Matthews v. Van Cleve
| Citation | 221 S.W. 34,282 Mo. 19 |
| Parties | R. S. MATTHEWS et al., Appellants, v. JAMES G. VAN CLEVE et al |
| Decision Date | 09 April 1920 |
| Court | United States State Supreme Court of Missouri |
Rehearing Denied 282 Mo. 19 at 34.
Appeal from Macon Circuit Court. -- Hon. Nat M. Shelton, Judge.
Reversed and remanded.
R. S Matthews, and Otho F. Matthews for appellants.
(1) Plaintiffs contend that in the plain language of the third item of the will it states that Milton C. Tracy could not in any way mortgage, sell or create debts that would be a lien upon the real estate in question. It puts the fee simple in Ben N. Tracy and his successors. Upon the death of Milton C Tracy, the title vests in the heirs of Milton C. Tracy, or as it is contended, the title vests in the heirs of Benjamin N. Tracy, Sr., deceased, the maker of the will, and it makes no difference because they are the same identical persons as the heirs of Milton C. Tracy. 28 Am. & Eng. Ency. Law, p. 959; Partridge v. Cavender, 96 Mo. 452; Peeken v. Dorres, 20 Mo.App. 5. These Missouri cases give the rule of construing such wills and hold that the legatee cannot even encumber the rents and profits. Graham v. More, 189 S.W. 1186. (2) It is not necessary that an instrument creating a spendthrift trust should contain an express declaration that the interest of the cestui que trust in the trust estate shall be beyond the reach of his creditors, providing such appears to be the clear intention of the testator or donor as gathered from all parts of the instrument construed together in the lights of the circumstances. 26 Am. & Eng. Ency. Law (2 Ed.), p. 141; Pugh v. Hays, 113 Mo. 424; Walton v. Ketchum, 147 Mo. 209. In an active trust, the legal title is in the trustee. Simpson v. Erisner, 155 Mo. 157; Simpson v. Jennings, 163 Mo. 332. (3) The word "heirs" after "Milton C. Tracy," is not a word of inheritance, but a word of limitation, and Milton C. Tracy has no title in law or in equity in the property in controversy. Jarboe v. Hey, 122 Mo. 341; Lampert v. Haydel, 96 Mo. 439. There can be no estate limited after an estate in fee. (4) The judgments were all obtained without any appearance on the part of the defendant, M. C. Tracy, in person or by an attorney, as shown by judgments themselves as entered of record, and offered in evidence. The record of attempted revival of all of said judgments in 1906 was without service on Milton C. Tracy, of any kind, and without his knowledge or consent, and without any authority of anyone to appear for him. Likewise, the attempted consolidation of the three judgments into a creditors' bill was without any notice to Milton C. Tracy and without any process or service on him, and without his knowledge and without authority of his trustee to appear for him in any manner, whatever, if the said James W. Roberts could be construed as his trustee, never having qualified by giving bond or making reports to the court, etc. All of said judgments are void. The statutes require that scire facias should be served upon Milton C. Tracy. R. S. 1909, p. 915. Hence, the proceedings in 1906 and 1907 are void. Said judgments are now barred by the Statute of Limitations. (5) The creditors' bill is void for the further reason that the said Milton C. Tracy takes nothing under the provision in the will of his father, only the rents of the real estate for life. (6) For a judgment creditor to maintain a creditor's bill, it must appear that he has exhausted his legal remedies for the collection of the judgment. In this case, the evidence shows that Milton C. Tracy had property not subject to any trust at all times since said judgments were obtained, and that no execution was ever issued thereon. Wilkinson v. Goodin, 71 Mo.App. 394; Merry v. Fremon, 44 Mo. 518; Alnutt v. Leper, 48 Mo. 319; Humphreys v. Milling Co., 98 Mo. 542; Thias v. Siener, 103 Mo. 314; Miller v. Hewitt, 113 Mo. 639; Rayburn v. Mitchell, 106 Mo. 365; Clark v. First Natl. Bank, 57 Mo.App. 277; Paddock-Hawley Iron Co. v. McDonald, 61 Mo.App. 559. (7) When a trust is an executive or an active one with the legal title to the trust vested in the trustee, it cannot be in any manner reached or interfered with by the creditors of the beneficiary. Schoeneich v. Field, 37 Mo.App. 452; Merry v. Fremon, 44 Mo. 518. (8) Appearance cannot be waived on a creditors bill or a revival, and this goes to the jurisdiction of the subject-matter and is fatal in every stage of this case and cannot therefore be cured by any waiver or course of any proceeding by the parties. Baxter v. Moses, 77 Mo. 465; Brown v. Bank of Mississippi, 31 Miss. 454.
B. R. Dysart and John T. Gose for respondents.
(1) Milton C. Tracy took an equitable fee in the trust property in question, by the will of his father as found by the court in the instant case. The property was devised to a trustee for the sole use and benefit of Milton C. Tracy. The property was not limited over to any other person or use. There was no remainderman mentioned or provided for. All the property of testator was disposed of. That the property devised was intended for Milton C. Tracy is made evident and conclusive by the eighth item of the said will, wherein the testator speaks of the property in question as "bequeathed and devised to my said son, Milton." Hardin's Exr. v. Hardin, 186 S.W. 893. The plaintiff's contention that Milton C. Tracy only took a life estate is not sound. Where the court had jurisdiction, its judgment is not subject to collateral attack, as in this case. State ex rel. v. Bank, 213 S.W. 815. (2) Had this been a dry trust, with no duties to perform by the trustee, it would have been executed at once by the Statute of Uses. Sec. 2867, R. S. 1909; Carter v. Long, 181 Mo. 710; Perry on Trusts (5 Ed.), sec. 298; Webb v. Hayden, 166 Mo. 48; Newton v. Rebenack, 90 Mo.App. 656. (3) If a will creates an active trust, requiring duties to be performed, the legal title does not vest in the beneficiary or the cestui que trust, until such duties are performed. Pew v. Hayes, 113 Mo. 424; Simpson v. Erisner, 155 Mo. 157; Garland v. Smith, 164 Mo. 1. (4) The plaintiff contends that the circuit court had no power or jurisdiction to provide and adjudge a continuing lien in favor of these defendants in rendering its judgment in the creditors suit on January 10, 1907. A court of equity has jurisdiction of liens. In 25 Cyc. 681. (5) In the decree of January 10, 1907, the court granted a stay of execution during the lifetime of Milton C. Tracy, which the court clearly had the right to do. And it is well established that the granting of a stay of execution is equivalent to extending the lien until the time of the stay expires. Mercantile Trust Co. v. Ry. Co., 69 F. 193; State ex rel. v. Deering, 180 Mo. 68. (6) The creditors' bill was the proper proceeding in a case where the property is held in trust. 5 Ency. Plead. & Prac. pp. 391, 598 and 608; Titus v. Development Co., 264 Mo. 229. A defendant can have relief on his cross-bill where the plaintiff for any cause, fails to recover. A dismissal of the plaintiffs' petition, whether voluntarily or by order of the court, does not dispose of the cross-bill, but it is the duty of the court to proceed and render judgment on the cross-bill. 5 Ency. Plead. & Prac. pp. 632, 663 and 664; 25 Cyc. 684; McMurray v. McMurray, 258 Mo. 416.
Appellants brought their suit, a proceeding in equity, in the Circuit Court of Macon County, Missouri. The issues were duly made up, and upon a hearing of the cause the judgment of the court was in favor of the defendants, and plaintiffs thereupon appealed to the Kansas City Court of Appeals. That court transferred the case to this court, on the ground that the title to land is involved in the proceeding. A motion to remand having been overruled, the cause remains here for decision. The facts out of which this controversy arose are substantially as follows:
Benjamin N. Tracy, Senior, was the father of Milton C. Tracy, Bettie Tracy Roberts, Luther G. Tracy, Benjamin N. Tracy, Junior, and Aubrey D. Tracy. Benjamin N. Tracy, Sr., died, testate, in Macon County, in 1873. His will was duly admitted to probate in that county, and the estate was duly administered. His wife, Frances W. Tracy, is also dead.
The third paragraph of testator's will reads as follows:
"I devise and bequeath to my son, Ben N. Tracy and his heirs the following described real estate, to-wit: Twenty-six feet off of the east end of Lots One and Two in Block 87 in Macon City, Missouri; also Lot No. Thirty in College Addition to Macon City, Missouri, and Lot No. Six in Block 167 in the College Addition to said City of Macon; to have and to hold the same in trust for the use and benefit of my son, Milton C. Tracy and his heirs, the said trustee to have the sole management and control thereof, to collect the rents and pay the same to said beneficiary and his heirs, the said Milton to have no control or disposition of said estate and no power to encumber the same, but said trustee to have power to sell and convey the same or any part thereof for reinvestment in other property to be held by him or his successors in the same way."
Benjamin N. Tracy, Jr., on the death of his father, duly qualified as trustee of Milton C. Tracy, and acted in that capacity for a number of years. He was succeeded in the office of trustee by one Philip Trammel, who was succeeded by James W. Roberts (husband of the defendant Bettie Tracy Roberts), who resigned in 1912, and the plaintiff R. S. Matthews was then appointed trustee in his place, and acted in that capacity until the death of Milton C. Tracy, July 11, 1915.
This suit was originally brought by Milton C. Tracy and his said trustee, R. S. Matthews, against James G. Van Cleve, Edwin McKee and Edward J. Demeter, all of...
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