Simmons v. Cabanne

• Decision Date: 03 November 1903
• Citation: 76 S.W. 618,177 Mo. 336
• Parties: SIMMONS v. CABANNE et al., Appellants
• Court: Missouri Supreme Court

76 S.W. 618

177 Mo. 336

SIMMONS v. CABANNE et al., Appellants

Supreme Court of Missouri, First Division

November 3, 1903

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

B. P Waggener, H. Chouteau Dyer, Frank Doster and B. R. Vineyard for appellants.

(1) While a general devise to one without specification of the interest devised, followed by an absolute power of disposal without words indicating a contrary intent, will vest in the devisees a title in fee simple, yet where the devise is to one for life with a power of disposition, the power does not enlarge the life estate to one in fee simple. Bramell v Adams, 146 Mo. 81; McMillan v. Farrow, 141 Mo 63; Evans v. Folks, 135 Mo. 403. (2) Nor need the gift be made in terms for life, in order to come within the meaning of this rule. The limitation need not necessarily be expressed in the words "for life," but may be accomplished by the use of any equivalent word, or words having a like import. Walton v. Drumtra, 152 Mo. 507; Cross v. Hoch, 149 Mo. 343; Schiffman v. Schmidt, 154 Mo. 204; Speed v. Railroad, 163 Mo. 125. In the Cabanne will the gift of the income was only for the "support and education" of the sons. This could not continue longer than their lives. The very fact that there is no gift of the income beyond the lives of the sons, limits the gift to them for life. Davis v. Williams, 85 Tenn. 646, S. C., 4 S.W. 8. (3) And where, as in the Cabanne will, the devise is to trustees to apply the income for the benefit of the testator's children, without impairing the capital or body of the devise, it necessarily implies that they are limited in their enjoyment of it to a life estate. Lampert v. Haydel, 96 Mo. 439; Lewis v. Pitman, 101 Mo. 291; Jarboe v. Hey, 122 Mo. 341. And even though a gift of the income of real estate for life may be a gift of the property itself for life, as indeed the authorities seem clearly to establish, or when, as here, the legal title is vested in trustees, it may operate as the gift of an equitable life estate, such giving of income for life cannot be construed into giving of a title in fee, but one for life only. Davis v. Williams, supra; Blanchard v. Blanchard, 1 Allen 225; Blanchard v. Brooks, 12 Pick. 63; McClure v. Melendy, 44 N.H. 469; Thompson v. Schneck, 16 Ind. 194; Hopkins v. Keazer, 89 Me. 347; S. C., 36 A. 615. In the case of Cross v. Hoch, 149 Mo. 325, it was expressly held that the devise of property to a trustee for the "use" of the testator's daughter, conferred upon her merely a life estate, with the right "to enjoy the rents, issues and profits, but not to own it so as to sell it;" and the remainder was held to belong under the will to her children. (4) The expression "my estate" used by the testator in the disinheritance clause of his will and the expression "my property," used by him in the clause in reference to the sale and disposition of a part of his estate clearly indicate that the testator did not understand he had parted in the gift for his sons with his entire interest in the "property" and "estate" to which he referred. And the authority and direction given to the trustees about emancipating certain of the testator's slaves point to the same conclusion, as does also the gift of $ 2,000 to erect a monument to the memory of his father and mother. McMillan v. Farrow, supra. (5) Where a power of sale and disposition, as in the Cabanne will, is conferred on the trustees as to a part of the property, the title to which is vested in them, they, of course, may exercise that power. But where they are given no such power as to the other part but are limited to a collection and disbursement of the "income" therefrom, the trustees can in no wise encroach upon the corpus of that part, over which their power is thus limited. Haydel v. Hurck, 72 Mo. 257; DeLaney v. VanAulen, 84 N.Y. 16; Matter of Chauncey, 119 N.Y. 77; Matter of Dewey, 153 N.Y. 63; Lee v. Brown, 4 Ves. Ch. 362; Garesche v. Levering, 146 Mo. 463; Cross v. Hoch, 149 Mo. 342. (6) When the trustee is given control of the property, and is charged with the duty of collecting and paying over the income, the trust created is an active one, as contradistinguished from a dry passive trust, and in such case the legal title continues in the trustee to the end of the trust. Simpson v. Erisner, 155 Mo. 157; Webb v. Hayden, 166 Mo. 48. A trust to collect and apply income for the support or education of the beneficiary is an active trust, which keeps the legal title in the trustee to the termination of the trust. Rittgers v. Rittgers, 56 Iowa 220; Grathe's Appeal, 135 Pa. St. 585; Eshleman's Estate, 43 A. 201. (7) The devise of an estate to trustees to collect and apply the income thereof to the "support and education" of testator's sons, necessarily limits the continuance of their interest to one for life only. During their lives the income would be required for the purposes indicated, but at their deaths the necessity for its continuance would cease. And with the termination of the duties devolving on the trustees, their trusteeship would also end. Garesche v. Levering, 146 Mo. 449; In Re Boyd's Estate, 199 Pa. 487; S. C., 49 A. 297; Brantley v. Porter, 111 Ga. 886. (8) Nor can the trustee for the life tenant, or the life tenant himself, do anything during the continuance of the trust to prejudice the rights of the remainderman, who, at the expiration of the life estate, is entitled to the property. McDonald v. Quick, 139 Mo. 498; Bagley v. Kennedy, 81 Ga. 721; Phillips v. La Forge, 89 Mo. 72; Garesche v. Levering, supra; Cross v. Hoch, 149 Mo. 342. While the trustee of the life tenant might by his conduct permit the interest of his beneficiary to be lost by adverse possession. Walton v. Ketchum, 147 Mo. 219; Schiffman v. Schmidt, 154 Mo. 213; Simpson v. Erisner, 155 Mo. 163. Yet no such consequence can befall the interest of the remainderman, whose right of action arises for the first time on the death of the life tenant. Hall v. French, 165 Mo. 441; Reed v. Lowe, 163 Mo. 535; Thomas v. Black, 113 Mo. 66; Melton v. Fitch, 125 Mo. 290; Sherwood v. Baker, 105 Mo. 478; Schumate v. Snyder, 140 Mo. 77; Howell v. Jump, 140 Mo. 457. Any other rule, in the language of this court, "would deprive a person of his property without due process of law -- without giving him a day in court." Hall v. French, 165 Mo. 442. And a conveyance by the trustee in violation of his trust is void. Binns v. Lafarge, 191 Ill. 598; Williams v. Evans, 154 Ill. 98. At most until set aside, his grantee holds subject still to the original trust, and stands in the shoes of the original trustee. McDonald v. Quick, 139 Mo. 499. (9) Looking at the Cabanne will, and using the language of the Supreme Court of Pennsylvania, in construing a similar instrument, itmay bevery properly said: "The first notable observation on this clause is that there is no direct gift at all to the devisee, but only a devise in trust for her. While not in itself conclusive, this suggests at once an intent not to give the fee, else why interpose a trust. The most ignorant property owner knows the difference between owning a house himself, and having the use of it under a trust; and if the testator meant to give the full ownership in fee, there is no purpose disclosed in her will, which would have prevented the easiest and most natural way of doing it by direct gift. . . . We are of opinion that though there is no devise over, the will shows a clear general intent to give only a life estate." In re Nevin's Estate, 192 Pa. St. 258; S. C., 34 A. 996. In the administration of the trust in the Cabanne will, the trustees are not to impair "the principal or capital." (10) Using again the language of this court: "To prevent the happening of the incongruous condition of the estate passing partly by will and partly by descent, words may be supplied, transposed or changed in the will, so that the instrument may not perish and the manifest intention of the parties be not defeated by the palpable error of the scrivener." RoBards v. Brown, 167 Mo. 457; Briant v. Garrison, 150 Mo. 668; Rines v. Mansfield, 96 Mo. 398; Presnell v. Headley, 141 Mo. 194; Thompson v. Thompson, 115 Mo. 67; Nichols v. Boswell, 103 Mo. 160; Wolfe v. Dyer, 95 Mo. 545; Johnston v. Bowlware, 149 Mo. 451; Jobe v. Dillard, 104 Tenn. 658; S. C., 8 S.W. 324. (11) The placing of the trustees in charge of all of the testator's property, "to manage and control and superintend the same" did not confer upon the trustees any power of sale. Nor, if any son should be found "capable of exercising a safe, prudent management thereof," would the placing of him in charge of a share of the estate "to manage for himself," confer on the son any such power. The testator himself understood this, when, in order that they might exercise this power to the extent he was willing, he gave the trustees express authority "to sell and dispose of" all of his property, except the three hundred arpens on the River des Peres. Power to "manage, control and superintend" does not confer power to sell and convey. The words "manage" and "control" seem to mean very much the same thing. And the word "superintend" means but little, if any, more than to supervise or oversee. But none of these words nor all of them combined confer a power of sale. Watson v. Cleveland, 21 Conn. 542; Palmer v. Chesebro, 55 Conn. 115; Com. v. Waller, 5 How. (Miss.) 186; Ure v. Ure, 185 Ill. 117; Youngworthy v. Jewell, 15 Nev. 48; Commonwealth v. Johnson, 144 Pa. St. 381; Duncan v. Hartman, 143 Pa. St. 604; Roberts v. State, 26 Fla. 362; Porter v. Thomas, 23 Ga. 472; Blanton v. Mayes, 58 Tex. 429; Anderson v. Stockdale, 62 Tex. 61; Brammel v. Cole, 136 Mo. 213; Garesche v. Levering, 146 Mo. 436; Cross v. Hoch, 149 Mo. 341, 342....