Keck v. McKinstry

• Decision Date: 13 November 1928
• Docket Number: 38944
• Citation: 221 N.W. 851,206 Iowa 1121
• Parties: C. M. KECK, Trustee, Appellee, v. ORVAL MCKINSTRY et al., Appellants
• Court: Iowa Supreme Court

221 N.W. 851

206 Iowa 1121

C. M. KECK, Trustee, Appellee, v. ORVAL MCKINSTRY et al., Appellants

No. 38944

Supreme Court of Iowa, Des Moines

November 13, 1928

Appeal from Washington District Court.--CHARLES A. DEWEY, Judge.

Suit to establish title in trustee, and for directions. The widow and heirs of the deceased truster, the widow and heirs of deceased trustee, and unknown claimants are the defendants. Decree for plaintiff. Part of the defendants appeal.

Affirmed.

Bailey & Baldridge, Starr & Jordan, and J. C. Calhoun, for appellants.

W. M Keeley and Morrison & Morrison, for appellee.

MORLING J. STEVENS, C. J., and DE GRAFF, ALBERT, and WAGNER, JJ concur.

OPINION

MORLING, J.

Under date of June 9, 1914, John McKinstry executed two instruments: first, an ordinary warranty deed to his son "Albert McKinstry, his heirs and assigns forever," for the land in controversy; second, a declaration of trust, reciting the execution of the deed as "including all real estate by me owned the same to be hereinafter referred to as the trust fund and be held by the said Albert McKinstry in trust to the uses and benefits of the persons hereinafter named, and according to the provisions hereof, to wit." The uses, in substance, were: 1. To the grantor during his lifetime, reserving to him "the rights of possession, rents and profits, and all the elements, rights and obligations of a life estate in said trust fund during my lifetime." 2. After his death, to pay from the trust fund and income the expenses of the trusteeship and of maintenance. 3. At his death, to pay from the trust fund nominal sums to a daughter and grandchildren named. 4, 5, 6. After grantor's death, to pay to the uses of two named grandchildren and a son such sums, at such times, and in such manner, as the trustee should consider to be for their best interest. (These four uses, Nos. 3, 4, 5, 6, are revoked by the later declaration of trust to be referred to.) 7. To hold for the use of the trustee the trust property "not herein otherwise disposed of or not required to be paid or expended by said trustee in performance of the provisions of this trust as herein stated or as same may be hereafter amended or changed as herein provided and such property so held to his own use shall belong to and be owned by him in fee simple. [This is also revoked.] 8. It is provided that said trustee shall, after my death, administer and rent and manage said trust fund in a careful and proper manner. * * * and said trustee shall from this time have and hold full title to the property of said trust fund, subject to the life estate reserved and the conditions hereof, and after my death said trustee shall have the power to transfer, assign, sell, loan, invest and in any manner necessary for the purposes of this trust dispose of said property * * * all as he shall consider and deem best and according to his decisions, which shall be final and conclusive * * * 9. It is further provided that I hereby reserve the right and privilege of changing or amending the provisions of this trust agreement by written instruments, either in form of written notice to or demand or request made of the trustee or by testamentary provision, and that I may, in same manner, demand and require of said trustee the conveyance, transfer or delivery to me or to such other person as I may designate, such parts or portions of said trust fund property as I may point out or define, and on such terms and conditions as I shall prescribe." 10. Incumbrances and indebtedness to be paid, as far as possible, from personal property owned at time of grantor's death. 11. Trustee is exonerated from giving bond. 12. "* * * If the death of the trust [trustee?] herein named should occur before my death all the trust fund property shall thereupon be held to or for my use in fee simple and all other uses hereunder shall cease and determine, and jurisdiction of this trust for purposes of transfer of title and ownership in said trust fund property to me shall be in the district court of Washington County, Iowa. At my election in the event of the death of trustee before my death, I reserve the right to appoint or nominate a successor to said trustee, who thereupon shall succeed to the rights of trustee herein named, subject to such conditions and provisions as shall be prescribed by me in the appointment of said successor, and said successor shall thereupon be entitled to claim and demand the delivery of any property constituting said trust fund, and to institute appropriate proceedings for securing the legal title thereto."

Albert McKinstry signed a writing bearing the same date, June 9, 1914, as follows:

"I hereby acknowledge receipt of the deed conveying the property referred to in the foregoing trust agreement, said real estate to be by me held in trust as therein provided, and I hereby accept the provisions of the foregoing instrument and the obligations of trustee therein created."

Albert McKinstry died in the lifetime of the grantor, viz., in February, 1921, leaving a son, Orval McKinstry, a minor, for whom the principal argument in behalf of appellants is made by guardian ad litem,--leaving also a daughter and widow, defendants and appellants. Under date of April 19, 1921, John McKinstry executed a declaration reciting the deed and declaration of trust to Albert McKinstry of June 9, 1914, and proceeding:

"Pursuant to said trust agreement, and its provisions, I do now hereby name, constitute and appoint C. M. Keck of Washington, Iowa, as the trustee under said trust agreement to succeed the trustee therein named, and hereby invest him with the rights of trustee therein stated and as hereinafter provided and modified. I hereby further confer upon said trustee herein named, or such trustee as may be hereafter named by me or by court having jurisdiction of said trust, the said power and authority to claim and demand the delivery of any and all property constituting said trust fund, and hereby impose upon any such trustee, whether herein named or hereafter appointed by me or by court having jurisdiction, the duty to hold and administer said trust fund and all property thereof, and all property added thereto, in trust to the uses and benefit of the persons hereinafter named, and according to the provisions hereof, to wit."

Specifications following, numbered 1 and 2, are, in substance, the same as Nos. 1 and 2 of the first declaration. "3. Upon my death I hereby direct such trustee to convey or cause to be conveyed to my wife, Emilie McKinstry [second wife] if she then survives, as her own property in fee simple," 80 acres, described, "the same to be in lieu of the provisions in the antenuptial agreement executed on or about the 20th day of September, 1917, between me and said Emilie McKinstry, then Emilie Chmelar, and said conveyance shall be and constitute a performance of the said provisions in said antenuptial agreement * * * In case said real estate above described is not then a part of said trust property, then property of equal value shall be secured to * * * said Emilie McKinstry in lieu thereof, and the trustee shall arrange and cause such delivery and conveyance and select such property observing the wishes of said Emilie McKinstry therein. If said Emilie McKinstry does not survive until such conveyance and delivery is made to her then this use and provision for her shall be extinguished and void. 4. I further direct such trustee, after my death and after performance of the provisions of the last preceding paragraph to hold and administer all of the other property in said trust fund remaining, together with any and all property that may be added to said trust fund by gift, conveyance, devise, bequest, or otherwise, to and for the use of such children of my present marriage with said Emilie Chmelar McKinstry as shall survive me, for and during the time until twenty-one years from the date of the birth of the youngest of such children who survive me, and to then convey, transfer and deliver the property then constituting said trust fund to the said children of my said present marriage who then survive, share and share alike."

Specifications 5 and 6 provide for lapse in case of death of any child of present marriage prior to distribution, and if all children of present marriage die before distribution, then the trustee, after the performance of the provisions of Paragraph 3, is required to distribute the trust fund, as then constituted, to John McKinstry's heirs.

By Specification 7, Paragraphs 3 to 7 of the original trust agreement are declared to "have become ineffective through death of the former trustee, Albert McKinstry, and the same and all provisions of said trust agreement inconsistent with the provisions of this instrument be and the same are hereby cancelled and revoked; but the provisions or parts of said original trust agreement consistent with this instrument be and they are hereby confirmed." The provision exonerating trustee from giving bond is revoked, and the district court of Washington County declared to have full jurisdiction of the trust, with authority to appoint succeeding trustee.

This suit is brought by the substituted trustee, Keck, against the widow, daughter, and minor son, Orval, of Albert McKinstry and against the widow (by second marriage), children and descendants of deceased children of John McKinstry. The defendants include the beneficiaries specifically named in the declarations of trust. The petition sets out the deed to Albert and the two declarations of trust, and prays establishment of title in plaintiff, as trustee, and for quieting, except as to rights held as beneficiaries. The petition asks for directions for the administration of the trust. Albert's widow, Dora, his...