Pugh v. Hays

• Decision Date: 23 January 1893
• Citation: 113 Mo. 424,21 S.W. 23
• Parties: PUGH v. HAYS et al.
• Court: Missouri Supreme Court

21 S.W. 23

113 Mo. 424

PUGH v. HAYS et al.

Supreme Court of Missouri, Division No. 1.

January 23, 1893.

WILLS — CONSTRUCTION — TRUSTS — LEGAL TITLE OF TRUST ESTATE.

Rev. St. 1879, § 3938, provides that where any person seised of lands to the use of another, the legal title of the lands is in the cestui que trust. Held that, where a testator directed his executor to convert his estate into money, and to invest one third thereof, with the consent of his widow, in lands in Missouri, the income therefrom to "go to and be for the use of" his widow during life, in lieu of dower, and provided that after her death the land should be divided among his children, the executor had control of the lands, so purchased in this state, during the life of the widow, and the legal title thereto remained in him.

Appeal from circuit court, Franklin county; Rudolph Hirzel, Judge.

Suit by John H. Pugh to declare Alfred Hays seised of land in trust for Barbara Black for the term of her life, and to vest such life estate in plaintiff as purchaser of the property at an execution sale on a judgment against her. From a judgment denying the relief, plaintiff appeals. Affirmed.

J. C. Kiskaddon, for appellant. T. A. Lowe, for respondents.

BLACK, C. J.

The plaintiff prays for a decree declaring the defendant Alfred Hays seised of 150 acres of land in trust for the defendant Barbara Black for the term of her natural life, and that the trust be executed by vesting such life estate in him, as the purchaser of the property at an execution sale on a judgment against Barbara. The trial court dismissed the bill. The record, as it stands, discloses the following facts: Thomas S. Black, a resident of the state of Pennsylvania, died testate in December, 1870, and the will was duly probated in that state. The testator empowered and directed his executors to sell all of his real and personal property, and then says: "And when the whole of my estate shall be converted into money, as aforesaid, then I will and direct that after the payment of my just debts and funeral expenses, that one full third part or share of my estate shall be placed by my executors at interest on good real-estate security, or in such United States bonds, bank stock, or railroad stock, as may be deemed best by my said executors; or, with the consent of my wife, Barbara, my executors are authorized and directed to invest the same, in whole or in part, as may by them be deemed advisable, in lands in the state of Missouri, the interest of which said moneys, or the income of which said lands, constituting, as aforesaid, the one third of my estate, shall go to and be for the use of my beloved wife, Barbara Black, during all the term of her natural life, which is to be in lieu of her dower at common law; and from and immediately after the death of my said wife I give, devise, and bequeath the principal of said one third part or share of my said estate, whether the same be in money or in lands, to be equally divided among all my children and their heirs, share and share alike." Various bequests are then made to his 10 or 11 children, with directions that the same be paid to such as are of full age within one year. The will then provides that the executors may invest the bequests made to the children not of age, in whole or in part, in lands in this state, "which said lands, on the arrival of the children at the age of twenty-one, shall be deeded to them respectively by the said executors." The defendant Hays, one of the nominated executors, qualified, and converted the property into money. After the payment of debts he had in his hands, subject to the provisions of the will concerning the widow, the sum of $5,500. With the consent of the widow, he invested $3,750 of that sum in the land now in suit, situate in Franklin county, in this state, and took a deed thereto in his own name. This deed bears date the 19th April, 1871, and the grantee is described therein as "Alfred Hays, acting executor of the last will and testament of Thomas S. Black, of the county of Union, in the state of Pennsylvania, party of the second part." There is in the deed no other mention of the trusts upon which the executor purchased and holds the land. Barbara Black and her family of 10 children, some of whom were minors, moved to this state in 1871, and located upon the land. She took possession by the permission of Hays, and has ever since had and held possession, and used and enjoyed the rents and profits thereof. On the 20th November, 1882, May M. Black obtained judgment against Barbara in the sum of about $1,500. The interest of Barbara was sold under execution issued on the judgment, and the plaintiff became the purchaser at the price of $100, and received a sheriff's deed, dated the 15th June, 1885. Plaintiff was the attorney for May M.

It is alleged in the answer, and admitted by the reply, that Hays had advanced to Barbara the remainder of the $5,500, to enable her to move to this state, and to purchase stock and farming implements. The plaintiff and the defendants all set up and plead the will, and it is agreed that the defendant Hays purchased the land for the purpose specified in that...