Cooper v. Cook

• Decision Date: 12 March 1941
• Docket Number: 36080
• Citation: 148 S.W.2d 512,347 Mo. 528
• Parties: John Hartson Cooper, Trustee, v. Ward H. Cook and Lydia Smithmeyer, Appellants, Florence Cook Branine and Harold Hale Branine, Respondents
• Court: Missouri Supreme Court

148 S.W.2d 512

347 Mo. 528

John Hartson Cooper, Trustee, v. Ward H. Cook and Lydia Smithmeyer, Appellants, Florence Cook Branine and Harold Hale Branine, Respondents

No. 36080

Supreme Court of Missouri

March 12, 1941

Appeal from Jackson Circuit Court; Hon. Darius Brown Judge.

Reversed and remanded (with directions).

Gossett Ellis, Dietrich & Tyler for appellants.

(1) The appellants, Ward H. Cook and Lydia Cook Smithmeyer, were entitled under their answer and cross-petition to partition as a matter of right and the court erred in failing and refusing to order partition. 3 Thompson on Real Property sec. 1911; 47 C. J. 288; Freeman on Cotenancy & Partition, sec. 443; Mastin v. Ireland, 320 Mo. 621, 8 S.W.2d 900; Flournoy v. Kirkman, 270 Mo. 3, 192 S.W. 462; Haeussler v. Mo. Iron Co., 110 Mo. 188, 19 S.W. 75; Real Estate Saving Inst. v. Collonious, 63 Mo. 295; Gloyd v. Gloyd, 293 Mo. 163, 239 S.W. 80; Jones v. Jones, 325 Mo. 1037, 30 S.W.2d 49; Dameron v. Jamison, 4 Mo.App. 299; Herrmann v. Schall, 96 S.W.2d 635; Coffman v. Gates, 110 Mo.App. 475, 85 S.W. 657, 142 Mo.App. 648, 121 S.W. 1078; Holloway v. Holloway, 97 Mo. 628, 11 S.W. 233; Mahoney v. Nevins, 190 Mo. 360, 88 S.W. 731; Funk v. Seehorn, 99 Mo.App. 587, 74 S.W. 445; Purvis v. Hardin, 122 S.W. 936; 47 C. J., pp. 319, 418. (2) Irrespective of the error of the court in not decreeing partition, the court erred in ordering sale separately of undivided fractional interests instead of ordering a sale of the entire property as a whole. Sheldon on Subrogation (2 Ed.), sec. 13, p. 21; Plate Glass Underwriters Mut. Ins. Co. v. Realty Co., 219 Mo.App. 194; Siegel v. Swartz, 117 F. 13; Van Petten v. Richardson, 68 Mo. 379; Jeffries v. Ferguson, 87 Mo. 244; Mo. District Tel. Co. v. S.W. Bell Tel. Co., 93 S.W.2d 23. (3) Irrespective of the error of the court in not decreeing partition, the court erred in refusing to determine title to the real estate. R. S. 1929, secs. 1560, 1563; Willoughby v. Brandes, 317 Mo. 544, 297 S.W. 58; Nalle v. Parks, 173 Mo. 625, 73 S.W. 596; Cockrill v. Hutchinson, 135 Mo. 67, 36 S.W. 375. (4) The trust under the Kate S. Cook will being void for violation of the rule against perpetuities, the testatrix died intestate as to the one-fourth interest in the trust, and under the issues raised by the pleadings the court should have determined the title and ownership of this one-fourth. Blackhurst v. Johnson, 72 F.2d 647; Lord v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629; Shepperd v. Fisher, 206 Mo. 208, 103 S.W. 989; Mockbee v. Grooms, 300 Mo. 446, 254 S.W. 170; 21 St. Louis Law Review 216; 21 C. J., pp. 1064, 1065, 1233, sec. 238.

C. W. Evans for respondent.

(1) Trustee's right to contribution. Netherton v. Farmers Exchange Bank, 228 Mo.App. 296, 63 S.W.2d 156; Shanklin v. Ward, 291 Mo. 1, 236 S.W. 64; Berry v. Cobb, 223 Mo.App. 934, 20 S.W.2d 295; Greene v. St. Louis, 106 Mo. 454, 17 S.W. 496; Reiger v. Faber, 116 Mo.App. 123, 92 S.W. 183; 2 Herman on Estoppel & Res Adjudicata, sec. 933; State v. Muench, 230 Mo. 236, 130 S.W. 282. Validity of the trust is res adjudicata. 34 C. J., pp. 923, 937, 938; Roth Tool Co. v. Champ Spring Co., 146 Mo.App. 1, 123 S.W. 513; Powell v. Joplin, 335 Mo. 562, 73 S.W.2d 408; McFadin v. Simms, 309 Mo. 312, 273 S.W. 1050; Donnell v. Wright, 147 Mo. 639, 49 S.W. 874. The will does not violate the rule against perpetuities. Trautz v. Lemp, 334 Mo. 1085, 46 S.W. 139; Deacon v. St. Louis Union Trust Co., 271 Mo. 269, 197 S.W. 261; Melvin v. Hoffman, 290 Mo. 464, 235 S.W. 107; 48 C. J., p. 983. (2) The court did not err in refusing partition. Partition was not a proper defense. 47 C. J., p. 323; Ailey v. Burnett, 134 Mo. 313, 33 S.W. 1122; Meads v. Hutchinson, 111 Mo. 620, 19 S.W. 1111; Souders v. Kitchens, 137 S.W.2d 501. Partition is in contravention of the will. Hull v. McCracken, 53 S.W. 405; Gibson v. Gibson, 280 Mo. 519, 219 S.W. 561; Cubbage v. Franklin, 62 Mo. 368; Rawlings v. Rawlings, 332 Mo. 503, 58 S.W.2d 735; Brockman v. St. Louis Union Trust Co., 44 S.W.2d 877. Defendants failed to show any equity beyond plaintiff's lien.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

This is a suit in equity by which plaintiff, trustee, sought reimbursement for payments made by him and to have same charged in his favor and established as a lien against the interests of defendants Cook and Smithmeyer in certain real estate. Plaintiff prevailed below and said defendants Cook and Smithmeyer alone appealed.

The parties claim title through the will of Kate S. Cook, who died, testate, October 11, 1928, seized in fee of the real estate here involved, described as "All of lots seven (7) and eight (8), Block two (2) in Springfield Place (except the south 25 feet thereof, taken for boulevard) an addition in Kansas City, Jackson County, Missouri," and some other real estate not here involved. The tract of ground in question has a frontage of approximately 80 feet on Gillham Road and a depth of 108 feet and is improved with a two story garage and automobile sales building. On October 31, 1927, Kate S. Cook executed to one Theis her note for $ 18,000, due in five years, and to secure same executed her deed of trust on this property. She owed that debt at her death, said real estate being then still subject to the deed of trust.

Mrs. Cook left surviving her as her sole heirs four children, viz., Hale S. Cook, appellants Ward H. Cook and Lydia Smithmeyer, and Florence Cook Branine. By her will she gave to each of her three children, Hale, Ward and Lydia, absolutely, an undivided one-fourth share of all her property, real and personal. The other undivided one-fourth share she gave to the Fidelity National Bank & Trust Company of Kansas City and Hale S. Cook, as trustees for Florence Branine and her issue. Florence then had one child, the defendant Harold Hale Branine, born October 13, 1921. By the terms of the will the trustees are to pay the net income from the property so held in trust to Florence during her life. Upon her death "the Trustees shall hold said trust property in trust for her issue, in equal shares," paying out of income such sums as may be necessary for the maintenance, education, etc., of such issue, "and upon the oldest of such issue attaining the age of thirty (30) years, then this trust shall cease" and the trustees shall convey and deliver all property "then in the trust estate" to such issue, in equal shares, absolutely. If Florence dies leaving no issue surviving the trust is to cease at her death and provision is made for distribution thereupon among the other children of the testatrix or their issue. "This trust shall terminate with like distribution as last aforesaid if all the issue of my daughter, Florence, surviving her shall die before the oldest attains the age of thirty years," but if any of such issue should die leaving children surviving such children are to take the trust property. The will gives the trustees broad discretionary powers in the handling of the trust property, as for example, to sell, pledge, mortgage, lease, invest and reinvest all or any of the trust estate and "the trustees may retain as part of the trust estate any of the property owned by me at the time of my death and coming into this trust, if they deem such action advisable . . ." but nothing in the will to be construed as limiting the "power and discretion" of the trustees to "sell, convey, mortgage, transfer or otherwise" dispose of any of the property coming to the trust as in their judgment might at any time be advisable. We have thus epitomized the provisions of the will creating the trust because of certain contentions made herein which will be adverted to hereinafter.

In course of time Hale S. Cook resigned as trustee and W. O. Thomas was substituted as co-trustee with the Fidelity National Bank & Trust Company. Later said Bank & Trust Company resigned as trustee and Thomas was appointed sole trustee. Subsequently he also resigned and plaintiff Cooper was duly appointed as sole trustee and was so acting when this suit was brought.

The $ 18,000 note of Kate S. Cook was transferred to a bank of Lawrence, Kansas, which in turn transferred it to F. H Smithmeyer, father-in-law of appellant Lydia, who owned it when payment was made, as hereinafter to be related. In the course of these transfers certain extensions of time for payment of the $ 18,000 note were made, but upon condition that the principal should be reduced. This was done and pursuant to orders of court $ 2,400 was paid on the principal, reducing the debt to $ 15,600. One-fourth of the amount so paid on principal, together with one-fourth of interest accruing from time to time, was paid by the then acting trustee, out of the trust estate. In about late January, 1937, F. H. Smithmeyer, then holder of said $ 18,000 note and deed of trust, was demanding payment and threatening foreclosure. He did advertise the property for sale under the deed of trust, the sale being advertised for February 15, 1937. Cooper, as trustee, called upon appellants Lydia Smithmeyer and Ward H. Cook to contribute their proportionate shares of the sum necessary to pay off the incumbrance and prevent foreclosure. They refused. Cooper, as trustee, was ready and able to pay his one-fourth. He borrowed the money to pay the whole debt, then amounting, with principal and interest and costs of the foreclosure proceeding, to $ 16,103.03, and tendered it to Smithmeyer, requesting assignment of the note, which Smithmeyer refused. Cooper then, on February 13, 1937, two days before the advertised date of sale, paid to said F. H. Smithmeyer said full amount of the note, principal and interest, including costs of the advertisement of sale, which Smithmeyer, perforce, accepted...