Presbyterian Orphanage of Missouri v. Fitterling

• Decision Date: 01 April 1938
• Citation: 114 S.W.2d 1004,342 Mo. 299
• Parties: Presbyterian Orphanage of Missouri, a Corporation, Anna Felix and Anna Camp v. Melville D. Fitterling and Lydia M. Fitterling, Appellants
• Court: Missouri Supreme Court

114 S.W.2d 1004

342 Mo. 299

Presbyterian Orphanage of Missouri, a Corporation, Anna Felix and Anna Camp v. Melville D. Fitterling and Lydia M. Fitterling, Appellants

Supreme Court of Missouri

April 1, 1938

Appeal from Johnson Circuit Court; Hon. Leslie A. Bruce Judge.

Affirmed (upon condition).

A R. Thompson, Jr., and Charles K. Hackler for appellants.

(1) The court erred on the record in finding and decreeing respondent orphanage entitled to any relief under its petition because the will, under which it claimed therein, devised no right title or estate to the orphanage in the subject matter of the action, wherefore the petition wholly fails to state a cause of action. The court erred on the record in finding and decreeing respondent orphanage vested with a remainder in the subject matter of the action under the will under which it claimed because said will gave the first devisee of said subject matter an absolute power of disposition of same, after which the attempted limitation over to the orphanage was void and of no effect; wherefore the petition wholly fails to state a cause of action in respondent orphanage. Middleton v. Dudding, 183 S.W. 443; In re McClelland's Estate, 257 S.W. 808; Cornet v. Cornet, 248 Mo. 184, 154 S.W. 121; Gannon v. Albright, 183 Mo. 238, 81 S.W. 1162; Roth v. Rauschenbusch, 173 Mo. 582, 73 S.W. 664; Greene v. Sutton, 50 Mo. 186; McMurray v. McMurray, 104 S.W.2d 345; McMillan v. Farrow, 141 Mo. 55, 41 S.W. 890; Payne v. Reece, 297 Mo. 54, 247 S.W. 1006; Long v. St. Louis Union Trust Co., 332 Mo. 288, 57 S.W.2d 1071; Carter v. Boone County Trust Co., 338 Mo. 629, 92 S.W.2d 647; Triplett v. Triplett, 332 Mo. 870, 60 S.W.2d 13; Cornwell v. Orton, 126 Mo. 355, 27 S.W. 536; Cornwell v. Wulff, 148 Mo. 542, 50 S.W. 439. (2) The court erred on the record in finding and decreeing the first taker under the will, under which respondent orphanage claims, the holder of a life estate with full power to sell or dispose of same with remainder over to respondent orphanage and in interpreting said power to be merely to sell and dispose of the property thereunder for the care, maintenance and support of the first taker; wherefore, under the petition, respondent orphanage had no cause of action in regard to the subject matter of this suit. 27 C. J. 923, 925; Cook v. Couch, 100 Mo. 34, 13 S.W. 80. (3) The court erred on the record in finding and decreeing respondent orphanage entitled to the relief decreed on the facts alleged in its petition and found by the court, because even if respondent orphanage had an estate or interest in the land in question, said estate or interest, if any, was defeated by appellant's grantor exercising the full power of disposal as the court found he had under the will set out in the petition of respondent orphanage; and because on the record, the subject matter of this action did not remain after the death of the first taker as provided by this will, the record showing that there was at grantor's death no estate, title or interest therein vested in respondent orphanage. The court erred on the record in finding and decreeing the deeds in question void and setting them aside as to respondent orphanage because on the record the court found the issues of mental incapacity and undue influence in favor of appellants and no theory of the case remained under the petition and findings on which the court could declare said deeds void as fraudulent to said respondent within the issues below. Meier v. Eichelberger, 21 Mo. 151; Blount v. Stratt, 113 Mo. 55, 20 S.W. 967; South St. Joseph Land Co. v. Bretz, 125 Mo. 423, 28 S.W. 656. (4) The court erred on the record in decreeing the deeds in question void, in that no basis appears on the record for finding appellant Melville D. Fitterling acquired title to the subject matter of the deeds in question while in a fiduciary capacity to respondent orphanage as to same; such finding and conclusion upon which the court based its decree being in nowise borne out by the facts pleaded or the theory of the case in respondent's petition. State ex rel. Buder v. Brand, 305 Mo. 321, 265 S.W. 991; South St. Joseph Land Co. v. Bretz, 125 Mo. 423, 28 S.W. 656. (5) The court erred on the record in that its findings are not within the issues as raised by the petition of respondent orphanage and the pleadings below because said petition was in nowise framed on any theory that May Sylvester Fitterling and the appellants acted jointly and for the express and unlawful purpose of defeating an estate devised by the will set out therein to respondent orphanage, but on the contrary the entire theory of the case below was that the deeds in suit were procured by appellants either as the result of undue influence on May Sylvester Fitterling, grantor, or mental incapacity of said grantor, or as the result of breach of fiduciary relationship between appellants and said grantor. Congregation B'nai Abraham v. Arky, 20 S.W.2d 904, 323 Mo. 776; Charles v. White, 214 Mo. 187, 112 S.W. 545; Gray v. Clement, 286 Mo. 100, 227 S.W. 111; McConnell v. Deal, 296 Mo. 275, 246 S.W. 594; Friedel v. Bailey, 329 Mo. 22, 44 S.W.2d 15; Black v. Early, 208 Mo. 313, 106 S.W. 1014; Kilpatrick v. Wiley, 197 Mo. 162, 95 S.W. 213. (6) On the record the court erred in basing its decree declaring the deeds void on the finding that the purpose for which the deeds were given constituted a fraud on respondent orphanage because the purpose of the grantor of said deeds, acting under the full power of disposal, was immaterial in that respect and on the record there was no proper theory of the case under which said deeds could be declared void. Grace v. Perry, 197 Mo. 550, 95 S.W. 875; Warden v. Perry, 197 Mo. 569, 95 S.W. 880; Griffin v. Nicholas, 224 Mo. 275, 123 S.W. 1063; Cook v. Higgins, 290 Mo. 402, 235 S.W. 807.

T. C. Owens and Russell Garnett for respondents.

(1) The court did not err on the record in finding and decreeing respondent, the Presbyterian Orphanage of Missouri, entitled to the relief prayed for in its petition, because the will under which it claimed, devised to May Sylvester Fitterling a life estate, only, with power to sell, and did not give to him an estate in fee, as claimed by appellants. This is apparent from a reading of the will itself. Russell v Eubanks, 84 Mo. 86; McMillan v. Farrow, 141 Mo. 63; Payne v. Reece, 247 S.W. 1007, 297 Mo. 54; Mauthe v. Breckenridge, 284 S.W. 149, 219 Mo.App. 708; Holland v. Bogardus-Hill Drug Co., 284 S.W. 121, 314 Mo. 226; Coleman v. Haworth, 320 Mo. 859, 8 S.W.2d 936; Price v. Courtney, 87 Mo. 392; Tallent v. Fitzpatrick & Kaiser, 253 Mo. 15; Trigg v. Trigg, 192 S.W. 1014; Grace v. Perry, 197 Mo. 564; Gibson v. Gibson, 239 Mo. 506; Burnet v. Burnet, 244 Mo. 506; Underwood v. Cave, 176 Mo. 8; Harbison v. James, 90 Mo. 438; Munro v. Collins, 95 Mo. 41; Mitchell v. Board of Curators, 305 Mo. 466; Matthews v. Van Cleave, 282 Mo. 35; Wentzel v. Hecht, 281 Mo. 614; R. S. 1929, secs. 563, 567. (2) May Sylvester Fitterling, as life tenant under the will of John Elmer Fitterling, deceased, was trustee of the estate for the remainderman, the Presbyterian Orphanage of Missouri, the respondent herein, as well as the donee of the power given him under the will. In this dual capacity he was bound to act with good faith, and could not dispose of the property to the injury of the rights of the remainderman, the presbyterian Orphanage of Missouri; also, as holder of the life estate, with power to sell and dispose of the same, he could not, in exercising that power, dispose of the property by barter or gift, and thus defeat the remainderman, and the court committed no error in so decreeing. Tallent v. Fitzpatrick, 253 Mo. 10; Griffin v. Nicholas, 224 Mo. 335; Cook v. Higgins, 290 Mo. 421, 235 S.W. 812; Scheidt v. Crecelius, 94 Mo. 322; Burnet v. Burnet, 244 Mo. 506; Gibson v. Gibson, 239 Mo. 506; Underwood v. Cave, 176 Mo. 8; Mauthe v. Breckenridge, 284 S.W. 149, 219 Mo.App. 708; Garland v. Smith, 164 Mo. 15; Ennis v. Burnham, 159 Mo. 517; State v. Bates, 239 Mo. 507; Bispham's Principles in Equity (10 Ed.), sec. 256, p. 437; 31 Cyc. 1082; 21 C. J. 941, sec. 73. (3) The court did not err in interpreting the will of John Elmer Fitterling as devising a life estate, only, to May Sylvester Fitterling, and further, interpreting the power of sale and disposition given therein to the life tenant, May Sylvester Fitterling, to be an authority to sell and dispose of said property for the care, maintenance and support of the first taker, and did not err in finding that there was no lawful disposition of property made by the life tenant, May Sylvester Fitterling, during his lifetime, for the reason that said purported sales were not made in strict conformity to the power given under the will, and further that said purported sales were made to the administrator while standing in fiduciary relation to the life tenant, May Sylvester, this respondent, the Presbyterian Orphanage of Missouri, and all other parties interested in said estate. Pearson v. Murray, 230 Mo. 166; Cornet v. Cornet, supra, 248 Mo. 237; Cook v. Higgins, 290 Mo. 422; Burnet v. Burnet, 244 Mo. 506; State ex rel. Buder v. Brand, 265 S.W. 991; Gilmore v. Thomas, 252 Mo. 156; Shaw v. Shaw, 86 Mo. 594; Thornton v. Irwin, 43 Mo. 163; Grumley v. Webb, 44 Mo. 451; Jamison v. Glascock, 29 Mo. 191; Newman v. Newman, 152 Mo. 413; Van Raalte v. Eipstein, 202 Mo. 191; Meek v. Hurst, 223 Mo. 698; Kregain v. Blake, 239 S.W. 500; Bispham's Principles of Equity (10 Ed.), sec. 237, pp. 408-9; 65 C. J. 483, sec. 229; 21 C. J., pp. 941, 1170, secs. 73, 287; R. S. 1929, sec. 162. (4) The court did not err on the record in finding and decreeing respondent, the Presbyterian Orphanage of Missouri, entitled to the relief decreed on the facts...