Dwyer v. St. Louis Union Trust Co., a Corp.

• Citation: 228 S.W. 1068,286 Mo. 481
• Parties: MARIE WORRALL DWYER, SPENCER WORRALL, CARRIE WORRALL DAUGHERTY, JOSEPHINE WORRALL O'CONNELL, JOHN WORRALL and CORNELIA M. WORRALL, Appellants, v. ST. LOUIS UNION TRUST CO., a Corporation
• Decision Date: 05 March 1921
• Court: Missouri Supreme Court

228 S.W. 1068

286 Mo. 481

MARIE WORRALL DWYER, SPENCER WORRALL, CARRIE WORRALL DAUGHERTY, JOSEPHINE WORRALL O'CONNELL, JOHN WORRALL and CORNELIA M. WORRALL, Appellants, v. ST. LOUIS UNION TRUST CO., a Corporation

Supreme Court of Missouri, First Division

March 5, 1921

Appeal from St. Louis City Circuit Court. -- Hon. Charles B. Davis Judge.

Affirmed.

Arthur J. Freund and Louis B. Sawyer for appellants.

(1) Regardless of the nominal duration of an estate given to a trustee, it continues in equity no longer than the thing sought to be secured by the trust demands, and when that demand has been fully satisfied, and although the trust may not have ceased by expiration of time, yet if all the parties who are or who may be interested in the trust property are in existence and are sui juris, and if they agree thereto, a court of equity will decree the termination of the trust. 39 Cyc. 99; Beach on Trusts, secs. 705, 761; 2 Am. Law Rep. 579; 2 Perry on Trusts (6 Ed.), pp. 1497, 1499; Peugnet v Berthold, 183 Mo. 61; Smith v. Smith, 70 Mo.App. 453; Rector v. Dalby, 98 Mo.App. 196; Newton v. Rebenbach, 90 Mo.App. 657; In re Stafford's Estate, 258 Pa. St. 595; Inches v Hill, 106 Mass. 575; Smith v. Harrington, 4 Allen (Mass.) 566; Simmons v. Trust Co., 136 Minn. 357, 162 N.W. 450, L. R. A. 1917 F, 736. (a) A court of equity may require a trustee to convey to the cestuis que trustent property which is without the territorial jurisdiction of the court and of which a decree would not divest it. Donaldson v. Allen, 182 Mo. 626. (2) Where a woman is past the child-bearing age, and where a trust estate is to be divided and paid over to her children living at her death, and where the mother and all of the children, being sui juris, join in a petition to have the trust terminated, they shall be entitled to a decree for the termination of the trust estate. Johnson v. Beauchamp, 5 Dana, 70; Appeal of Gowen, Trustee, 106 Pa. St. 288; Male v. Williams, 48 N.J.Eq. 33; Reynolds v. Reynolds, 1 Dick (Ch. 1764) 374; Ex parte Catherine Brown, 7 Ir. Eq. 484; Browne v. Pringle, 4 Hare, 124, 14 L. J. Ch. (N. S.) 121, 8 Jur. 1113; Leng v. Hodges, Jac. (Ct. Ch.) 585; Dodd v. Wake, 5 De G. 226, 21 L. J. Ch. (N. S.) 456, 16 Jur. 776; In re Dawson, 39 Ch. Div. 155; White v. Edmond, 1 Ch. Law Rep. 570. (3) The common law of England governs in this case. Laws 1917, p. 324, sec. 8047; Lindell v. McNair, 4 Mo. 380; Brandon v. Carter, 119 Mo. 572; State v. Rader, 262 Mo. 129.

Bryan, Williams & Cave for respondent.

(1) The estate in remainder, created by the will of Peter Conrad, and given to the children of Cornelia Worrall "living at the time of her death," is not vested, but only contingent. DeLassus v. Gatewood, 71 Mo. 371; Dickerson v. Dickerson, 211 Mo. 483; Emerson v. Whillesam, 55 Mo. 258; Collins v. Crawford, 103 S.W. 537; McFarland v. Bishop, 222 S.W. 143. All of her children may predecease Cornelia Worrall, in which event the remainder, after the life estate of Cornelia Worrall, will go to the heirs at law of the testator, Peter Conrad, and none of the parties hereto will ever have a vested interest in the trust estate. All of the parties interested in the trust are not, therefore, parties to this suit. (2) This trust is an active one. And, while it may be that a court will terminate a dry trust where the purpose of the trust has been fully accomplished and all of the parties interested in the trust are sui juris and agree thereto, no court will so terminate (a) a trust whose purpose has not been fully accomplished or (b) a trust where all of the parties having a possible interest do not agree. Shelton v. King, 229 U.S. 90; Smith v. Smith, 70 Mo.App. 448; Upham v. Plankington, 152 Wis. 275, 283; Claflin v. Claflin, 149 Mass. 19. (3) This will, providing that the trustee shall pay all "income to my daughter, Cornelia, for the maintenance and support of herself and family," clearly discloses an intent on the part of the testator to limit the use, and the right to the use, of such income, to the specific purpose of maintaining and supporting Cornelia Worrall during her life, and, such being the case, the law will imply a restraint against the right of alienation and anticipation of the income by Cornelia Worrall. Higbee v. Brockenbrough, 191 S.W. 994; Maxwell v. Growney, 213 S.W. 427; Gibson v. Gibson, 219 S.W. 563. (4) A trust, as here, to hold property during the life of a woman and to distribute it among her children at her death, cannot be terminated, at the instance of herself and her living children, merely because she has reached an age after which women do not usually bear children and has infirmities which, in the opinion of physicians, will prevent her from having other children. This, for the reason that the court, in such a suit, will always presume a possibility of further children. Thomas v. Thomas, 149 Mo. 435-6; Rozier v. Graham, 146 Mo. 352; Ennis v. Eager, 152 Mo.App. 497; Elizabeth May v. Trust Co., 48 L. R. A. (N. S.) 865; Ricards v. Safe D. & T. Co., 63 L. R. A. 145; Bearden v. White, 42 S.W. 476; Fletcher v. Trust Co., 187 P. 425; In re Dougan, 139 Ga. 351, 48 L. R. A. (N. S.) 868; Bigley v. Watson, 38 L. R. A. 679; Garner v. Dowling, 58 Tenn. 49 (Heisk.) ; Quigley's Trustee v. Quigley, 161 Ky. 85; Reeves v. Simpson, 182 S.W. 68; Bowlin v. Hospital Co., 31 R. I. 289; Allen v. Allen's Trustee, 133 S.W. 543; Bailey's Trustee v. Bailey, 97 S.W. 810; Towle v. Delano, 144 Mass. 95; Flora v. Anderson, 67 F. 182; List v. Rodney, 83 Pa. St. 483; Lawson on Presumptive Evidence, sec. 364; Wigmore on Evidence, 2523.

OPINION

GRAVES, J.

By his will, Peter Conrad, created a trust in favor of his daughter, Cornelia M. Worrall. Conrad had but two children, a son and a daughter. At least this seems to be the fact from the face of the will he made. One-half of his property he devised to his son, and the other half was placed in trust to the daughter, Mrs. Worrall. That portion of the will, here involved, reads:

"The other one part so partitioned and divided and one-half of all other property, goods and moneys, I do give and bequeath to the St. Louis Trust Company of St. Louis, Mo., In Trust, However, For The Under-Mentioned Purpose, to-wit:

"To pay over all income, earnings and profits arising from such one-half of my property so bequeathed to my daughter Cornelia, For The Maintenance And Support Of Herself And Her Family; and after her death the said property, and the undisposed of earnings and increase thereof to be divided equally, share and share alike, among the children of my said daughter Cornelia, Living At The Time Of Her Death if the youngest of her said children has reached the age of 21 years, but if the youngest of said children has not reached that age, then this trust shall continue In Favor Of And For The Support Maintenance And Education Or Advancement In Life Until The Youngest Of Said Children Becomes Of That Age, Then To Be Divided Equally Between Those Living At That Date, male and female, share and share alike."

Conrad died in 1900, and the St. Louis Trust Co. began the administration of the trust. In 1902 the St. Louis Trust Company changed its name to the St. Louis Union Trust Company, and by that name the trustee has continued its duties to this date. The present suit is one to determine that trust, and the plaintiffs are Mrs. Worrall, and her five children, and the defendant, the present trustee of the estate. Mrs. Worrall had but five children, and they are all adults, and living and to them she had conveyed (or attempted to convey) all her interest in the trust property. These conveyances are in this record. The trust property consists of some land in Ste. Genevieve County, Missouri, some land in McCracken County, Kentucky, and some $ 8,500 in personal securities and cash, in the hands of defendant, as trustee.

In behalf of plaintiff it was shown that Mrs. Worrall was 56 years old, and had long since reached and passed that period in a woman's life, commonly called the "change of life." By a physician it was shown that she could bear no more children, for this and other physical reasons. No evidence was introduced by defendant, and upon those facts, the court entered a judgment or decree in favor of defendant, from which plaintiffs prosecuted this appeal. The case is largely one of law, although it might be added that there is no evidence showing the procreative organs of Mrs. Worrall to be diseased, or injured, save and except by the flux of time on the life of a woman as above detailed.

I. In this case there is urged the interesting question, as to whether or not, from a legal standpoint, Mrs. Worrall has passed the child bearing age, and much legal lore has been called to our attention. With this question we shall not deal, because, in our judgment, the case is, and can be, fully determined upon questions which precede this in the orderly disposition of vital questions. In Blackstone's Commentaries, it has been said: "A possibility of issue is always supposed to exist in law, unless extinguished by the death of the parties, even though the donees be, each of them, a hundred years old." [2 Blackstone's Commentaries, 125.] The later court views upon this question we shall not review. Other matters settle the case, and a review of this question would be a waste of energy.

II. The status of Mrs. Worrall's children under the will of Conrad is one of the material questions. A reading of the will shows that the legal title to the property passed to the St. Louis Trust Company, now the St. Louis Union Trust Company. This title was impressed with a trust "to pay over all income, earnings and profits to my daughter Cornelia, for the...