Spotts v. Spotts

• Citation: 55 S.W.2d 977,331 Mo. 917
• Parties: Edith C. Spotts, James B. Campbell, Frank W. Campbell, Helen C. McGinnis, Robert Eakin Campbell, (Plaintiffs), v. Baylor M. Spotts and Frank W. Campbell, Trustees, Under the Will of Robert Campbell, B. M. Spotts, Jean Laird Stewart, Ellsworth Stewart, Katherine Edith Stewart, Dorris Jean Stewart, Margaret E. Stephens, Alexander F. Stephens, Katherine Ann Spotts, Ella Campbell, Elizabeth Hammer, Edith Connell, John H. Connell, John D. Connell, Sarah Ruth Campbell, Sabra E. Campbell, Lillian C. Dennis, Charles F. Dennis, Jr., Everett H. Dennis, Frances G. Campbell, Robert L. Campbell, Evelyn S. Campbell, Letetia Campbell, Jean Campbell, Robert F. Campbell Karl McGinnis, Robert C. McGinnis and James W. Campbell (Defendants), Robert L. Campbell, Plaintiff in Error
• Decision Date: 20 December 1932
• Court: United States State Supreme Court of Missouri

55 S.W.2d 977

331 Mo. 917

Edith C. Spotts, James B. Campbell, Frank W. Campbell, Helen C. McGinnis, Robert Eakin Campbell, (Plaintiffs), v. Baylor M. Spotts and Frank W. Campbell, Trustees, Under the Will of Robert Campbell, B. M. Spotts, Jean Laird Stewart, Ellsworth Stewart, Katherine Edith Stewart, Dorris Jean Stewart, Margaret E. Stephens, Alexander F. Stephens, Katherine Ann Spotts, Ella Campbell, Elizabeth Hammer, Edith Connell, John H. Connell, John D. Connell, Sarah Ruth Campbell, Sabra E. Campbell, Lillian C. Dennis, Charles F. Dennis, Jr., Everett H. Dennis, Frances G. Campbell, Robert L. Campbell, Evelyn S. Campbell, Letetia Campbell, Jean Campbell, Robert F. Campbell Karl McGinnis, Robert C. McGinnis and James W. Campbell (Defendants), Robert L. Campbell, Plaintiff in Error

Supreme Court of Missouri

December 20, 1932

Appeal from Saline Circuit Court; Hon. T. B. Allen, Judge.

Affirmed.

Wm D. Bush, Wilbur F. Hall and Ernest D. Martin for plaintiff in error.

(1) Courts shall have due regard to directions of will: Sec. 567 R. S. 1929; Schee v. Boone, 295 Mo. 212; Lane v Garrison, 293 Mo. 530; Bond v. Riley, 296 S.W. 401; Ewalt v. Dalby, 319 Mo. 108; Wiggin v. Perry, 271 S.W. 815; Hays v. St. L. Trust Co., 298 S.W. 91. (a) Rights of minors were disregarded, when they should have been protected by the court. Revely v. Skinner, 33 Mo. 98; Carson v. Hecke, 282 Mo. 580; Newport v. Hatton, 231 P. 987; Tanner v. Schultz, 223 P. 174. (2) Error was committed by the court in construing the will of Robert Campbell, and in decreeing that Edith Spotts, James B. Campbell, Frank W. Campbell, Helen C. McGinnis and Robert Eakin Campbell had a fee simple title in the trust property, then held and managed by Trustee; that said minors, their bodily heirs and members of their families had no interest of any kind. Mathews v. Van Cleve, 282 Mo. 19; Dyer v. St. L. Trust Co., 286 Mo. 491; Hays v. St. L. Union Tr. Co., 317 Mo. 1028-1044. (3) The judgment is contrary to law and void on its face, as no "perpetual trust" was created by the will of Robert Campbell. Plummer v. Brown, 315 Mo. 627; Dyer v. St. L. Trust Co., 286 Mo. 481; Mathews v. Van Cleve, 282 Mo. 19; Baker v. Stern, 194 Wis. 233, 58 A. L. R. 462. (a) The direction in the will to trustees to use income for support of children and their families, creates a "Spendthrift Trust." Commerce Trust Co. v. Bayles, 273 S.W. 759; Mathews v. Van Cleve, 282 Mo. 19; Hall v. Stephens, 65 Mo. 670; Kleinberg v. Kinealy, 193 S.W. 983. (b) The conclusions of fact are incorporated in the decree with the conclusions of law reached by the trial court on the facts so found, and which should be reversed as erroneous conclusions. Blount v. Spratt, 113 Mo. 48; Gates v. Gates, 62 Mo. 412. (c) The finding of the court in the judgment, that the will leaves property to trustees of testator's children and their bodily heirs, with power in trustees to collect income and support respective children and their families; and the conclusion of law on that finding of fact "that a perpetual trust is created contrary to rule against perpetuities," presents upon the face of the record, an erroneous conclusion of law, upon which the judgment purports to be based. The judgment is therefore void. Blount v. Spratt, 113 Mo. 48; Gage v. Gage, 62 Mo. 412; Hill v. Combs, 92 Mo.App. 242; Wayland v. Kansas City, 12 S.W.2d 438; Steels v. Johnson, 69 S.W. 1065; Hatch v. Ferguson, 57 F. 966; Noelke v. Jenny, 298 S.W. 1055; In re Taylor Est., 5 S.W.2d 457. (4) The judgment against minor defendants should be quashed on writ of error, as guardian ad litem could not waive any rights of said minors. Revely v. Skinner, 33 Mo. 98; Carson v. Kecke, 282 Mo. 580; Newport v. Hatton, 231 P. 987; Tanner v. Schultz, 223 P. 174; 31 C. J. 1143; Turner v. Jenkins, 79 Ill. 228; Gebhardt v. United Rys. Co., 22 S.W. 677. (5) The judgment of the court amounts to a wanton taking of property from minor defendants, without due process of law, etc., in violation of the Constitution of Missouri, and the Constitution of the United States. Secs. 4, 20, 30, Art. 2, Const. of Mo.; Sec. 10, Art. 1, Const. of the U.S.; Fifth and Fourteenth Amendments to Const. of U.S.

Ralph H. Duggins and Perry S. Rader for defendant in error.

(1) The purported bill of exceptions signed by three bystanders must be rejected. (a) It is stated in the abstract that Hon. Thomas B. Allen, judge of the Sixth Judicial Circuit, tried the case and rendered the judgment. (b) Exceptions must be saved in the progress of the trial, and must be in writing, and the party excepting must pray the court to allow and sign the same, and if the bill be true the court must sign it. Sec. 1008, R. S. 1929. (c) A bill of exceptions signed by bystanders is invalid, and cannot be considered in the appellate court, unless it shows that the judge refused to sign it. Metz v. Sutton, 111 Mo.App. 444; Buck v. Buck, 267 Mo. 654; 4 C. J. 264, sec. 1876. (2) There being no motion for a new trial, there is nothing before this court except the record proper. Sicher v. Rambousek, 193 Mo. 128; Hudson v. Cahoon, 193 Mo. 550; Bower v. Daniel, 198 Mo. 289; Primeau v. Primeau, 317 Mo. 831. If no motion for a new trial is filed, a bill of exceptions, though approved and filed, cannot be considered in the appellate court. Roden v. Helm, 192 Mo. 71; Wentzville Tobacco Co. v. Walker, 123 Mo. 662; State ex rel. v. Burckhardt, 83 Mo. 430; Bartlett v. Draper, 3 Mo. 487; State v. Blanchard, 326 Mo. 965. (3) Exceptions are not deemed, as a matter of law, to have been saved on behalf of minor defendants. There is no such law. Plaintiff in error cites none. Exceptions must be taken during the progress of the trial, and preserved in writing filed either at the time taken, or during the term or thirty days before the case is set for hearing in this court. The statute applies to all parties alike. It makes no distinction in favor of minors. Secs. 1008, 1009, 1013, R. S. 1929. Parties who are united in interest must be joined as plaintiffs or defendants. Sec. 702, R. S. 1929. Suits may be commenced and prosecuted by infants, either by guardian or next friend. Sec. 708, R. S. 1929. After the commencement of a suit against an infant defendant, and the service of process upon him, a guardian for such infant must be appointed by the court. Secs. 716, 717, 718, R. S. 1929. The guardian must do for the infant what he would do for himself. He must defend the action. Reineman v. Larkin, 222 Mo. 156; McClure v. Farthing, 51 Mo. 109. (4) There is nothing before this court except the record proper, and no error is apparent on its face. No motion for a new trial was filed. No application for an appeal was filed. No bill of exceptions has ever been filed, presented for filing, or prepared. The rule applies to suits in equity as well as to actions at law. Guinan v. Donnell, 201 Mo. 200; Pitts v. Pitts, 201 Mo. 360; Sicher v. Rambousek, 193 Mo. 113. The record proper in this case consists of the amended petition, the answers and the judgment. Pitts v. Pitts, 201 Mo. 358; Smith v. Moseley, 234 Mo. 495; Bateman v. Clark, 37 Mo. 34; Dix v. German Ins. Co., 65 Mo.App. 34; Mahaffey v. Lebanon Cemetery Assn., 253 Mo. 143. There being nothing before this court except the record proper, the judgment must be affirmed if the amended petition states a cause of action and the judgment is authorized by the amended petition. Hudson v. Cahoon, 193 Mo. 558; Sicher v. Rambousek, 193 Mo. 129; State ex rel. v. Wooldridge, 192 Mo. 15; Mahaffey v. Cemetery Assn., 253 Mo. 143; Coleman v. Roberts, 214 Mo. 637; Hanks v. Hanks, 218 Mo. 679; Dickey v. Webster County, 318 Mo. 826; Primeau v. Primeau, 317 Mo. 828. "Absent a bill of exceptions, the only question is whether or not the judgment is such as could have been entered upon the issues made by the pleadings." Growney v. O'Donnell, 272 Mo. 178. (5) An abandoned petition is no longer a record matter. To be considered on appeal it must be offered in evidence and preserved in a bill of exceptions, and if not so preserved it is not before the appellate court for any purpose. Collins v. Andriano, 264 Mo. 481; Shuff v. Kansas City, 257 S.W.2d 845; Crowell v. Metta, 253 S.W. 206.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is a writ of error to the Circuit Court of Saline County. Suit was commenced there in 1923, and a decree was entered November 8, 1923. Plaintiff in error was a minor at that time and applied for this writ in 1929, under the provisions of Section 1036, Revised Statutes 1929, within three years after the removal of his disability. The original petition (which is printed in the abstract as though part of the record proper) set out the will of Robert Campbell, stated that the executors appointed therein had made final settlement and had been discharged and that they had been appointed, by the circuit court, trustees under the will of Robert Campbell. It alleged the relationship of the parties, who were children, grandchildren, or great-grandchildren of Robert Campbell, and the correct description of the land referred to in the will and stated that the defendants claimed some title or interest in the real estate described. The prayer of the petition was that the court "hear and finally determine any and all rights, . . . concerning or affecting said real estate."

Thereafter an amended petition was filed which stated that Robert Campbell died February 23, 1915, and left surviving him as his only heirs his widow and the plaintiffs, who were his children or children of his deceased son; that the will of Robert Campbell was admitted to probate in Saline County March 4, 1915; that his widow died April 16, 1922; that the defendants (except the trustees under the will) were the children and grandchildren of plaintif...