencement of this action.

The objections to the judgment of the trial court have narrowed the issues frequently presented in such controversies, and have greatly simplified the questions presented for our determination. It is clear that the case turns on a construction of the provisions of the will. If the defendant's administration of his trusteeship was within the reasonable intendment of the testator, as expressed in the will, we must adopt the view of the trial court, and affirm the judgment. The objections are that the trial court erred in allowing defendant's expenditures in...