State Savings Loan & Trust Co. v. Swimmer
| Decision Date | 08 November 1921 |
| Parties | STATE SAVINGS LOAN & TRUST COMPANY, Respondent, v. REUBEN S. SWIMMER, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Victor H. Falkenhainer, Judge.
AFFIRMED.
Judgment affirmed.
Karl M Vetsburg for appellant.
(1) Under section 2859, R. S. 1909, defendant is not qualified to act as trustee in the instant case. R. S. 1909, section 2859. (2) A will is a conveyance within the meaning of section 2859, R. S. 1909. Stamm v. Bostwick, 122 N.Y. 48; Prouty v. Clark, 73 Iowa 55; Tiedemann on Real Property (3 Ed.), sec. 628; Funck & Wagnalls New Standard Dictionary, title "Conveyance;" Baker v. Clark, 7 U. C. Q. B. 44; Seaburn v. Seaburn, 15 Gratt (Va.) 423; White v. Fitzgerald, 19 Wis. 480; Kelly v Fleming, 113 N.C. 138; Hays v. Harris, 73 W.Va. 17. (3) All acts of the General Assembly or laws shall be liberally construed so as to effectuate the true intent and meaning thereof. Laws of 1917, page of 324; State ex rel. v. McQuillin, 246 Mo. 534. The ejusdem generis doctrine has no application to the instant case. Ex parte Smith, 231 Mo. 111; State v. Eckhardt, 232 Mo. 49; Wonner v. City, 142 Mo.App. 120; State v. Broderick, 7 Mo.App. 19; Bank v. Ripley, 161 Mo. 126; Hilton's Appeal, 116 Pa. 351; Grissell v. Railroad, 54 Conn. 467; Henderson v. Railroad, 81 Mo. 605; City v. Elliott, 47 Mo.App. 418; Danziger v. Simonson, 116 N.Y. 329; Harlow v. Tufts, 4 Cush. (Mass) 453. (5) Section 2859, R. S. 1909, is not unconstitutional. Trust Company v. Ellis, 258 Mo. 706; Rothermel v. Meyerle, 136 Pa. 250; LaTourette v. McMaster, 89 S.E. 398; State v. Stevens, 99 A. 723; Commonwealth v. DeSarto, 62 Pa.Super. Ct. 184. (6) Plaintiff, not being a citizen or person, cannot raise the objection of unconstitutionality. Fire Asso. v. New York, 119 U.S. 110; Pembina v. Penn, 125 U.S. 181; Hunter v. Colfax, 154 N.W. 1037, 157 N.W. 145; Bracey v. Darst, 218 F. 482. (7) Independently of statute, the court, in the exercise of its equity powers, should not appoint or sanction the appointment of a non-resident trustee. Perry on Trusts (6 Ed.), secs. 39, 275; Lewin on Trusts, page 29 and page 1087, paragraph 3; Pomeroy on Equity Jurisprudence (4 Ed.), sec. 1086; Brandon v. Carter, 119 Mo. 572; Holman v. Renaud, 141 Mo.App. 399, Gaston v. Hayden, 98 Mo.App. 683; St. Louis v. Wenneker, 145 Mo. 230; Rothenberger v. Garrett, 244 Mo. 191; Harvey v. Schwettman, 180 S.W. 413. (8) Refusal of trial court to exercise its discretion in passing on demurrer may, if discretion is abused, be reviewed on appeal. Vastine v. Bailey, 46 Mo.App. 413; Van Epps v. Redfield, 35 A. 809.
Wifley, McIntre, Hensley & Nelson for respondent.
(1) Section 2859, Revised Statutes 1909, does not disqualify plaintiff from acting as trustee under the will of Lena S. Swimmer. (a) The term conveyance as used in section 2859 does not include a will. 9 Cyc. 862; 13 Corpus Juris. 898-B, 900, 902, Note 78, page 903; Brigham v. Kenyon, 76 F. 30, 33; Harris v. Reed, 21 Idaho 364; Comstock v. Adams, 23 Kan. 513; May v. Slaughter, 3 A. K. Marsh (10 Ky.) 505, 509; Foote v. Nickerson, 70 N.H. 496; Bell v. Couch, 132 N.C. 346; Jenckes v. Probate Court, 2 R. I. 255; Seaburn v. Seaburn, 15 Grattan 423; Jordan v. Trustees, 107 Va. 79. (b) The term conveyance as used in section 2859 evidently refers to a written instrument of the nature of a deed of trust. In short, in determining the meaning of the term conveyance as used in this section we must apply the rule of ejusdem generis. City of St. Louis v. Laughlin, 49 Mo. 559; State v. Diumissee, 109 Mo. 434; Williams v. A. T. & S. F. Ry. Co., 233 Mo. 666; State ex rel. Spriggs v. Robinson, 253 Mo. 271; State ex rel. Vogel v. Bersch, 83 Mo.App. 657; Mining Co. v. Casualty Co., 162 Mo.App. 178. (c) Sections 11919 and 11920, Revised Statutes of 1909 (Sections 4580 and 4581, Revised Statutes of 1899), which are similar to section 2859, have been held not to apply to trusts created by will. Hitch v. Stonebreaker, 125 Mo. 128; Holman v. Renaud, 141 Mo.App. 399. (2) Plaintiff is not disqualified under general equity rules from acting as trustee under the will of Lena S. Swimmer.
--This is a proceeding in equity to compel the defendant Reuben S. Swimmer to deliver to the plaintiff certain personal property which was bequeathed to it in trust under the last will and testament of Lena S. Swimmer. After the filing of a demurrer to the petition which was overruled, defendant declined to plead further and a final decree was entered as prayed in the petition, from which the defendant duly appealed, claiming that the court erred in overruling his demurrer.
The petition states that the plaintiff is a corporation organized under the laws of the State of Illinois and as such is authorized by the laws of that State to act as trustee and administer trusts of all kinds, but that it has no office in the State of Missouri and is not licensed to do business in Missouri. It is further alleged that Lena S. Swimmer on October 18, 1913, was a resident of Illinois, and there executed her last will; that afterwards she moved to the City of St. Louis and resided here until her death on January 11, 1914; that her will was probated in the City of St. Louis, and that by said will she appointed the defendant Reuben S. Swimmer executor, and that he duly qualified as such and assumed control of and administered said estate under the direction of the Probate Court of the City of St. Louis; that by the twelfth clause of said will Lena S. Swimmer gave, devised and bequeathed to her said executor one-half of all notes, mortgages, stocks, bonds, cash on hand, and all other choses in action, in trust, to be invested by said executor for the use and benefit of her son Abraham Swimmer during his lifetime, and directed that said executor should marshal and canvass all of the assets available under said clause of said will, and deliver such investments to the plaintiff, State Savings Loan & Trust Company, that company being named in such will as sole trustee of said funds, securities and investments, and which trustee was directed by said will to thereafter keep said funds invested in good and proper securities, and pay the income derived therefrom to the testator's said son, Abraham Swimmer, in quarterly installments during his life, and upon his death such company as such trustee should pay the principal to the children of said son, or to the survivors of them, upon arriving at majority, in the following proportions, namely, $ 500 in cash to Rosa Isabelle Swimmer, and the remainder of the trust fund to Harris Franklin Swimmer, and directed that said children should receive the income from said funds during their minority in the same manner as their father, Abraham S. Swimmer, if he were living.
The bill then alleges that on the day of the death of the testator all said funds and property were and ever since have been in the City of St. Louis and State of Missouri; that said executor duly administered said estate, made final settlement thereof, which was approved on July 1, 1915; that defendant Reuben S. Swimmer as such executor received all of said trust property, and has either invested or canvassed all such property, or has had a reasonable time to do so, and that such trust property is and has always been in the City of St. Louis. It is then alleged the plaintiff as such trustee is entitled to receive from the defendant all of such trust property and has demanded the same, but defendant has refused to make delivery thereof. Plaintiff prays for an accounting and that defendant be required to deliver to such trustee all of said trust property.
The ground of the demurrer relied on is stated thus by defendant's counsel: "That it affirmatively appears from the face of the petition that plaintiff is a foreign corporation having no office and not being licensed to do business in this State; that the property referred to in the petition was, and all times mentioned in the petition, and now is, in the State of Missouri; that, therefore, under the laws of this State, and more particularly under section 2859, Revised Statutes 1909, plaintiff has no right or power to act as trustee under the will referred to in the petition; and that, therefore, plaintiff has no standing in this court in the instant matter and no right to institute or maintain the suit filed by it."
The case presents a single legal proposition, namely, whether under the law of Missouri, statutory or otherwise, the plaintiff is disqualified from acting as trustee under the will of Lena S. Swimmer. Defendant's counsel say that the plaintiff being a foreign corporation is disqualified from acting as sole trustee in Missouri under the provisions of section 2859, Revised Statutes 1909 (section 2254, Revised Statutes 1919). And aside from this statute a court of equity in the exercise of its discretion should not permit a non-resident trustee to take charge of the property situated in Missouri and remove it from this State.
I.
The statute referred to, section 2254, Revised Statutes 1919, reads thus:
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