Carter v. Long

• Decision Date: 25 May 1904
• Citation: 181 Mo. 701,81 S.W. 162
• Parties: CARTER et al. v. LONG et al.
• Court: Missouri Supreme Court

81 S.W. 162

181 Mo. 701

CARTER et al. v. LONG et al.

Supreme Court of Missouri, Division No. 1.

May 25, 1904.

WILLS — BENEFICIARIES — DRY TRUST.

1. A devise "in trust to K. for the children of" testator's son, creates merely a dry trust, executed, by the statute of uses, at testator's death, and in legal effect is the same as if made directly to the children; so that only the child or children of the son living at testator's death take thereunder.

Error to Circuit Court, Pike County; D. H. Eby, Judge.

Action by E. P. Carter and another against James R. Long and another. Judgment for defendants. Plaintiffs bring error. Affirmed.

Courtland Reynolds, I. C. Dempsey, and J. D. Hostetter, for plaintiffs in error.

Norton, Avery & Young and W. H. & Davis Biggs, for defendants in error, cited Pugh v. Hayes, 113 Mo., loc. cit. 432, 21 S. W. 23; Schiffman v. Schmidt, 154 Mo. 204, 55 S. W. 451; Walton v. Drumtra, 152 Mo., loc. cit. 499, 54 S. W. 233; Webb v. Hayden, 166 Mo. 39, 65 S. W. 760; Newton v. Rebenack, 90 Mo. App. 650; Walton v. Ketchum, 147 Mo. 209, 48 S. W. 924; Simpson v. Erisner, 155 Mo. 157, 55 S. W. 1029.

BRACE, P. J.

In this case the circuit court of Pike county sustained a general demurrer to the plaintiffs' petition filed November 16, 1899, which is as follows:

"Enoch Pepper Carter and Robert Hill Carter, Minors, by Their Next Friend, Courtland Reynolds, Plaintiffs, v. James R. Long and Jno. J. Knight, Defendants.

"Plaintiffs, who are minors and who sue by their next friend, Courtland Reynolds, state that they are children of Charles E. Carter, and that John C. Carter, Senior, father of Charles E. Carter, died at his residence, in the county of Pike and state of Missouri, on the ____ day of ____, 1876, testate, and that his will was duly admitted to probate by the probate court of Pike county, Missouri, on the 25th day of October, 1876, as well as a codicil to said will, which was also admitted to probate on the same date.

"Plaintiffs further state that said will contained, among other provisions, the following: `I give and devise to my son Charles Carter an undivided one-fifth part of said Lick place and an undivided one-sixth part of said home place,' and the codicil to said will contained the following provision: `I herein devise and bequeath the part of my property mentioned in my will as bequeathed to my son Charles E. Carter, in trust to John J. Knight for the children of said son, Charles E. Carter.'

"Plaintiffs further state that at the time of the death of John C. Carter, Sr., Margaret E. Carter was the only child of Charles E. Carter then in existence, and that all of the present plaintiffs were born since the death of said John C. Carter, Sr.

"Plaintiffs further state that letters of administration with the will annexed on the estate of John C. Carter, Senior, were issued to John E. Forgey and Frank Patton by the probate court of Pike county, Missouri, and that thereafter, upon application of said administrators to the probate court of Pike county, Missouri, for an order to sell real estate of the deceased for the purpose of paying debts and incumbrances, an order of sale was made by said court, under which order the said administrators sold the home in Pike county, Missouri, for about seven thousand dollars ($7,000), and that an application was thereafter made for a renewed order of sale of the remainder of the said real estate, embracing a small portion of said home place, and the following realty situated in the counties of Pike and Lincoln, in the state of Missouri, to wit: Two hundred and thirty-five and one-half acres, being that part of lot No. 1, of survey 1,737, which lies in Pike county; also 874.68 acres, being the east part of lot No. one (1), of survey 1,737, which lies in Lincoln county; the two last-mentioned tracts being known as the `Lick Tract,' and being the tract in which plaintiffs, as the children of Charles E. Carter, own an undivided one-fifth interest under said will.

"Plaintiffs further state that the sale of the home place occurred on November 13, 1877, and the sale of the Lick place occurred on April 2, 1878, the same being purchased by defendant James R. Long, and that previous to said sale of said Lick place the defendant Long entered into a conspiracy with his codefendant John J. Knight, who was a son-in-law of John C. Carter, Senior, and with the remaining sons-in-law of John C. Carter, Senior, to buy in Lick tract, ostensibly for the benefit of the heirs, for a nominal sum, and for the purpose of defeating the will, and preventing these plaintiffs, as children of Charles E. Carter, from being vested with any title in said land; and in furtherance of said scheme and conspiracy plaintiffs aver that said Long agreed to pay, and did pay, to the adult sons and sons-in-law of John C. Carter, Senior, certain sums of money for the purpose of inducing them to enter into said conspiracy and combination, and act in accordance with his directions and not bid on said land, and to permit it to go for a nominal consideration, in order that the title thereto might not be clogged with these minors' interests, and that they might be defeated of their interest in said real estate; and that in pursuance of said conspiracy and combination between the defendant Long, who was also a son-in-law of said John C. Carter, Senior, and the remaining sons-in-law and sons of John C. Carter, Senior, they gave publicity to the fact that said Long was buying in for the benefit of the heirs, particularly the minor heirs, children of Charles E. Carter, and that this information was given particularly to prospective purchasers and bidders, and was given with the design and intention of discouraging outside bids and preventing said land from bringing its actual value, in order that the defendant Long might be enabled to purchase same for a nominal consideration.

"Plaintiffs further state that the result of said combination and conspiracy, and of the false information given out by the actors in said combination, particularly by defendant Long, was that the said Long was enabled and did purchase the said Lick tract above described for the sum of $4,620, when in point of fact it was reasonably worth the sum of $50,000; that bona fide outside bidders were deterred and prevented from bidding by reason of the false information given out by said Long and his co-conspirators that said land was being purchased by said Long for the benefit of the heirs, particularly the children of Charles E. Carter; and that all bidding other than that of James R. Long was thereby prevented by reason of the fraudulent conduct of defendant Long and his co-conspirators, and said land was sacrificed and the interest of these plaintiffs in said land was lost to them by...