Huntington Real Estate Company v. Megaree

• Decision Date: 04 December 1919
• Citation: 217 S.W. 301,280 Mo. 41
• Parties: HUNTINGTON REAL ESTATE COMPANY v. EDWIN MEGAREE, Trustee, et al.; ELIZABETH GRACE et al., Appellants
• Court: Missouri Supreme Court

217 S.W. 301

280 Mo. 41

HUNTINGTON REAL ESTATE COMPANY v. EDWIN MEGAREE, Trustee, et al.; ELIZABETH GRACE et al., Appellants

Supreme Court of Missouri, Second Division

December 4, 1919

Appeal from St. Louis City Circuit Court. -- Hon. William Kinsey Judge.

Affirmed.

Irvin V. Barth for appellants.

Appellants grandchildren of testator, who died in 1882, cannot be precluded by the Statute of Limitations through adverse possession of respondent's predecessors in title beginning in 1890, because: (1) Under the will appellants were remaindermen after a life estate. Where property is left to children, and in case of their death, the share to go "to the heirs at law" of any deceased child, an estate for life is created in the children and a remainder in the grandchildren. Bradley v. Goff, 243 Mo. 95. Courts will follow the manifest purpose and intent of a testament. Even though the first taker has a power of disposal, it is not inconsistent with the creation of a life estate and remainder over. Gibson v. Gibson, 239 Mo 490; Schneider v. Kloepple, 270 Mo. 389; Freeman v. Maxwell, 262 Mo. 13; Trigg v. Trigg, 192 S.W. 1014. It follows that, being remaindermen, they are not barred by the Statute of Limitations. Armor v. Frey, 253 Mo. 474; Hernden v. Yates, 194 S.W. 49. (2) The interposition of the trustee, under the terms of the will, does not alter the case upon the theory that the trustee represented the remaindermen as well as the life tenants. This for the reasons: (a) The trustee did not take a fee-simple title. A trustee will take "exactly that quantity of interest, whatever it may be, which the purpose of the trust and its proper execution may require and no more." Young v. Hyde, 255 Mo. 509. Here Donovan's duties as trustee for the life tenants consisted essentially in the handling of "income" or "sums" of money. (b) Assuming that the "purposes of the trust and its proper execution" required the fee in the trustee, nevertheless the trust is active as to the life tenants only. As to the remaindermen the trust is purely passive and consequently upon the termination of the life estate the real estate "automatically vests in fee in the remaindermen by force of the Statute of Uses." De Lashmutt v. Teetor, 261 Mo. 440. Here Donovan owed no duty to the remaindermen "other than to turn over the property to them upon the extinguishment of the equitable life estate." Accordingly, the trustee could in no sense be said to represent the remaindermen and "had at no time any power to bind the remaindermen or their title in any way" or to bar their estate by virtue of the operation of the Statute of Limitations. De Lashmutt v. Teetor, 261 Mo. 412; Luquire v. Lee, 121 Ga. 624; Perry, "Trusts & Trustees" (6 Ed.), sec. 320, p. 540; 39 Cyc. 212.

Rodgers & Koerner for respondent.

(1) Adverse possession under color of title for a period of ten years vests title in fee simple. R. S. 1909, sec. 1879; Franklin v. Cunningham, 187 Mo. 196. Title thus acquired can be quieted in a proceeding of this character. McRee v. Gardner, 131 Mo. 606. (2) Appellants (testator's grandchildren, unborn at the time of his death) took nothing under his will. The last clause of said will, implying as it does the death of testator's children to be a contingent event, must be construed as applying only in case any of said children should die during the testator's lifetime. Howard v. Howard, 184 S.W. 994; 30 Am. & Eng. Ency. Law (2 Ed.), 708; McClellan v. Mackenzie, 126 F. 701; Crossman v. Field, 119 Mass. 172. Thus construed the will vests the trustee with the legal title in fee simple, and testator's children with the equitable title in fee. R. S. 1909, sec. 579. (3) Where a certain estate is granted in plain language in one clause of a will, it cannot be lessened or cut down by a subsequent clause unless the language of such subsequent clause is as clear and unequivocal as the language of the first grant. Howard v. Howard, 184 S.W. 993. (4) The trustee under the will took the legal title in fee simple. (a) The estate of the trustee is measured by the extent of his powers and duties. Ewing v. Shannahan, 113 Mo. 188; Perry on Trusts (6 Ed.), sec. 312, p. 531; 39 Cyc. 208. (b) All trusts must be executed by the trustee out of the estate in him vested. Perry on Trusts (6 Ed.), sec. 516, p. 536; Watson v. Pearson, 2 Exch. 592. (c) The power to invest in real estate and loans necessarily included the power of absolute disposition. Robinson v. Robinson, 105 Me. 73; Boston Savings Co. v. Mixter, 146 Mass. 104. The fact that this power was conferred upon the trustee is cogent evidence that it was the intention of the testator to clothe him with fee simple title. Ewing v. Shannahan, 113 Mo. 194; Cornwell v. Wulff, 148 Mo. 552; Garland v. Smith, 164 Mo. 1. (d) The power given the trustee to turn over to the beneficiaries any part or all of the principal of the estate held for them in trust, conclusively shows that he was vested with fee simple title. Packard v. Marshall, 138 Mass. 301; Boston Savings Co. v. Mixter, 146 Mass. 100; Appel v. Childress, 53 Tex.App. 607. (5) The trustee being barred by adverse possession, all of the beneficiaries are barred. Walton v. Ketchum, 147 Mo. 219; Schiffman v. Schmidt, 154 Mo. 204. This is so whether the beneficiaries were entitled in possession or in remainder. Meeks v. Olpherts, 100 U.S. 564; Waterman v. Hall, 220 Ill. 569; Chase v. Cartright, 53 Ark. 366; Darnall v. Adams, 13 B. Mon. 278. And whether or not, upon the termination of a preceding estate they were entitled to receive the legal estate in fee. Meeks v. Olpherts, 100 U.S. 564; Waterman v. Hall, 220 Ill. 569; Cushman v. Coleman, 92 Ga. 772; 1 R. C. L., sec. 80, p. 754.

RAILEY, C. White and Mozley, CC., concur.

OPINION

RAILEY, C.

This is an action to quiet title under Section 2535, Revised Statutes 1909, to the following described real estate, to-wit: Lot in Block 40 of Wm. C. Christy's Addition, in Block 938 of the City of St. Louis, fronting 91 feet on the north line of Lucas Avenue, by a depth northwardly of 144 feet and 7 1/2 inches to an alley, bounded east by Twenty-first Street. Appellants and respondent deraign title from Ann T. Yarnell, the common source, who acquired the property in 1847.

Counsel for the respective parties in interest have adopted, in this court, the very commendable practice of stipulating as to the facts in lieu of the bill of exceptions, as follows:

"It is hereby stipulated and agreed by and between counsel that the following constitute the facts embodied in the bill of exceptions, duly filed in proper time in the above-entitled cause. This statement is for the purpose of shortening the record and presenting the matter as concisely as possible to the court for its consideration.

"Title to the property here involved was acquired by one Ann T Yarnall by deed recorded May 3, 1847, in the Recorder's Office in the City of St. Louis, in Book 14, at page 140.

"In 1867 suit on a special tax bill, issued against said property for sewer improvements, was brought by the City of St. Louis to the use of the contractor, and said Ann T. Yarnall was made a party defendant and was served by publication. Judgment was rendered by default for $ 399.12, and the property was sold under execution to one Joseph M. O'Shea, the sheriff's deed to said O'Shea being dated July 20, 1867.

"By deed dated September 8, 1869, said O'Shea conveyed said property to John F. Gibbons.

"In May, 1882, said John F. Gibbons died testate, his will being duly admitted to probate by the probate court in the City of St. Louis, and being recorded May 26, 1882, in Book O, at page 216.

"'After my debts and above bequests are paid, I give and bequeath all of my estate, real and personal and mixed, to Joseph T. Donovan, in trust, for my father, Thomas T. Gibbons, my mother, Bridget Gibbons, and my beloved children, viz.: Mame Eugenia Gibbons, David William Gibbons, John T. Gibbons and Joseph Gibbons. My father and mother having together a child's share in said trust estate. The said Joseph T. Donovan shall invest the funds of said trust estate either in improved real estate in City of St. Louis or in loans on real estate situated either in the City or County of St. Louis. One-fifth of the income from said trust estate shall be paid annually to each child or if it be a minor, for or on account of its support, clothing and maintenance, or to the said minor as my said trustee may think proper.

"'One-fifth of the income from said trust estate shall be paid to my father during his natural life, and upon his death to my mother. The said trustee may, however, if he thinks proper, pay to either of my children or to my father or mother any part or all of the sum held by him in trust for such child or parent. All sums in excess of the income paid shall be charged as an advance of the principal to the one receiving same and the income from such share shall be reduced in proportion to the reduction of the principal.

"'After the death of my father and mother the share then held in trust for them shall thereafter be held in trust for my sister, Lizzie, if she is then living, but if she is dead, it shall thereafter be held in trust for my children.

"'After the death of my sister, Lizzie, if she shall survive both my parents, the funds then held, in trust, for her shall thereafter be held, in trust, for my said children.

"'In case of death of either of my children the share of such deceased child shall be transferred or paid to the heirs at law of such deceased child.'

"The inventory of the estate of the said John F. Gibbons was offered in evidence and the property here involved is not listed therein.

"The said John F. Gibbons left him surviving his father, Thomas T Gibbons; his mother...