McManus v. Park

• Court: Missouri Supreme Court
• Writing for the Court: WHITE, C.
• Citation: McManus v. Park, 287 Mo. 109, 229 S.W. 211 (Mo. 1921)
• Decision Date: 23 March 1921
• Parties: THOMAS WARD McMANUS v. MATTHEW PARK, Trustee, Appellant

229 S.W. 211

287 Mo. 109

THOMAS WARD McMANUS v. MATTHEW PARK, Trustee, Appellant

Supreme Court of Missouri, Second Division

March 23, 1921

Appeal from St. Louis City Circuit Court. -- Hon. Victor H Falkenhainer, Judge.

Affirmed.

Leighton Shields for appellants.

(1) No cause of action is stated in the plaintiff's petition requiring the filing in court of an accounting by the defendant trustee, as a matter of equity or as a matter of law, absent a special statute providing such duty. State ex rel. McManus v. Muench, 217 Mo. 124. (2) The Act of 1911, does not create a duty requiring the defendant trustee to file in court an accounting, because such act applies only to trustees appointed by the court, and executing trusts created under wills, which became effective after the enactment of the statute. (3) In interpreting this statute section 1 controls the conditions of the jurisdiction conferred by the act and provides a prospective operation. Straughan v. Meyers, 268 Mo. 588. (4) This statute must be construed as having a prospective effect without exception as to its character. Leete v. State Bank, 115 Mo. 184; State ex rel. v. Wright, 251 Mo. 325; State ex rel. v. Greer, 78 Mo. 188; Shields v Johnson County, 144 Mo. 76; 6 Am. & Eng. Ency. Law, 939. (5) This statute must be construed so as to save it. Sec. 15, Art. II, Mo. Constitution; Hope Ins. Co. v. Flynn, 38 Mo. 483; Clarke v. Railroad, 219 Mo. 532; 36 Cyc. 974; 8 Cyc. 801. (6) This statute is not "remedial" in the sense used by the authorities, i. e., relating to the course and form of proceedings for the enforcement of a right, but even if it were "remedial" it must be construed as having a prospective effect. Clarke v. Railroad, 219 Mo. 524; Leete v. State Bank, 115 Mo. 184. (7) This statute is unconstitutional and void because it is special or class legislation. Art. IV, sec. 53, par. 32, Mo. Constitution; State ex rel. v. Iron Co., 268 Mo. 178; State ex rel. v. Logan, 268 Mo. 169; State ex rel. v. Roach, 258 Mo. 561; Bridges v. Mining Co., 252 Mo. 53; State ex rel. v. Miller, 100 Mo. 448.

D. D. Holmes for respondent.

(1) The case of State ex rel. v. Muench, 217 Mo. 124, in so far as it strips the circuit court of authority over trustees appointed by the court to succeed those named by will, should be overruled, as it is against the established weight of authority. 39 Cyc. 515, 316, 317; Perry on Trusts, sec. 474; Lewin on Trusts (Am. Ed.), p. 617, par. 16; Gottschalk v. Trust Co., 102 Md. 521; Cromey v. Bull, 4 K. L. Rep. 787; Bispham's Principles of Equity (9 Ed.), secs. 135, 148; Minors v. Batteson, L. R. 1 App. Cases, 428. (2) The court appointing a trustee, or the court to which a trustee has applied for directions concerning the administration of his trust, has thereafter complete jurisdiction over the trustee and the trust estate, and can compel an accounting. Same authorities. (3) Under the statute the court has power to compel an accounting by the trustee. Laws 1911, p. 430. (4) The Act of 1911 is, by its terms, retroactive, so as to include within its provisions trustees appointed prior to its enactment. In construing the statute, its title, as well as its contemporaneous history, should be taken into account. People ex rel. Colling v. Spicer, 99 N.Y. 233; Straughan v. Meyers, 268 Mo. 588; Ins. Co. v. Talbot, 113 Ind. 379. (5) The act is remedial, and should be construed to operate retroactively. 36 Cyc. 1209; Black on Interpretation of Laws (2 Ed.), pp. 403-4; Ins. Co. v. Talbot, 113 Ind. 378; Clark v. Railroad, 219 Mo. 532; Abbott v. Mining Co., 255 Mo. 378. (6) The Act does not violate Art. IV, sec. 53, par. 32, of the State Constitution, as class legislation. Ex parte Loving, 178 Mo. 209; Hawkins v. Smith, 242 Mo. 695.

WHITE, C. Mozley and Railey, CC., concur.

OPINION

WHITE, C.

This is a proceeding brought by the plaintiff to compel an annual accounting by defendant, as trustee of the estate in which the plaintiff was one of the beneficiaries. The defendant filed a demurrer to the petition, which was overruled; defendant declined to plead further and judgment was entered for plaintiff in accordance with the prayer of the petition, from which judgment defendant appealed.

The accounting prayed for is that required by the Act of 1911 (Laws 1911, p. 430), Sections 13429 and 13430, Revised Statutes 1919. The will of Camilla S. McManus, mother of the plaintiff, was probated November, 1905. One William F. Crow was appointed by the will trustee of a certain fund mentioned in the will. Crow died in December, 1907. On a proceeding brought in the Circuit Court of St. Louis, in May, 1908, the defendant, Matthew Park, was appointed by that court as the successor of Crow.

The defendant herein asserts that the petition states no cause of action, because it shows that the Act of 1911, providing for annual accounting of a trustee appointed by the circuit court, was passed subsequent to his appointment, and the vesting of the trust estate in him. The will, attached as an exhibit to the petition, executed in 1896 by Camilla S. McManus in the City of Saint Louis, after certain other provisions, devises to the son of testatrix, Walter McManus, one-third, and to the daughter one-third, of all the estate, and then provides for the trust as follows:

"Fifth: I give, bequeath and devise to my friend William Crow, of the City of St. Louis and State of Missouri, a like one-third part of all my estate, real, personal and mixed, and wheresoever situated, to have and to hold the same as trustee for the uses and purposes hereinafter stated. I hereby give said trustee, or his successors in this trust, full power, with the approval of the St. Louis Circuit Court, to sell any of the property subject to this trust. I hereby authorize and direct said trustee, from time to time, to invest all moneys and the proceeds of all property subject to this trust that may be sold, either in well secured first mortgage loans on improved real estate in the City of St. Louis and State of Missouri, or in other well approved securities, and to pay the net income received therefrom, together with the net income received from all of the property subject to this trust, semi-annually to my granddaughter, Camilla S. Wolcott, during her life. Should my granddaughter, Camilla S. Wolcott, die and leave surviving her my two children, Thomas Ward McManus and Maggie Emma McManus, then it is my will that all the property held subject to this trust be divided equally between my two children; and if but one of my two children shall survive my said granddaughter, then it is my will that all the property held subject to this trust shall be by said trustee conveyed and delivered to my surviving child, to be held as his or her absolute property.

"Should my two children, Thomas Ward McManus and Maggie Emma McManus, both die and leave surviving them my said grandaughter, Camilla S. Wolcott, then it is my will that all the property held subject to this trust shall be by said trustee conveyed and delivered to my said granddaughter, to be held by her, as her sole and separate property, and free from the control, rights or liabilities of any husband she may have.

"It is my will that the trustee charged with the execution of this trust shall be required to give adequate bond, and that he shall receive proper compensation for his services in executing said trust."

The will then appoints Thomas Ward McManus executor. A codicil was made, executed and annexed to the will, July 8, 1903, reciting that the daughter of the testatrix, Maggie E. McManus, had died since the execution of the will, and devising all that part of the estate which said daughter would have taken under the will, had she lived, to Thomas Ward McManus and to the granddaughter Camilla S. Burroughs.

The petition sets up the facts above mentioned and alleges that the exact value of the trust estate was unknown to plaintiff, but that its value was approximately two hundred thousand dollars, consisting mainly of real estate from which rentals were derived of considerable value; it sets up the interest of the plaintiff and Camilla S. Burroughs in the trust estate, and alleges that it was the duty of Park, as trustee, to present to the circuit court at least once each year, and at such other times as said court may require a report of the condition of such estate, but that since the appointment of Park as such trustee he had wholly refused to make any report whatever to the circuit court. The petition prays:

"For an order of this court requiring the said Matthew Park, trustee, to file with this court an accounting of the administration of such estate from the time of his appointment; . . . and for an order requiring a trustee to file an annual report of the condition of said estate," etc.

I. The appellant contends that the Act of 1911 should be construed so as to apply only to trust estates created after the enactment of that law; that otherwise it would be unconstitutional, inimical to Section 15, Article II, of the Constitution which provides that no law "retrospective in its operation . . . can be passed by the General Assembly." It is contended that if the Act of 1911 is ambiguous in its terms, one construction of which would render it unconstitutional, and another constitutional, it must be so considered as to make it harmonize with the Constitution. Therefore, in order to avoid declaring it unconstitutional, it should be so construed as to apply only to trusts created and trustees appointed subsequent to the passage of the act.

This argument proceeds upon the theory that if it is made to apply to existing trusts and trustees it is retrospective in operation. Appellant cites cases stating the rule of statutory construction that, unless...