Edwards v. Welton

• Decision Date: 31 July 1857
• Citation: 25 Mo. 379
• Parties: EDWARDS AND WIFE, Respondents, v. WELTON et al., Appellants.
• Court: Missouri Supreme Court

25 Mo. 379

EDWARDS AND WIFE, Respondents,

v.WELTON et al., Appellants.

Supreme Court of Missouri.

July Term, 1857.

1. One of several cestuis que trust cannot single out a portion of the trust property and allege an exclusive right thereto, and assert that right in an action for its possession.

2. Where trust funds are misapplied, the cestui que trust may follow the property acquired therewith, and assert the trust as against any one taking with notice.

Appeal from Clay Circuit Court.

This was a suit instituted by William Edwards and Elizabeth Edwards, his wife, against Solomon Welton, Ivy Welton and Elvy Atkinson. Plaintiffs state in their petition in substance that one Unice Harness, then a resident of the State of Virginia, made her last will and testament, which was admitted to probate in the year 1823; that in said will there is the following bequest: “I give to my daughter, Elizabeth Welton, five hundred dollars, the price of my negro boy Phil, which my son Adam Harness is to have, and pay in two years from my death, and to be laid out in negro girls by my executors for my daughter, Elizabeth Welton, and her daughters forever;” that the said sum of $500 never was laid out by the executors in the purchase of the negro girls for the said Elizabeth Welton and her daughters, as directed by the will; that said sum was paid by the executors to Michael Welton, the husband of Elizabeth, to be by him laid out in the purchase of negro girls for the said Elizabeth and her daughters according to the terms of said will; that said Michael received the said sum under an express agreement with the executors that he would so lay it out; that said Michael did purchase with said $500, or a part of it, a negro girl named Tamar, for his wife and daughters; that at the death of said Unice Harness, the said Elizabeth Welton had four daughters, to-wit: Elizabeth (wife of William Edwards, and plaintiff in this suit), Ivy Welton, and Elvy Atkinson (who, with Solomon Welton, are defendants in this suit), and Hannah Welton; that said Hannah died about eight, and Elizabeth Welton, the mother, about six years ago; that at the death of the said Elizabeth Welton, wife of Michael Welton, the said negro slave Tamar, and all her increase, became the sole and absolute property of plaintiffs and the said Elvy Atkinson and Ivy Welton, two of the defendants; that plaintiffs became entitled to one undivided third of said slave Tamar, and her increase; that on the 24th day of April, 1842, the said Michael Welton made and entered into an instrument of writing between himself and the said Hannah Welton, Ivy Welton, Elvy Atkinson (then Elvy Welton) and Solomon Welton, the son of said Michael, and one of the defendants, in which, after reciting the bequest above set forth, and that he had received the said sum of $500, and had appropriated it to his own use in the purchase of slaves and otherwise, he conveys certain negroes, named Jerry, Eliza, Essex, Ellen, Lewis and Martha, all children of Tamar, absolutely to the said Hannah, Ivy, Elvy and Solomon; that the said Hannah, Ivy, Elvy and Solomon had full notice of the provisions of the will above set forth; that they accepted the conveyance for the purpose of defrauding the plaintiffs out of their legitimate rights under said will; that Michael Welton died in 1855 insolvent; that they, plaintiffs, have never received the said Tamar, or any of her children, or any of the money they or any of them sold for; that defendants sold two of said slaves mentioned in the bill of sale above mentioned, to-wit: Essex and Ellen, both children of Tamar, Essex for $300, Ellen for $210, and appropriated the proceeds; that the remaining slaves--Jerry, Eliza, Lewis and Martha--have been divided between defendants--Jerry, now worth $1,200, being received by the said Solomon, Eliza by Ivy, and Martha by Elvy; that plaintiffs, with Elvy and Ivy, were each entitled to one-third of the proceeds of the sale of Essex and Ellen; that plaintiffs have received none of the proceeds; that, on the contrary, the said Solomon received one-third of said proceeds, to-wit: $170, which rightfully and legally belongs to plaintiffs; that the said Elvy and Ivy have received each one-third of the remaining negroes after the sale of the said Essex and Ellen; that they each received one-third of said proceeds of the sale of Essex and Ellen; that the negro boy, Jerry, who legally and properly belongs to plaintiffs, was received by Solomon Welton, and is still in his possession. Plaintiffs ask judgment against the said Solomon for the sum of $170 and interest, that being the amount received by him from the proceeds of the sale of Ellen and Essex; and a judgment against him, the said Solomon, for the possession and delivery of the said negro slave Jerry, and in default of delivery of said slave Jerry to plaintiffs, a judgment for the sum of $1,200, the value of said slave. Plaintiffs also ask judgment for $1,500, the alleged value to defendant Solomon of the services of the said slave Jerry.

At the trial evidence was adduced in support of the allegations of the petition. The instructions given are numerous. It is deemed unnecessary to set them forth. The jury found a verdict for plaintiffs against Solomon Welton, and found for them $1,100, the value of the slave Jerry, and $500 for the hire of Jerry; amounting in all to $1,500. The jury found for defendants Ivy Welton and Elvy Atkinson. Judgment was rendered accordingly.

Morrow and Gardenhire, for appellants.

I. Plaintiffs have sued the wrong party. The executors of Harness were the proper parties to be sued. The executors of Harness were guilty of breach of trust, if any one was, and they are undoubtedly liable for that breach, and there is no pretense that they and their securities are insolvent. Even if Harness' executors were insolvent, it would not make the appellant liable. Although the court may hold that the filing of a motion in arrest supersedes a motion for a new trial--which we deny to be the law of the land--it does not affect the question as to who are proper parties to the suit; if the appellees...