Denvir v. Park

• Decision Date: 31 December 1912
• Citation: 169 Mo. App. 335,152 S.W. 604
• Parties: DENVIR v. PARK et al.
• Court: Missouri Court of Appeals

152 S.W. 604

169 Mo. A. 335

DENVIR v. PARK et al.

St. Louis Court of Appeals. Missouri.

December 31, 1912.

Rehearing Denied January 14, 1913.

1. PLEADING (§ 34)—CONSTRUCTION—SUFFICIENCY.

After verdict all intendments are allowed in favor of the sufficiency of a pleading.

2. PLEADING (§ 406)—WAIVER OF DEFECT BY PLEADING OVER.

By pleading over in a suit for a trustee's commission and expenses, the defendants waived their right to object to the sufficiency of the petition.

3. PARTIES (§ 92)—DEFECT—WAIVER OF OBJECTION.

Under Rev. St. 1909, §§ 1800, 1801, 1802, specifying the occasion and requisites for a demurrer, an objection that there was a misjoinder of parties defendant in the petition was waived when the defect appeared on the face of the petition and was not presented by demurrer.

4. WITNESSES (§ 159)—CONTRACT WITH DECEASED.

In a suit against a trustee by the administrator of a prior deceased trustee for reasonable expenditures, as distinguished from any contract amount, for the services of an attorney in the interest of the trust estate, to permit the attorney to testify that the deceased trustee employed him in the interest of the estate was not violative of Rev. St. 1909, § 6354, disqualifying a party to a contract to testify in certain cases where the other contracting party is dead.

5. APPEAL AND ERROR (§ 1051)—HARMLESS ERROR—EQUITY.

In a suit in equity against a trustee for the reasonable expenditures of a deceased trustee in procuring the services of an attorney in the interest of the trust estate, the admission of probate records showing the allowance of the attorney's claim against the personal estate of the deceased trustee was harmless, where it was admitted merely as a link in the chain of evidence tending to show the enforcement of the attorney's claim against the estate of the prior trustee, and the plaintiff's right of recovery for expenditures for attorney's fees was established by competent evidence.

6. TRUSTS (§ 236)—COMPENSATION OF TRUSTEE—REIMBURSEMENT FOR EXPENSES.

A trustee's right to reimbursement for reasonable expenditures in the employment of counsel in the interest of the estate rests upon the fact that he, and not the trust estate, is responsible to the attorney for his fees, and not upon the right of the trustee to be subrogated to any rights of the attorney against the estate.

7. TRUSTS (§ 321)—COMPENSATION OF TRUSTEE—FORFEITURE.

Where a trustee through error of judgment in an honest endeavor to protect the estate from a charge for taxes permits the taxes to lapse and penalties to accrue, he does not thereby forfeit his right to compensation as trustee.

8. TRUSTS (§ 234)—MANAGEMENT OF ESTATE —LIABILITY OF TRUSTEE.

A trustee was not liable for tax penalties which accrued against the trust estate while he was endeavoring in good faith to protect it from liability for the taxes, where the loss fell upon the cestui que trust who enjoyed the use of the money with which the taxes should have been paid, and not upon the remainderman.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by John B. Denvir, Jr., administrator of the estate of William F. Crow, deceased, against Mathew Park and others. From a judgment for plaintiff, defendant Park appeals. Affirmed.

Shields & Orthwein and T. J. Rowe, all of St. Louis, for appellant. T. M. Pierce, A. N. Sager, and T. E. Francis, all of St. Louis, for respondent.

NORTONI, J.

This is a suit in equity. It involves a charge against a trust estate. The finding and judgment were for plaintiff, and defendant prosecutes the appeal.

Plaintiff is administrator of the estate of William F. Crow, who was former trustee under the will of the estate now represented by defendant Park as his successor in trust. After the death of Crow, trustee under the will, defendant Park was appointed by the circuit court as his successor in trust. The original trustee, William F. Crow, after serving under the will for almost two years, departed this life without having made a settlement and before any compensation was allowed to him in that behalf. The present suit by the administrator of Crow, the prior trustee, against the trust estate, is for an allowance in compensation for Crow's services as trustee and for an expenditure by him for the services of an attorney rendered in the interests of the trust estate.

Camilla S. McManus, under whose will the trust was created, departed this life on November 16, 1905, at the city of St. Louis. By her last will duly probated, she appointed plaintiff's intestate, William F. Crow, trustee to manage and care for one-third part of her estate, with directions to pay the net income thereof as collected to the granddaughter of the testator, Camilla S. Walcott, during her life. The cestui que trust, Camilla S. Walcott, intermarried, and her name is now Camilla S. Burrows. By this will Camilla S. McManus devised one-half of her estate to her son, Thomas Ward McManus, and one-sixth portion thereof to her granddaughter, Camilla S. Walcott, now Burrows, absolutely, and the remaining one-third part of the estate to Crow in trust for her granddaughter, Camilla S. Walcott, now Burrows, during her life, with cross-remainders over in favor of Thomas Ward McManus and Camilla S. Walcott, now Burrows, in event either should die prior to the other. Crow, the trustee, qualified immediately and took charge of the trust estate.

It appears the entire estate of Mrs. McManus consisted of real estate valued at $837,000, besides something over $15,000 in personalty. This real estate consisted of about 20 separate pieces of property located at different places in the city of St. Louis, some of which were vacant, and many other pieces were occupied by tenants. While Crow, the trustee, collected the rents through real estate agents, he devoted much time to looking after and caring for the estate. Among other pieces of property owned by the estate is the parcel of vacant ground between Pine and Laclede avenues and Vandeventer avenue and Sarah street in St. Louis. During the time of Crow's incumbency, condemnation proceedings were pending against the north front of this property, and these largely engaged the attention of the trustee. A few months after he took charge of the estate, Thomas Ward McManus instituted a suit against Camilla S. Burrows and Crow, the trustee, with respect to a partition of all of the realty. Crow employed counsel to look after these matters and to advise him with respect to the affairs of the trust estate. From a reading of the record, it is clear that, besides devoting a large portion of his own time to the trust estate, the trustee occupied much of the time of his counsel with respect to those matters. It is obvious that the best interests of the estate required the services of the counsel employed by the trustee; that the employment was in good faith and the services well rendered. The trustee served in that capacity nearly two years and died without having made a settlement or received any remuneration whatever for the services of himself or the counsel employed by him. After the death of the trustee and the appointment of plaintiff, Denvir, as administrator of his estate, James P. Maginn, who had represented the trustee as attorney, filed a claim in the probate court for attorney's fees amounting to $5,333.33, accrued through the services rendered by Maginn to the trustee in respect of the matters pertaining to the management of the trust estate. This claim was allowed and classified by the court against the estate of Crow, the deceased trustee, in the hands of his administrator, Denvir. Thereafter plaintiff, administrator of Crow, instituted this suit against Park, trustee, Crow's successor, and Camilla S. Burrows, the cestui que trust, and Thomas Ward McManus, remainderman, seeking to recover compensation for the services of Crow, trustee, and for the amount he had expended for the services of his attorney, Maginn, rendered to the trust estate.

Upon hearing the evidence, the court found the issue and gave judgment for plaintiff for $1,600 as compensation for the services of Crow, the trustee, and $5,000 in compensation for the employment of counsel. By their answer, defendants Park, trustee, and Thomas Ward McManus, remainderman, denied the right of plaintiff to any compensation whatever, on the theory that Crow had mismanaged the estate, in that he had omitted to pay the current taxes on the realty in the fall of 1906 and permitted penalties amounting to $702.04 to accrue thereon, which penalties were paid off and discharged by defendant trustee upon his succession. Furthermore, this answer contains a counterclaim asking judgment against the estate of Crow, deceased, for the amount of such penalties; that is, $702.04. There is no suggestion whatever in the record that Crow mismanaged the estate, except that he omitted to pay these taxes and permitted the penalties to accrue. The court found this issue against defendants as well as the matter set forth in their counterclaim.

It is urged first that the court erred in overruling defendant's objection to the reception of any evidence under the petition because it was insufficient. It is obvious that the petition states a cause of action, when all intendments are allowed in its favor, as is the rule after verdict, and the argument now directed against it must fail. By pleading over as they did, defendants waived the objection now insisted upon. Spurlock v. Mo. Pac. R. Co., 93 Mo. 530, 537, 6 S. W. 349.

It is urged the court should have sustained defendants' objection to the introduction of evidence for the reason there is a misjoinder of parties in the petition in making Thomas Ward McManus, the remainderman, a defendant to the suit. If the matter presents a case of misjoinder of parties, it was obvious on the face of the petition and was available to defendant by demurrer on that ground. See sections 1800, 1801, 1802, R. S. 1909....