Stewart v. Jones
| Citation | 118 S.W. 1,219 Mo. 614 |
| Parties | JOHN A. STEWART v. A. H. JONES, CORA N. TILLERY, ED. R. TILLERY and MARY TILLERY, Appellants; and LEE MURRAY et al |
| Decision Date | 13 April 1909 |
| Court | United States State Supreme Court of Missouri |
Appeal from Boone Circuit Court. -- Hon. A. H. Waller, Judge.
Reversed.
D. D Duggins and Webster Gordon for appellants.
(1) The trial court should have sustained defendants' objections to the introduction of any evidence in the case. First Because the petition shows upon its face that it is a proceeding in partition for the sale of said real estate, and also shows that by the will the land was devised to the wife for life and after her death the executor was directed to sell the same. R. S. 1899, sec. 4383. Second: Because the sale of the land as prayed for would be in violation of and contrary to the provisions of the will, and also contrary to the provisions of the statutes. R. S. 1899, sec. 4650. Third Because the petition shows upon its face that, under the doctrine of equitable conversion, the land has been by the terms of the will converted into money and that plaintiff only has the assignment of the widow's life interest and the assignment of the future contingent interest of the other beneficiaries. The direction to sell is absolute; the place of sale is stated; the time of sale is also positive; the notice of sale is prescribed; the manner of sale is designated; the executor has no discretion whatever. McClure's Appeal, 72 Pa. St. 414; Hocker v. Gentry, 3 Met. (Ky.) 463; Compton v. McMahon, 19 Mo.App. 501; Gates v. Hunter, 13 Mo. 513; 2 Underhill on Wills, secs. 695, 696, 697, 698, 703; 2 Woerner, Administration, sec. 342; McPike v. McPike, 111 Mo. 227. (2) The court erred in overruling defendants' objections to the introduction of the evidence tending to show that the executor had made final settlement of the estate. The executor of the will could not, by his action in making final settlement of the estate, prejudice the rights of defendants under the will, and the probate court could not defeat the will, or thwart the intention of the testator by any order it might make. It was the duty of that court to have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before it. R. S. 1899, sec. 4650. (3) Plaintiff's contention that the action of the probate court, in approving the final settlement of the executor and discharging him, nullified the will, is not well taken. It would be absolutely useless to make a will if it can be rendered inoperative by the conduct of the executor, or by order of the probate court. If the executor had died or resigned his executorship, before final settlement of the testator's estate, and before executing said trust, the succeeding executor would have been authorized to execute the said power of sale. In cases where the power of sale conferred by the will is positive and peremptory, and is one the administrator cum testamento annexo can execute, then the mandate of the statute is that he shall do so. In re Rickenbaugh Estate, 42 Mo.App. 340; Dilworth v. Rice, 48 Mo. 136; Evans v. Blackinston, 66 Mo. 439; Coil v. Pittman, 46 Mo. 51; Francisco v. Wingfield, 161 Mo. 542; Donaldson v. Allen, 182 Mo. 626; Hazel v. Hagan, 47 Mo. 281; Owen v. Switzer, 51 Mo. 328; 2 Woerner, Adm., 719. (4) There is no equity in the petition. Stripped of two paragraphs referred to in the statement, it is purely a proceeding for the partition, or the sale and division of the proceeds of the real estate under the will of the testator. Ex parte Cubbage v. Franklin, 62 Mo. 364; Lilly v. Menke, 126 Mo. 211; Stevens v. De La Vaulx, 166 Mo. 27. (5) The intention of the testator must control. It is the cardinal rule. The language of this will is so positive and emphatic that no doubt can exist as to the intention of the testator. This language shows that the testator's intention was to limit the rights of the beneficiaries to take to the time of the distribution of the proceeds of sale. Where the testator interprets and construes the instrument, the courts, when called upon to construe it, will follow the construction placed upon it by the executor. Reinders v. Koppelman, 94 Mo. 343; Small v. Field, 102 Mo. 129. (6) Plaintiff alleges in the petition that the fee of the land was in the defendant, Mrs. Tillery, the only child of the testator; and that the same vested in her under the residuary clause of the will, being item sixth thereof. The will puts the fee in the executor, who is the defendant, A. H. Jones; if not directly and in positive terms, then it does so by force of strong implication; for the will directs that the executor shall sell the real estate and distribute the proceeds of sale, and then goes further and limits the rights of the defendants in the proceeds of sale to take effect at the time of distribution. A court of equity will not compel a trustee to execute a trust against the wishes of the cestui que trust. 2 Underhill on Wills, sec. 719.
E. W. Hinton for respondent.
(1) The absolute direction to the executor to sell the land and divide the proceeds per capita, etc., created a vested equitable right in the ultimate beneficiaries to have the land so applied, but since the will did not otherwise dispose of the legal title in remainder, it passed to and vested in the defendant Mrs. Tillery as sole heir and residuary devisee, subject to the trust thus created. Eneberg v Carter, 98 Mo. 647; Williams v. Lobban, 206 Mo. 410; Greenough v. Wells, 10 Cush. (Mass.) 571; Gwilliams v. Rowell, 1 Hardress 204; 2 Sugden on Powers (3 Ed.), *p. 159. First. It is clear beyond all dispute that the will contained no express devise of the legal title in remainder to the executor. And it would seem equally clear that there is no devise to him by implication. This court has defined an implication which will give an estate to the executor as: "Such a strong probability that an intention to the contrary cannot be supposed." Eneberg v. Carter, 98 Mo. 647. That is, in order that the executor may take title to land by implication, and thus disinherit the heir, it must be manifest from the nature of the duties to be performed that the testator necessarily must have intended to place the title in the executor to enable him to properly execute the trust. But here an express imperative power of sale was given which could be exercised quite as well by the executor without title to the land as with it, and hence there is no reason or occasion to suppose that the testator intended an unnecessary thing. Greenough v. Wells, 10 Cush. 577. The only language in the will which can possibly be construed as embracing the legal title in remainder to the land in question is contained in the residuary clause, which gives all of the residue of the estate, both realty and personalty to the heir, Mrs. Tillery. Hence, this legal title must have passed to her, either by descent, or by devise under the residuary clause. This result cannot be in the least affected by any doctrine of equitable conversion. That principle applies solely to the devolution of equitable rights, not of legal titles. Second. It is also clear that the legal title in remainder, having once vested in Mrs. Tillery, will so remain until legally transferred by her, or until divested by a valid exercise of the power of sale under the will. Eneberg v. Carter, supra. Therefore, at law, the rights of the parties would depend upon, and have to be worked out through, a sale under the power. It is upon this principle that the lapse or non-exercise of a mere power leaves an indefeasible title in the heir. But in equity a power may be in trust, and thus create equitable rights. A mere power imposes no duty on the donee to exercise it, and therefore no right on the part of any person until it is actually exercised. But a mandatory power for the benefit of designated persons does create a duty and a corresponding right in equity. Williams v. Lobban, 206 Mo. 415; Greenough v. Wells, 10 Cush. 571. (2) (a) The power of sale in this case was given to the executor as such, and was to be exercised in any event at the time and upon the terms designated by the testator. The power was therefore given to the executor in his official, instead of his personal capacity and must be exercised by him, if at all, prior to his final discharge by the probate court. Little v. Addington, 59 Mo. 275; Francisco v. Wingfield, 161 Mo. 542; Donaldson v. Allen, 182 Mo. 626; Brown v. Woody, 22 Mo.App. 259. But even if the power conferred upon the executor had survived his discharge, that would not preclude a court of equity from terminating the trust. Donaldson v. Allen, 182 Mo. 626. (b) A court of equity has jurisdiction to enforce the trust notwithstanding the fact that under Sec. 137, R. S. 1899, the power of sale might be exercised by an administrator de bonis non cum testamento annexo, because a court of equity cannot be ousted of its ancient jurisdiction over trusts by a mere statutory remedy, not in terms exclusive. Harrington v. Utterback, 57 Mo. 519; Hamer v. Cook, 118 Mo. 476; Baldwin v. Dalton, 168 Mo. 20; Coil v. Pittman, 46 Mo. 51. (3) This is a suit in equity for the establishment and winding up of a trust, and not a statutory action for partition, because the rights asserted by plaintiff are purely equitable, namely, to have the legal title in remainder, held by Mrs. Tillery as sole heir and residuary devisee, charged with the trust in favor of the ultimate beneficiaries, and enforce this beneficial right to the proceeds of sale. Goodwin v. Goodwin, 69 Mo. 617; Reed v. Robertson, 45 Mo. 580; James v. Groff, 157 Mo. 402; McCabe v. Hunter, 7 Mo. 355. (4) The termination of the trust and sale of the trust property prior to the death of the widow is not in...
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