Reyburn v. Wallace

• Decision Date: 28 February 1887
• Citation: 3 S.W. 482,93 Mo. 326
• Parties: Reyburn, Appellant, v. Wallace et al
• Court: Missouri Supreme Court

3 S.W. 482

93 Mo. 326

Reyburn, Appellant, v. Wallace et al

Supreme Court of Missouri

February 28, 1887

Appeal from St. Louis City Circuit Court.

Affirmed.

S Herman and Valle Reyburn for appellant.

(1) The life tenant is bound to pay, in so far as the income from the property will enable him to do so, first, all general taxes and rates imposed upon the property for the purposes of government revenue; and, second, all interest on encumbrances resting on the property.Johnson v. Smith, 5 Bush (Ky.) 102; Wade v. Malloy, 16 Hun (N. Y.) 226;Pierce v. Burroughs,58 N.H. 302;Clark v Middlesworth,82 Ind. 240;Newby v. Brownlee,23 F. 322;Prettyman v. Walston,34 Ill. 192; 1 Washb.Real Prop. [3 Ed.]sec. 25, p. 110;Pike v Wassel,94 U.S. 714;Plympton v. Boston,106 Mass. 544; 1 Leading CasesAm. LawReal Prop.(Sharswood and Budd's notes) 210; Elliott v. Laman, 7 McArthur, 647;Barnly v. Stevens,22 Me. 334.(2) When an encumbrance is to be paid off, or when any betterment of the estate becomes necessary, such as expenses incident to the renewal of leases, building of sewers, widening or rebuilding streets; in short, whenever any expenses become necessary which go to increase the value, not simply of the life estate, but of the corpus, then such costs or expenses are to be borne in equitable proportions between the life tenant and the remainderman or reversioner.Bisset on Estates for Life, 40 Law Library, p. 138, side page 246, et seq.; Smith's Manual of Equity, 340;Leading Cases Am. Law Real Prop., supra, 209 and 210;Plympton v. Boston, supra;Washburne on Real Prop., supra;2 Perry on Trusts, [3 Ed.]p. 104, section 554;Peck v. Sherwood,56 N.Y. 615;Fleet v. Dorland,11 How.[N. Y.] 492;Davies v. Myres,13 B. Mon. 511;Gunning v. Carman, 3 Redf.[N. Y.] 69; Miller's Estate, 1 Tucker [N. Y.] 346;Gambril v. Gambril,3 Md. Ch. 259;Kerney v. Kerney,17 N.J.Eq. 59;Sipes v. Hand,1 N.W. 371;Stillwell v. Dougherty, 2 Bradf.[N. Y.] 311.(3) The same rule regarding apportionments prevails between the life tenant and the remainderman, when moneys are paid to those interested in the estate, by railroad companies or municipalities, for taking portions of the corpus for public uses.Smith's Manual of Equity, supra;Joyner v. Coyners, 6 Jones [N. C.]Eq. 78;Plympton v. Boston, supra;Sipes v. Hand, supra.

R. A. Bakewell for respondents.

(1) Permanent improvements, or betterments, may, by a court of equity, upon a proper showing, where all the parties are before the court, and their interests duly represented by counsel, under some circumstances, and where an equitable adjustment can be made, be charged in part, and ratably according to the evidence, to the remainderman.Webster's Dict.; Bouvier Law Dict. "Betterments"; Abbott Law Dict. "Betterments";Coggswell v. Coggswell,2 Edw. 231;Perry on Trusts, sec. 554;Maddox v. Tellison, 11 Maine, 482;Plympton v. Boston Dispensary,106 Mass. 545;Stillwell v. Dougherty,2 Bradf. 311.(2) Temporary improvements are a charge upon the life estate only.Jackson v. Van Hoesen,4 Cow. 325;S. C., 1 Sherwood's Am. Leading Cases Real Estate, 210;Hitner v. Ege,23 Pa. St. 305;Whyte v. Mayor, 2 Swan, 369.(3) What are temporary, and what are permanent, improvements is for the court.Street pavements are not permanent improvements.Hitner v. Ege,23 Pa. St. 305;Whyte v. Mayor, 2 Swan, 369.

OPINION

Black, J.

This case is here on an appeal from the judgment of the circuit court sustaining a demurrer to the petition.The petition, which is a bill in equity, in substance, states that Mrs. Reyburn, the wife of the plaintiff, died in 1879, seized of a large real estate situate in St. Louis; that she left surviving her one child, five years old, and her husband, the plaintiff, who was twenty-eight years of age; that, by her will, she devised her real estate to her husband for life, in case he should remain unmarried, but in case of his marriage then to her heirs, and if she had no heirs at his death, then to her sisters and their children in case of the death of any of them; that the property is to a large extent unproductive, and the improvements not adapted to the neighborhood in which they are situated; that the annual rents received are some fifty-eight hundred dollars, and the repairs, insurance and general taxes reduce this amount to about three thousand dollars.The petition then shows that four of the streets upon which the property abuts have been, and are being, reconstructed by taking up the old pavement, renewing and readjusting the curbing, and paving the roadway with granite blocks laid on a concrete foundation; and that two other streets have been, and are being, reconstructed in like manner, save that the roadway is paved with asphalt on concrete foundation.For the work thus done tax bills are issued, which are a lien upon the property abutting upon the street.Plaintiff has paid the tax bills issued, amounting to thirty-seven hundred dollars, and others will be issued to the amount of thirty-five hundred dollars.It is alleged that the property is, and will be, greatly enhanced by the improvements.The plaintiff and his deceased wife, and all other persons having a contingent interest in the property are made defendants.The prayer of the petition is that a portion of the unproductive property be sold to pay the unpaid tax bills, and to refund to plaintiff the amount he has paid in excess of twenty-seven per centum.

The only question is, whether plaintiff, as owner of the life estate, should pay the whole of these taxes, or whether they should be apportioned between him and those entitled to the same in remainder.The tenant for life is bound to pay the interest on incumbrances on the property out of the rents and profits; but if he pay off the incumbrances it is said that he is, prima facie, a creditor of the estate for the amount paid, deducting the interest he would have had to pay as life tenant during his life.4 Kent, 74;1 Wash. Real Prop. [3 Ed.] 110.He must pay all ordinary taxes, certainly so, if the income is sufficient to enable him to pay them.Johnson v. Smith, 68 Ky. 102, 5 Bush [Ky.] 102;Cairnes v. Chabert, 3 Edw. Ch. R.[N. Y.] 312;Pike v. Wassell, 94 U.S. 711, 24 L.Ed. 307;Varney v. Stevens, 22 Me. 331;Prettyman v Walston, 34 Ill. 175.And generally he must also pay the expenses of managing the estate.Pierce v. Boroughs, 58 N.H. 302;Perry on Trusts, sec. 554.This author also says: "If, however, an assessment is made against the estate for something in the nature of a permanent improvement or betterment of the whole estate, the assessment may be ratably and equitably divided between the tenant for life and the remainderman," citing Plympton v. Boston Dispensary, 106 Mass. 544, which was a case of an assessment of benefits for opening a highway in the vicinity of the property.In the case of ...