Lawson v. Cunningham

• Decision Date: 13 June 1918
• Docket Number: No. 18004.,18004.
• Citation: 275 Mo. 128,204 S.W. 1100
• Parties: LAWSON et al. v. CUNNINGHAM et al.
• Court: Missouri Supreme Court

204 S.W. 1100

275 Mo. 128

LAWSON et al. v. CUNNINGHAM et al.

No. 18004.

Supreme Court of Missouri. En Banc.

June 13, 1918.

Motion for Rehearing Denied June 28, 1918.

Appeal from Circuit Court, Boone County; Samuel Davis, Special Judge.

Action by Mary Shields Lawson and another against Susan B. Cunningham and another. Judgment for defendants, and plaintiffs appear. Affirmed.

This is an action to determine title to certain real estate situate in Boone county, Mo. Upon a trial by the court the finding and judgment were for defendants, and plaintiffs, in the conventional way, thereupon appealed.

The land in dispute is situate in the heart of the city of Columbia, and is a part of an 18-acre tract conveyed by one John J. Jacobs to William C. Shields, trustee, on the 10th day of October, 1864, under the circumstances below set forth. In the year 1857 one Curtis Field, Sr., residing in Madison county, in the state of Kentucky, executed his will, and thereafter in the year 1863, departed this life. The only provision of this will with which we are here concerned is one which created a trust fund for his daughter. The provision so creating said fund read thus:

"I devise to my son, J. IL Pick, as trustee for my daughter, Lucy B. Shields, ten thousand dollars, which I wish him to invest in some safe stock or in any way he may think best and to pay over for the use of my daughter Lucy the yearly profits which it may produce, but the principal to remain for the use of her children in case my daughter Lucy dies leafing no children, in that event the money to return and he equally divided between my sons, Join H. Field, Curtis Field and Thompson Field, or their heirs."

At the time of the death of said Curtis Field the daughter, as the clause quoted foreshadows, was intermarried with one William C. Shields, and was residing in Columbia, Mo. The trustee named in said trust fund clause refused to act. Shortly thereafter such proceedings were had in the circuit court of Madison county, Ky., as resulted in the appointment of the husband of Lucy B. Shields, the said William C. Shields, as substituted trustee. After giving bond, which was approved by the Madison county circuit court, there was paid over to him on the 18th day of April, 1864, the full sum of the trust fund mentioned.

Shortly after the trust fund was paid into the hands of the substituted trustee, William C. Shields, he purchased from the said John J. Jacobs, in consideration of $6,000 of said fund, the tract of land in controversy. This land consisted at the time of 18 acres, and from it the parcel in controversy was carved. There were also carved from this tract 27 other lots, now worth, with the improvements thereon, from $350,000 to $400,000. Of the 28 lots, 17 have been quitclaimed by plaintiffs to the claimants or to the occupants thereof, leaving, with the parcel here in dispute, only 11 lots involved in this action or in the result thereof. The deed ran to William C. Shields, as trustee, and, omitting formal parts and certificates, which are conventional, read thus:

"Know all men by these presents that whereas Curtis Field, late of Madison county, Kentucky, by his last will and testament dated March 10, 1857, duly probated and recorded in said county of Madison, devised to J. H. Field as trustee for his daughter, Lucy B. Shields, ten thousand dollars, which said trustee was by said will directed to invest in stock or in any way that he, said trustee, might think best, and to pay over for the use of said Lucy B. Shields the yearly profits which it may produce, but the principal to remain for the use of the children of said Lucy; with the further provision in said will that `in case my daughter Lucy dies leaving no children the money to return and be equally divided between my sons John H. Field, Curtis Field, and Thompson Field, or their heirs;'

"And whereas, said John H. Field having failed to qualify as trustee, William C. Shields has been appointed by the circuit court of Madison county aforesaid, and has duly qualified as trustee for said Lucy B. Shields, under the will of said Curtis Field, deceased, and has, in pursuance of the provisions of said will, invested the sum of six thousand dollars, part of bequest and devise aforesaid for the benefit of said Lucy B. Shields, in the real estate hereinafter described:

"Now, therefore, we, John J. Jacobs and Jane W. Jacobs, his wife, in consideration of the premises and of the sum of six thousand dollars, to us in hand paid by William C. Shields, trustee as aforesaid, the receipt whereof is hereby acknowledged, do hereby bargain, sell, and convey unto said William C. Shields, trustee as aforesaid, the following real estate lying in Boone county, Missouri, to wit: Part of the northeast quarter of section thirteen (13), township forty-eight (48), range thirteen (13), beginning at a point two hundred (200) links west of a stone, the quarter section corner on the west boundary of section 18, township 48, range 12, and running thence west 8.10 chains; thence north 10.10 chains to a stone, the southwest corner of a lot designated on the plat of the town of Columbia as Lot No. seven (7); thence north along the west boundary of said lot No. 7, and part of the west boundary of lot No. 8, 12.25 chains to the northwest corner of said Shields' land hereby conveyed; thence east along the line between the land hereby conveyed and those of G. H. Matthews 8.10 chains; thence south 22.35 chains to the beginning, containing 18,01 acres, be the same more or less.

"To have and to hold the same, with all the rights, privileges, and appurtenances thereto belonging or in any wise appertaining, unto said William C. Shields, trustee as aforesaid, for the use of said Lucy B. Shields during her life, and at her death the same to descend to and vest in the heirs of the body of said Lucy B. Shields, provided that, if said Lucy B. Shields die leaving no children, then said real estate to vest in and be equally divided between John H. Field, Curtis Field, Thompson Field, or their heirs, and provided, further, that it shall be competent for said William C. Shields, as such trustee, and for any future trustee, successor of said Shields, who may be thereto requested by said Lucy B. Shields, at any time, to sell and convey the above-described real estate and reinvest the proceeds thereof according to the directions of the will of said Curtis Field, deceased.

"In testimony whereof we, said Jacobs and wife, hereto set our hands and affix our seals on this 10th day of October, A. D. 1864."

Following the purchase of the above land (which we shall hereinafter refer to as the "Jacobs land" for brevity, and to distinguish it from another tract in the case), Lucy B. Shields and her husband, William C. Shields, the trustee, resided together thereon until the death of William C. Shields in July, 1865. Upon the death of William C. Shields the circuit court of Madison county, Ky., appointed James W. Rollins, as trustee. He refused to act, and thereupon the Kentucky court appointed Curtis Field, Jr., as trustee, who duly qualified and took over the management of the trust fund.

In 1869 Curtis Field, the second substituted trustee, presented a petition to the circuit court of Madison county, Ky., praying for the approval of the sale of the Jacobs land. The Kentucky court thereupon made an order approving the sale thereof and ordering Curtis Field, as trustee, to execute a deed of conveyance therefor, and it was accordingly sold and conveyed by said trustee to one Elijah A. More for the sum of $12,000 by deed bearing date July 1, 1869, in which Lucy B. Shields, as cestui que trust, joined. This deed recites at length the salient facts of the creation of the trust fund, and, except for the description and granting parts thereof, which are conventional, reads thus:

"Know all men by these presents that whereas Curtis Field, late of Madison county, Kentucky, by his last will and testament dated March 10, 1857, duly probated and recorded in said county of Madison, devised to J. H. Field as trustee for his daughter, Lucy B. Shields, ten thousand dollars, which said trustee was by said will directed to invest in stock or in any way that he, said trustee, might think best and pay over for the use of said Lucy B. Shields the yearly profits which it might produce, but the principal to remain for the use of the children of the said Lucy B. Shields; and whereas, said John H. Field having failed to qualify as trustee, and William C. Shields having been appointed by the circuit court of Madison county aforesaid, and having duly qualified as trustee for said Lucy B. Shields under the will of said Curtis Field, deceased, and did in pursuance of the provisions of said will invest the sum of six thousand dollars part of the bequest, and devise aforesaid for the benefit of said Lucy B. Shields in the real estate hereinafter described, and which was conveyed to said William C. Shields, trustee, as aforesaid by John J. Jacobs and Jane W., his wife; and whereas, it was provided in said deed of conveyance that it should be competent for said William C. Shields, as such trustee, and for any future trustee successor of said William C. Shields, when thereto requested by said Lucy B. Shields at any time, to sell and convey the said real estate purchased as aforesaid and reinvest the proceeds of such sale according to the directions of the will of said Curtis Field, deceased; and whereas, said William C. Shields departed this life on the 3d day of July, 1865; and whereas, I, Curtis Field, was duly appointed by the circuit court of said Madison county, Kentucky, to succeed said William C. Shields, deceased, as trustee of said Lucy B. Shields, and having duly qualified as such trustee; and whereas, I am hereto requested by said Lucy B. Shields as evidenced by her signing this deed and becoming a party herein."

Under the above conveyance, through divers mesne...