Lampert v. Haydel
| Decision Date | 26 November 1888 |
| Citation | 9 S.W. 780,96 Mo. 439 |
| Parties | Lampert v. Haydel, Trustee, Appellant |
| Court | Missouri Supreme Court |
Transferred from St. Louis Court of Appeals.
Affirmed.
J. K Hansbrough and E. B. Adams for appellant.
(1) Under the will, Junius Jacobs could not dispose of his interest in the rents and profits, in advance of their being paid over to him by the trustee; and his assignment of the same is void. Dougal v. Fryer, 3 Mo. 40; Clamorgan v. Lane, 9 Mo. 447; Langdon v Ingram, 28 Ind. 360; Stewart v. Bradley, 3 Bush, 623; Stewart v. Barrow, 7 Bush, 368; 1 Wash. Real Prop. [4 Ed.] * 54; 2 Minor's Inst. 252; Laval v. Staffel, 64 Tex. 370; Bank v. Davis, 21 Pick. 42; Montague v. Crane, 12 Mo.App. 582; Nichols v. Eaton, 91 U.S. 716; Hyde v. Woods, 94 U.S. 523; Spindle v. Shreve, 9 Biss. 199; Bank v. Adams, 133 Mass. 170; Bank v. Windham, 133 Mass. 175; Thackera v. Mintzer, 100 Penn. 151; Stieb v. Whitehead, 111 Ill. 247. Pope v. Elliot, 8 B. Monr. 56; Camp v. Cleary, 76 Va. 140; Siemers v. Kleeburg, 56 Mo. 196; Barnes v. Dow, 10 A. 258. (2) If the clause in the will restraining the aliening of the rents and profits is void, then the entire trust is void; the creation of the trust and restraining the alienation are an entirety, and utterly incapable of separation without doing violence to, and wholly ignoring, the testator's scheme and manifest intent. Root v. Stuyvesant, 18 Wend. 257. (3) Plaintiff was not, even if the owner of Junius Jacobs' interest, entitled to a judgment against defendant for any amount, until there was a net balance in his hands as trustee, after the entire certain and necessary annual expenses of the property were paid; and, in no event, was he entitled to a judgment, under the circumstances of the case, for more than the amount due at the commencement of the suit. (4) Defendant was entitled, under the facts in this case, to an allowance out of the trust funds, sufficient to cover his reasonable and necessary expenses incurred in defending this suit, and having the will construed. Whitt. Prac. 576, sec. 451; 2 Perry on Trusts [2 Ed.] secs. 891, 894, 899, 902: Hill on Trustees [Am. Notes] * 552, * 555, * 557; 1 Redfield on Wills [Ed. of 1875] * 493; Rogers v. Ross, 4 Johns. Ch. 608; Bliss v. Am. Society, 2 Allen [Mass.] 334; Drew v. Wakefield, 54 Me. 291; Turner's Appeal, 48 Mich. 369; Dodge v. Williams, 46 Wis. 70; Will of John Meurer, 44 Wis. 392.
Hitchcock, Madill & Finkelnburg, also, for appellant.
Albert Arnstein and Henry I. D'Arcy for respondent.
A testator cannot tie up his property, under a trust, in such a manner that his devisee may enjoy the income thereof without having the right to dispose of the same. A man cannot own property or money to live on and not own it for the purpose of paying his dtbse. McDowell v. Brown, 21 Mo. 57; Brandon v. Robinson, 18 Ves. 4291; Graves v. Dolphin, 1 Sim. 66; Green v. Spicer, 1 Russ. & M. 395; Snowden v. Dales, 6 Sim. 524; Rockford v. Hackman, 9 Hare, 475; Trappes v. Meredith, L. R. 9 Eq. 229; Rippon v. Norton, 2 Beav. 63; Gray on Restraints of Alienation, par. 179-213; Story Eq. Jur. 947a; 1 Perry on Trusts, sec. 380a; Tillinghast v. Bradford, 5 R. I. 205; Hooberry v. Harding, 10 Lea [Tenn.] 392; Heath v. Bishop, 4 Rich. Eq. [S. C.] 46; Dick v. Pitchford, 1 Deb. & Bat. Eq. [N. C.] 480; Mebane v. Mebane, 4 Ired. Eq. [N. C.] 131; Pace v. Pace, 73 N.C. 119; Bailey v. McWhorter, 56 Ga. 183; Kempton v. Hallowell, 24 Ga. 52; Rugely v. Robinson, 10 Ala. 702; Robertson v. Johnston, 36 Ala. 197; Jones v. Reese, 65 Ala. 134; Wallace v. Smith, 2 Handy [Ohio] 79; Samuel v. Salter, 3 Met. 259; Kuefler v. Shreve, 78 Ky. 297; Easterly v. Keney, 36 Conn. 18.
Cunningham & Eliot, also, for respondent.
The clause of the will of George R. Jacobs, deceased, brought in question by this litigation, is as follows:
John Byrne, Jr., one of the trustees named in the will, declining to act, the defendant Haydel is the only acting trustee. He took charge of the property in 1878, collected the rents, etc. In April, 1885, Junius Jacobs executed and delivered to plaintiff a deed of assignment, purporting to convey to him all the interest in the rents and profits of the property accrued and thereafter to accrue. The defendant, having been notified of the assignment, refused to recognize it as valid. The plaintiff thereupon instituted this proceeding against him to compel an accounting, for judgment for the amount found to be due upon such accounting and for other and further relief.
The answer of the defendant denied that the plaintiff acquired any interest in the rents and profits by reason of the assignment and alleged that said assignment, under the terms of the will, was void. He further alleged that neither at the date of the assignment to plaintiff, nor since that date, did he have any money in his hands, arising from said rents and profits, due said Junius Jacobs or the plaintiff. His answer concludes with a prayer that the court would construe the aforesaid clause of the will and enter a decree for the guidance and protection of him in his capacity as trustee. The circuit court held the clause in the will restraining the alienation of the rents and profits void, the assignment valid, and as the testimony showed that the defendant had in his hands $ 163.96 at the hearing of the cause, a decree was entered, allowing the trustee thirty dollars for answering, and gave judgment against him for the residue and costs. He there upon appealed to the St. Louis court of appeals, where the judgment of the lower court was reversed; but inasmuch as Lewis, P. J., dissented (basing his conclusion on the ground that the majority opinion was contrary to two decisions of this court in McDowell v. Brown, 21 Mo. 57, and McIlvaine v. Smith, 42 Mo. 45), the cause was transferred to this court under the provisions of section 6 of the constitutional amendment concerning the judicial department.
The prominent point in this cause, one which over-shadows all the rest, is: Were the limitations in this will void as being in restraint of alienation? If this question be answered in the negative it will be needless to inquire as to the correctness of the ruling in regard to stating the account between the plaintiff and the defendant, or as to the amount due the former, since the defendant has not refused to come to an accounting with his cestui que trust, nor show any unwillingness to respond to his obligation towards him, so that a negative answer as aforesaid, disposes of the whole case, so far as concerns the plaintiff; and this is all that is necessary to do. In order then to determine what answer shall be returned to the question propounded, it becomes necessary to examine the clause of the will upon which both the plaintiff and the defendant rely to support their respective contentions.
An examination of that clause, in connection with the authorities, leaves no room to doubt, that taken as a whole, it lacks nothing either of form or substance, to make the intent of the testator effective, provided that intent is such an one as a court of chancery can sanction, protect and effectuate.
That the testator intended to give his sons but a limited control over the rents, issues and profits of the realty devised to the trustees, a control beginning only upon payment to them of such rents, etc.; that he intended those rents should be inalienable; that they should not be anticipated; that they should be unsubject to any debts or liens created by the beneficiaries, is quite too plain for argument, and this is especially true where the duty of the courts is considered, a duty emphasized by statute, to make the intent of a testator the polar star of construction. R. S. sec. 4008; Hall v. Stephens, 65 Mo. 670. The validity of the devise, therefore, as against creditors and assignees, is the only question at present at issue. It will be proper to ascertain, before proceeding further, whether the cases already cited from our own reports have any material bearing on the point under discussion.
That of McIlvaine v. Smith, 42 Mo. 45, was a case where a man attempted to place property, its rents and profits in the hands of a trustee, so that neither could be reached by his creditors; a case where "the beneficiary himself was the donor"; and it was held this could not be done. This was the point in judgment, and any remarks of a broader scope must be classed...
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