Evans v. Blackiston

• Decision Date: 31 October 1877
• Citation: 66 Mo. 437
• Parties: EVANS, Appellant, v. BLACKISTON.
• Court: Missouri Supreme Court

66 Mo. 437

EVANS, Appellant,

v.BLACKISTON.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Buchanan Circuit Court--HON. JOS. P. GRUBB, Judge.

Allen H. Vories and James P. Thomas for appellant.

1. The will did not confer upon Colhoun a mere power of sale, but vested in him a title in trust, personal and discretionary, and which could not be exercised by the administrator, such as purchasing lots and erecting houses on them. Conklin v. Egerton, 21 Wend. 430; Northrop v. Wright, 24 Wend. 223; Judson v. Gibbons, 5 Wend. 224; Denne v. Judge, 11 East 288; 2 Williams on Executors 815; 2 Jarman on Wills 144; State v. Boon, 44 Mo. 260.

2. The land being vested in Colhoun, as trustee, could not have been sold by him as executor; and although the offices of trustee and executor, were vested in the same person, they remained as distinct and separate as if vested in different individuals, and their duties, under the will, as clearly defined. Denne v. Judge, 11 East 288; Conklin v. Egerton, 21 Wend. 430; 24 Wend. 223.

3. In all the cases relied upon by the respondent, and cases decided by this court, there was only a power to sell uncoupled with an interest. Dilworth v. Rice, 48 Mo. 124

Woodson & Hill for respondent.

NORTON, J.

This action is ejectment for the recovery of one acre and a half of land in the city of St. Joseph, Buchanan county. The petition is in usual form. The answer, in addition to a general denial, sets up the acquirement of title to the land in dispute, through an administrator's deed and the making of valuable improvements thereon. The cause was tried by the court without the intervention of a jury, and judgment rendered for the defendant, from which the plaintiff has appealed to this court. Both plaintiff and defendant claim title through one Jane K. Frame, who died in 1859, leaving a will containing the following clause out of which this controversy springs, viz: “I will, devise and bequeath unto my friend Edmund R. Colhoun, as trustee, all my real estate, lands and tenements, situate in Buchanan county, Missouri, being about one acre and one-half in the city of St. Joseph, lying west of the Willow Grove property, for the following uses and purposes: said real estate to be divided off into lots, and by him sold at his discretion, and the proceeds thereof I direct, devise and bequeath, shall be invested in purchasing some convenient lot in said city and erecting thereon a dwelling house, said title to said land and dwelling house to be by him taken in the name of my sister, Eliza Beckam, for and during her natural life, with remainder to her three children, Mary Jane, Townsend T. and John H. C. Beckam, to be equally divided between them at her death.” The sixth clause of the will appoints Edmund R. Colhoun executor to carry out the provisions of the will. It is conceded that Colhoun qualified as executor, the will having been duly probated, and that he thereafter left the State without executing the trust and abandoned or declined to execute the same. It appears that on a presentation of these facts by petition in the circuit court of Buchanan county, an order was made by said court appointing plaintiff as trustee for the said Eliza and her three children, for the purpose of executing the trust. This order was made on the 11th of June, 1873. It was admitted on the trial that, prior to the appointment of plaintiff, as trusteee, to-wit: at the July term, 1869, of the probate court of Buchanan county, one W. S. Everett, had been appointed administrator, with the will annexed, of the said estate of Jane K. Frame, deceased, and had duly qualified as such, and had sold and conveyed, by deed, the real estate mentioned in the petition and will to the defendant.

The judgment of the court below was for the defendant, and the only question arising or necessary to be determined upon the state of facts presented in the record, is as to the validity of the sale and conveyance of the land of the testatrix, to defendant by Everett administrator with the will annexed. If valid, the judgment of the trial court was for the right party; if invalid and unauthorized, the judgment should have been for plaintiff. This question finds its solution in Sec. 1, Wag. Stat., 93, which is as follows: “The sale and conveyance of real estate under a will, shall be made by the acting executor or administrator with the will annexed, if no other person be appointed by the will for that purpose, or if such person fail or refuse to perform the trust.” It is a favorite maxim in equity that a court of chancery will not permit a trust to fail for want of a trustee, and this principle not only finds recognition in the above expression of legislative will, but designates in the class of cases therein mentioned what class of persons shall execute the trust. It was doubtless the design of the Legislature by this general provision, to get rid of the slower and more expensive proceedings which a resort to a court of chancery in such cases would involve. The language of the statute is broad and comprehensive, and we can perceive no reason for restricting its...