Patrick v. Blair

• Decision Date: 23 December 1893
• Citation: 24 S.W. 767,119 Mo. 105
• Parties: Patrick et al., Appellants, v. Blair et al
• Court: Missouri Supreme Court

24 S.W. 767

119 Mo. 105

Patrick et al., Appellants, v. Blair et al

Supreme Court of Missouri, First Division

December 23, 1893

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

Pence & Carpenter for appellants.

(1) The estate conveyed by McManus to Blair, the trustee, vested in Camille W. Patrick, subject to the chattel interest in the trustee. Chew v. Keller, 100 Mo. 362; 4 Kent Com. star pp. 202-206; 1 Jarman on Wills [Bigelow's Ed.], star p. 805, 837; 2 Redfield on Wills, p. 225, sec. 18; Doe v Nowell, 1 Maule & S. 327; Bromfield v. Crowder, 1 B. & P., New Rep. 313; In re Bartholomew, 1 Mac. & G. 353; Croxall v. Shererd, 5 Wallace, 268; Doe v. Considine, 6 Wall. 458; Williamson v Fields, 2 Sanford's Ch. 533; Blanchard v. Blanchard, 1 Allen, 227; More v. Lyons, 25 Wend. 119; Gray v. Garman, 2 Hare, 268; Bland v. Williams, 3 Myl. & K. 411; Land & Loan Co. v. Bonner, 75 Ill. 315; Lunt v. Lunt, 108 Ill. 307; Manderson v. Lukens, 23 Pa. St. 31; Hawley v. James, 5 Paige, 466; Jones v. Waters, 17 Mo. 587; Doe v. Lea, 3 Term. Rep. 41; Stanley v. Stanley, 16 Ves. 491; Doe v. Nicholls, 1 Barn. & Cress. 336. (2) Although the title in Camille W. Patrick was vested it was defeasible by the happening of certain events thereafter. The estate in her is what is known as a defeasible, determinable or base fee. Doe v. Considine, 6 Wallace, 474; Church v. Grant, 3 Gray, 142; 1 Jarman on Wills [Bigelow's Ed.], star pp. 865, 866; 4 Kent Com., star pp. 125, 126, 128, 129; 1 Preston on Estates, 93; Bowditch v. Ayrault, 33 N. E. Rep., May 29, 1893, page 1067 (N. Y. Court of Appeals). (3) The estate being so vested in fee to Camille W. Patrick, and the event never happening upon which it was to be divested, it became indefeasible upon the death of Camille W. Patrick and descended to her heirs at law. (4) An estate being once vested, it can not be divested and sent in another direction, unless the intent be clear to so divest it. 2 Williams on Executors [6 Am. Ed.], bottom p. 1273; Doe v. Considine, 6 Wallace 476; Chew's Appeal, 45 Pa. St. 232; Harrison v. Foreman, 5 Ves. 207; Smither v. Willock, 9 Ves. 234; Malim v. Keighley, 2 Ves. 333; Doe v. Perryn, 3 Term. Rep. 484; Land & Loan Co. v. Bonner, 75 Ill. 327. (5) Whenever the instrument creating the trust contains covenants of warranty, then the grantor is estopped from setting up a resulting trust. If a conveyance is made for a valuable consideration there can be no resulting trust to the grantor. A trust deed cannot be turned into a resulting trust for a grantor by proof that it was without consideration. When a use is declared no other use can be shown to result. 1 Perry on Trusts, secs. 151, 159, 160, 161, 162; Stephenson v. Crapnell, 114 Ill. 19; Kingsburg v. Burnside, 58 Ill. 310; Jackson v. Cleveland, 15 Mich. 94; Graves v. Graves, 29 N.H. 129. Bobb v. Bobb, 89 Mo. 419; Philbrick v. Delano, 29 Maine, 410; Von der Volgen v. Yates, 9 N.Y. 219; Doe v. Considine, 6 Wallace, 471.

E. McGinnis and S. T. Price for respondents.

(1) A will is to be construed, not from particular words, phrases or clauses, but from the whole instrument and every part thereof taken as a whole, and if it contains any doubtful or ambiguous expressions the situation of the testator, the objects of his bounty and all the circumstances surrounding the parties may be considered. Smith v. Bell, 13 Pet. 74; Nichols v. Boswell, 103 Mo. 151; Howland v. Howland, 9 N. Y. Supplement, 233; Rogers' Estate, 29 P. 962; Wager v. Wager, 96 N.Y. 164. The same rule of construction applies also to deeds creating like estates and trusts. Bruensman v. Carroll, 52 Mo. 313; Rutherford v. Tracy, 48 Mo. 325; Cornelius v. Smith, 55 Mo. 528. (2) In construing doubtful or ambiguous phrases in wills and such deeds, courts favor that construction which will prevent property from going to strangers in blood to the testator or grantor. Smith v. Upton, 13 S.W. 721; Davis v. Harding, 80 Ky. 672.

Macfarlane J. Barclay, J., is absent.

OPINION

Macfarlane, J.

On the sixteenth day of May, 1888, Thomas Ward McManus executed and delivered to Gist Blair as trustee, with covenants of warranty, certain real estate (which is described) in consideration of $ 5 "and other considerations moving him thereto." The habendum clause of the deed is as follows:

"To have and to hold all the aforesaid granted lands, tenements and hereditaments, with all the buildings and improvements thereon, and with all the rights, privileges and appurtenances thereunto belonging or in anywise appertaining, and all the personal property aforesaid unto him, the said Gist Blair, party of the second part, and to his heirs and assigns forever. In trust, however, for the following purpose, to-wit: to hold, manage, use and apply the same, with all the rents, issues, profits and increase thereof to the sole and separate use and benefit of the said Camille W. Patrick, party of the third part, free from the debts, interference, control, curtesy and marital rights whatsoever of any future husband she may have."

Then follows a declaration of the powers and duties of the trustee in respect to the management of the property. These fully invested him with authority to collect incomes and profits of the trust property and to invest the same, and in case he should consider it for the best interest of the estate, he was authorized, after obtaining a proper order of the court to sell the real estate or to invest the money and personal property in real estate.

The deed then concluded as follows: "When the said Camille W. Patrick shall arrive at the age of eighteen years, the said Gist Blair, party of the second part, or his successor or successors in this trust, shall convey, assign, transfer and set over unto her by proper deeds, conveyances and instruments, to her sole and separate use free from the debts, claim, interference, control, curtesy or marital rights whatsoever of her then husband or future husband she may have, one-half of the property and estate hereby conveyed, together with one-half of all rents, issues, profits and increase thereof, then in the hands of said trustee or his successor; and the remaining one-half of said estate, together with the remaining one-half of the rents, issues, profits and increase of said estate, the said trustee shall hold to the sole and separate use, as aforesaid, of the said Camille W. Patrick until she shall have arrived at the age of twenty-five years, and shall then convey, transfer, assign and set over all the estate then in his hands to the said Camille W. Patrick, party of the third part, to her sole and separate use, as aforesaid.

"Should the said Camille W. Patrick marry and die, leaving no issue before arriving at the age of twenty-five years, the said Gist Blair, party of the second part, shall, by proper deeds and instruments convey, assign, transfer and set over unto James M. Patrick, the father of said Camille, or to his heirs, one-sixth part of all the estate then in his hands under the trust created by this conveyance, and the remaining five-sixths thereof he shall convey, assign transfer and set over, as aforesaid, unto Thomas Ward McManus, or to his heirs; provided, however, that should the said James M. Patrick have repaid out of his own means to said trust estate the aforesaid sum of four thousand dollars ($ 4,000) and interest secured upon said lots seventeen, eighteen, nineteen and twenty, in block 2, Jones' addition to the city of St. Louis, then, and in such case, the proportion of the trust estate in the hands of said trustee at the time of the death of said Camille, without issue and before reaching the age of twenty-five years, which shall be conveyed, transferred and assigned to James M. Patrick shall be one-third thereof, and the proportion which shall be conveyed to said trustee to the said Thomas Ward McManus shall be two-thirds thereof. Should the said Camille W. Patrick, party of the third part, marry and die before arriving at the age of twenty-five years, leaving issue of such marriage, the said trustee shall, by proper deeds and instruments, convey, assign, transfer and set over unto said child or children of the said Camille W., by such marriage, all the estate and property in his hands at the time of the death of the said Camille W. Patrick belonging to the trust hereby created.

"The said Gist Blair, party of the second part, and his successor or successors in this trust, shall be required to give a good and sufficient bond of not less than thirty thousand dollars ($ 30,000) for the faithful administration of this trust, and of the trust created by the aforesaid agreement and bill of sale of even date herewith, between Camille S. McManus, as party of the first part, said Gist Blair, as party of the second part, and said Camille W. Patrick as party of the third part; and said trustee shall be required from time to time to give such additional bonds as may be required by law. And said trustee shall annually, during the existence of this trust, before the tenth day of January in each year, render and submit in duplicate one part to said James M. Patrick, or if he be dead, to the guardian of the said Camile and to the said Camille after she shall arrive at the age of eighteen years; and one part unto the said Thomas Ward McManus or his legal representatives, full and true statements of the receipts and disbursements on account of his said trust, and the property then in the hands of the said trustee. At the time of making such statement, the said trustee is authorized and empowered to pay to himself out of the trust estate in his hands, as compensation for his services, one-twentieth part of the income and rents of said trust property, received by him during the year next...