In re Collins' Trust Estate

• Decision Date: 05 November 1945
• Docket Number: 39368
• Citation: 190 S.W.2d 259,354 Mo. 614
• Parties: In the Matter of the Trust Estate of Erastus C. Collins
• Court: Missouri Supreme Court

190 S.W.2d 259

354 Mo. 614

In the Matter of the Trust Estate of Erastus C. Collins

No. 39368

Supreme Court of Missouri

November 5, 1945

Appeal from Henry Circuit Court; Hon. Dewey P. Thatch Judge.

Affirmed.

H E. Sheppard, Elmer E. Hall and Wm. G. Boatright for appellant.

(1) The order of June 8, 1944, was of such scope and character that it could not, under the facts revealed by the face of the application therefor, be made ex parte without violating the constitutional guaranty of due process of law. Secs. 3525 3527, R.S. 1939, provide for ex parte appointment of trustees in a limited class of cases and for limited reasons. Being in derogation of common law and right they are to be strictly construed and not extended by construction. Hitch v. Stonebraker's Estate, 125 Mo. 128, 28 S.W. 443. (2) They are inapplicable here for the reason that there was no pretense of invoking same by filing the statutory affidavit. Even if the statutory provisions are otherwise applicable, failure to file the statutory affidavit is fatal and an ex parte appointment made on an unverified petition is a nullity. Hunter v. Hunter, 327 Mo. 817, 39 S.W.2d 359. (3) The statutory provisions being inapplicable, the validity of the order is to be tested by the general principles applicable in courts of equity exercising jurisdiction to appoint and remove trustees. The exercise of such jurisdiction depends on due and legal notice and opportunity to be heard. Aside from the limited class of cases covered by the statutory provisions aforesaid an ex parte appointment is unauthorized. Hitch v. Stonebraker's Estate, supra; Riggs v. Moise, 344 Mo. 177, 128 S.W.2d 632. (4) The order, therefore, deprives appellant of his property and rights without due process of law and in violation of the constitutional guaranty. Ohlmann v. Clarkson Sawmill Co., 222 Mo. 62, 130 S.W. 1155. (5) Insolvency and liquidation of Brinkerhoff-Faris Trust & Savings Company disqualified it from discharging the functions of trustee. In re Strasser, 262 N.W. 137, 102 A.L.R. 117; State ex rel. v. Cantley, 330 Mo. 943, 52 S.W.2d 397. (6) Appellant having succeeded by purchase approved by the court to all the right, title and interest of the defunct bank, it was proper for the court in the liquidation proceeding to appoint him as successor-trustee. (7) The order of February 16, 1939 was an appointment by the Circuit Court of Henry County of appellant as trustee. (8) Where the regular judge voluntarily disqualifies and appoints as special judge the regular judge of another circuit, such appointment, although irregular and not authorized by the statute, constitutes error only and does not affect the jurisdiction of the court and cannot form the basis of a collateral attack. Little Tarkio Drainage Dist. v. Richardson, 227 Mo. 252, 126 S.W. 1021; State ex rel. v. Higbee, 328 Mo. 1066, 43 S.W.2d 825; State ex rel. v. Grayston, 349 Mo. 700, 163 S.W.2d 335. (9) In Missouri a special judge is a judge de facto and unless a party in the very litigation pending before such special judge by timely objection challenges his authority, he is to all persons except the state a judge de jure. State ex rel. v. Grayston, supra; State v. Miller, 111 Mo. 542, 20 S.W. 243; Usher v. Western Union Teleg. Co., 122 Mo.App. 98, 98 S.W. 84. (10) Consequently any attack on the authority of the special judge or the validity of his orders, acts and proceedings based on his authority to act as special judge constitutes a mere unwarranted collateral attack.

C. A. Calvird and Crouch & Crouch for respondents.

(1) Appellant I. E. Gaskill was not and never had been trustee because: (a) When the Brinkerhoff-Faris Trust and Savings Company was taken over by the Finance Commissioner, all its rights as trustee terminated. State ex rel. Banister v. Cantley, 52 S.W.2d 397, 330 Mo. 43. (2) The trust agreement provided a specific method and plan for succession, by contract between the parties, which must be carefully followed. There was no authority for trustee to delegate or assign the trust interest. 26 R.C.L., sec. 128; 4 Am. Jur., Assignment for Benefit of Creditors, secs. 17, 141; 6 C.J.S., Assignment for Benefit of Creditors, sec. 182. (3) The order upon which appellant based his contentions that he was appointed trustee does not appoint appellant trustee, merely orders assignment to him of the beneficial interest in the property, that is the money interest, which was the only possible order the court could or did make. Art. I, Chap. 39, R.S. 1939; State ex rel. Banister v. Cantley, supra. (4) Under the trust agreement the successor trustee was to be appointed by the Circuit Court of Henry County, Missouri. Even if Judge Bruce, as Judge of the 17th Judicial Circuit of Missouri, had been legally called to Henry County, Missouri, in the 29th Judicial Circuit, he had been called specially in the liquidation of the Brinkerhoff-Faris Trust & Savings Company and could not act as the Chancellor of the Circuit Court of Henry County, Missouri, in another matter. State ex rel. Dunlap v. Higbee, 43 S.W.2d 825, 328 Mo. 1066. (5) The order under which appellant contends he was appointed trustee was made in 1939, when Judge C. A. Calvird was the duly elected, qualified and acting Judge of the Circuit Court of Henry County, Missouri. If Judge Burney was disqualified, it ended in 1935, when Judge Calvird ascended the bench of said Court. The sole jurisdiction was in Judge Calvird. Bank v. Graham, 147 Mo. 250; Viertel v. Viertel, 212 Mo. 562. (6) The appointment of respondent Thornton Jennings as trustee of the Erastus C. Collins trust was proper because: There was no trustee and the application was presented to the Court in the precise manner as provided by the trust document. This provision in the trust document for succession was a contract between the parties which it was mandatory to follow. 26 R.C.L., sec. 128; Swabey v. Boyers, 274 Mo. 332; State ex rel. Banister v. Cantley, supra. (7) The application for appointment of trustee was not made under Sec. 3525, R.S.A. This section is only applicable if the trust document fails to provide a method of succession of trustee in certain cases. Sec. 3525, R.S. 1939; Swabey v. Boyers, supra; State ex rel. Banister v. Cantley, supra. (8) Since the trust agreement granted the power of appointment of successor to the Circuit Court of Henry County, Missouri, this power could have been exercised upon the Court's own motion and no notice to anyone was necessary. The incapacity of the original trustee, the Bank, appeared of record. 6 C.J.S., pp. 1333, 1334; 26 R.C.L., sec. 128; In re Parker's Estate, 67 S.W.2d 114; Brandon v. Carter, 119 Mo. 572. (9) Hon. Leslie A. Bruce had no authority to enter any order in this proceeding because: The regular judge entered an order disqualifying himself and, thereafter, without application, consent or election of a special judge, called in Hon. Leslie A. Bruce, Judge of another circuit, to act as Circuit Judge in the Bank liquidation. There was no statute authorizing such procedure and the call was void. Sec. 1059, R.S. 1939; State ex rel. Dunlap v. Higbee, supra; Gale Adm. v. Michie, 47 Mo. 326; 33 C.J., p. 925. (10) Judge Bruce was not a de facto judge. At the time he was called this Court had ruled there was no authority and the call was void. He acted even without color of right. It was not a defect or irregularity but a void call. Furthermore, at the time of the alleged order, upon which appellant relies, Judge Calvird was the acting Judge, duly elected and qualified. There was no "vacancy" in the office, which is absolutely essential before another can act. 33 C.J., pp. 925, 1038; 30 Am. Jur., p. 804. (11) If the judge has no authority, the question is jurisdictional, can never be waived, cannot be changed by consent, and may be raised in collateral proceedings. State ex rel. Allen v. Trimble, 297 S.W. 378, 317 Mo. 751; Jones v. Sanderson, 229 S.W. 1087; Bank v. Graham, 147 Mo. 251; Ladd v. Forsee, 163 Mo. 506; Edmonds v Scharff, 279 Mo. 78.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

On petition of the trustor, Erastus C. Collins, filed June 8, 1944, the circuit court of Henry County, on same day petition was filed, appointed Thornton Jennings successor trustee of the trust created by Collins. I. E. Gaskill claimed that he was trustee and on September 6, 1944, filed motion to set aside the appointment of Jennings; the motion was overruled and Gaskill appealed. Jurisdiction of the appeal is in the supreme court because the construction of the due process clause of the Constitution is involved. See Art. 6, Sec. 12, Const. 1875, Amendment of 1884, Art. 5, Sec. 3, Const. 1945.

May 3 1921, Collins was indebted to the Brinkerhoff-Faris Trust and Savings Company, the Bank of Ladue, and others. Both banks were in Henry County, and the debt owing to the Bank of Ladue had been reduced to judgment. On said date, Collins, his wife joining, executed the trust instrument termed a "deed in trust", by which he conveyed to the Brinkerhoff-Faris Trust and Savings Company, for the benefit of his creditors, his life estate in 240 acres of land in Henry County, and a $ 5,000 insurance policy on his life. The Brinkerhoff-Faris Trust and Savings Company, as trustee, was to manage the land, collect the rents, retain 5% for its services, pay from the income all expenses, such as repairs, fire insurance, taxes, etc., including $ 180 annual premium on the life insurance policy. The net amount remaining each year was to be paid to the Bank of Ladue until it was paid in full, then the net was to be applied on the debt owed to the Brinkerhoff-Faris Trust and Savings Company, hereinafter generally referred to as the Bank. After the two banks were paid in full the net was...