Partridge v. Cavender
| Decision Date | 26 November 1888 |
| Parties | Partridge et al., Appellants, v. Cavender et al.; Post, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.
Affirmed.
Cunningham & Eliot for Partridge et al., appellants.
(1) The clause contained in the will of John Cavender, whereby Robert S. Cavender is sought to be restrained from the power to sell or alienate the income of the estate by way of anticipation is not valid, or of force to defeat the rights of creditors. Parsons v. Spencer, 83 Ky. 305; Rudd v. Van der Hagen, 5 S.W. 416; Marshall v. Rash, 7 S.W 879; Smith v. Towers, 14 A. 497. (2) The clause restraining Robert Smith Cavender from power to alien his interest in the trust estate does not necessarily include an intention to deny creditors the right to reach the accrued incomes or the accruing incomes with the aid of a court of equity. Bank v. Herbert, 8 Cranch, 36; Casey v. Cavaroe, 96 U.S. 489.
J. S. Fullerton for Post, appellant.
A solicitor has a lien, for his services, "upon a fund recovered by his aid, paramount to that of the persons interested in the fund, or those claiming as their creditors." See Puett v. Beard, 86 Ind. 172; Barker v. St. Quintin, 12 Mees. and W. 441; Vaugn v. Davies, 2 H. Bl. 440; Willie v. Coxe, 15 How. 415; Stratton v. Hussey, 62 Me. 286; Andrews v. Morse, 12 Conn. 444. "The reason for the rule is that the services of the solicitor have, in a certain sense, created the fund, and he ought in good conscience to be protected." Puett v. Beard, supra; see, also, Adams v. Lee, 82 Ind. 587; Spenser's Appeal, 9 A. 523; Boyle v. Boyle, 106 N.Y. 954. And see farther, Ex parte Plitt, 2 Wall. C. Ct. 453; Darby v. Cabanne, 1 Mo.App. 126; Barnsley v. Powell, 1 Amb. 102; Montgomery v. Eveleigh, 2 McCord's Chy. 259; Murray v. Barber, 3 Mylne and K. 209; Shirley v. Shattuck, 28 Miss. 27; In re Ladd, 34 Beav. 650; 2 White and Tud. Lead Cas. 551.
Boyle, Adams & McKeighan for respondents.
(1) The controlling guide in construing a will is to ascertain the intention of the testator. Smith v. Hutchinson, 61 Mo. 83. (2) The provisions of the will of John Cavender, requiring the income to be paid to Robert "on his personal receipt therefor, without the said Robert having any power to sell, assign or pledge the same, previous to the payment thereof to him, as aforesaid (i. e., on his personal receipt) by way of anticipation" -- not only restrains alienation of it directly, but indirectly, and necessarily includes and involves alienation by process of court in favor of creditors. Montague v. Crane, 12 Mo.App. 582; Smith v. Towers, 14 A. 497.
The object of this proceeding, instituted in May, 1885, is to charge the incomes, both accrued and accruing, of a certain trust estate held by John M. Glover, as trustee for Robert S. Cavender, in order to satisfy a judgment in favor of plaintiffs for $ 5,846.22, rendered in 1879, in the United States circuit court for the southern district of Illinois. On this judgment, execution issued and was returned nulla bona. The incomes referred to are derived from certain property devised by the last will of Jno. Cavender, deceased, probated in 1862, in the probate court of the city of St. Louis.
The provisions of the will, so far as pertinent here, are as follows: "And fourthly, the other half thereof (the residuary estate of the testator), reckoning and including therein any and all advancements to my son, Robert Smith Cavender, in my lifetime, made, my said executors, trustees as aforesaid, or the survivor of them, shall hold in trust for the use and benefit of my son, Robert Smith Cavender, for and during the term of his natural life; and I do hereby require and direct my said executors, trustees as aforesaid, or the survivor of them, to invest the same in such real or personal estate, or in such real or personal securities, and the same to sell again, and the proceeds thereof to reinvest in such other real or personal estate, or in such other real or personal securities, as they or the survivor of them shall deem best, and receive the rents, issues, profits and incomes thereof, and the same to pay over to the said Robert Smith Cavender, semi-annually, at the end of each and every half year, reckoning from the date of my decease, on his personal receipt therefor, without the said Robert having any power to sell, assign or pledge the same previous to the payment thereof to him, as aforesaid, by way of anticipation; which said receipt shall be to said trustees, or the survivor of them, their full acquittance and discharge therefor.
"And until my said estate shall have been sold and converted into money, in the manner aforesaid, and the portion above herein given to said Robert, for the term of his natural life as aforesaid, shall be ascertained in the manner aforesaid, and not being longer than four years from and after my decease, my said executors, trustees as aforesaid, or the survivor of them, shall, in place of the said annual income, pay to my said son Robert out of the said half of the said residue of my estate above herein given to him for and during the term of his natural life, as aforesaid, the sum of one thousand dollars per annum, payable semi-annually at the end of each and every half year from and after the date of my decease, on his personal receipt, in the manner aforesaid."
The accrued incomes in the hands of the trustee, Glover, at the time of filing the petition, amounted to the sum of $ 6,786.86, and the fair semi-annual income of the estate, when properly invested, amounts to five hundred dollars. This is the substance of the petition, which concludes with a prayer for sequestration of the incomes and injunction in usual form.
Defendants Cavender and Glover filed general demurrers to the petition. Defendant Post filed answer, alleging that during the years 1878, 1879 and 1880, he rendered legal services to Cavender in preserving the real estate aforesaid, and that, in consideration of such services, Cavender, in April, 1885, by deed, assigned to him all incomes from the trust estate, accrued and accruing, that the trustee was notified thereof, and by reason of such assignment, the plaintiffs had no right to recover the same. To this answer, the plaintiffs demurred generally.
The court held the petition and answer insufficient; rendered final judgments, and the plaintiffs and the defendant and intervenor Post, have appealed.
The validity of trusts having clauses against alienation, though without cesser or limitation over, has been decided in Lampert v. Haydel, ante, p. 439.
This record presents two questions: (1) Whether the accrued and accruing incomes in this case can be reached by creditors, as attempted by plaintiffs? (2) Whether the deed of assignment made by the defendant Cavender had the effect to transfer such incomes to the intervenor Post?
I. In construing wills, the familiar rule prevails that they are to be construed as a whole; liberally construed;...
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