Selleck v. Hawley

• Decision Date: 31 December 1932
• Citation: 56 S.W.2d 387,331 Mo. 1038
• Parties: Bessie King Selleck and Ellroy v. Selleck, Appellants, v. Nelson J. Hawley, Harry L. King, Albe W. King, Henrietta Renick and Mark Renick
• Court: Missouri Supreme Court

56 S.W.2d 387

331 Mo. 1038

Bessie King Selleck and Ellroy v. Selleck, Appellants, v. Nelson J. Hawley, Harry L. King, Albe W. King, Henrietta Renick and Mark Renick

Supreme Court of Missouri

December 31, 1932

Appeal from Circuit Court of City of St. Louis; Hon. George E Mix, Judge.

Reversed and remanded.

Charles M. Hay and Ellroy V. Selleck for appellants.

(1) The demurrer filed to our fifth amended petition is in fact a "Speaking Demurrer" in that it attempts to set up a state of facts therein, not apparent on the face of the petition to which it is directed, which, to be sustained requires reference to facts not appearing on the face of the petition. Such a demurrer is not good, is not admissible, is not sanctioned by code or precedent, is not known to, or recognized by, our Code of Procedure and should be overruled. Pacific, etc., v. Mo. Bridge, etc., 286 Mo. 18; State ex rel. Monarch, etc., 20 S.W.2d 62; Bennett v Lohman, 292 Mo. 94; Rowe v. Rowe, 103 A.D. 103; Melvin v. Melvin, 198 Iowa 1286; Williams v. Ry. Co., 165 Ga. 663; Hamilton v. City, etc., 199 N.C. 510; Steel v. Levy, 282 Pa. 341; Edsell v. Buchanan, 2 Ves. Jr. 84; 6 Ency. Pl. and Pr., p. 298; Daniell's Ch. Pl. & Pr., p. 587; Story's Eq. Pl., secs. 447, 448, 503, 647; 21 C. J. sec. 462, p. 433; 49 C. J. sec. 536, p. 423. (2) The judgment of the trial court recites: "That a general demurrer to the fifth amended petition was sustained and said petition adjudged wholly insufficient," and thereafter, plaintiff declining to plead further, the trial court ordered that: "Suit be dismissed as to defendants, etc." From the language of the order sustaining the demurrer, and the order dismissing the suit, no one can tell on what ground the demurrer was sustained. The demurrer contains so many allegations that it is impossible to determine from the record in this case on what grounds the demurrer was sustained. If any of the allegations of the amended petition state facts sufficient to constitute a cause of action it was error to sustain a general demurer and dismiss the petition. Johnson v. Railways Co., 243 Mo. 288; Rodgers v. Insurance Co., 186 Mo. 255; Interstate Railroad Co. v. Railroad Co., 251 Mo. 718; Metropolitan, etc., v. Investment Co., 309 Mo. 660; Birdsong v. Jones, 222 Mo.App. 776; Zeitmiger v. Steinberg, 277 S.W. 957; 21 C. J. sec. 490, p. 447. (3) The testator, in his will, in speaking of Bessie King Selleck says: "who lived with me and my wife during the latter's lifetime as our daughter and in whose home I have lived since my wife's death." He then adds (somewhat apologetically): "although she was never adopted by us as a daughter in accordance with the law" (5). (Italics are ours.) That the fifth amended petition states sufficient facts under which plaintiff, Bessie King Selleck, was entitled to adoption as the daughter of Henry King (2) is unquestionably established by the decisions of this court. The maxim, "Equity looks upon that as done which ought to have been done," applies to oral contracts to adopt as well as other contracts. Lynn v. Hockaday, 162 Mo. 125; Fisher v. Davidson, 271 Mo. 205; Taylor v. Coberly, 38 S.W.2d 1060; Grantham v. Gossett, 182 Mo. 671; Martin v. Martin, 250 Mo. 550; Kay v. Niehaus, 298 Mo. 206; Fishback v. Prock, 311 Mo. 505; Signaigo v. Signaigo, 205 S.W. 31; Dillman v. Davison, 239 S.W. 508; Remmers v. Remmers, 239 S.W. 514; Johnson v. Antry, 5 S.W.2d 407; 1 Story's Eq. Jur. (12 Ed.) sec. 648; 1 Pomeroy's Eq. Jur., sec. 364; 1 C. J. sec. 27, p. 1379. (4) Courts of Chancery have power, independent of any statutory provision, to remove a trustee for good cause shown. Holman v. Renaud, 141 Mo.App. 403; Gaston v. Hayden, 98 Mo.App. 693; St. Louis v. Wenneker, 145 Mo. 236; Hitch v. Stonebraker, 125 Mo. 139; May v. May, 167 U.S. 320; Perry on Trusts, secs. 817, 818; Pomeroy Eq. Jur., secs. 1086, 1087. (a) An abuse of discretion by a trustee may be reviewed by a Court of Chancery upon petition of the cestui que trust. In re A. W. Nesbitt, 282 F. 266; Woodford v. Cosden, 289 F. 69; Wilcox's Appeal, 54 Conn. 326; Orr v. Yates, 209 Ill. 240; Yates v. Yates, 255 Ill. 74; In re Paines Trusts, 33 W. R. (Eng. Ch.) 565; Webb v. Shaftesbury, 7 Ves. Jr. 488, 32 English Reprint, 196. (b) When there exists a conflict of interests, as between a trustee and the cestui que trust, it incapacitates the trustee and unfits him to be a trustee. Gartside v. Gartside, 113 Mo. 354; Gould v. Gould, 203 A.D. 812; Pyle v. Pyle, 137 A.D. 572, 199 N.Y. 538; Matter of Hirsch, 116 A.D. 377, 188 N.Y. 584; Hill on Trustees, 535; Perry on Trusts, sec. 39; Pomeroy Eq. Jur., secs. 1075, 1077. (c) No one can be, at the same time, trustee and beneficiary of the same identical interest, nor can he be a trustee for himself. Woodward v. James, 115 N.Y. 357; Bolles v. Trust Co., 27 N.J.Eq. 310; Rogers v. Rogers, 111 N.Y. 237; Greene v. Greene, 125 N.Y. 510; Weeks v. Frankel, 197 N.Y. 315; Clarke v. Sisters, 82 Neb. 92; Wills v. Cooper, 25 N. J. L. 161; Perry on Trusts (7 Ed.) sec. 13. (d) When a trustee, executor or administrator, asserts a claim hostile to the beneficiary, or the estate, he becomes unsuitable to longer act as such. Davis v. Roberts, 206 Mo.App. 30; In re Est. of Padgett, 114 Mo.App. 316; Miller v. Bidlingmaier, 26 Mo. 485; Arrington v. McCluer, 34 S.W.2d 71. (e) A trustee will not be permitted to derive any benefit, directly or indirectly, out of the trust. Witte v. Storm, 236 Mo. 487; Kregain v. Blake, 292 Mo. 513; Enright v. Trust Co., 20 S.W.2d 522; Cummings v. Parker, 250 Mo. 438; Story's Eq. Jur., sec. 446; Pom. Eq. Jur., sec. 1075; 1 Perry on Trusts (7 Ed.) secs. 197, 427, 429. (f) To justify the removal of a trustee it is not necessary to find that he has been guilty of any personal dishonesty. It is enough that he has so conducted himself in such a manner as to forfeit the confidence of the beneficiaries of his trusteeship and made it impossible to secure their cooperation. May v. May, 167 U.S. 319; Woodford v. Cosden, 289 F. 68; Franz v. Buder, 34 F.2d 356; Bollman v. Tobin, 239 F. 472; 3 Pomeroy's Eq. Jur., sec. 1086. (g) A trustee who acts adversely to the interests of his cestui que trust, and resists proper demands made by the latter, should be removed. Gartside v. Gartside, 113 Mo. 56; Wilson v. Wilson, 145 Mass. 93; May v. May, 167 U.S. 319; Franz v. Buder, 34 F.2d 355; Robinson v. Cogswell, 192 Mass. 87; Jones v. Jones, 8 Misc. 671; Grant v. Maclaren, 23 Can. S.Ct. 316; Dickerson v. Smith, 17 S.C. 312; Matter of Jones, 2 Edm. Sel. Cas. 10.

James T. Blair, Jr., H. A. Loevy and Matt. J. Scherer for respondents.

(1) In Re alleged adoption of appellant Mrs. Selleck by testator. This part of the petition does not state a cause of action. There is no question that our courts recognize an adoption by conduct of the parties notwithstanding the Statute of Frauds. But this petition does not measure up to the high standard of allegation required by these decisions. Lamb v Feehan, 276 S.W. 71; Shelp case, 15 S.W. 824; 1 C. J. 1394. Appellant was guilty of laches in asserting adoption: Kellogg v. Moore, 281 S.W. 190; Bennett v. Terry, 229 S.W. 149; Loomis v. Ry., 165 Mo. 469; Marshall v. Hill, 246 Mo. 1. (a) She should have sued testator in his lifetime to establish same. Johnson v. Antry, 5 S.W.2d 408. (b) She should have sued the executors during their administration of the estate. Fisher v. Davidson, 271 Mo. 206; Buck v. Meyer, 195 Mo.App. 289; Baker v. Payne, 198 S.W. 75. (c) She did not bring this suit which is against the trustees until four years after the executors had been discharged and administration closed. (d) This suit for adoption cannot be maintained against the testamentary trustees whose title, rights, powers and duties are created and defined by the will. They do not so represent the testator that such suit can be maintained against them. (e) She is barred by the five-year Statute of Limitation even as against the trustees. Brown v. Irving, 292 S.W. 1023; State ex rel. v. Musick, 165 Mo.App. 214; Scott v. Boswell, 136 Mo.App. 601. (f) Suits after death of adverse party are disfavored. Lenox v. Harrison, 88 Mo. 497. (2) Mere unfriendliness on part of trustees to cestui que trust is not cause for removal. Fisher v. Fisher, 203 Mo. 62. Friction and hostility is not of itself a reason for the removal of the trustee. 39 Cyc. 261, note. Nor is mere hostility, unless it sways trustee to wrongdoing. Gartside v. Gartside, 113 Mo. 356. Courts distinguish between hostility generated by trustee and by cestui que trust. Gartside v. Gartside, 113 Mo. 356. Nor is even actual enmity a mandatory cause. Lowe v. Montgomery, 117 Mo.App. 273. Trustees are not to be removed for mere mistake. It is not every mistake which will induce a court to remove a trustee. 39 Cyc. 261. Nor for every improper action. The principle underlying all the decisions is, that it must be an act or circumstance endangering the trust fund. 28 Am. and Eng. Ency., p. 979; Mathews v. Murshicon, 17 F. 760; Perry on Trusts (5 Ed.) sec. 276; 2 Story on Equity Jurisprudence, sec. 2189; Lowe v. Montgomery, 117 Mo.App. 274. (3) In Re definition of "Income" and "Profit." Appellants assert there is a difference in meaning between the words "income" and "profits." We contend they are synonymous. The term "income" may be synonymous with "profits" and "rents and profits." 31 C. J. 400, sec. 5. "Dividends, rents and profits" are synonymous with "net income." Boardman v. Mansfield, 79 Conn. 637. "Profits" means benefit or pecuniary gain to the owner or occupant of land as in the familiar phrase: rents, issues and profits. Black Dict. 952. "Income" means return in money from business, labor or capital, gains or profit. "Profits" generally means the gain which is made upon any investment when both...