Kingman v. Winchell

• Decision Date: 28 March 1892
• Citation: 20 S.W. 296
• Parties: KINGMAN v. WINCHELL.
• Court: Missouri Supreme Court

20 S.W. 296

KINGMAN v. WINCHELL.

Supreme Court of Missouri, Division No. 1.

March 28, 1892.

WILLS — INCOME OF ESTATE — ASSIGNMENT BY CESTUI QUE TRUST — SPENDTHRIFT TRUST — EVIDENCE.

1. Testatrix bequeathed all her property in trust to her brother, "to invest the same in such manner as in his opinion will produce the best income," and once in each year to pay over to her son the whole income during his life, and thereafter to his children or their descendants; and gave the trustee full power to sell all her estate, and invest the same as he deemed best. Held not to create a "spendthrift trust" by restraining the right of alienation, and such income was assignable by the cestui que trust.

2. In an action by the assignee of the cestui que trust against such trustee to sequester the income specified in such will, evidence is not admissible to show that the cestui que trust is a spendthrift.

3. In such case, evidence is not admissible to show the circumstances attending testatrix at the time of the execution of the will.

4. Where a cestui que trust assigns the income of an estate to which he is entitled under a will, as security for his note, evidence is admissible, in an action by the assignee against the trustee to sequester such income, to show failure of consideration of the note.

Cross appeals from circuit court, Johnson county; CHARLES W. SLOAN, Judge.

Action by Charles H. Kingman against William G. Winchell, trustee under the will of Mary A. Brink, deceased, to sequester the income of deceased's estate to his use. From the judgment of the trial court both parties appeal. Reversed.

The other facts fully appear in the following statement by SHERWOOD, C. J.:

Both parties appeal from the judgment of the court below. This litigation originated in an attempt made by the plaintiff to sequester to his use the income accrued and accruing of a certain estate held in trust for George Brink by William G. Winchell, the defendant. The plaintiff's claim thus to appropriate the incomes was based on a promissory note for $5,000, dated February 1, 1884, payable on demand to plaintiff, and bearing 6 per cent. interest, secured by an assignment in writing of same date, and purporting to convey to plaintiff the interest of the beneficiary in such income. The incomes herein are derived from certain property devised by the last will of Mary A. Brink, deceased, dated in October, 1883, and probated in November, 1883. The provisions of the will, so far as necessary to note them, are as follows: "Item 1. I will, devise, and bequeath unto my brother, William G. Winchell, all my property and estate, including real, personal, and mixed property, wheresoever situate, and especially in the states of Indiana and Missouri, in which states all the property I now own is situate, but in trust, nevertheless; that is to say, my said brother and trustee shall take possession of all such property, and, whatever may be in cash, invest the same in such manner as in his opinion will produce the best income; and of the proceeds and income, after payment of proper expenses of my estate, once in each year, pay over to my son, George Brink, the whole income thereof, so long as he shall live, and at his decease, if he shall leave any child or children, or the descendants of any child or children, the remaining portion of said estate shall go to his heirs, according to the laws of the state where the same is situate; but if my son, George Brink, shall die without lineal heirs, then all of my estate shall go to my brothers and sisters living and the descendants of such as are deceased, share and share alike, the descendants of any deceased brother ...