Goodwin v. Goodwin

• Decision Date: 30 April 1879
• Citation: 69 Mo. 617
• Parties: GOODWIN v. GOODWIN, Plaintiff in Error.
• Court: Missouri Supreme Court

69 Mo. 617

GOODWIN

v.GOODWIN, Plaintiff in Error.

Supreme Court of Missouri.

April Term, 1879.

Error to Cole Circuit Court.--HON. G. W. MILLER, Judge.

A. M. Lay and G. T. White for plaintiff in error.

Botsford & Williams for defendants in error.

NORTON, J.

This is a proceeding in equity to enforce the provisions of a trust created by the will of Margaret Goodwin. The testatrix died on the 25th day of January, 1861, leaving a will, the following provisions of which have given rise to the present controversy: First, After my death I direct all my debts and funeral expenses to be paid out of the first moneys that may come to hand, either from rent of house or debts collected from sale of personal estate. Sixth, I hereby devise to George T. White, in trust, my house and lot in the City of Jefferson, in which I now live, on High street, numbered 470, I believe, for the following purposes and no others, that is to say: The said trustee is to be legal owner of said property for fifteen years from and after my death; is not to be required to give security, and in case of his failure to take upon himself the trust, resignation, death or removal from the county, the county court of Cole county is hereby empowered to appoint a successor with similar rights and authority that the original trustee may possess. The said trustee is to have exclusive control and management of said real estate, receive any moneys that may be in the hands of my administrator after my estate is finally settled, also receive the rents, all to be applied in the manner hereinafter mentioned. After first paying all taxes that may become due on the lot and house mentioned, have the same insured, pay the insurance annually, or whenever required by the insurance office, and make and pay for all necessary repairs, and after all incidental expenses are paid, once in every year, pay out the balance remaining in his hands in manner as follows: To the children of John N. Goodwin, one-third of said amount; to Willis C. and Alice J. Boyer, the children, (or the survivor of them,) of Rachel Boyer, one-third of said sums; to Jonathan H. Goodwin, one-third of said sums. If at any time said trustee shall suggest to the county court, and said court shall become satisfied that guardians should be appointed to receive said moneys, for any of said children, the court is hereby authorized to appoint a guardian, or guardians, for any or all of them, to the end that all moneys so paid shall be strictly applied to the maintenance and education of said children, and not to be applied to any other purpose or the use of any other person or persons. At the expiration of said term of fifteen years, my said trustee is hereby empowered to sell said real estate (and not sooner) at either public or private sale, and divide equally the proceeds of said sale, after deducting expenses, as follows: To the children of my son, John N. Goodwin, then living, one-sixth; to Willis C. and Alice J. Boyer, the children of Rachel Boyer, one-sixth; if they, or neither of them be living, then to their mother; to my daughter, Jane Carter, or to the heirs of her body, one-sixth; to Jonathan H. Goodwin, one-sixth; to Peter Wonderly and Sarah Wonderly, one-sixth; to Oliver T. Goodwin, one-sixth.

She left also a codicil, as follows: My son John has received the bed that I intended for him, and as it is uncertain whether or not it would do his children any real good to receive the share of rents provided in the foregong will, I leave it to the discretion of my son, Jonathan H. Goodwin, and direct him to pay the proportion mentioned for their schooling, if he consider it to be to their advantage to do so. I also revoke the appointment of George T. White as trustee, and appoint the said Jonathan H. in his place, with the same powers and duties that the said first named trustee was to possess.

The plaintiffs, who are beneficiaries and devisees, substantially allege, in the petition, the non-compliance of Goodwin, the trustee named in the will, with its conditions; his appropriation of the entire proceeds of the rent of the property devised to his own use; that he was insolvent, and that fifteen years had elapsed since the death of testatrix, and prayed that said trustee be compelled to account; that he be removed from his trust; that a new trustee be appointed, with directions to proceed and execute the trust by a sale of the lot in question as required by the will, and that the court distribute the proceeds.

The answer of the defendant, after admitting the will and its probate, sets up, that under it he was entitled to the property and its proceeds for the full term of fifteen years; that the testatrix died leaving debts amounting to...