Freeman v. Maxwell

• Decision Date: 24 November 1914
• Citation: 170 S.W. 1150,262 Mo. 13
• Parties: BETTIE FREEMAN et al. v. GEORGIA MAXWELL, Appellant
• Court: Missouri Supreme Court

170 S.W. 1150

262 Mo. 13

BETTIE FREEMAN et al. v. GEORGIA MAXWELL, Appellant

Supreme Court of Missouri, Second Division

November 24, 1914

Appeal from Boone Circuit Court. -- Hon. David H. Harris, Judge.

Affirmed.

H. D Murry for appellant.

(1) The court erred in holding that Amanda Brashears had only a life interest in the rents and profits of the real estate in question and described in the petition of plaintiffs. This question depends upon the construction to be given the deed from McHenry Barkwell et al., to George W. Henderson, trustee for Amanda Brashears (a married woman), for her sole and separate use, and the will of Gilbert Akers, deceased. There are no words in either the deed or will which expressly limit Amanda Brashears's use to her life only. Nor are there any words which indicate an intention to so limit her estate and use in said land. Amanda Brashears under the will of her father, Gilbert Akers, and by said deed, took an equitable fee simple estate in the property therein bequeathed and conveyed to her. Cornet v. Cornet, 248 Mo. 184; Guy v. Mayer, 235 Mo. 390; Settle v Shafer, 229 Mo. 561; Jackson v. Littel, 213 Mo 589; Sevier v. Woodson, 205 Mo. 203; Gannon v. Pauk, 200 Mo. 75; Gannon v. Albright, 183 Mo. 238; Roberts v. Crume, 173 Mo. 572; Roth v. Rauschenbusch, 173 Mo. 582; Yoacum v. Silver, 160 Mo. 281; Ryland v. Banks, 151 Mo. 12; Nichols v. Boswell, 103 Mo. 151; Small v. Field, 102 Mo. 104; Crew v. Keller, 100 Mo. 362; McLillen v. Larchor, 45 N.J.Eq. 20; Wolfer v. Hemmer, 144 Ill. 554. (2) The court erred in not holding that the whole estate became executed in Amanda Brashears, the beneficiary, upon the death of her husband on March 22, 1910. Nothing can be plainer, under the decisions of this State, than that, where a trustee is appointed to hold the estate of a married woman, to protect it from the husband, as in this case, and the marriage relations come to an end, her estate at once becomes executed in the person who is to take it, the wife, if living, or if she is dead, her heirs at law. In other words, when the conditions under which the trust or use ceased, the seizin and possession were transferred by operation of law to the beneficiary. Here, in this case, a trustee was appointed simply because the beneficiary has married Scott Brashears, and when he died, on March 22, 1910, the marriage relations ceased, the trust ceased, then the law executed the use in Amanda Brashears, and transferred to her the legal as well as the equitable estate. Roberts v. Moseley, 51 Mo. 282; Pitts v. Sheriff, 108 Mo. 116; Small v. Field, 102 Mo. 104; 1 Sanders on Uses and Trusts (Am. Ed.), 253; 2 Washburn on Real Property (3 Ed.), 461, sec. 45; Morgan v. Moore, 3 Gray, 323; Stracy v. Rice, 27 Pt. St. 75; Mark v. Mark, 9 Watts, 410; Sec. 2867, R. S. 1909; Blumenthal v. Blumenthal, 251 Mo. 703.

F. G. Harris and Finley & Sapp for respondents.

(1) The trial court correctly construed the will of Gilbert Akers as creating a trust for the benefit of Amanda Brashears and her children. (a) The intention of the testator is the controlling guide, and that intention must be gathered from the four corners of the will, in the light of the circumstances under which it was written. Board of Trustees v. May, 201 Mo. 60; Grace v. Perry, 197 Mo. 550; Mueller v. Buenger, 184 Mo. 458. (b) Item fifth of the will of Gilbert Akers created a trust fund for the sole and separate use of Amanda Brashears during her life with a remainder to her surviving children of so much of the corpus of the fund as remained after her death. Harbison v. James, 90 Mo. 411; Garland v. Smith, 164 Mo. 1; Gibson v. Gibson, 239 Mo. 490; Ewing v. Shannahan, 113 Mo. 196. (c) The trustee having active duties to perform, the trust was an active one as distinguished from a dry trust. Webb v. Hayden, 166 Mo. 48. (d) And the trust could not cease during the life of Amanda Brashears. This is true even though the trustee permitted her to reside on and have the use of the trust property. Pugh v. Hayes, 113 Mo. 434. (e) The fee simple title passed to the remaindermen upon the death of Amanda Brashears, the purpose of the trust having been accomplished. 28 Am. & Eng. Ency. Law (2 Ed.), p. 947; Pugh v. Hayes, 113 Mo. 434; Ewing v. Shannahan, 113 Mo. 196; Gibson v. Gibson, 239 Mo. 506. (f) The term "surviving children" excludes grandchildren, and the trial court properly held that the title is vested in the nine surviving children of Amanda Brashears. Sullivan v. Garesche, 229 Mo. 496; Ringquist v. Young, 112 Mo. 25. (2) The trial court correctly construed the deed to the trustee under which plaintiffs claim title. (a) Where land is purchased with money belonging to a trust fund a resulting trust is created in favor of those entitled to the fund. Patterson v. Booth, 103 Mo. 402; Condit v. Maxwell, 142 Mo. 266. And this is true even though the entire purchase money does not consist of trust funds. In such case a resulting trust will be decreed to the extent of the fund so applied. Shaw v. Shaw, 86 Mo. 594; Bowen v. McKean, 82 Mo. 594. (b) The fact that the husband furnished a part of the purchase money does not alter the title of plaintiffs and defendants as found by the court. The husband must be presumed to have intended to add to the trust fund the amount furnished. Alexander v. Warrance, 17 Mo. 228; Viers v. Viers, 175 Mo. 444; Curd v. Brown, 148 Mo. 82; Ilgenfritz v. Ilgenfritz, 116 Mo. 429; Gilliland v. Gilliland, 96 Mo. 522. (c) The legal title remained in the trustee or his heirs until the death of Amanda Brashears or until the trustee in the exercise of his discretion consumed the principal in the support and maintenance of the life tenant. The trustee had no authority to change the uses to which the fund should be applied and his actions and report show that he did not so intend. Arnold v. Brockenbrough, 29 Mo.App. 625; Cornwell v. Wulff, 148 Mo. 542. And the fact that the deed failed to express a remainder over to the surviving children of Amanda Brashears cannot affect the rights of the remaindermen under the terms of the will creating the trust fund. The intention of the original donor must be kept in mind even in construing the deed to the trustee. Clark v. McGuire, 19 Mo. 312.

WILLIAMS, C. Roy, C., concurs.

OPINION

WILLIAMS, C. --

This is a suit to determine the title to 80 acres of land in Boone county, Missouri, described as follows: The south half of the northeast quarter of section 4, township 48, range 13. The plaintiffs, Bettie Freeman, Birdie Davenport, Minnie Herndon, Pearl Anderson, Gardiner Brashears, James Brashears, Scott Brashears, Gilbert Brashears, and the defendant Georgia Maxwell, are the only surviving children of Amanda Brashears, deceased. In 1885, one Gilbert Akers, the father of said Amanda Brashears, deceased, died, leaving a will bequeathing a certain legacy in trust for his daughter Amanda. That portion of his will involved in this suit was as follows:

"Item Fifth. I hereby will and bequeath to my sons Thomas and Bartemius Akers, the sum of five hundred dollars each, and to my daughters Dora, Annie, Maggie and Amanda, severally the sum of eight hundred dollars each, to be paid to them severally except to my said daughter Amanda who has intermarried with Scott Lashires, the share given her I bequeath to her sole and separate use and I hereby constitute James H. Waugh her trustee to whom my said executors will pay over the share of my said daughter Amanda, and who will loan or invest and manage the same for the best interest of my said daughter, paying over to her the interest thereon as the same shall accrue, for her support and maintenance, and any part of the principal if he shall deem it necessary, the balance remaining after the death of my said daughter to go to her surviving children share and share alike.

"Item Sixth. . . . And in case my estate after the death of my wife shall be insufficient to pay all said legacies in full, I direct that they shall be abated pro rata, and whatever excess there may be after paying said legacies (if any) I direct to be divided equally between my said daughters."

Mr. James H. Waugh, named as trustee in said will, declined to act as such trustee and, on April 22, 1887, made application to the circuit court of Boone county, Missouri, praying that one George W. Henderson be appointed as such trustee in his stead. Said circuit court thereupon appointed said George W. Henderson as such trustee "to carry out the provisions of said will creating said trust." It appears that the estate of said Akers was not sufficient to pay the various legacies in full and said Amanda's legacy was reduced to the sum of $ 648.13. This amount was paid by the executors of said Akers' estate to the said George W. Henderson, trustee for said Amanda Brashears. The said trustee made no report to the circuit court for many years and at the October term, 1905, of the circuit court of Boone county, after citation to appear and make settlement, said trustee appeared and filed the following report.

REPORT AND SETTLEMENT.

Now at this day comes George W. Henderson, trustee for Amanda Brashears, and shows unto the court that heretofore, to-wit on the 22d day of April, 1887, he was duly appointed trustee for Amanda Brashears in the place of James H. Waugh, who was named as her trustee in the will of Gilbert Akers, said will being duly recorded in the probate court records of Boone county, Missouri, in book E, page 422; that the resignation of the said James H. Waugh, as such trustee, and the appointment of his successor fully appears on the records of this court, in book P, page 84; that in pursuance of said order of appointment, he duly qualified and gave bond as required and that said bond was duly approved by this...