Simmons v. Friday

• Decision Date: 12 September 1949
• Docket Number: No. 41257.,41257.
• Parties: ARTHUR U. SIMMONS, Administrator c.t.a. of the Estate of GUSTAV A. FRANZ, Deceased, and G.A. BUDER, Appellants, v. JESSE T. FRIDAY, Administrator ad Litem of the Estate of SOPHIE FRANZ, Deceased, Respondent.
• Court: Missouri Supreme Court

224 S.W.2d 90

ARTHUR U. SIMMONS, Administrator c.t.a. of the Estate of GUSTAV A. FRANZ, Deceased, and G.A. BUDER, Appellants, v. JESSE T. FRIDAY, Administrator ad Litem of the Estate of SOPHIE FRANZ, Deceased, Respondent.

No. 41257.

Supreme Court of Missouri.

Division Two, September 12, 1949.

Motion for Rehearing or to Transfer to Banc Overruled, November 14, 1949.

Appeal from Circuit Court of City of St. Louis; Hon. William K. Koerner, Judge.

AFFIRMED.

Taylor Sandison, Harry C. Blanton and G.A. Buder, Jr., for appellants.

(1) The statutes of limitations do not run against the parties, i.e., trustees and cestui que trust, involving express trusts unless the trust relationship is repudiated and the disavowal is unequivocally made known to the other parties. St. L. Union Tr. Co. v. Hunt, 169 S.W. (2d) 433; Orr v. St. L. Union Tr. Co., 236 S.W. 642, 291 Mo. 383; Mann v. Bk. of Greenfield, 20 S.W. (2d) 502, 323 Mo. 1000; Howard County v. Moniteau County, 78 S.W. (2d) 96, 326 Mo. 295; Laughlin v. Laughlin, 237 S.W. 1024, 291 Mo. 472; Koppel v. Rowland, 4 S.W. (2d) 816, 319 Mo. 602; Moulden v. Train, 204 S.W. 65, 199 Mo. App. 509; Butler v. Lawson, 72 Mo. 227; Priest v. Capitain, 197 S.W. 83; Stoff v. Schuetze, 240 S.W. 139, 293 Mo. 635; Davies v. Keiser, 297 Mo. 1, 246 S.W. 897; Watson v. Payne, 143 Mo. App. 721, 128 S.W. 238; Bender v. Zimmerman, 143 Mo. App. 138. (2) The mere ending of the trust by expiration does not start the statutes running until final settlement is had or demanded, nor merely because cestui leaves the trust property with a trustee. Johnston v. Johnston, 107 Minn. 109, 119 N.W. 652; Matter of Farmers L. & T. Co., 62 N.Y.S. 359, 47 App. Div. 448; Bogert, Trusts & Trustees, sec. 951, p. 207, note 44; Jones v. Home Savings Bk., 76 N.W. 322, 118 Mich. 155, 74 Am. St. Rep. 377; Frank v. Morley's Estate, 106 Mich. 635, 64 N.W. 577; 2 Perry, Trusts, p. 1470, sec. 863; Sager v. State Highway Comm., 125 S.W. (2d) 89; Crisfield v. State, 55 Md. 192; Pence v. Force, 46 N.J. Eq. 348, 19 Atl. 918; Packer v. Overton, 203 N.W. 307, 200 Iowa 620; Davidson v. Davidson, 106 Atl. 64, 262 Pa. 520; Young v. Young, 147 S.W. (2d) 736; McCarthy v. McCarthy, 74 Ala. 546. (3) Nor will the mere failure or delay of the trustee to perform his duty start the statutes running. England v. Winslow, 237 P. 542, 196 Cal. 260; Chard v. O'Cornell, 120 P. (2d) 125, 48 Cal. App. (2d) 475; Sumid v. Cairns, 220 Pac. 1084, 25 Ariz. 597; Spring v. Spring, 229 N.W. 147, 210 Iowa 1124; Tibbals v. Keys, 281 Pac. 190, 40 Wyo. 524; Cohn v. Cohn, 59 P. (2d) 969, 7 Cal. (2d) 1; McCobe v. Grantham, 31 N.E. (2d) 658, 108 Ind. App. 695; Hivick v. Hemme, 247 Pac. 692, 118 Okla. 167; Howes v. Sutton, 268 N.W. 164. (4) The same rule applies to the claim of trustee against his beneficiary and prevents the statutes of limitations from running against the trustee and in favor of the beneficiary. St. L. Union Tr. Co. v. Hunt, 169 S.W. (2d) 433; Rutherford's Estate, 118 P. (2d) 553, 154 Kan. 361; Smith v. Bouton, 223 N.Y.S. 164, 221 App. Div. 317; 2 Perry, Trusts, pp. 1468, 1471, sec. 863, note 69; Spickernell v. Hotham, 1 Kay 669; cf. St. L. Union Tr. Co. v. Kelley, 199 S.W. (2d) 344, 355 Mo. 924. (5) Nor do the statutes run when the same person occupies two offices as the person can't sue himself although in different capacities. 4 Bogert, Trusts, p. 208, sec. 951; Judge of Probate v. Bowker, 270 Mass. 497, 170 N.E. 451; Bremer v. Williams, 96 N.E. 687, 210 Mass. 256; Yager v. Liberty Royalties Corp., 123 F. (2d) 44; Gray v. Quicksilver Co., 68 F. 677; Peyton v. Chase County Natl. Bk., 262 Pac. 595, 124 Kan. 763; Bates Co. v. White, 156 Atl. 293, 130 Me. 352; Homer v. Ward, 65 Mass. 62. (6) The trustee may wait until the termination of the trust before filing his claim for compensation. 28 Am. & Eng. Encyc. of Law 1044; Diffenderfer v. Winder, 2 Gill & J. 311; Matter of Allen, 36 N.Y. 7; McElhenny's Appeal, 46 Pa. St. 347. (7) And if the trustee pays over income without deducting compensation but manifests no intention to forego compensation, he can deduct out of further income or any principal payment to same beneficiary, unless beneficiary has so changed his position as to make such action inequitable. Restatement of the Law of Trusts, sec. 242, p. 748, sec. 249 (2), p. 772; 2 Scott on Trusts, pp. 1397, 1398, sec 242.8, p. 1431, sec. 249.1; Wister's Appeal, 86 Pa. St. 160; Re Drakes Will, 195 Minn. 464, 263 N.W. 439, 101 A.L.R. 801; Lindsay v. Kirk, 95 Md. 50, 51 Atl. 960; Phillips v. Burton, 107 Ky. 88, 52 S.W. 1064. (8) As the probate court has no equitable jurisdiction and can not approve an accounting of an express trust, allow fair compensation to trustees or otherwise grant relief sought in the equity suit, the one year statute therefore has no application, nor does it operate as a bar to the relief sought. Rutherford's Estate, 118 Pac. (2d) 553, 154 Kan. 361; Orr v. St. L. Union Tr. Co., 236 S.W. 642, 291 Mo. 383; Sturdy v. Smith, 132 S.W. (2d) 1033; Clay v. Walker, 6 S.W. (2d) 961; Dillon's Admr. v. Bates Trustee, 39 Mo. 292; Bond v. Unsell, 72 S.W. (2d) 871; Second N.B. v. Gamble, 198 N.W. 340, 227 Mich. 31; Brooks v. Yarbrough, 37 F. (2d) 527; Tibbetts Corner v. Arnold, 146 So. 218, 108 Fla. 239; Horkan's Estate, 214 N.W. 438, 193 Wis. 286; McCullough v. McCullough, 280 Pac. 70, 153 Wash. 625; Cooey v. Cooey, 182 So. 202, 132 Fla. 716; Judge of Probate v. Bowker, 170 N.E. 451, 270 Mass. 497; Order of St. Benedict v. Steinhauser, 179 F. 137, affirmed by Supreme Court, 234 U.S. 640, 34 S. Ct. 932 (on merits and as to limitations). (9) The respondent and residuary legatees, by their conduct in insisting in the probate proceedings that reasonable compensation could be allowed only by a court of equity, are now estopped from contending that a court of equity has no jurisdiction to make such allowances. Brewing Co. v. Miller, 124 Mo. App. 384, 101 S.W. 711; Runnels v. Lasswell, 219 S.W. 980; Welch & Harvey v. Dameron, 47 Mo. App. 221; Farley v. Pettes, 5 Mo. App. 262; Hereford v. Natl. Bk., 53 Mo. 330; State ex inf. v. Consolidated School Dist., 209 S.W. 938; Combs v. Sullivan County, 105 Mo. 230, 16 S.W. 916.

Jesse T. Friday and E.J. Doerner for respondent.

(1) Appellants' action is barred by the general statutes of limitation. Secs. 1012, 1013, 1014, R.S. 1939. (2) Statutes of limitation are set in motion with respect to an accounting and allowance of compensation to trustees under an express trust, either by termination of the trust, under its own terms, or by the repudiation of the trust by the trustee before its expiration. Restatement of Law — Trusts, subdiv. A, sec. 334, p. 101; Price v. Boyle, 287 Mo. 257, 229 S.W. 206; Latham v. Latham, 184 N.C. 55, 113 S.E. 623; Teachey v. Gurley, 199 S.E. 83; Snodgrass v. Snodgrass, 64 So. 594, 185 Ala. 155; 37 C.J., pp. 797, 903, 923; 4 Bogert, Trusts and Trustees, pp. 206, 207. (3) Prior to the effective date of the Civil Code of Missouri, 1943, if a petition discloses on its face that the bar of the statutes of limitation has become complete, such bar may be taken advantage of by demurrer. Herweck v. Rhodes, 327 Mo. 29, 34 S.W. (2d) 32; Ludwig v. Scott, 65 S.W. (2d) 1034; State ex rel. Jones v. Nulty, 165 S.W. (2d) 632, 350 Mo. 271. (4) Since the effective date of the Civil Code of Missouri, 1943, if the petition shows on its face that the bar of the statutes of limitation has become complete, such bar may be raised by motion to dismiss. Sec. 62, Civil Code of Missouri, 1943; DeVault v. Truman, 194 S.W. (2d) 29, 354 Mo. 1193. (5) The statutes of limitation apply alike to legal and equitable actions. Ludwig v. Scott, 65 S.W. (2d) 1034; Lauffer v. Smith, 85 S.W. (2d) 94, 272 Mo. 22. (6) Statutes of limitation are favored and liberally construed. State ex rel. Bell v. Bates, 231 Mo. 276, 132 S.W. 672; Rutter v. Carothers, 223 Mo. 631, 122 S.W. 1056; See other cases cited under our Point (3). (7) Neither the respondent, administrator ad litem, nor the Estate of Sophie Franz, deceased, have done anything which would create an estoppel against them. (8) The lien, if any, of a trustee for compensation is similar to that of the lien of an artisan, and where the possession of the property and legal title thereto is voluntarily surrendered and conveyed by the trustee, such lien ceases to exist. In re Mayhall's Estate, 151 S.W. (2d) 545; Restatement of Law — Trusts, subdiv. E. sec. 242, p. 743; Bradbury v. Birchman, 117 Mass. 569.

BOHLING, C.

On August 23, 1943, Arthur U. Simmons, as Administrator c.t.a. of the estate of Gustav A. Franz, deceased, and G.A. Buder sued G.A. Buder, as Executor of the Estate of Sophie Franz, deceased, for principally a claimed balance due on Trustees' commissions of the Sophie Franz trust estate. In due course, Jesse T. Friday, as Administrator ad litem of the Estate of Sophie Franz, deceased, was substituted party defendant in lien of said G.A. Buder, as Executor aforesaid. For convenience we sometimes refer to appellants as plaintiffs and as Trustees, and to respondent as defendant.

Defendant's motion to dismiss plaintiffs' petition was sustained. Upon plaintiffs' appeal, defendant contends plaintiffs' action is barred by the general statute of limitations, and that said petition fails to state a claim upon which relief may be granted.

This review is up on plaintiffs' second amended petition, which is in two counts. The first count sets out verbatim the Sophie Franz trust instrument, executed by the settlor January 30, 1909. The trust estate consisted of securities (stocks, bonds, notes et cetera), owned by Sophie Franz absolutely and securities in which the will of Ehrhardt D. Franz, her deceased husband, vested her with a life estate only, remainder to his ten children. Among other things, she appointed Gustav A. Franz and G.A. Buder as Trustees of said trust estate and named herself and others (we understand, said remaindermen) as beneficiaries. The...