Drake v. Crane

• Citation: 29 S.W. 990,127 Mo. 85
• Parties: Drake et al., Trustees, v. Crane et al., Appellants
• Decision Date: 05 March 1895
• Court: Missouri Supreme Court

29 S.W. 990

127 Mo. 85

Drake et al., Trustees, v. Crane et al., Appellants

Supreme Court of Missouri, Second Division

March 5, 1895

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

Everett W. Pattison and John F. Green for appellants.

(1) The power of the court, sitting as a court of equity, is to construe the will, not to make a new will. Marshall v Hadley, 50 N.J.Eq. 547; Academy v. Adams, 65 N.H. 225; 1 Perry on Trusts, sec. 460. (2) A court of equity can no more authorize an act to be done which is in excess of the powers conferred by the will than can the trustees do such act. Society v. Academy, 94 Mo. 459; Ex parte Adamson, L. R. 8 Ch. Div. 817; Traphagen v. Levy, 45 N.J.Eq. 451; Griggs v. Veghte, 47 N.J.Eq. 181; Marshall v. Hadley, 50 N.J.Eq. 547; Mullany v Mullany, 3 Green's Ch. 16; Richardson v. Knight, 69 Mo. 288; Trust Co. v. Glover, 90 Ky. 355. (3) The words "invest," "reinvest" and "manage," as used in the will, and in the former decree of the circuit court, are words of ordinary import, and the testator will be presumed to have used them in their ordinary sense, a contrary intention being nowhere indicated in the will. Kean v. Hoffecker, 2 Harrington, 103; Sims v. Conger, 39 Miss. 231; Commissioners v. Walker, 6 How. (Miss.) 143. (4) The construction of the clauses in question have already been determined by the circuit court in its decree made in 1888, and the matter has become res adjudicata. (5) The words "invest" and "reinvest" ex vi termini import a placing of funds where the principal will be safe and will produce an income. Neel v. Beach, 92 Pa. St. 226; Una v. Dodd, 39 N.J.Eq. 186; People v. Ins. Co., 15 Johns. 392; People v. Commissioners, 23 N.Y. 244; Black's Law Dictionary, 567. (6) The uniform construction which has been placed upon like provisions in a will, is that they impose upon trustees the duty to so place the funds of the estate that they shall be, first, safe, and, second, productive. Kimball v. Reding, 31 N.H. 352; Dickinson's Appeal, 152 Mass. 185; Mason v. Bank, 16 Mo.App. 275; Powell v. Hurt, 108 Mo. 520; Haydel v. Hurck, 72 Mo. 253; Davis v. Railroad, 131 Mass. 258; Peckham v. Newton, 15 R. I. 321; Budge v. Gummow, L. R. 7 Ch. App. 719; Tomkinson v. Railroad, L. R. 35 Ch. Div. 675; 1 Perry on Trusts, secs. 452, 456, 459. (7) The discretion vested in the trustees is not an unlimited discretion. They are bound to exercise such care, skill and diligence as reasonably prudent persons give to their own affairs when seeking to reach similar results. Powell v. Hurt, 108 Mo. 507. (8) The words, "As I might lawfully do if living," do not confer any additional power, nor extend the powers expressly granted. Price v. Courtney, 87 Mo. 387.

Boyle & Adams and S. N. & J. G. Holliday for respondents.

(1) The cardinal rule in the interpretation of wills is, to discover, from a consideration of all the language of the will, taken from its four corners and from a consideration of the circumstances surrounding the testator at the time of making the will, his real intention. Noe v. Kern, 93 Mo. 367; Long v. Timms, 107 Mo. 512; Schorr v. Carter, 120 Mo. 413; Cassidy v. Hynton, 44 Ohio St. 530. A general view of powers conferred in Mr. Allen's will is sufficient to authorize the trustees to make the subscription in question. Black's Law Dic., p. 747; Readington v. Co., 19 Hun, 408; Watson v. Cleveland, 21 Conn. 538; 2 Perry on Trusts [4 Ed.], sec. 476. (2) An analysis of the language of items 1, 2 and 3, of clause seventh of Mr. Allen's will, shows that the trustees' powers of management were not limited "to investing and reinvesting" proceeds of sale, but are sufficient to authorize making the subscription in question. (3) An analysis of the power in relation to the "reserve fund" found in Mr. Allen's will, shows ample authority for the trustees to make the subscription in question. The trustees could do, under the circumstances which surrounded them in February, 1892, what ordinarily prudent persons could do. Powell v. Hurt, 108 Mo. 507; In re Weston, 91 N.Y. 502; King v. Talbot, 40 N.Y. 76. (4) In interpreting a will such meaning must be given, if possible, as will give due weight to all its parts and make the whole consistent. Shickle v. Chouteau, 84 Mo. 161. (5) The subscription desired to be made by the trustees in this case was not a gift, but was the wisest investment which could have been made at the time, and was justified in the emergency. Perry on Trusts, supra, sec. 476; Baker v. Disbrow, 3 Redf. 348; Ward Kitchen, 30 N.J.Eq. 31; Lovell v. Minot, 20 Pick. 116; In re Weston, supra. (6) Appellants' plea of res adjudicata can not be sustained.

OPINION

Burgess, J.

This is a suit instituted by the plaintiffs, trustees under the will of Gerard B. Allen, deceased, against all the parties interested therein, to obtain a construction of said will. The will devised all the testator's real property to the trustees named in the will, with certain powers therein mentioned. Among other powers given the trustees by the will were the following:

"To enter into the possession thereof, immediately after my death, collect the rents, with full power, subject to the limitations hereinafter imposed, to sell, lease, manage and dispose of the same, and to invest and reinvest the proceeds of the sale thereof, and to do all and singular with respect to said real estate and the management thereof, and the investing and reinvesting of the proceeds of sales thereof, as I might lawfully do if living.

"2. My said trustees shall have no power to sell the real estate to me belonging, which is situated in the limits bounded by Walnut street on the south, Ashley street on the north, as far west as Ashley street extends, and then Biddle street on the north, Twelfth street on the west, and the Mississippi river on the east.

"All the real estate in the second item of the seventh clause of my will being in the city of St. Louis and state of Missouri.

"3. All my real estate, wherever situated, and not herein disposed of otherwise, except mentioned in the last preceding item (item 2 of seventh clause), I give my said trustees full power to sell, lease, incumber or improve."

Then, after providing for the payment of certain annuities out of such rents, he directs as follows:

"This trust shall cease on the happening of the three following events, to wit: First, the death of the last surviving life annuitant mentioned herein; second, the death of the last survivor of my three children, Mary Frances Crane, George L. Allen, and Grace Dickson; and, third, the death of the last survivor of my grandchildren living at the time of my death, by my said three children, Mary F. Crane, George L. Allen, and Grace Dickson.

"During the existence of this trust, from the time of my death until its termination by the happening of the three events as above provided, the net rents, issues and profits arising from this trust estate, after paying taxes, insurance, for repairs and improvements, and the life annuities above mentioned, shall be annually divided into two portions, one of which shall consist of twenty-five per cent., as near as may be, of said net rents, to be called a reserve fund, and the other shall consist of the remaining seventy-five per cent. of said net rents, to be called the surplus fund. The said reserve fund my said trustees shall retain to guard against losses by shrinkage, or other contingencies, and they shall invest and reinvest the same from time to time, until the termination of this trust, and out of said reserve fund they may, if their judgment so approve, make advances from time to time to any one or more of the male descendants of my said three children, Mary F. Crane, George L. Allen, and Grace Dickson, after said male descendants shall have arrived at the age of twenty-five years and given satisfactory evidence of industry, general morality, business habits, and ability to enable them to embark in business. And in like manner, should any of the female descendants of my said three children marry, then said trustees may make reasonable advances to said females so marrying to enable their husbands, if they have given satisfactory evidence of industry, general morality, businesslike habits and ability, to embark in business, or place the same in trust for the sole use and benefit of said female descendant so marrying. The amount, however, of advances thus made to any one person, for such purpose, shall not exceed twenty thousand dollars. All such advances shall be regularly charged against the beneficiary, and equalized in the general settlement at the termination of this trust. From the time of my death until the termination of this trust as hereinbefore provided, I give and bequeath the surplus fund above specified, being seventy-five per cent. of the net rents, issues and profits arising from this trust estate, to my three children, Mary Frances Crane, George L. Allen, and Grace Dickson, share and share alike, during their natural lives respectively."

Then, after making provisions in case of death of said beneficiaries, he directs as follows:

"On the termination of this trust, at the happening of the three events as hereinbefore provided, all the real estate held in this trust and reserve fund, if any, on hand after equalizing the advances made therefrom, shall be divided, share and share alike, per stirpes, between the descendants of my said three children, Mary F. Crane, George L. Allen, and Grace Dickson, and if there be no descendants of either of my said three children then living, then the said real estate and reserve fund shall be divided equally, share and share alike, per stirpes, among the descendants of such of my said three children as have...