Post v. Cavender

• Decision Date: 28 March 1882
• Citation: 12 Mo.App. 20
• Parties: TRUMAN A. POST ET AL., Appellants, v. JOHN S. CAVENDER ET AL., Respondents.
• Court: Missouri Court of Appeals

12 Mo.App. 20

TRUMAN A. POST ET AL., Appellants,

v.JOHN S. CAVENDER ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Mar. 28, 1882.

1. A bill to charge a fund, the income of which was to be paid to certain beneficiaries during life, and, after their death without heirs, to vest in the heirs of the testator, which alleges that through the plaintiffs' services, as attorneys, the estate was preserved from waste, that the annuity is insufficient to pay their fee, and that the annuitants consent to a payment thereof out of the principal of the fund, contains no equity.

2. Annuitants cannot create a charge upon the trust-fund so as to impair the principal thereof.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Affirmed.

T. A. & H. M. POST and GEORGE A. MADILL, for the appellants: It will not be disputed that, as a general proposition, the trustee may charge the estate for all expenditures necessary for its preservation.-- Atchison v. Robertson, 4 Rich. Eq. 45; 2 Perry on Tr., sect. 910; Hill on Tr., sect. 590; 2 White & Tudor Ld. Cas., pt. 1, pp. 551, 582; Montgomery v. Eveleigh, 1 McCord Ch. 269; Shirley v. Shattuck, 28 Miss. 27; Lewis on Tr., 22 Law Lib., sect. 453. And the attorney may himself charge the estate where the trustee is insolvent.-- Fearn v. Mayers, 53 Miss. 466; Clopton v. Gholson, 53 Miss. 472, 473; Coopwood v. Wallace, 12 Ala. 795; Norton v. Phelps, 54 Miss. 471; Beatty v. Clark, 20 Cal. 12. It cannot be said that the fees ought to have been provided for beforehand by an order of the probate court. Until the facts were determined by the suit, how could that court determine what fees plaintiffs were entitled to, or that they were entitled to any? If they could have been allowed then, on the plaintiffs' asking, they certainly can be now that they are earned and ascertained.-- Price v. Hine, 26 Beav. 634; 11 White & Tudor Ld. Cas., pt. 2, top p. 1779, 1780; Lee v. Brown, 5 Ves. Jr. --; Lewis on Tr. 334, sect. 656. The court is cited to a few cases which certainly go far toward sustaining the theory upon which plaintiffs have brought suit.-- Ex parte Plitt, 2 Wall. C. Ct. 453; Darby v. Cabanne, 1 Mo. App. 126; Barnesley v. Powell, 1 Amb. 102; Montgomery v. Eveleigh, 2 McCord Ch. 269; Murray v. Barber, 3 Myl. & K. 209; Shirley v. Shattuck, 28 Miss. 27; In re Sadd, 34 Beav. 650; 11 White & Tudor Ld. Cas. 551.

JAMES S. GARLAND, for the respondent: “Where there is a limitation over to a stranger on the death of the infant, neither the trustee nor the court can expend any part of the capital fund for the maintenance or advancement of the ward.”-- Lee v. Brown, 4 Ves. 362; Van Vechten v. Van Vechten, 8 Paige, 104; Deen v. Cozzens, 7 Robt. 178. The whole outcome and result of appellants' labors, as appears by their petition, was to obtain a judgment against the executors, and an order of distribution, and to secure the trust-fund when distributed in the hands of this respondent as trustee. Such services could not create a lien on the trust-fund.-- Frizzell v. Haile, 18 Mo. 18; Lewis v. Kinealy, 2 Mo. App. 33; Haydel v. Hurck, 5 Mo. App. 267.

BAKEWELL, J., delivered the opinion of the court.

The petition in substance states that John S. Cavender was executor of the will of John Cavender, deceased, who bequeathed one-half of his estate to defendant, John S. Cavender, “in trust for the use and benefit of defendant Robert S. Cavender, during his life, with remainder over to the heirs of his body; and on his death, his wife, defendant Caroline M. Cavender, surviving him, one-half of the trust estate, to be held for her use and benefit during her life; the other half to vest in fee simple in the heirs per stirpes of said Robert, and in the event of the death of said Robert and Caroline without heirs, said estate to vest in fee simple in the heirs of the estate of the testator John Cavender forever.” That the will directed that the estate be invested in real and personal securities, and that the income be paid over semi-annually to the parties entitled; that sixteen years after the probate of this will, Robert S. Cavender, being unable to obtain a settlement and distribution of the estate by John S. Cavender, the executor, employed plaintiffs, who are attorneys at law, and by them made application to the probate court for an order of final settlement; that in six months after that date, a final settlement and order of distribution was obtained, through the legal services of plaintiffs, and John S. Cavender was ordered to pay over to himself, as trustee on the trusts above mentioned, $17,169.49; that Cavender thereupon filed his receipt as trustee, and asked for a discharge as executor; that he was insolvent, and his receipt worthless, and that his discharge as executor would have left Robert S. Cavender without a remedy; that, by the legal services of plaintiffs, an order was obtained from the circuit court requiring John S. Cavender to give a good bond with good sureties for the performance of his duties as trustee, which bond John S. Cavender was consequently compelled to give, in accordance with the order; that Robert Cavender, by the advice and professional services of plaintiffs, then successfully resisted an application for the discharge of John S. Cavender and his sureties as executor, until he filed a new receipt as trustee in the probate court; that John S. Cavender was thus compelled to file a receipt and written admission, signed by himself and the sureties on his bond as trustee, setting forth that he had received as trustee, etc., from himself as executor, $17,169.49, cash, whereupon he was discharged as executor.

The petition then sets forth the nature, and onerous and responsible character of the services rendered in this behalf by plaintiffs, and that they were worth $3,000, of which defendant Robert has paid $50, leaving $2,950 due on account of these services; that defendants Robert and Caroline are insolvent, and that defendant John refuses to pay plaint...