Canada v. Daniel

• Decision Date: 03 June 1913
• Citation: 157 S.W. 1032,175 Mo.App. 55
• Parties: BENJAMIN R. CANADA, Appellant, v. ANNIE C. DANIEL and FRANK H. CANADA, Trustee, Respondents
• Court: Missouri Court of Appeals

157 S.W. 1032

175 Mo.App. 55

BENJAMIN R. CANADA, Appellant, v. ANNIE C. DANIEL and FRANK H. CANADA, Trustee, Respondents

Court of Appeals of Missouri, St. Louis

June 3, 1913

Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.

Reversed and remanded. (with directions).

Don C Carter and Williams & Williams for appellant.

(1) Plaintiff has a right to maintain this action. He is a beneficiary in a trust fund. The former trustees have turned over part of the funds to the life tenant contrary to the provisions of the trust. The trustee refused to prosecute the action. Plaintiff, as the beneficial owner of the trust fund is entitled to relief in equity. 22 Ency. Pl. & Pr. 158; Edwards v. Welton, 25 Mo. 379; Butler v Lawson, 72 Mo. 227. The statute allowing a trustee of an express trust to sue in his own name does not preclude the beneficiary from prosecuting a suit without joining the trustee. Rogers v. Gosnell, 51 Mo. 466; McComas v. Insurance Co., 56 Mo. 573. (2) If plaintiff's interest in the trust fund is only contingent, he nevertheless has a standing in a court of equity to protect and defend it. Dursley v. Fitzhardinge, 6 Ves. Jr. 251; 15 Ency. Pl. & Pr. 595, note 5.

Fry & Rodgers for respondent Annie C. Daniel.

(1) Plaintiff's relief is an action against the trustee for breach of trust. Newton v. Rebenach, 90 Mo.App. 650. (2) The plaintiff has only a conditional beneficial interest in the trust fund and the title was vested in the executors or trustees. Therefore, this plaintiff cannot maintain an action for spoliation of the trust fund. Gibbons v. Gentry, 20 Mo. 468; Morrow v. Morrow, 113 Mo.App. 444. (3) The petition does not state a cause of action against this defendant. The cestui que trust must recover his own property, which he is bound to identify. The mere allegation that the trust fund was wrongfully paid to the defendant, sixteen years before the suit was instituted, does not state a cause of action. Burcher v. Walther, 163 Mo. 461; Pearson v. Haydel, 90 Mo.App. 253; Paul v. Draper, 158 Mo. 197; In re Glover v. Shipley, 101 Mo.App. 725. Where property is turned into money and mixed in a general mass or property the trust ceases. Phillips v. Overfield, 100 Mo. 466; Mayer v. Bank, 86 Mo.App. 422. (4) The purpose of this character of action is to recover the thing, the trust property or fund and have it restored. Plaintiff is not entitled to a personal judgment as for a debt against the defendant. If the trust property or fund cannot be traced into the hands of the defendant and not shown to be in existence and in the hands of the defendant when the suit was instituted, plaintiff cannot have the relief prayed for. The trust has ceased. Bircher v. Walther, 163 Mo. 461; Pearson v. Hay, 90 Mo.App. 253. (5) The will vested the trust fund in the trustees and it was the duty of the trustees to protect the fund. If the trustee wrongfully paid out the funds they or their successors might within ten years institute an action to reinstate the trust and restore the corpus of the estate, but such action must be instituted within ten years from the date of right of action. And if the trustee is barred by limitations the cestui que trust is also barred, and this is true even though they be minors or married women, or insane persons. Simpson v. Erismer, 155 Mo. 163; Newton v. Rebenack, 90 Mo.App. 659; Walton v. Ketchum, 147 Mo.App. 219; Schiffman v. Schmidt, 154 Mo. 204; Hunter v. Hunter, 50 Mo. 445.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

--This is a suit in equity by plaintiff seeking to compel the defendant Annie C. Daniel to restore to a trust fund certain moneys alleged to have been wrongfully paid to her by certain trustees and received and retained by her. The trial court sustained a demurrer to the petition, and, plaintiff declining to plead further, final judgment was entered against him, from which he has prosecuted his appeal to this court.

The petition alleges, in substance, that one B. P. Ritchie died testate in 1889, domiciled in Audrain county, Missouri, possessed of a large amount of real and personal property; that deceased left surviving him the following children, to-wit: Wm. H. Ritchie, J. S. Ritchie, Mary L. Long, Lizzie R. Batterson, Sue Canada, and Annie C. Daniel; that the last will and testament of said deceased, duly admitted to probate and established as such last will and testament, among other things provided as follows, to-wit:

"IV. I have heretofore made certain advancements to my children as follows: To William H. Ritchie, J. S. Ritchie, Mary L. Long, Lizzie R. Batterson and to Sue Canada, each the sum of eight thousand dollars, and to Annie C. Daniel the sum of two thousand two hundred and fifty dollars. I wish all my children made equal, and direct that my said daughter Annie C. Daniel have the use as hereinafter provided of an amount out of my estate sufficient to make her equal with my other children; that is to say, Annie C. Daniel shall have the use of five thousand seven hundred and fifty dollars additional to said advancement.

"V. All the rest and residue of my estate (except my banking institution at Sturgeon and the capital, surplus and undivided earnings thereof) I desire and direct shall be equally divided among my said six children as follows: The shares of my two sons shall be held by them absolutely and to their heirs and assigns forever. The shares of my two daughters, Mary L. Long and Sue Canada, shall be paid to them respectively by my said executors to be held by them, their heirs and assigns absolutely. The share of my daughter, Lizzie R. Batterson, shall be held by the said W. H. Ritchie and J. S. Ritchie or the survivor of them, in trust, for and during her life, and that said trustees pay her five per cent per annum annually on the amount so held in full of all income thereon, and at her death the principal sum to be paid to her heirs. The share of my daughter Annie C. Daniel together with the said sum of five thousand, seven hundred and fifty dollars, shall in like manner be held by said trustees, in trust, and they shall pay her annually during her life five per cent on the amount so held and after her death one-half of the principal sum so held for her use shall go to my other children absolutely or in trust as is herein provided for the residue of my estate, and said trustee shall pay to Edna Daniel daughter of Annie C. Daniel five per cent per annum on the other half of said principal sum so held in full of income on same and at her death the said half of said principal sum shall be paid to her children or their heirs if she have children; if she have no children then such sum shall be paid to my heirs. Provided, however, if at the death of my said daughter Annie C. Daniel she have other children beside the said Edna, then at the death of the said Annie C. Daniel the whole of said principal sum shall be paid to her children share and share alike."

The petition further avers that the above-named Wm. H. Ritchie and J. S. Ritchie duly qualified as trustees under the will as well as executors thereof, and discharged the duties of such respective offices for a period of time; that thereafter they resigned as such trustees, and one W. J. Long was appointed in their stead by the circuit court of Audrain county; that thereafter said Long likewise resigned, and in like manner one J. E. Jesse was appointed trustee, also thereafter resigning; and that thereupon the defendant Frank H. Canada was duly appointed such trustee by said circuit court. And it is averred that the said trustee, Frank H. Canada, is made a party defendant herein for the reason that he refuses to join with plaintiff in this suit or to prosecute the same in his representative capacity.

The petition further avers that the personal estate of said testator amounted to about the sum of $ 141,183.23, which amount was to be equally divided among the said six children of the deceased, under the provisions of the will; that the share of the defendant Annie C. Daniel in this amount, together with the sum of $ 5750, mentioned in item 4 of the will, amounted to about the sum of $ 29,283, which amount was to be held in trust by said trustees according to the provisions of the will.

It is then averred that the original trustees, W. H. Ritchie and J. S. Ritchie, between the years 1889 and 1896, inclusive, in violation of the terms and provisions of the will of said testator paid to the defendant Annie C. Daniel various and divers sums of money aggregating about $ 28,376.38, which it is alleged should have been held in trust by said trustees; it being averred that said trustees only held in trust for the use and benefit of defendant Annie C. Daniel the sum of $ 5750.

The petition further alleges that Sue Canada, one of the daughters of said testator, died some years prior to the institution of this suit, leaving as her only heirs at law this plaintiff, the defendant Frank H. Canada and Ruth Canada; that the said W. H. Ritchie, J. S. Ritchie, Mary L. Long, Lizzie R. Batterson, Edna C. Daniel, Ruth Canada, and Frank H. Canada have all heretofore assigned, released, and conveyed to the defendant Annie C. Daniel all of their right, title and interest in and to the trust fund, to be held in trust in accordance with the will of said B. P. Ritchie, and that the plaintiff is now the only remaining beneficiary under said trust.

The petition further alleges that defendant Annie C. Daniel has obtained from the various trustees, who from time to time have had charge of the said trust fund, all of the said fund except about the sum of $ 435, which amount remains in the hands of the defendant Frank H. Canada as trustee; and plaintiff avers that there should now be in...