Marshall v. St. Louis Union Trust Co.

• Decision Date: 14 January 1922
• Docket Number: No. 2878.,2878.
• Citation: 209 Mo. App. 13,236 S.W. 692
• Parties: MARSHALL et al. v. ST. LOUIS UNION TRUST CO. et al.
• Court: Missouri Court of Appeals

236 S.W. 692

209 Mo. App. 13

MARSHALL et al. v. ST. LOUIS UNION TRUST CO. et al.

No. 2878.

Springfield Court of Appeals. Missouri.

January 14, 1922.

Appeal from Circuit Court, Scott County; Frank Kelley, Judge.

Suit by Benjamin F. Marshall and another, minors, by Florence M. Marshall, their next friend, against the St. Louis Union Trust Company and another, as joint trustees for the estate of Benjamin F. Marshall, Sr., deceased. Judgment for plaintiffs, and defendants appeal. Affirmed.

Bryan, Williams & Cave, of St. Louis, for appellants.

Ward & Reeves, of Caruthersville, for respondents.

COX, P. J.

The respondents filed suit in the circuit court of Scott county against appellants as trustees under the will of Benjamin F. Marshall, deceased, asking that they be required to file an annual accounting in said court. Appellants appeared and consented that a decree as asked should be entered, which was done, and they then filed their accounting. The respondents filed exceptions to the accounting which were heard by the court and overruled, except as to three items which were sustained. The trustees have appealed to this court, and seem to have abandoned one of the three items, but insist that the court's action was wrong as to the other two.

The two items involved here are commissions claimed by the trustees by way of compensation for their services and attorney's fees of $1,000 paid by them to attorneys. The facts as far as necessary to determine the matters involved here may be briefly stated as follows: Benjamin F. Marshall owned a large amount of both real and personal property. The real estate was located chiefly in Scott county, and consisted of farms and town lots. His brother, Isaac Marshall, one of appellants, was employed by him to look after the real estate, secure tenants and collect rents, and was paid therefor. Benjamin F. Marshall made a will in which he directed that his property be held and controlled by trustees therein named for a long term of years as therein specified, and made full provision for a disposition of the income from the property and for its final disposition by the trustees to the parties therein designated. He desired to make the Louis Union Trust Company and his brother, Isaac Marshall, joint trustees in his will, but before executing the will went to see Mr. John F. Shepley, vice president of the trust company, and had a talk with him as to the expense of the administration by the trustees and their compensation. Afterward Mr. Shepley addressed to Mr. Marshall, the following letter:

"Dear Mr. Marshall: In order to state fully the extent which the executors of your will and the trustees under its provisions will be entitled to compensation I make the following statement:

"The executors will receive for the administration of your estate, whether it lasts for one or more years, five per cent. of the value of all personal property passing through their hands. The estate will then be turned over to the trustees, who will be entitled to receive five per cent. upon the net income received by them during the life of the trust, and at its expiration when the principal of the estate shall be finally turned over to the persons ultimately entitled to it, they will be entitled to receive such additional compensation as the circuit court of the county in which the will is probated shall determine in an accounting between the trustees and the beneficiaries, not in any event exceeding five per cent. of the value of the property turned over.

"The conversion of land into personal property by the trustees will not in any degree affect their compensation unless the property or money received for the land shall produce a greater income than the land produced.

"I desire in this connection to repeat my previous assurance to you that this company will divide equally with its coexecutor all compensation received by them jointly, and will do the same with its cotrustee, and at the same time it will take charge of the property of the estate and do all the duties of both executors and both trustees except in so far as its coexecutor or cotrustee may ask or demand participation."

The will was executed with the trust company and Isaac Marshall named as trustees, but the will gave no directions as to the compensation to be paid the trustees. At his death Benjamin F. Marshall left as his widow Florence M. Marshall and as his heirs, the two minor children who are plaintiffs in this action. He made provision for all of them in his will, but the widow elected to take under the statute and brought a suit in partition and made the two minors and the trustees parties defendant. In that suit, the trust company was appointed guardian ad litem for the minors. Answers were filed by the guardian ad litem and by the trustees. There was no controversy as to the title or rights of the parties. Commissioners were appointed and the widow's interest set off to her. Report was filed and approved. The attorney for the widow who brought the suit was allowed and paid a fee of $3,000. The trust company as guardian ad litem was allowed and paid $750.

In the account filed by the trustees they asked credit for their services a commission of 5 per cent. on the amount of money received by them as income from the property, which commission at that rate amounted to $5,897.24. The trial court held this to be too much and reduced it by $2,541.18 which left it at $3,356.06. They also asked credit for an attorney fee of $1,000, paid Bryan, Williams & Cave, attorneys,...