Bobb v. Bobb

• Decision Date: 07 June 1887
• Citation: 4 S.W. 511,89 Mo. 411
• Parties: BOBB and others v. BOBB and others.
• Court: Missouri Supreme Court

4 S.W. 511

89 Mo. 411

BOBB and others v. BOBB and others.

Supreme Court of Missouri.

June 7, 1887.

1. TRUSTS — ACCOUNTING — CREDITS.

Where a husband and father establishes a trust in favor of the separate use of his wife and of their children, by conveyance to a friend, and a reconveyance to himself as trustee, he is not entitled to a credit in his account as trustee for the consideration expressed in the reconveyance when, as a matter of fact, both transfers were voluntary, and no consideration passed.

2. SAME — COMPOUND INTEREST.

Upon a suit for accounting against a trustee, it appeared that he kept no account of the trust funds for a large portion of the time, and that he used the balances, from time to time, for his own profit, by loaning the same at a high rate of interest, and by otherwise employing the same for his individual benefit, without accounting

for the profits so realized. Held, that he should be charged, in lieu of the profits, with interest at 6 per cent. on balances in his hands, compounded annually.

3. SAME — SELF-IMPOSED TRUST.

A father who creates a trust in his own property in favor of his children and undertakes to administer the trust himself is liable to account at the suit of the beneficiaries when the proper time arrives.

4. SAME — CREATION OF TRUST — ESTOPPEL.

Although, as a matter of fact, no consideration passed under either deed, both of which expressed one, it does not lie in the mouth of a father who conveyed his property to a friend, and took a conveyance back to himself, in which he joined in trust for the sole use and benefit of his wife and their children, to say that the first deed was without consideration, and therefore left the estate in himself divested of all trust.

5. EVIDENCE — PAROL — RECITAL IN DEED.

A want of consideration cannot be shown, against the recital in a deed, for the purpose of defeating the operative words of the deed, as for the purpose of showing a resulting trust in the grantor.

6. EQUITY — REFORMING DEED — FAMILY TRUST.

Equity will not reform a deed establishing a family trust, so as to let in after-born children, where the testimony, as to the intention of the creator of the trust is conflicting, and about equally balanced, and where the settlor, who was also the trustee, has administered the trust for 24 years according to its express terms, and with no intimation of a mistake.

7. APPEAL — CLAIM NOT MADE BELOW — TRUSTS.

A claim by a trustee to a credit on an accounting, made for the first time on appeal, will not be considered.

8. SAME — WAIVER — AMENDMENT.

Where pleadings are amended, the prior pleadings are to be regarded as abandoned, and error in the rulings of the trial court upon the original pleadings is not available.

Cross-appeals from St. Louis court of appeals.

Bill for removal of trustee, and account. The following statement is part of the opinion of LEWIS, P. J., reported in 7 Mo. App. 501: In April, 1843, defendant Charles Bobb, who is the father of all the other parties beneficially interested in this cause, conveyed to Miss Hannah Letcher, now Mrs. John D. Stevenson, for the expressed consideration of $10,000, a considerable quantity of real estate situate in the city of St. Louis. It does not satisfactorily appear that any consideration was really paid. Miss Letcher was a relative, and an inmate of Charles Bobb's household, enjoying his entire confidence. It appears to have been his wish to place this property in her hands, in order to secure it against possible vicissitude in his own affairs, and so that it might be ultimately enjoyed by his wife and children. At that time his children were three, — Charles L., John H., and William H., all infants of tender years. Afterwards, and prior to January, 1845, William H. died, and a daughter, Lucy G., now the defendant Lucy G. Taylor, was born.

In January, 1845, Miss Letcher, being about to marry, executed and delivered a deed conveying all of the property remaining in her hands to Charles Bobb, as trustee, for the sole use and benefit of Mary H. Bobb, his wife, and John H., Charles L., and Lucy G. Bobb, his children, with power to sell or dispose of the same as the beneficiaries might direct. Miss Letcher had previously sold some parcels of the real estate, and held notes of the purchasers, secured by deeds of trust. These notes went into the possession of Charles Bobb, who collected the proceeds. There were certain other notes, known as the Kelly and Sellick notes, which, with the deed of trust securing their payment, were in December, 1843, conveyed, in a deed which was duly acknowledged and recorded, by Charles Bobb and the trustee in the deed of trust, to Charles L. Bobb, John H. Bobb, and William H. Bobb.

The present suit was commenced in 1859. Its general objects are to restrain the defendant Charles Bobb from further acting as trustee, or in any manner disposing of or interfering with the property; to compel an accounting for his receipts and disbursements as trustee; and to divest the entire legal title out of the trustee, and cause it to be vested in the cestuis que trust. After a lengthy trial upon preliminary issues, and two successive references, the whole occupying a period of more than eight years, the circuit court decreed substantially according to the prayer of the second amended petition.

The first question to be here considered arises upon the prayer of defendants, Charles Bobb, George L. Bobb, and his sister, Cora L. Taylor, for a reformation of the deed of January, 1845, from Hannah Letcher to Charles Bobb, trustee. It is claimed that the real intention of the parties was to establish a trust for the benefit of Mary H. Bobb, wife of Charles Bobb, and of all their children then in being or thereafter to be born, but that the scrivener, by mistake and without authority, inserted the names of the then living children only. As the deed now stands, John H. Bobb, Lucy G. Taylor, and the representatives of Charles L. Bobb, who have died since the institution of the suit, are each entitled to six-twentieths of the estate; while George and Cora, who were born after the execution of the deed, can only claim one-twentieth part each, as heirs of their mother, Mary H. Bobb, who died in 1853. A reformation of the deed as proposed would give to the defendants George and Cora shares equal with those of the other beneficiaries.

Jeff. Chandler and M. Kenealy, for appellants. Hitchcock, Madill & Finkelnburg, for respondents.

BLACK, J.

On April 18, 1843, the defendant, Charles Bobb, conveyed to Miss Hannah Letcher nine parcels of land in the city of St. Louis. This deed is in the usual form, and expresses no trust. On the twenty-third of January, 1845, Hannah Letcher conveyed the same property, except three parcels which had been sold to Charles Bobb, in trust for the sole use and benefit of Mary H. Bobb, wife of said Charles and their children, Charles L., John H., and Lucy G. Mary H. Bobb died in 1853. There had been born to her and Charles Bobb, since the execution of the deed of trust, two children, Cora and George. In 1854, Charles Bobb, as trustee and father and guardian, instituted suit against Hannah Letcher, the object of which was to procure a reformation of the deed of trust so as to allow him to sell the property, or any of it, without the consent of the children. The deed was reformed as prayed. From 1845 to the institution of this suit, the trustee sold portions of the property, collected rents from the houses on the property when the deed was executed, built others and collected rents therefrom. The object of this suit is to compel an accounting. An interlocutory decree to that effect was made and a reference had. Objections to some of the items of account in the report of the referee were sustained, and as to those, and the matter of compensation of the trustee, the cause was...