Rector v. Dalby
| Decision Date | 02 February 1903 |
| Citation | 71 S.W. 1078,98 Mo.App. 189 |
| Parties | CORA V. RECTOR, Appellant, v. JOHN N. DALBY et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Pettis Circuit Court.--Hon. George F. Longan, Judge.
REVERSED AND REMANDED.
STATEMENT BY BROADDUS, J.
This is an action in equity instituted by Cora V. Hopkins Rector legatee of the will of Cora V. Thompson, deceased, against John N. Dalby, trustee, and the residuary legatees of the said Cora V. Thompson, to compel the trustee to pay to the plaintiff the legacy which he is holding as trustee of plaintiff until she should reach the age of thirty years, as provided by the will, and asking an accounting of the trust.
The bill states the death of the testator, sets out the will wherein the testator bequeathed to the plaintiff the sum of $ 3,000 and directed that the executor, John N. Dalby, keep and manage the same for plaintiff until she attains the age of thirty years, and that he pay her the interest thereon until that date and that he then pay her the $ 3,000; that Dalby the executor, administered the estate, paid the other legacies and received his final discharge as such executor that the other defendants are the residuary legatees under the will; that at the date of making the will and at the date of the probate thereof the testator owned no property, real or personal, other than the real estate described in the bill; that the executor took charge of said real estate and out of the rents and profits thereof paid the other legacies and costs; that after his discharge, the said Dalby assumed the duties of a trustee and collected the rents and income of the said property and now holds the same as such trustee for the plaintiff; that the plaintiff is now twenty-two years of age. The bill prays for an accounting with the trustee and that the real estate be sold and the proceeds of the sale be applied in payment of the legacy and for other proper relief.
There is a further provision in said will by which, "all the remainder of my estate, real or personal, I give and bequeath to my daughter, Minnie E. Bouldin, and my son, David W Thompson, to be divided equally between the two."
Defendants demurred to plaintiff's bill on the ground that it stated no cause of action, which demurrer was sustained by the court. The plaintiff refused to further plead, whereupon the court rendered judgment against her from which she appealed.
Reversed and remanded.
Montgomery & Montgomery for appellant.
(1) It is not denied by the respondent that this legacy became vested in the plaintiff at the death of the testator, and that she now has power to alienate or incumber the same, and that, if the legatee should die before reaching the age of thirty years, the legacy would at once pass to her administrator. (2) It is not denied by the respondent that the testator intended to charge this legacy upon the lands described in the petition. The fact that she owned no other property, real or personal, at the date of the execution of the will and at the date of the probating thereof, raises a presumption that she so intended. Clotilde v. Lutz, 157 Mo. 439. (3) Where the testator gives a legatee an absolute vested interest in a defined fund, so that, according to the ordinary rule, he would be entitled to receive it on attaining his majority, but by the terms of the will, payment is postponed to a subsequent period, e. g., till the legatee attains the age of twenty-five, the court will, nevertheless, order payment on his attaining his majority, for at that age he has the power of charging or selling or assigning it, and the court will not subject him to the disadvantage of raising money by these means when the thing is absolutely his own. The above is quoted from Williams on Executors (5 Am. Ed.), p. 1259, sec. 1260. Saunders v. Vautier, 4 Beav. 115; Curtis v. Lukin, 5 Beav. 147; Rocke v. Rocke, 9 Beav. 66; Young's Settlement, 18 Beav. 199; In re Jacob's Will, 29 Beav. 403; Sanford v. Lackland, 2 Dillon 9; Turnage v. Green, 2 Jones Eq. (N. C. 65; 1 Roper on Legacies, p. 553; Gosling v. Gosling, Johns (Eng.) 265; Battle v. Petway, 5 Ired. L. 576; Dado v. Maguire, 71 Mo.App. 641, and cases therein cited.
G. W. Barnett for respondents.
(1) Where the time of payment of a legacy is by the terms of the will postponed until a time subsequent to the majority of the legatee, such legacy is not due and payable until the time fixed by the will, and payment thereof to the legatee can not be enforced prior to that time. Claflin v. Claflin, 149 Mass. 19; In re Fair, 103 Cal. 342. (2) Especially is this true where, as in this case, there is an active trust, the authorities which hold the contrary doctrine being cases of a mere passive trust or no trust at all. Claflin v. Claflin, supra. (3) Whatever may be the law regarding specific personal legacies payable out of personal estate, a legacy which is chargeable upon real estate, as in this case, is never payable until the expiration of the time named in the will, the reason being that personal estate may be spent and gone but real estate can not run away. Gawler v. Standerwich, 2 Cox (Eng.) 15. (4) Even in cases where the legacy is payable out of a definite fund, not chargeable upon real estate, the rule invoked by appellant does not apply unless the enjoyment of the profits be postponed until a date subsequent to the majority of the legatee and unless no intermediate estate is created. Gosling v. Gosling, Johns (Eng.) 269.
It is claimed by plaintiff that, where the testator gives a legatee an absolute vested interest in a defined fund, so that, according to the ordinary rule, he would be entitled to receive it on attaining his majority, but by the terms of the will payment is postponed to a subsequent period, for instance, until he attains the age of twenty-five years, the court will, nevertheless, order payment on his attaining his majority, for at that age he has the power of charging or selling it, and the court will not subject him to the disadvantage of raising money by these means when the thing is absolutely his own.
In Saunders v. Vautier, 4 Beav. 115, it was held: "When a legacy is directed to accumulate for a certain period, or where the payment is postponed, the legatee, if he has an absolute indefeasible interest, is not to wait until the expiration of that period, but may require payment the moment he is competent to give a valid discharge." In Rocke v. Rocke, 9 Beav. 66, it was held that where "an absolute vested bequest was accompanied with a direction that it should not be delivered until the legatee attained twenty-five, that he was entitled to payment on attaining twenty-one." See also Young's Settlement, 18 Beav. 199; In re Jacob's Will, 29 Beav. 403. In Dado v. Maguire, 71 Mo.App. 641, it was held that a legatee who has an absolute vested interest in a fund, the payment of which is postponed, by the will devising the fund, to a period beyond his majority, may, on attaining his majority, obtain an order for its payment, notwithstanding such postponement."
On the other hand, our attention has...
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