McLaughlin v. James McLaughlin's Adm'r

• Decision Date: 31 March 1852
• Citation: 16 Mo. 242
• Parties: RUTH MCLAUGHLIN, Respondent, v. JAMES MCLAUGHLIN'S ADMINISTRATOR, Appellant.
• Court: Missouri Supreme Court

16 Mo. 242

RUTH MCLAUGHLIN, Respondent,

v.JAMES MCLAUGHLIN'S ADMINISTRATOR, Appellant.

Supreme Court of Missouri.

March Term, 1852.

1. Under the new Code the St. Louis Court of Common Pleas has equity jurisdiction.

2. Under the Code, a person, claiming an interest in a suit adverse to the plaintiff, cannot become a party defendant without the permission of the court. In a suit in equity, against a trustee, to get the legal title to property which had been conveyed to him by a deceased person, in trust for plaintiff, after the administrator has already made himself a party defendant, it is no error for the court to refuse permission to the widow, heirs and distributees of the deceased to become parties, as the administrator is competent to make all defenses to the action.

3. A trustee is a competent witness for the cestui que trust, in respect to the trust property. If, however, he were incompetent, the dismissal of the suit as to him, after his testimony had been taken, would not restore his competency.

4. A conveyance of an intestate cannot be impeached by his administrator or heirs, for fraud as to creditors. None but creditors themselves, and those in privity with them, can avoid it.

5. Under our statute a widow is entitled to dower in no other personalty than that which belonged to the husband at the time of his death.

6. None but a creditor or purchaser can raise the objection that a deed conveying articles consumable in the using, the grantor retaining possession, is void.

7. The admissions of a grantor in a deed of trust after its execution, although not admissible against the cestui que trust, are in his favor.

8. A cestui que trust files a bill in chancery against the trustee to get the legal title to the trust property. The administrator of the deceased grantor in the deed of trust, on his application, is made a party defendant. During the trial the plaintiff dismisses the suit, as to the trustee. Held, no judgment can be rendered against the administrator on a demand against the estate growing out of the trust property. If it could be, evidence would be admissible to show that a large portion of the trust estate had come to the hands of the plaintiff, as administrator of the deceased, in another state, to reduce the verdict.

9. The code does not affect the rule against multifariousness. A suit against the trustee for the legal title to the trust property, and against the administrator, on a demand growing out of the property, cannot be joined.

Error to St. Louis Court of Common Pleas.

Delafield, for appellant.

I. The court erred in admitting the testimony of Theron Barnum, as he and plaintiff were privies in estate. Guy v. Hall, 3 Murph. 150; Hart v. Horn, 2 Camp. 92; 7 Moore, 307; Lewin on Trusts and Trustees, 18 Law. Lib. 22, p. 10; Id. p. 11.

II. This is not a case where the admissions of a grantor are received as against himself. Here it is sought to prove his admissions in his own favor; therefore they are inadmissible. 3 Rawle, 437; 5 Serg. & Rawle, 295; 1 Bailey R. 101; 9 Serg. & Rawle, 47, 53-4-5; 11 Wend. 533; 2 Conn. Rep. 467; 2 Mart. La. R. (N. S.) 13; 3 Mart. 22.

III. But, again, to receive either the written or oral declaration of an assignor after assignment would be wrong. Jackson ex. dem. Goodrich v. Ogden, 4 Johns. 140; Tuttle v. Hunt, 2 Cowen R. 436; Penfield v. Carpenter, 13 Johns. R. 350; Fisher v. Bailey, 1 Ashmead's R. 209. The testimony, therefore, of Messrs. Singleton, Crosby and others, as to the admissions or statements of James McLaughlin, after the assignment or deed of trust, not being part of the res gestæ, was erroneously admitted.

IV. The administrator is trustee not only for creditors, but for distributees, etc. He represents the estate for the benefit of the creditors and legatees. He is their trustee; therefore he ought to be permitted to do what his cestui que trust, the creditors, might do. He, therefore, should be authorized to attack a fraudulent deed. Story's Equity Plead. 182; 1 Verm. 261; Brown v. Dowthwaite, 1 Madd. R. 242; Dandridge v. Washington, 2 Peters R. 377.

V. An estate in dower always relates back to the marriage. Fulwood's Case, 4 Rep. 65-66; Combs v. Young, 4 Yerg. 218; 2 Black. Com. 129, 130, 132; 1 Thomas' Coke, 576; 7 Co. Littleton, 31 a; 1 Thomas' Coke, 567. The administrator is trustee for the widow as to her dower. By sec. 3, chap. 54, Rev. Code, 1845, p. 430, there being no children of the marriage, the widow is entitled absolutely to one-half of the personal estate here sued for. And even the widow of an alien resident, dying in this state, is entitled thereto. Stokes v. O'Fallon, 2 Mo. Rep. 32. Before all others, then, creditors or otherwise, she is entitled to the one-half of this personalty. The administrator is a trustee to pay the same to her. As her representative, he ought to protect her rights.

After a title of dower has once attached, it is not in the power of the husband alone to defeat it by alienation or charge. Park on Dower, 237. A conveyance, then, in fraud of, or to defeat dower, is void.

VI. The court erred in excluding testimony tending to show the fraud and bad conduct of the plaintiff and decedent in regard to the deed of trust under which she claims, for the further reason that she seeks not to prove in any manner (except by admissions of her partner in fraud), the pretended claim she sets up; any conduct, then, tending to discredit his own admissions as testimony, was lawful.

VII. The court also erred in refusing to charge the jury that when a deed embraced articles consumable in the using, the grantor retaining possession, the deed was void, the assignment having no operation. Somerville v. Horton, 4 Yerg. 541-52; Charlton v. Lay, 5 Humph. 496; Simpson v. Mitchell, 8 Yerg. 417-20; Young v. Pate et al., 4 Yerg. 164; Darwin v. Handley, 3 Yerg. 502-5.

VIII. The court erred in refusing to arrest the judgment for three reasons:

1. The want of proper parties. 7 T. R. 667; 1 Chitty's Pl. p. 3; Story's Eq. Pl. sec. 207.

2. The want of jurisdiction to pronounce a judgment. Rev. Code, 314.

3. The dismissal of the case as to defendant, Barnum, is fatal to a judgment in plaintiff's behalf.

Glover & Campbell, for respondent.

I. The new Code of Practice does not authorize the heirs-at-law of a decedent to make themselves parties to a proceeding by a creditor to have a demand allowed against the administrator of such decedent.

II. The evidence offered by the appellant to prove that the deed was fraudulent as to the creditors of James McLaughlin, deceased, was properly rejected by the court, because the answer of the administrator contained no notice of any such defense.

III. But the allegation of fraud could not reach the respondent in this case. The marriage not being legal, the right of the wife to the money which passed into the husband's hands, immediately on the performance of the marriage ceremony, was never divested. She was a creditor of James McLaughlin, and had the right to establish her demand upon his estate, like any other creditor on the deed, or independent of it, so that the fraud alleged is entirely out of the case.

IV. The supposed judgment records were properly rejected, for two reasons: 1st, they were not duly authenticated as complete transcripts of entire records; 2d, they had not been filed, as relied upon by the defendant, according to law.

V. But if the deed of James McLaughlin was fraudulent as to creditors, that did not authorize his administrator to avoid it; neither could his heirs. 6 Shepley, 236; 2 T. R., Edwards v. Harben, 589; 7 Johns. Rep., Osborn v. Moss, 163. Many authorities might be cited.

VI. There was no actual necessity for the presence of Barnum as a party to the suit. The only decree which the plaintiff asked against him was to divest the trust, and this was not done by the court. There was no money found in his hands, and no judgment could, therefore, be rendered against him. When this was made manifest, and the trial was finished, the plaintiff dismissed her suit as to Barnum. The purpose of this dismissal was merely to relieve the jury of the necessity of finding a verdict in his favor. If the plaintiff had not done this, it is manifest upon the record that the court would have been compelled to do the same thing, as soon as the jury returned into court.

SCOTT, Judge, delivered the opinion of the court.

In June, 1850, Ruth McLaughlin filed her petition against Theron Barnum, trustee.

The petition states that, prior to the solemnizing of the rites of marriage between the plaintiff and James McLaughlin, she was possessed of more than two thousand dollars in money; that in May, 1839, she was married to McLaughlin, and her money went into his possession; that in May, 1840, McLaughlin, residing in Illinois, executed to defendant Barnum, a deed of trust, whereby he conveyed to him certain leasehold estate in Illinoistown, and certain merchandise then in a store, amounting in value to about two thousand dollars, to be held in trust for the benefit of the plaintiff. McLaughlin, after the execution of the deed, retained possession of the property mentioned in it as agent for the plaintiff, managed the same for her use, and realized thereon a profit of about twenty per cent. per annum till the time of his death, in January, 1849. That McLaughlin received from the sale of the leasehold premises seven hundred dollars, and never accounted with the trustee, or any one else, for the profits made from the property covered by the deed of trust. That McLaughlin died, leaving an estate of several thousand dollars in the county of St. Louis, and at the time of his death owed few or no debts. The plaintiff then prays for a judgment for the amount of the property included in the deed, and the profits made therewith, and a decree for said sum of money, the avails and profits of said merchandise, and said leasehold interest, with the interest and gain thereon, to her free from the trust to said Barnum.

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