Garland v. Smith

• Decision Date: 18 June 1901
• Parties: GARLAND v. SMITH.
• Court: Missouri Supreme Court

64 S.W. 188

164 Mo. 1

GARLAND v. SMITH.

Supreme Court of Missouri.

June 18, 1901.

TRUSTS—POWERS—EXTENT—EXECUTION— RES ADJUDICATA.

1. Land was conveyed to a trustee for use of grantor's wife for life, with "power to sell, mortgage, lease, or otherwise dispose of the same to such person or persons and for such uses and purposes as she may, by writing by her signed, direct and appoint," and the trustee was directed to execute the writings necessary to carry into effect this power when directed by her. If not so disposed of by her, the trustee was directed to convey to plaintiff on her death. She, without consideration, executed a warranty deed of the land to defendant, and also devised it to him in her will. Held, that defendant acquired no title to the remainder under either the deed or will, since the power to sell did not include a power to give away, and the authority to "appoint" and "otherwise dispose of" should be construed as a power to appoint or dispose of for her benefit and support, of a nature similar to the methods specially designated.

2. The judgment in a contest of a will on the ground that it was obtained by undue influence is not res adjudicata of the question of the power of the testator to devise lands of which under a trust deed, she had the life use, with power to sell or otherwise dispose of, since the extent of her power under the trust deed was in no way involved in the will contest.

3. Land was conveyed to a trustee for the use of grantor's wife for life, with power to sell or otherwise dispose of, with remainder, if not disposed of by her, to plaintiff. She had property of her own, and executed a trust deed to defendant of all her property. Held, that the judgment in an action to set aside the deed to defendant did not involve or determine the question whether such deed was an execution of the power under her husband's deed to sell or dispose of such land.

In banc. Appeal from St. Louis circuit court; H. D. Wood, Judge.

Action by James S. Garland against George Smith. From a judgment for plaintiff, defendant appeals. Affirmed.

F. N. Judson, for appellant. Hiram J. Grover, J. E. McKeighan, and Jos. S. Laurie, for respondent.

GANTT, J.

Action of ejectment in statutory form for a house and lot in the city of St. Louis, known as No. 1615 Olive street, in said city. Ouster laid as of March 1, 1891. Monthly rents and profits alleged to be of the value of $75. The answer was a general denial. Judgment in the circuit court for plaintiff for possession and rents and profits, assessed at $55 a month, and damages for detention to time of judgment at $574. Defendant appeals.

Prior to 1865 the title to the lot in suit was vested in James Smith, under whom both parties assert title. On March 13, 1865, James Smith, for the recited consideration of $1, conveyed said lot, by a deed of bargain and sale, to Edward A. Filley, upon certain trusts, which are declared in said deed as follows: "To have and to hold the same, with the privileges and appurtenances thereto belonging, unto the said party of the second part, his heirs and assigns, forever, in trust, however, for the sole and separate use and benefit of said Persis Smith, wife of said James Smith, for and during the term of her natural life; and she, the said Persis, shall during the said term be permitted to have immediate occupation and use of the premises in person, or to receive the rents and profits thereof in her own hands on giving her personal receipt therefor, which receipt shall be a full acquittance and discharge to her said trustee; and the said Persis shall have power to sell, mortgage, incumber, lease, or otherwise dispose of the same to such person or persons and for such uses and purposes as she may at any time, by writing by her signed, direct and appoint; and the said trustee, his heirs or assigns, shall execute and deliver to such person or persons any and all deeds, mortgages, deeds of trust, leases, or other instruments in writing necessary and proper for carrying into effect the power aforesaid, for the uses and purposes aforesaid, whenever he shall be thereto by her directed in the manner aforesaid; and, upon the death of said Persis without having disposed of the premises in the manner aforesaid, then for the use and benefit of the heirs of the body of her the said Persis living at her decease, per stirpes; and, in case of default of such heirs of her body living at her decease, then for the use and benefit of the right heirs of Charles Garland; and the said trustee shall then convey the premises in fee simple to them, to have and to hold the same to them, their heirs and assigns, forever." Mrs. Persis Smith was born in 1807, and at the date of the execution and delivery of said deed was 57 or 58 years old. James Smith, the grantor in said trust deed, died October 16, 1877. Charles Garland, named in said deed, was a brother of Mrs. Persis Smith, and died in 1880, leaving as his heirs at law four children: James S. Garland, the plaintiff in this action; John T. Garland; Nathan N. Garland; and Jennie G. Hosmer, the wife of James K. Hosmer. Mrs. Persis Smith died February 14, 1891, 83 or 84 years old, without ever having had any children; and on March 30, 1891, Edward A. Filley, the trustee in the trust deed of James Smith, never having been directed by Mrs. Persis Smith to execute any conveyance of said lot, conveyed the same to the heirs at law of Charles Garland, deceased, and recited that he made said deed in pursuance of the power conferred on him in and by the deed of James Smith and Persis Smith of date March 13, 1865. Prior to the institution of this action, John T., Nathan N., and Jennie G. Hosmer and husband conveyed their several shares in said lot to plaintiff, James S. Garland. On July 28, 1883, Mrs. Persis Smith executed a warranty deed to George Smith to the lot in suit, but George Smith refused to accept said deed, and it was never recorded. On June 26, 1888, Mrs. Persis Smith again conveyed said lot by warranty deed to said George Smith, which was accepted by him, and was duly recorded in the recorder's office of the city of St. Louis. On the 15th day of October, 1890, Mrs. Persis Smith made her last will and testament, which was duly probated after her death, in March, 1891, in which she declared that "she intended thereby to dispose of all her property, of every nature whatsoever, wherever situated, of which she might die seised, or as to which she might have any power of appointment"; and by the seventh clause of said will she provided "that all the rest, residue, and remainder of the property, of whatsoever nature, real, personal, or mixed, wherever situated, of which I may die seised, or as to which I may have any power of appointment, I give, devise, and bequeath to my adopted son, called George Smith, whose family name is Connelly, who is now living with me at No. 1615 Olive street, in this city, to have and to hold to him and his heirs forever." The evidence introduced by the defendant also shows that Mrs. Smith in 1881 conveyed her property to James S. Garland and George Smith upon certain trusts, that in 1886 Garland reconveyed to Mrs. Smith the property which was conveyed to him as trustee, and that on September 22, 1886, Mrs. Smith again conveyed all her property to George Smith as trustee upon certain trusts. It appeared from the evidence that James Smith received the defendant, then a destitute, homeless boy, named George Connelly, into his family in 1838. The boy was then 4 or 5 years old. He was reared as their own child. When a young man he went to New Mexico, and returned about 1860. He left St. Louis for New York in 1865, and from that time until the death of James Smith, in 1877, held no communication with his foster parents. He did not return to St. Louis until December 1880. The defendant does not claim title through the warranty deed made to him in 1883 by Mrs. Persis Smith, as it appears from the evidence that he never accepted said deed. He claims, however, through the deed made by Mrs. Smith in 1888. The testimony very clearly shows that this last-mentioned deed, while nominally for the consideration of $10, was in fact a gift of the said lot to defendant. Defendant also claims title under the last will of Mrs. Smith, insisting that her devise to him of said lot was a valid exercise of the power of appointment conferred on her by the deed of her husband, James Smith, of March 13, 1865. Defendant further pleads res adjudicate in two other proceedings in the circuit court of the city of St. Louis.

The value of the real estate involved, and the legal principles by which the title must be determined, concur in rendering this case one of more than ordinary importance. The propositions necessarily involved and ably discussed by counsel and our learned Brother on the circuit are these: What estate did Mrs. Persis Smith acquire by the trust deed of James Smith of March 13, 1865, and what were the purposes, and the nature, extent, and scope, of the power of appointment conferred upon her by said deed? Did the conveyance by deed of gift of June 26, 1888, constitute a valid execution of her power of appointment? Could that power of appointment be executed by last will? As to the estates created by the deed of James Smith, we conceive there can be no doubt. By it a legal title in fee simple was conveyed to Edward A. Filley, the trustee therein named. An equitable life estate to Mrs. Persis Smith, his wife, with a power of appointment superadded, and a contingent remainder to the issue of Mrs. Persis Smith living at her death, and in default of such issue a contingent remainder to the heirs of Charles Garland. The power of disposal annexed to the life estate of Mrs. Smith did not enlarge her life estate into an equitable fee simple. Rubey v. Barnett, 12 Mo. 3, 49 Am. Dec. 112; Gregory v. Cowgill, 19 Mo. 415; Lewis v. Pitman, 101 Mo. 281, 14 S. W. 52.

Having ascertained the...