Brandon v. Carter

• Decision Date: 05 February 1894
• Parties: BRANDON v. CARTER et al.
• Court: Missouri Supreme Court

24 S.W. 1035

119 Mo. 572

BRANDON v. CARTER et al.

Supreme Court of Missouri, Division No. 1.

February 5, 1894.

TRUSTS — APPOINTMENT OF TRUSTEE TO FILL VACANCY — EQUITABLE JURISDICTION — COLLATERAL ATTACK — EJECTMENT — INSTRUCTIONS — HARMLESS ERROR.

1. The common law, so far as not repugnant to the local statutes, is part of the law of Missouri, and by its force the courts possess certain inherent powers in respect of trusts.

2. Courts of equity, as such, have jurisdiction to appoint a trustee to discharge a trust created by will, for a trust will never be allowed to fail for want of a trustee.

3. The statutes for summary appointment of trustees (sections 8683, 8684) do not apply to trusts under wills.

4. A statutory remedy does not extinguish an ancient jurisdiction in equity over the same subject, where the statute does not indicate such a legislative purpose.

5. Where a trustee under a will refused to accept the trust, he is not a necessary party to a proceeding in equity to appoint one to fill the vacancy.

6. Acceptance of a trust is essential to the vesting of title in the trustee.

7. Disclaimer of a trust may be established by acts, or by nonaction long continued.

8. Where a father and his minor children joined in a petition to appoint a trustee, the fact that they all appeared by attorney is not a fatal defect.

9. Where an erroneous instruction on the measure of recovery was given for the prevailing party, but the verdict shows affirmatively that it was disregarded, and a result reached in conformity with another instruction on the same point, asked by the appellant, there is no error of which the latter can successfully complain on appeal.

10. Where the bill of exceptions does not preserve the testimony, it will be presumed that there was sufficient evidence to support the verdict.

11. The supreme court is not authorized to reverse a judgment on account of any error of the trial court, which, in the result, was not prejudicial to the substantial rights of the adverse party on the merits.

(Syllabus by the Judge.)

Appeal from circuit court, Audrain county; E. M. Hughes, Judge.

Action in ejectment by one Brandon against Carter and others. There was judgment for plaintiff, and from an order denying a new trial defendants appeal. Affirmed.

The facts appear in the following statement by BARCLAY, J.:

This is an action of ejectment. In the petition it is alleged that plaintiff was duly appointed trustee for John T. Jacobs and his children by virtue of the will of George R. Jacobs, deceased; that he accepted said appointment, and qualified as trustee; that as such he was, on the 7th of March, A. D. 1888, entitled to the possession of a certain tract of land, which defendant Mr. Carter, and his tenant, Mr. Kelly, then occupied, and which they unlawfully withhold, etc. The petition contained the usual allegations in ejectment, and asked judgment for possession, rents, profits, etc. The answer admitted the possession of defendants, and denied generally the other allegations. The cause ultimately reached the Audrain circuit court by change of venue, and was there tried before Judge Hughes and a jury. Plaintiff introduced the will of Dr. George R. Jacobs, and a codicil thereto. Dr. Jacobs was the father of John T. Jacobs and grandfather of the latter's children, for whose use and benefit this action was brought. He died in 1877, possessed of the land which forms the subject of the action. Defendants claim by a title derived from the said John T. Jacobs, through a sheriff's sale and deed, conveying to the defendant Mr. Carter all the right, title, and interest of John T. Jacobs in and to the land in question. It is conceded by both parties that under the will of his father John T. Jacobs was the beneficiary of one undivided fourth part of said land for and during his life, and that his children were beneficiaries of the remaining three-fourths. After making his will, the testator, Dr. Jacobs, signed an absolute deed to John T. Jacobs, conveying to him a fee-simple title to the whole land; but plaintiff denied that this deed was ever delivered to the grantee, John T. Jacobs. Upon this proposition there was a conflict of testimony. The jury, under instructions of the court, found in favor of plaintiff on this issue. That decision is not sought to be reviewed, and is no longer controverted. The deed, being thus decided inoperative, left John T. Jacobs with no other or greater title than that conferred on him by the will, viz. a beneficial, undivided, one-fourth interest during his life, which, by virtue of the purchase and sheriff's deed, has been acquired by the defendant Mr. Carter. By the will of Dr. Jacobs, Robert B. Price, of Columbia, was named as trustee to hold said land in trust for the use of John T. Jacobs and his children, in the shares above indicated. The will, as modified by the codicil, declared that during the life of John T. Jacobs and his children, in the shares above indicated. The will, as modified by the codicil, declared that during the life of John T. be and his children should enjoy the rents and profits of the land in the proportions aforesaid, and at his death it should be the duty of the trustee to convey the land to his descendants. Furthermore, that if John T. preferred to live on the estate, and cultivate it, the trustee should allow him to do so, without charging him rent therefor. As part of plaintiff's case he introduced the record of a proceeding in the circuit court of Callaway county (where the land is situated) appointing him trustee to hold said land under the terms of the will of Dr. George R. Jacobs, in the stead of Mr. Robert B. Price, who had never accepted the trust. That proceeding was instituted at the November term, 1887, by John T. Jacobs and his children, who then were minors. These parties joined in a petition to the circuit court, stating the nature and extent of the trust substantially as above, (but with greater particularity;) that Robert B. Price, the trustee named in the writ, "refused, failed, and declined to accept the office and trust as said trustee, and no one is now authorized to take charge of said property;" that certain of the petitioners (naming them) were minors, and that all of them were interested in the rents of said land; and praying the court to "appoint some suitable person to act as trustee under said will, and take charge and manage said real estate," etc., and for general relief. This petition was signed by attorneys appearing for the petitioners, but no guardian or next friend for the minors was appointed. Upon consideration of the petition, the court, November 28, 1887, made an order "that Francis Brandon [the plaintiff who brought the action now at bar] be, and he is hereby, appointed trustee in this case" Mr. Price was not a party to that proceeding, and defendants claim that it was insufficient to vest the title to the land in plaintiff, as trustee under the will; but the trial judge overruled that contention. There was evidence to support the other issues on plaintiff's part, namely, as to the possession (by defendant and his tenant) of the land in controversy, and as to plaintiff's demand for rents, profits, damages, etc. The defendants offered considerable evidence, chiefly directed to the question of the delivery of the deed of Dr. Jacobs to John T. Jacobs during the lifetime of the former; but, as that issue was found for plaintiff, and is not made the subject of exception, the instructions and rulings on that branch of...