Straat v. Uhrig

• Decision Date: 31 March 1874
• Parties: JOHN N. STRAAT, Adm'r of WILMOT B. PEMBERTHY, Respondent, v. STEPHEN UHRIG, et al., Appellants.
• Court: Missouri Supreme Court

56 Mo. 482

JOHN N. STRAAT, Adm'r of WILMOT B. PEMBERTHY, Respondent,

v.STEPHEN UHRIG, et al., Appellants.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

W. S. Richmond, for Appellants.

The court below erred in giving the instruction asked the plaintiff, which declared the leasehold property to be the absolute property of William B. Pemberthy. (Churchill vs. Reamer, 8 Bush [Ky.], 256; Ralston vs. Waln, 44 Penn. St., 279; Prior vs. Quackenbush, 29 Ind., 475; Delony vs. Delony, 24 Ark., 7; Black vs. Cartmell, 10 B. Mon., 188; Turnman vs. White, 14 B. Mon., 560.)

The effect of this instruction, and the consequent judgment for the plaintiff, was to deprive the children of Samuel and Wilmot B. Pemberthy of all interest in the property conveyed by these deeds. The two deeds taken together constituted an equitable provision for the wife and children of Samuel Pemberthy, the legal title being in Branch for the purpose of executing the trust only. Conveyances of this nature must be construed liberally (Wms. Real Prop. [3 Am. Ed.], p. 152) and effect given to every part, if possible. (Flagg vs. Eames, 40 Vt., 16; Collins, Adm'r vs. Lavelle, 44 Vt., 230; Prior vs. Quackenbush, 29 Ind., 475; Goodyear vs. Cary, 4 Blatchf 271.)

J. N. Straat, for Respondent.

I. As the deed of Gilson to Branch, in trust for Mrs. Pemberthy, gave to Mrs. Pemberthy an absolute power of disposal, without limitation or qualification, she took an absolute and unqualified estate in the property conveyed therein. (Ruby vs. Barnett, 12 Mo., 3; Jackson vs. Robins, 18 Johns., 537.)

II. This being the separate and absolute property of Mrs. Pemberthy, on her death her administrator is the proper party to take charge of it, collect the income arising therefrom, and administer the estate according to law.

ADAMS, Judge, delivered the opinion of the court.

This case originated before a justice of the peace and was taken by appeal to the Circuit Court, and a trial in the Circuit Court resulted in a judgment for the plaintiff, which was affirmed at General Term, and the defendant has brought the case here by appeal.

The action was for two month's rent, amounting to $110 alleged to be due to the plaintiff, as administrator of the estate of Wilmot B. Pemberthy, who died intestate in 1870, leaving four children, one of whom was of age when the case was tried and the others minors under twenty-one years. The record does not show when the children will arrive at maturity.

The defendants were tenants of certain household property in the City of St. Louis, which was held by Joseph W. Branch in trust for the sole and separate use of the said Wilmot B. Pemberthy, wife of Samuel Pemberthy. The intestate died without making any disposition of the property by appointment or otherwise, and the only question is, whether the trustee in the deed of settlement, by which the property was secured to the separate use of Mrs. Pemberthy, or her administrator was entitled to receive the rents after her death.

The solution of this question depends upon the proper construction of the deed of settlement, which reads as follows:

“This deed, made and entered into this 11th day of May, 1867, by and between George Gilson, of the city of St. Louis, county of St. Louis, in the State of Missouri, party of the first part, Joseph W. Branch, of the same place, party of the second part, and Wilmot B. Pemberthy, wife of Samuel Pemberthy, of the same place, party of the third part. Witnesseth: that the said party of the first part, in consideration of the sum of three thousand dollars, to him in hand paid by the said party of the third part, the receipt of which is hereby acknowledged, and the further sum of one dollar to him paid by the said party of the second part, the receipt of which is hereby also acknowledged, does, by thesepresents, grant, bargain, sell and assign unto the said party of the second part, the leasehold property and estate situated in the city of St. Louis and county of St. Louis, in the State of Missouri--[Here follows a description of the premises, which is a leasehold to run from May, 1866, to the 30th day of April, 1876.]--To have and to...