Meck v. Behrens

• Decision Date: 08 January 1927
• Docket Number: 19857.
• Citation: 141 Wash. 676,252 P. 91
• Parties: MECK v. BEHRENS et al.
• Court: Washington Supreme Court

252 P. 91

141 Wash. 676

MECK v. BEHRENS et al.

No. 19857.

Supreme Court of Washington, En Banc.

January 8, 1927

Appeal from Superior Court, King County; Card, Judge.

Action by Ruth Tyler Meck against Adolph Behrens and others, as trustees for plaintiff under the will of Mary Ann Cavanaugh deceased. From the decree, all parties appeal. Decree set aside on plaintiff's cross-appeal, and cause remanded with direction.

Holcomb J., dissenting.

Karr, Gregory and H. G. Sutton, of Seattle, for appellants.

Murphy & Kumm and Charles L. Harris, all of Seattle, for respondent.

PARKER J.

The plaintiff, Ruth Tyler Meck, seeks an accounting by and recovery from the defendants Behrens, Newell, and Cavanaugh of property held in trust by them for her, under the last will of her grandmother. A trial upon the merits in the superior court for King county resulted in findings and decree awarding judgment in her favor against them in the sum of $5,239, and also directing them to pay over to her the sum of approximately $800 of the trust funds admitted by them as remaining in their hands. The defendants have appealed, and the plaintiff has cross-appealed.

In April, 1912, Mary Ann Cavanaugh, a resident of Seattle, died, leaving a last will. By its terms, after making a small bequest or two, she gave all of the remainder of her property: To three of her daughters and her two sons, each a one-seventh part; to another daughter, a one-fourteenth part; to Nellie M. Tyler and Ruth Tyler, two of her grandchildren, each a one twenty-eighth part; to two other grandchildren, each a one-fourteenth part. The granddaughter, Ruth Tyler, is Mrs. Ruth Tyler Meck, the plaintiff in this action. At the time of her grandmother's death, she was about 21 years of age. The will further provided as follows:

'I further will and direct that the share or portion of my estate herein bequeathed to my granddaughters Nellie M. Tyler, Ruth Tyler and Mildred Beatrice Cavanaugh, be distributed by my executor and executrix hereinafter named, to Fred Beecher Cavanaugh, Rose Mae Newell and Adolph Behrens, in trust for my said granddaughters; and I direct and authorize said trustees to hold any or all of said property in trust as aforesaid for the period of ten years from the date of proof and filing of this, my last will and testament. * * * The said trustees shall have full power and authority to sell and dispose of any or all of said property and to agree to a division of said property and estate with the other heirs, and to make such deeds of conveyance or other instruments in writing as may be necessary in the premises. * * *'

Her son, Fred Beecher Cavanaugh, and her daughter, Rose Mae Newell, were appointed executor and executrix of the will, which provided that no bonds should be required of them and that the estate should be settled without the intervention of any court.

The deceased left surviving her, in addition to those heretofore mentioned, her husband. A part of her estate was her separate property, and the remainder was the community property of herself and her husband. Shortly after her death, the will was duly probated, and the executor and executrix proceeded at once with the administration and settlement of the estate. They published notice to creditors, and the claims were filed and paid. On or about November 6, 1913, the executor and executrix had substantially completed the settlement of the estate and were about ready to distribute the property as provided in the will. A short time prior thereto, however, some of those interested in the estate seriously objected to the manner in which the executor and executrix were conducting the affairs of the estate and instituted proceedings in the superior court for King county, seeking their removal and an accounting. It appears that at this time a considerable bitterness had grown up among the heirs themselves and between them and the executor and executrix. After the trial of that case, and before any decision was rendered, the parties got together, with a view of settling their differences, and apparently succeeded in so doing by means of an elaborate contract, by which it was agreed to transfer the property of the estate to the Title Trust Company, of Seattle. This contract was signed by the various parties, including the executor and executrix--the trustees, who are the defendants in this action, signing for and on behalf of this cross-appellant, Ruth Tyler Meck, their cestui que trust.

Because of the length of the contract, we must content ourselves by giving its substance, in so far as it is important in this litigation. After mentioning the will, it refers to an attached schedule of the property of the estate. It designates the interest of the respective parties in the property, following, at least for the most part, the terms of the will in that respect. It provides that the executor and executrix, the various devisees, and the trustees shall convey the title to the property to the Title Trust Company, which shall have power and authority to collect all debts, pay all taxes and assessments, sell any and all property, and generally look after it, ultimately accounting to the respective parties according to their interests. Any party to the contract had the right to apply to the Title Trust Company for the sale of any portion of the property, and, if any party bought at the sale, the purchase price was to be charged against him or her to the extent of his or her interest in the estate. In this manner some of those interested obtained considerable of what the trial court called the liquid assets. It is to be noted that the trustees were to act in the future still as the trustee representatives of the cross-appellant, Ruth Tyler Meck, but under the limitations of the contract.

After the execution of the contract, the title to the property was accordingly conveyed to the Title Trust Company, the trustees executing the conveyance for and in behalf of cross-appellant, Ruth Tyler Meck, their cestui que trust. It consisted of several tracts of land and various securities. From time to time, the plaintiff received from her trustees small sums of money, aggregating $574, but no more. While she resided in Seattle and was of lawful age at the time the contract was made, she has lived in Ohio most of the time since then. After the expiration of the 10-year trust provided in the will, she brought this action, alleging, among other things, that her trustees had breached their trust in surrendering into the hands of others title to and management of the property belonging to her and had not used their best, or any, judgment concerning its disposition or management, and that, through such negligence and misconduct of her trustees, the property or proceeds thereof, which she otherwise would have obtained, has been lost.

The trial court concluded that the trustees had no power or authority to enter into the contract or make the conveyance above mentioned, in so far as Ruth Tyler Meck's rights are concerned; that the estate was fully administered upon and ready for distribution to the devisees named in the will, on the 6th day of November, 1913; and that the trustees had been careless and negligent in their duties, resulting in the loss of Ruth Tyler Meck's interest in the property to the extent of $5,239 in value. This judgment was made up of several specified items of loss, conceived by the trial court as being the result of the negligence of the trustees and the negligence of the Title Trust Company imputed to the trustees. We need not notice these specified acts of negligence and specified items of loss, since we think the appellants, trustees, are liable to cross-appellant, Ruth Tyler Meck, in a larger amount upon another theory of the law to be presently noticed.

We first notice appellants' contentions. They contend that the action cannot be maintained because the statute of limitations has run. We are satisfied that position cannot be sustained. It is the settled rule that, as between a trustee and cestui que trust, the statute of limitations does not commence to run so long as the trust continues. In Ackerson v. Elliott, 97 Wash. 31, 165 P. 899, we said:

'Being of the opinion that the land was acquired in trust for Mrs. Ackerson, we think it follows that the statute would not run against her so long as that trust relation existed.'

The following are some of the cases and texts supporting this proposition: 39 Cyc. 471; 25 Cyc. 1149; Irwin v. Holbrook, 26 Wash. 89, 66 P. 116; In re Estate of Sanderson, 74 Cal. 199, 15 P. 753. Here the appellants are still acting as trustees for cross-appellant.

There is an extensive discussion in the briefs as to the effect of the above-mentioned contract on the trust created by the will. Under the terms of the will, it was the duty of the trustees, as soon as the executor and executrix had settled the estate, to receive from them the property which they were to hold in trust and thereafter to manage and control it. Instead of doing this, they signed the contract, and thus made it impossible for them to take possession of the property or the interest of their cestui que trust therein. By its terms they surrendered to the Title Trust Company almost all the duties that devolved upon them under the will. That company was not only to hold the title to all the property, but was to manage and have complete control over it, with power of sale, and was ultimately to pay to the legatees under the will, and this means to the trustees, in so far as cross-appellant's interest is concerned, sums of money or property which might be in its hands.

It is undoubtedly the rule that, while a trustee may delegate to some one else a purely ministerial duty, he may not delegate to...