Hughes v. Neely
| Decision Date | 11 January 1960 |
| Docket Number | No. 1,47288,Nos. 47287,s. 47287,1 |
| Parties | William Blair HUGHES and Mary Elizabeth Mosby, Plaintiffs-Respondents, v. Bernita NEELY, W. M. Neely, Lois Neely, Margaret E. Hughes, J. B. Hughes, Thomas G. Douglass, Trustee for Margaret E. Hughes, under Will of James M. Douglass, J. B. Hughes, Trustee for Margaret E. Hughes, M. Frances Mayfield, Allen M. Douglass, J. Mott Douglass, and T. G. Douglass, Guardian and Curator for Margaret E. Hughes, N.C.M., Defendants, Bernita Neely, W. M. Neely and Lois Neely, Appellants. William Blair HUGHES and Mary Elizabeth Mosby, Plaintiffs-Respondents, v. Brooxie Nell SMITH, Ella Parish, Margaret E. Hughes, J. B. Hughes, Thomas G. Douglass, Trustee for Margaret E. Hughes under Will (Deed) of James M. Douglass, J. B. Hughes, Trustee for Margaret E. Hughes, M. Frances Mayfield, Allen M. Douglass, J. Mott Douglass, Thomas G. Douglass, and T. G. Douglass, Guardian and Curator for Margaret E. Hughes, N.C.M., Defendants, Brooxie Nell Smith, Appellant |
| Court | Missouri Supreme Court |
James V. Billings, Bradley and Noble, John W. Noble and Charles M. Cable, Kennett, for appellants.
McHaney & McHaney, by William H. Billings, Kennett, for respondents.
These two cases are actions to cancel two judgments entered in the Circuit Court of Pemiscot County in 1930, which terminated trusts in separate tracts of land, vested title in the life beneficiary of the trusts and divested title of all contingent remaindermen. These cases, involving the same issues as to validity of the 1930 judgments, were consolidated for trial and the court entered decrees finding the 1930 judgments null and void and ordered them set aside and cancelled. The defendants, who have appealed, were subsequent purchasers from the life beneficiary. Plaintiffs are children of the life beneficiary, who is still living, and are contingent remaindermen.
The land involved is in Dunklin County; the suits to terminate the trusts were commenced there and went to Pemiscot County on change of venue. In 1918, all the land involved was owned by James M. Douglass who then made a will, Paragraph Fifth of which established a trust in the land now claimed by the Neelys, defendants-appellants (hereinafter referred to as the Neely 50 acres), with his son, Thomas G. Douglass, as trustee 'in trust for the use and benefit of my beloved daughter Margaret E. Hughes for the term of her natural life at her death remainder to the heirs of the said Margaret E. Hughes, free from the claims or interest, if any, of the now living husband of Margaret E. Hughes.' The will further provided: 'The said Thos. G. Douglass as trustee for the said Margaret E. Hughes shall have full power and control of the interest of the said Margret E. Hughes in said real estate, shall collect the rents thereon, pay the taxes, insurance, assessments, repairs and otherwise manage said property for the said Margaret E. Hughes and shall pay over to the said Margaret E. Hughes, the net income from said property in such amounts and installments as the said trustee shall deem for the best interests of the said Margaret E. Hughes; and said trustee, if in his judgment it appears to be to the interest of the said Margaret E. Hughes, shall have full power with the joinder of the said Margaret E. Hughes to mortgage or sell the interest of the said Margaret E. Hughes in said real estate.' We note that the will of James M. Douglass also left specifically described land to each of his other four children (three sons and a daughter) so that each had only a life estate, each devise being: 'I will, bequeath and devise to my beloved son (naming him) for the term of his natural life, and at his death the remainder to the heirs of said (naming him) the following described real estate.'
In 1919, James M. Douglass established by deed an intervivos trust in the land now claimed by defendant-appellant Smith (hereinafter referred to as the Smith 40 acres) with his son T. G. Douglass as trustee. The deed conveyed the land to 'T. G. Douglass, his executors, administrators, and successors, in trust, and confidence, however, for the uses and purposes as hereinafter set out, and for none other, to-wit: For the sole use and benefit of the said Margaret E. Hughes during her natural life, and at her death to go direct to the heirs of her body.' The deed provided for the land to 'go direct to the heirs and legal representatives' of the donor if Margaret E. Hughes 'should die leaving no children, heirs of her body.' The deed also provided for the trustee 'to have active charge and control of the lands above conveyed during the life time of the said Margaret E. Hughes, and to receive the rents and profits and issues arising from or growing out of and from said lands, and after the payment of the regular annual taxes and repairs and necessary expenses for the proper upkeep and care of the said lands, herein conveyed each year, and after deducting a reasonable compensation for his services * * * turn over and pay to the said Margaret E. Hughes the net annual income from the lands herein conveyed for her sole use and benefit from year to year during her natural life.' The deed further provided that 'in the event that it should become necessary, in the judgment of the said T. G. Douglass, to mortgage any part or all of the lands herein conveyed for the use and benefit of the said Margaret E. Hughes during her life time, the said T. G. Douglass is hereby authorized by and with the written consent of the said Margaret E. Hughes and witnessed by two or more competent witnesses, to mortgage such part of the real estate herein conveyed and to such an amount as he may deem necessary for the proper care and support of the said Margaret E. Hughes at the time.' The settlor retained a life estate in this land.
It was provided in both the will and the deed that, if T. G. Douglass should fail or refuse to act, the settlor's son, J. Mott Douglass, should act as trustee. James M. Douglass died February 25, 1921; his wife Belle Douglass survived him but died in 1931. His daughter and three sons, named as defendants herein, also survived him. T. G. Douglass took charge of the land as trustee and managed it until October 27, 1925, when he resigned. J. Mott Douglass refused to act and J. B. Hughes, husband of the life beneficiary, was appointed trustee in an ex parte proceeding in the Circuit Court of Dunklin County and took charge of the land. There was other land in each trust. In 1921, T. G. Douglass, as trustee, with Margaret E. Hughes and her sister, made a first mortgage for $5,000 and in 1923, a second mortgage for $4,500, both to the Prudential Life Insurance Company, which covered land herein involved and other land.
Plaintiffs are the son and daughter of Margaret E. Hughes and J. B. Hughes. The defendants, other than the appealing defendants, are the other daughter and the three sons of the settlor of the trusts. Plaintiffs' petition herein in each case was in two counts; one count was to declare void the decree entered July 31, 1930, in Case No. 7003 in the Circuit Court of Pemiscot County and the other to set aside the judgment, also entered July 31, 1930, in Case No. 7002 in that court. Margaret E. Hughes and J. B. Hughes were plaintiffs in these 1930 cases and the defendants were the other children of the settlor of the trusts and William Blair Hughes, one of the plaintiffs herein, who was the son of Margaret E. Hughes and J. B. Hughes. The other plaintiff herein, Mary Elizabeth Mosby, was not born until after the decree and judgment of July 31, 1930. Case No. 7002 was a statutory suit to ascertain and determine title (see Sec. 527.150; statutory references are to RSMo and V.A.M.S. unless otherwise stated); and the decree found Margaret E. Hughes the owner in fee simple of both tracts of land herein involved. However, both suits were between the same parties, heard on the same day, on the same record, involved the same subject matter, with the same guardian ad litem appointed on the day of the trial to represent the minor defendant, William Blair Hughes, one of the plaintiffs herein. It affirmatively appears from the record that Margaret E. Hughes had no claim to the land except under the will and deed of her father, James M. Douglass, creating the trusts involved which were set out in full in the petition in suit No. 7003 and were therefore before the court when the decree in Case No. 7002 was entered, and conclusively show that she did not have the title declared therein. The rule as to judicial notice of records in other cases is argued by the parties (see 20 Am.Jur. 104-106, Secs. 86-87; 31 C.J.S. Evidence Sec. 50, p. 624); but in this situation, the cases must be considered as consolidated for trial with the same facts, issues and pleadings applicable to each. See Tracy v. Sluggett, 360 Mo. 1120, 232 S.W.2d 926, 936, and authorities cited; see also 1 Am.Jur. 476-480, Secs. 92-95; 1 C.J.S. Actions Sec. 112b(1), p. 1368; Wiman v. First Christian Church of Mayfield, 273 Ky. 821, 117 S.W.2d 989.
The petition in Case No. 7003 contained two counts. Count I sought to have the trusts declared impossible of performance and the title to the land vested in fee simple absolute in Margaret E. Hughes. Count II sought to have the court construe the trust instruments and adjudge, declare and define the right, title and interest of each of the parties. In Count I the deed creating the trust in the Smith 40 acres and the part of the will creating the trust in the Neely 50 acres were set out in full. (They were incorporated by reference in Count II.) It was alleged that it was physically impossible for Margaret E. Hughes to again conceive and bear children. (Her daughter, plaintiff Mary Elizabeth Mosby, was born the next year, 1931.) It was stated that T. G....
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