De Lashmutt v. Teetor
| Decision Date | 14 July 1914 |
| Parties | JOHN S. DE LASHMUTT et al., Appellants, v. G. O. TEETOR et al |
| Court | Missouri Supreme Court |
Appeal from St. Clair Circuit Court. -- Hon. C. A. Denton, Judge.
Reversed and remanded (with directions).
J. C Hargus, George H. Daniel and W. E. Owen for appellants.
(1) While it is held that a testator may authorize his executor or trustee to sell land in a foreign jurisdiction, and that such power may be exercised without administration in the foreign jurisdiction, yet in such cases the donee of the power acts by the express authority of the will and without the aid of legal process. It is in fact a contractual or vested right in the donee, but even in such case it is uniformly held that the will must be proved and recorded in the State where the land lies, in conformity to its law before the power can be exercised. 13 Am. & Eng. Ency. Law (2 Ed.), p. 944; Hines v. Hines, 143 Mo. 494; Keith v. Keith, 97 Mo. 224; Gaven v. Allen, 100 Mo 300; Cabbanne v. Skinker, 56 Mo. 367; Fenderson v. Mo. Tie Co., 104 Mo.App. 293. (2) The appointment of Aubrey Pearre as succeeding trustee by the circuit court of Maryland was utterly void as to the Missouri lands, and for several reasons. (3) It is our contention that the power of sale of the St. Clair county land, given in the will of John Sifford, was a personal trust in the named trustees, and could alone be exercised, if at all, by them or the survivor of them as provided in the will; and that as John E. Sifford resigned and refused to sell the land, it passed to Mrs. DeLashmutt for life, with remainder in fee simple to her heirs. The rule is well settled in England and this country, that where an estate is devised to trustees for a particular purpose, the legal estate vests in them so long as the execution of the trust requires it and no longer. Strong v. Rice, 27 Pa. St. 75; Ross v. Parker, 1 Bran. and Cress. 360; Mark v. Mark, 9 Watts, 410; Stark v. Kirchgrober, 186 Mo. 642; Pills v. Sheriff, 108 Mo. 116; Roberts v. Massley, 51 Mo. 282; Carr v. Dings, 54 Mo. 95; Ferguson v. Stephens, 5 Mo. 211. (4) Treating the will of John Sifford as creating a trust in John E. Sifford, and with absolute direction to sell all of the land and pay the proceeds to the executor for distribution; yet the title of John E. Sifford ceased and determined upon his voluntary resignation, its acceptance by the court of Maryland and his continued acquiescence in the mandate of said decree. The title was divested out of him, both by the decree of the Maryland court and by the force and effect of section 141, R. S. 1909, hereinbefore discussed. The legal title passed to the heirs and devisees of John Sifford, according to the other provisions and intention of the testator as expressed in his will. Compton v. McMahan, 19 Mo.App. 502; Greenough v. Welles, 10 Cush. 571; Sugden on Powers, 394. (5) The Statute of Limitations could not run against Mrs. De Lashmutt, because she was a married woman, nor against plaintiffs as remaindermen, until the termination of their mother's life estate. Manning v. Coal Co., 181 Mo. 359; Hall v. French, 165 Mo. 441; Shumate v. Snyder, 140 Mo. 77; Carr v. Dings, 54 Mo. 95; Dyer v. Brannock, 66 Mo. 391; Graham v. Ketchum, 192 Mo. 25. (6) In this case there can be no estoppel against plaintiffs, growing out of the sale of the land by Aubrey Pearre, as several of the essential elements of estoppel are absent under the facts as disclosed. To constitute an estoppel the following requisites must exist: (a) There must be conduct, acts, language or silence amounting to a misrepresentation or concealment of material facts. (b) These facts must be known to plaintiff at the time of their conduct, or the circumstances such as necessarily to impute knowledge. (c) The truth must be unknown to defendants at the time when such conduct was done, and at the time it was acted upon by them. (d) The conduct must be done with the intention or expectation that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be acted upon. (e) The conduct must be relied and acted upon by the defendant. (f) They must have, in fact, acted upon such conduct in such manner as to change their position for the worse and suffer loss. Pomeroy's Eq. Jur. (3 Ed.), sec. 805; Bishop on Contracts, sec. 300; Burk v. Adams, 80 Mo. 504; Bales v. Perry, 51 Mo. 449; Goltermann v. Schiermeyer, 125 Mo. 298; Dameron v. Jameson, 143 Mo. 538; Blodgett v. Perry, 97 Mo. 273. (7) Nor can it be contended that the plaintiffs ever ratified or acquiesced in the sale of the property by Aubrey Pearre. If the party originally possessing remedial rights has obtained full knowledge of the material facts involved in the transaction, has become fully aware of its imperfections and of his right to impeach it, or ought and might with reasonable diligence have become so aware, and he acts deliberately and with the intention of ratifying the voidable transaction, then his confirmation is binding. But if the party wrongfully supposes that the original contract or transaction is binding, or if he has not full knowledge of all of the material facts and of his own rights, no act of confirmation however formal is effectual; the voidable nature of the transaction is unaltered. 2 Pomeroy's Eq. Jur. (3 Ed.), secs. 964, 965, 817 and 818; St. Louis St. Bk. v. Kennett Estate, 101 Mo.App. 398; Purdy v. Bankers' Ass'n, 101 Mo.App. 109; Beland v. Brewing Assn., 157 Mo. 605; Patum v. Holiday's Adm., 59 Mo. 428. Neither estoppel nor acquiescence can bar plaintiffs' right to recover in these cases, for the evidence wholly fails to show that they had full knowledge of the sale of these tracts of land, and of their right to impeach such sale, and with this knowledge received and accepted their share of the purchase money. In fact the evidence does not show that plaintiffs had any knowledge whatever of the sales of these tracts of land prior to the receipt of money from the Sifford estate. (8) There was no actual conversion of the land into money under the will of John Sifford, and consequently nothing to prevent plaintiffs from recovering from defendants their interest in the land. Nall v. Nall, 243 Mo. 255; Gest v. Flock, 2 N.J.Eq. 115; 9 Cyc. 853; Compton v. McMahan, 19 Mo.App. 499.
W. W. Lawton and Parks & Son for respondents.
(1) Appellants had both actual knowledge as well as information of facts which if followed would have furnished to them actual knowledge that the moneys they received after their mother's death were in part the proceeds of the sale of the lands in controversy. Marlow v. Leter, 87 Mo.App. 584; Ins. Co. v. Smith, 117 Mo. 292; Drey v. Doyle, 99 Mo. 459; Roan v. Winn, 93 Mo. 503; Sensenderfer v. Kemp, 83 Mo. 588; Engeman v. Bank, 84 Mo. 408; Speck v Riggin, 40 Mo. 405; Hall v. Tissier, 15 Mo.App. 306; Lee v. Turner, 15 Mo.App. 205. (2) When a sale of land is made, no person can be permitted to receive both the money and the land. It makes no difference whether the proceedings are voidable or wholly void in consequence of the want of jurisdiction. Where an election exists between inconsistent remedies, the party has a reasonable time within which to elect and is confined to the remedy he makes. Hector v. Mann, 225 Mo. 248; Proctor v. Nance, 220 Mo. 104; Railroad v. Bridge Co., 215 Mo. 286; Meddis v. Kennedy, 176 Mo. 200; Cadematon v. Granger, 160 Mo. 352; Fisher v. Siekmann, 125 Mo. 165; Ceyburn v. McLaughlin, 106 Mo. 521; Greeley v. Bank, 103 Mo. 212; McClanahan v. West, 100 Mo. 323; Boogher v. Frazier, 99 Mo. 325; Austin v. Looney, 63 Mo. 22. (3) An estoppel binding on an ancestor or trustee is binding on the heir or cestui que trust. Hubbard v. Slavens, 218 Mo. 598; 2 Herman on Estoppel, sec. 787; Thistle v. Buford, 50 Mo. 278. Where the owner of the land would be estopped by reason of his own acts and conduct from setting up title thereto, those in privity with him, unless purchasers for value without notice, labor under a similar disability. Thistle v. Buford, 50 Mo. 278. (4) The executor has the power to make any disposition of his estate he sees fit and the beneficiaries take it burdened with such conditions as the testator sees fit to place upon it. Stevens v. DeLaVaul, 166 Mo. 20; Carter v. Bolster, 122 Mo.App. 142. (5) John Sifford's will vested in the trustees the absolute title to the Missouri land, not a mere power to sell. For this reason, the heirs at law and beneficiaries, took no title or interest in the land but only in the proceeds, after passing through the hands of executors. Compton v. McMahan, 19 Mo.App. 494; Marshall v. Meyers, 96 Mo.App. 643; 28 Am. & Eng. Law (2 Ed.), p. 864; 2 Underhill on Wills, sec. 782, p. 1115; 2 L. R. A. (N. S.) 173, note. (6) Even if the will of John Sifford gave only a mere power to sell and did not vest the absolute title in the trustees, yet the fee was divested by the power conferred and the heirs at law and beneficiaries have no interest in the real estate itself. Francisco v. Winfield, 161 Mo. 560; Williams v. Lobbans, 206 Mo. 399; Eneberg v. Carter, 98 Mo. 647. (7) The trusts created in John E. Sifford, trustee of the title to the Missouri land as well as that in Ann Josephine Sifford, trustee for Cleanthe Eugenia Delashmutt were active trusts; not dry or passive trusts. Simpson v. Erisner, 155 Mo. 157; Simpson v. Jennings, 163 Mo. 332; Schiffman v. Schmitt, 154 Mo. 204; Walton v. Drumtra, 152 Mo. 489; 1 Perry on Trusts (5 Ed.), sec. 18; 2 Perry on Trusts (5 Ed.), sec. 475; Underhill on Trusts and Trustees, pp. 13, 14. (8) Where a foreign court has jurisdiction of the subject-matter and persons, its judgment will bind the interest of the parties in lands in this State. McCune v. Goodwillie, 204 Mo. 306; ...
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