Hartnett v. Langan

• Court: Missouri Supreme Court
• Writing for the Court: SMALL, C. --
• Citation: Hartnett v. Langan, 282 Mo. 471, 222 S.W. 403 (Mo. 1920)
• Decision Date: 02 June 1920
• Parties: GEORGE W. HARTNETT et al., Appellants, v. MARY GRACE LANGAN, Administratrix of Estate of PETER LANGAN, et al.; WILLIAM CONNELLY, Appellant

222 S.W. 403

282 Mo. 471

GEORGE W. HARTNETT et al., Appellants, v. MARY GRACE LANGAN, Administratrix of Estate of PETER LANGAN, et al.; WILLIAM CONNELLY, Appellant

Supreme Court of Missouri, First Division

June 2, 1920

Appeal from St. Louis City Circuit Court. -- Hon. J. Hugo Grimm Judge.

Affirmed (in part).

Ford & Jones, Bruce A. Campbell, S. P. Bond and Hugh V. Murray, for Mary Grace Langan, Administratrix of the Estate of Peter Langan; William Langan; Mary Grace Langan, Executrix of the Will of John Francis Langan; Arthur C. Langan, Owen M Langan, James Langan, Mignon McNally, Sterling P. Bond, and Fred Schlafly, Trustee.

(1) The court erred in not overruling the objections to the introduction of any evidence under the plaintiffs' amended petition on the ground that the plaintiffs have no interest whereby they could bring this suit, and on the ground that the amended petition does not state facts sufficient to constitute a cause of action in behalf of the plaintiffs. The power of trustee cannot be exercised by the heirs, personal representatives or assigns of the donee unless they are expressly authorized by the grantor to do so. Mason v. Bank of Commerce, 16 Mo.App. 278; Bales v. Perry, 51 Mo. 451; Hook v. Dyer, 47 Mo. 218; Sec. 2866, R. S. 1909; Fuller v. Davis, 63 Miss. 78; Clark v. Wilson, 53 Miss. 127; Titley v Wolstenholme, 7 Beav. 425. Duty of administering a trust estate, does not, on the trustee's death, pass to his executor, the latter, however, on receiving the trust fund, together with the testator's property, is charged with the duty as a bailee to preserve it intact for the true owner and of turning it over to new trustees when they are legally appointed. State ex rel. v. Mississippi Valley Trust Co., 209 Mo. 472; Ewing v. Shanahan, 113 Mo. 196. (2) The court erred in not sustaining the objection to the introduction of any evidence under the plaintiff's petition because it did not state facts sufficient to constitute a cause of action in that the plaintiffs failed to state in their petition (1st) that the full amount on the principal and interest on the last note secured by the deed of trust had been tendered, (2nd) that defendant Schlafly, trustee, had been tendered the costs of satisfaction of the deed of trust and (3rd) that he had refused to satisfy same. Dunkin v. Life Ins. Co., 63 Mo.App. 257; Dodson v. Clark, 49 Mo. 152; Phelps v. Relfe, 20 Mo. 479; McCormick v. McDonald, 70 Mo.App. 391; Kingston v. Newell, 125 Mo. 389; Strong v. Wilson, 14 Mo. 116; Henderson v. Cass County, 107 Mo. 56; Bertold v. Reyburn, 37 Mo. 595. (3) The intention of the testator, William Tighe, as expressed in the will, must prevail. Dickerson v. Dickerson, 211 Mo. 487; Eckle v. Ryland, 256 Mo. 440; McGuire v. More, 108 Mo. 274; Emison v. Whittlesey, 55 Mo. 255; DeLassus v. Gatewood, 71 Mo. 375; Buxton v. Kroeger, 219 Mo. 245; Long v. Timms, 107 Mo. 519; Tisdale v. Prather, 210 Mo. 407; Sec. 4650, R. S. 1899. The circuit court was right in holding that under said will, at the time of death of Winefred McCabe (nee Langan), October 9, 1916, she dying without ever having issue of her body, her surviving brothers, at her death, Peter Langan, William Langan and John Langan, were each entitled to one-fourth of the trust fund under said sixth clause in question, and that the surviving children of her dead brother, James Langan, were each entitled to one-sixteenth of the trust fund in question, under said sixth clause. Dickerson v. Dickerson, 211 Mo. 490; Ducker v. Burham, 146 Ill. 922; State ex rel. v. Prewett, 20 Mo. 165; Long v. Timms, 107 Mo. 512; Maguire v. Moore, 108 Mo. 267; Emison v. Whittlesey, 55 Mo. 254; DeLassus v. Gatewood, 71 Mo. 371; Burton v. Kroeger, 219 Mo. 240; Eckle v. Ryland, 256 Mo. 451; Taylor v. Adams, 93 Mo.App. 280; Gates v. Seibert, 157 Mo. 270; Emerson v. Hughes, 110 Mo. 627; Rodney v. Landau, 104 Mo. 258; Secs. 2873, 2874, R. S. 1909; Secs. 6 and 7, chap. 32, R. S. 1845; Secs. 6 and 7, 1 R. S. 1855, p. 55. (4) As the remainder in this case was contingent, neither Mary Catherine Connolly nor her daughter, Winefred Connolly (both dying before Mrs. McCabe), had any descendable interest which would pass to William Connolly. DeLasus v. Gatewood, 71 Mo. 371; Emmerson v. Hughes, 110 Mo. 627. (5) The class was subject to diminution by the death of one of its members, or all before the death and expiration of the trust estate of Winifred McCabe, but to as many of the members of the class as were living at the death of Winefred MeCabe, the estate in remainder became absolute. Long v. Timms, 107 Mo. 512; Springer v. Congleton, 30 Ga. 976; Stedman v. Priest, 103 Mass. 293; Johnson v. Calvert, 260 Mo. 454. (6) The plaintiffs are liable for the profits which they received out of the Sixth and Walnut Streets property and the St. Louis County property purchased with the trust funds in the hands of Michael J. Hartnett. Angeles v. Chicago, St. P. & C. Ry., 151 U.S. 127; Pomeroy Eq. Jus. sec. 155; Pride v. Fooke, 2 Beav. 430; Dimer v. Scott, 4 Russ. Chanc. 195; Davis v. Hoffman, 167 Mo. 573; Richard v. Pettis, 124 Mo. 905; Unean v. Rieger, 105 Mo. 675.

W. B. & Ford W. Thompson for George W. Hartnett et al.; Tibbets & Green and Sanders & Forgey for William Connolly.

(1) Upon the death of a sole or surviving trustee and before the appointment of a successor, the legal title of the real property held in trust vests subject to the trust in the heirs of the trustee, and the title of the personal property in his personal representatives, to the exclusion of other persons. Ewing v. Shanahan, 113 Mo. 188. Upon the death of a trustee the trust may devolve upon his heir or administrator until a new trustee is appointed. 3 Pomeroy's Eq. Jurisp. (3 Ed.) sec. 1061, note 5. (2) The plaintiffs in this case were entitled to the release of the deed of trust upon the payment of the balance of the principal note and five per cent interest thereon, being the full amount paid into court, and entitled to a decree. (a) They were within the equitable rule "that he who seeks equity must do equity, and that these terms will be imposed as the price of the decree it gives them." (b) Because the note had been extended after maturity at five per cent interest, and this note at maturity, so far as the plaintiffs knew, were informed and believed, belonged to Winefred McCabe, and that she had extended the payment of this note after its maturity. (c) If this note belonged to Schlafly, as trustee of all of the defendants in the case, under the decree of the Illinois court, then he had, as trustee, accepted five per cent interest on the note after its maturity and had not insisted upon eight per cent after its maturity, and acted as trustee both before and after the death of Winefred McCabe. (d) The payment and tender into court of the balance due on the note and five per cent interest thereon under the agreement of extension of the note, was in equity an extinguishment of the note and also the lien of the mortgage. Kline v. Vogel, 90 Mo. 239; Whelan v. Reilly, 61 Mo. 565; Gilsey v. Gilsey, 198 Mo.App. 505; Veney v. Furth, 171 Mo.App. 708. (3) The expenses of such litigation, as it respects all the parties, and as between the attorney and client, is charged upon the whole estate, together with the fees of such trustees. Sandusky v. Sandusky, 265 Mo. 219; 1 Redfield on Wills (4 Ed.), p. 495.

SMALL, C. Brown and Ragland, CC., concur. Woodson, J., absent.

OPINION

SMALL, C. --

Appeal from the Circuit Court of the City of St. Louis. The facts we find to be substantially as follows:

In 1856, William Tighe, a resident of Carlyle, Clinton County, Illinois, died, leaving a will, the 6th clause of which was as follows:

"6th. I give, bequeath and devise to my niece, Winefred Langan for life the other half of the residue of my estate, remainder in fee to the heirs of her body, or in default of such issue, at her death then remainder in fee to her father, mother, brothers and sisters equally, or their heirs taking per stirpes."

The will was duly probated in Illinois and a duly certified copy thereof filed in the Probate Court of St. Louis County on June 26, 1856. At the time of his death, said Tighe owned an undivided one-half interest in a lot at the corner of Fourth and Market Streets in St. Louis. This was embraced within the property mentioned in said 6th clause, so that thereby said Winefred Langan, afterwards Winefred McCabe, was entitled to a life estate therein, and the remainder in fee passed to other parties as provided in said 6th clause of said will.

In 1869, all the parties in interest being before the court, the Circuit Court of the County of St. Louis rendered a decree in partition under which the property was sold and one-fourth of the proceeds, to-wit, $ 27,859.67, was paid over to Michael J. Hartnett, appointed by the court in said cause, as trustee, "to be by said Hartnett loaned out or invested for the benefit of Winefred McCabe, wife of John McCabe, and all others specified in the will of William Tighe." The court further ordered that, upon receipt of said sum, said Hartnett give bond in the sum of $ 33,000 to be approved by the court, which he afterwards did, with Constantine Maguire and Catherine Philips, as sureties. Said Michael J. Hartnett remained trustee until his death in St. Louis, in the year 1902. During all this time, Mrs. McCabe continued to reside in Carlyle, Illinois, and Hartnett paid her six per cent per annum on said sum as the supposed income thereof, which he had made, as trustee, under said order of the court. Upon the death of said Hartnett, it proved that he was and for some years had been insolvent and had used the fund for his own purposes. After his death the plaintiff, George W. Hartnett his son, and Catherine...