Gaston v. Hayden

• Decision Date: 06 April 1903
• Citation: 98 Mo. App. 683,73 S.W. 938
• Court: Missouri Court of Appeals
• Parties: GASTON v. HAYDEN et al.<SMALL><SUP>*</SUP></SMALL>

73 S.W. 938

98 Mo. App. 683

GASTON v. HAYDEN et al.^*

Court of Appeals at Kansas City, Missouri.

April 6, 1903.

WILLS—TRUSTEES—MISCONDUCT—REMOVAL—LEGACIES—INTEREST—COURTS—DECISIONS—AUTHORITY.

1. Where, in a prior suit for the construction of a will, the Supreme Court determined that defendant, who was appointed executor, was in possession of the fund bequeathed to certain minor legatees as trustee, and was entitled to the possession of the fund as such, such decision is conclusive on the Court of Appeals in a subsequent action by the curator of such minors

to recover the fund, and for the removal of the defendant as trustee.

2. Where a trustee for certain minor legatees loaned the funds on securities taken in his own name, and kept no books of accounts, but so mingled the trust funds with his own that their identity was wholly lost, and mutual hostility existed between the trustee and the fathers of the legatees, such facts constituted a sufficient ground for the trustee's removal.

3. Testatrix bequeathed to her son a pecuniary legacy, to be held by her executrix in trust until the son arrived at age, and declared that such sum should be loaned by the executrix, and the interest used in keeping, maintaining, and educating the son. By the succeeding clause she bequeathed another pecuniary legacy to G., to be held in the same manner and invested and expended as provided in the preceding paragraph for the control of the other legacy. Held, that such legacies bore interest from the date of testatrix's death, and not from the expiration of a year from the date letters testamentary were granted.

Appeal from Circuit Court, Jasper County; H. C. Timmonds, Judge.

Action by Madge B. Gaston, by her curator, against T. C. Hayden and Ernest Webb, in which the latter filed a cross-petition. From a judgment in favor of defendant, cross-complainant, Webb, appeals. Reversed.

H. W. Currey and R. W. Coleman, for appellant. Redding & Owen, for respondent Madge B. Gaston. F. L. Forlow and Howard Gray, for respondent T. C. Hayden.

SMITH, P. J.

Emma I. Webb, divorced wife of E. T. Webb, and mother of Ernest Webb, departed this life in the year 1894; first having made her last will, which, amongst other provisions, contained the following, to wit:

"Second. I give, devise and bequeath to my son, Ernest Webb, the sum of ten thousand dollars, to be held by my executrix hereinafter named in trust until my said son arrives at the age of twenty-one, and then given to him. Said sum during the infancy of my son to be loaned out by my executrix on real estate in Jasper county, Missouri, and the interest thereon to be used in keeping, maintaining and educating my said son.

"Third. I give, devise and bequeath to my niece, Madge B. Gaston, the sum of two thousand dollars, to be held in the same manner and invested and expended as is provided in the preceding paragraph for the holding, investing and expending of the ten thousand dollars bequeathed to my son, Ernest Webb. Provided, however, that in case of the death of the said Madge B. Gaston at any time during infancy, then the said sum herein bequeathed to her shall become the money and property of my son Ernest Webb, and may be used in educating him.

"Fourth. I give, devise and bequeath all the balance of the property owned by me, whether real or personal, at my death to my mother, Rebecca Hayden, and my brother, Thomas C. Hayden, share and share alike, and should either of them die before I do, then the other shall have all the property described in this paragraph.

"Fifth. In case at my death I should not have in money the sums herein willed to my son and niece, but have the same in property, then I desire that my executrix shall after having it appraised by three disinterested freeholders of Jasper county, appointed by the probate judge of said county, sell at public or private sale sufficient of said property to obtain said sums, provided said property shall not be sold at less than three-fourths of its appraised value.

"Sixth. I hereby constitute, nominate and appoint my mother, Rebecca Hayden, of Jasper county, Missouri, executrix of this my last will and testament, and in case of her death or refusal to act, then I desire that my brother, Thomas C. Hayden, shall become the executor of this will, and he is hereby constituted, nominated and appointed such executor in case of my mother's death or refusal to act."

Rebecca Hayden, so named as executrix of said will, refused to qualify as such, and thereupon Thomas C. Hayden, under the said clause, became executor, and qualified as such. He fully administered said estate, and made a final settlement thereof, and filed with the probate court receipts from himself as testamentary trustee of Ernest Webb and Madge B. Gaston to himself as executor of said will for the amount of the two several legacies provided for them in the second clause of said will. It appears that later on the fathers of the respective infant legatees became dissatisfied with the administration of the said trusts by the said Hayden, and this action was begun by Madge B. Gaston by her curator—her father—against him and the other legatee, Ernest Webb, having for its object the construction of the said will, and a determination of whether or not, under the terms thereof, the said Hayden was appointed trustee, or authorized to act as such, and, if so authorized, then to remove him, and to appoint some other person to act in his stead, etc. The defendant Ernest Webb, by his guardian ad litem, filed an answer and cross-petition, in which it was denied that the said $10,000 legacy was given to the said Hayden in trust, but alleged that the same was given to him (the legatee) absolutely, etc. The cross-petition charged the said Hayden, as executor, (1) with retaining said legacy and refusing to loan the same; (2) with mismanaging the said legacy by using it for his own benefit; (3) with wrongfully loaning $2,000 of said legacy on real estate in Hickory county; (4) with loaning part of said legacy on personal security; (5) with appropriating another part of the same to his own use; (6) with refusing to permit his father, E. C. Webb, to see the papers, securities, and funds of the said legacy, or to know the condition thereof, etc. In the petition of Madge B. Gaston it is charged that the fund bequeathed in trust for her is a separate and distinct trust from that bequeathed to Ernest Webb, but that, notwithstanding this, the said Hayden, trustee thereof, has inseparably commingled and intermixed the two funds; that he had failed to keep any accounts whatever of his transactions with said funds, and had refused to account with her or her curator respecting his transactions and dealing thereof; that he had refused to allow her or her curator to inspect the securities upon which he claimed said trust funds were invested, or the notes and other evidences of indebtedness taken for the loan thereof; that he had failed to pay interest on the amount of said bequest to her curator for the purpose of her education, etc., but had wrongfully retained both the fund and the interest thereon. These allegations were supplemented with others similar to those contained in the cross-petition of Ernest Webb, already referred to. A removal of the trustee was prayed in both petitions. The allegations contained in both the petition and the cross-petition were controverted by the answer of Hayden. There was a trial, and a decree for defendant, which, in substance, was (1) that defendant Hayden was the duly appointed trustee of the estates bequeathed to both of said minors; (2) that said defendant, as trustee, had in good faith cared for and preserved said estates, and ought not to be removed; (3) that the amounts due each of the legatees, respectively, should bear interest from the date of the death of the testatrix to that of the final settlement, and from the latter date 8 per cent., compounded annually, etc.; (4) that the father of the legatee Ernest Webb, being a man of large property, and willing to provide for the education and maintenance of the latter, the trustee retain the control of the whole of said bequest of such latter; (5) that, as the father of Madge B. Gaston was a man of small means, the said trustee pay over to her father, as her curator, certain specified sums for her education and maintenance, etc. Each of the parties to the record has appealed here.

1. Touching the question of whether or not the defendant Hayden was a trustee for said minors, under the provisions of the will, it will be observed that in Webb v. Hayden, 166 Mo. 39, 65 S. W. 760, which was an action by E. C. Webb, curator of Ernest Webb, the legatee under the will, against T. C. Hayden, the trustee, to recover the moneys belonging...