In re Soulard's Estate

• Decision Date: 03 November 1897
• Parties: In re SOULARD'S ESTATE.
• Court: Missouri Supreme Court

43 S.W. 617

141 Mo. 642

In re SOULARD'S ESTATE.

Supreme Court of Missouri, Division No. 1.

November 3, 1897.

EXECUTORS AND ADMINISTRATORS — WAIVER OF OBJECTIONS — GIFTS — SETTLEMENT IN TRUST — RESERVATION BY DONOR — PRINCIPAL AND AGENT — RATIFICATION — DELIVERY — WILLS — EXPENSES OF CONTEST — ATTORNEY'S FEES — TEMPORARY ADMINISTRATION — COMMISSIONS — RIGHTS OF DEVISEES.

1. Where an administrator, in a proceeding to which he was a party, read in evidence a portion of the deposition of the opposite party, before it had been offered on behalf of such party, he thereby waived the incompetency of such party to testify as a witness respecting certain transactions with the decedent, which were in controversy.

2. To constitute a valid gift inter vivos, there must be both an intention to give, and also a complete and unconditional delivery to the donee, or some one for him, of the property given.

3. Under a settlement in writing, as follows: "I give to [naming the donees] the following described notes and bonds, or any reinvestment of the same that may hereafter be made, * * * reserving, however, for my own use, during my life, the income and interest from said bonds and notes, and restraining them from making any disposition of the principal of said bonds and notes during my life, and also reserving the right to reinvest any money from the payment of these notes and bonds as to me may seem fit," — the notes and bonds referred to were delivered to one of the donees, for the benefit of all, with the explanation that he "would not have any of the income, or anything of that sort, during [the donor's] life." It appeared that the interest on such bonds and notes was collected by the donor or his agent until his death, and that several of such notes matured during his lifetime, the proceeds of which were reinvested under direction of himself or agent. Held, that such disposition of such notes and bonds and their proceeds could not be enforced as a gift, as the right of control reserved by the donor was inconsistent with absolute ownership by the donees.

4. Where it appeared that such donor intended, by means of such settlement, to make a complete disposition of the property, whereby the income should be paid to himself during life, the proceeds of the notes as paid reinvested under his direction, and the beneficiaries should have no power to dispose of the principal during his life, but at his death they should have the principal fund absolutely, the legal title vested in the donees, subject to the trusts declared.

5. Where such settlement was originally made by an agent, under color of a power of attorney, though not strictly within the authority expressly conferred, the entire transaction became the personal act of the donor on his ratification thereof.

6. The delivery of the property comprising such trust, on the execution of such settlement, to one of the beneficiaries, to hold for himself and the others, was a sufficient delivery to each, as the donor thereby devested himself of the legal title, and vested it in the donees.

7. The fact that the donor retained a beneficial interest in such property did not invalidate such trust, as he could as well make the income payable to himself for life as to any other person.

8. Nor was the reserved right to direct the reinvestment of the proceeds of such notes inconsistent with a valid trust, as it did not affect the title of the donees, nor devest them of their legal and beneficial interest.

9. Nor was it necessary, in order to declare such trust, that the words "trust" and "trustee," or equivalent words, should have been used, where the intention to create a trust clearly appeared from the language actually employed.

10. Though it is the duty of an executor named in a will to propound such will for probate, as the representative of the testator, for the expenses whereof, including reasonable charges for "legal advice and services," he is entitled to reimbursement out of the estate, under Rev. St. 1889, § 222, yet, where certain residuary legatees, after the formal probate of such will, brought suit to contest its validity, under sections 8888 and 8889, as against the devisees, one of whom was such executor thereof, attorney's fees and other expenses incurred in defending such suit should not be allowed as a charge against the estate, but should be borne by the parties interested in the result.

11. Under Rev. St. 1889, § 13, requiring the temporary administrator, pending the contest of a will, to "take charge of the property, and administer the same according to law, under the direction of the court," such officer was authorized to take charge of the real estate the title to which was in controversy, and had the right to collect the rents, and was entitled to the commission allowed by law on the sums collected.

12. Where the will was established as the result of such contest, the devisees were entitled to the rents so collected on the property devised to them, less the commission of the temporary administrator thereon.

Appeal from St. Louis circuit court.

Exceptions of John M. Harney, administrator de bonis non of the estate of Henry G. Soulard, deceased, to the final settlement of the accounts of Joseph Soulard La Motte, as executor under the will of said decedent. The exceptions were sustained by the probate court, but on a trial in the circuit court, on appeal, certain of them were overruled, and the exceptor appeals. Reversed.

P. Taylor Bryan and W. B. Douglas, for appellant. Lubke & Muench and Frost & Foy, for respondent.

MACFARLANE, J.

The controversies in this case arose in the probate court of the city of St. Louis, on exceptions to the final settlement of the accounts of Joseph Soulard La Motte, as executor under the will of Henry G. Soulard, deceased. La Motte died prior to the approval of his settlement, and Augusta F. La Motte was appointed his executrix, and, as such, asked the approval of the settlement. John M. Harney, who after the death of La Motte was appointed administrator of the unadministered goods of the said Soulard, deceased, filed exceptions to the settlement. The propositions upon which the exceptions are based are fairly stated by appellant, as follows: "First. The failure of La Motte, as executor, to inventory and account for, as property of the Soulard estate, the following property, to wit: Fifteen hundred dollars in cash, and also certain debenture bonds and promissory notes, the principal of which bonds and notes aggregates fifty-eight thousand five hundred dollars ($58,500), together with the interest thereon from the date of Mr. Soulard's death. Second. Improper credits taken by La Motte for sums paid out in attorney's fees and other costs of litigation, which sums were not properly chargeable against the Soulard estate. Third. Improper credits taken by La Motte for commissions on rents collected and paid out by him as executor, he having no authority to collect rents. Fourth. Improper credits taken by La Motte, as executor, in the distribution to himself and his sister, Mrs. Cates, of certain articles of personal property, which under the will were bequeathed to the residuary legatees." This last-named ground of exception, having been decided in favor of the exceptor, need not be here considered. The exceptions were sustained by the probate court, but on a trial in the circuit court, to which the case had been appealed, the exceptions stated in the first three propositions were overruled, and the exceptor appealed.

It appears from the record and evidence that Henry G. Soulard died, testate, in the city of St. Louis, on the 16th day of February, 1891, at the age of about 90 years. At the time of his death he was possessed of property valued at between $400,000 and $500,000, of which more than $100,000 was in personalty, consisting of notes and bonds secured on real estate. Mr. Soulard was for many years a married man, his wife dying childless in November, 1888. At about five years of age, a niece of Mrs. Soulard was taken into the family by Mr. Soulard, and was supported, reared, and educated by him and his wife. This niece first married F. X. La Motte, with whom she lived in the Soulard household until the death of her husband, in 1868. Of this marriage was born a son, Joseph Soulard La Motte, and a daughter, who afterwards married Mr. Cates. These two children continued to live in the Soulard family until the death of Mr. Soulard, in 1891. In 1874, Mrs. La Motte, the widow of F. X. La Motte, married Gen. D. M. Frost, and bore to him two children, Edith and Harriet. In January, 1885, Henry G. Soulard made and delivered to his wife a general power of attorney, authorizing her to transact all his business. After the death of his wife, and on the 12th day of November, 1888, Mr. Soulard made to the said J. Soulard La Motte a like power of attorney.

On the 4th day of October, 1888, Mrs. Soulard executed two instruments of writing, which were duly acknowledged before a notary public, and were as follows:

"St. Louis, October 4th, 1887. I, Harriet M. Soulard, by the power vested in me by a general power of attorney dated January 23d, 1885, and given to me by my husband, Henry G. Soulard, on the above date, now, by the power so vested in me, I hereby give to my grandnephew J. Soulard La Motte and to my grandniece Elizabeth P. Cates the following described notes and bonds, or any reinvestment of the principal of the same that may be hereafter made: One note made and payable by Hugh J. Carney, as president of the Academy of the Christian Brothers, for fifteen thousand dollars ($15,000); ten bonds of the Academy of the Christian Brothers, for one thousand dollars ($1,000), each amounting to ten thousand dollars ($10,000); one note made and payable by James Taussig, for fifteen thousand dollars ($15,000), — said notes and bonds amounting to the sum of forty thousand dollars ($40,000), share and share alike; that is to say, the...