Walter v. Walter
| Decision Date | 31 March 1871 |
| Citation | 48 Mo. 140 |
| Parties | MARY R. WALTER, BY HER NEXT FRIEND, JAMES PURDY, Respondent, v. LITTLETON W. WALTER, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
Lackland, Martin & Lackland, for appellant.
I. There was no trust created by the language of the deeds. What purported to be a trust was instantly executed by the statute of uses, leaving no estate in the trustee. (Hill on Trustees, 232-3.)
( a) The fact that one of the cestuis que trust was or became a married woman does not defeat the operation of the statute, because the estate to her was not a separate estate. An estate to the joint use of husband and wife is not a separate estate. (Geyer v. Branch Bank, 21 Ala. 414; Bender v. Reynolds, 12 Ala. 446.)
( b) The fact that the estate to Mrs. Walter was given in contemplation of her marriage does not change the rule. (Ware v. Richardson, 3 Md. 50; Kuhn v. Newman, 26 Penn. 227.)
( c) There was nothing in the quantity of estate given to Mrs. Walter to defeat the statute, for she was either a joint tenant or a tenant by the entirety. (Gibson v. Zimmerman, 12 Mo. 385.)
( d) There was nothing in the duration of her estate to arrest its operation, for the unlimited power of disposal attached to the estates of the beneficiaries--invested them with fee simple estates.
( e) The husband was entitled during his life to the use and enjoyment of the whole estate, no words of exclusion being used. (Hill on Trustees, 406-420; 2 Sto. Eq. Jur. 849, § 1382; Wh. & Tud. Lead. Cas. Eq. 539; McCaulay v. Phillips, 4 Ves. 18.)
II. The wife, having no separate estate, cannot sue her husband in respect to this property.
( a) She could not sue him in any proceeding at law.
( b) Equity follows the law, and, outside of statutory enactments, does not authorize a wife to sue her husband except where the controversy embraces rights vested in her as a feme sole, or where she asks for the establishment of a separate estate or separate provision out of her general estate.
III. The charges of fraud and violence were not established as alleged; neither were they in any way connected with the execution of the deeds sought to be set aside.
IV. The court erred in including the Mound City hotel in the decree re-establishing the trust. It did not originally belong to the trust estate. Its constituent elements were as follows: The result of the sale and exchange of trust property, $12,900. Rents from trust property, $17,685.68.
( a) The hotel cost $30,585.62. Of this cost only $12,900 proceeded from the trust estate. The balance, for $17,685.62, proceeded from the rents and profits, which belonged absolutely to the defendant. There was no equity in turning this major cost of the hotel into the trust fund, because it was definitely ascer tained and fixed by the report of the commissioner.
( b) If the trust estate was wrongfully converted, then the proceeds of that estate in the hands of defendant remained constructively subject to the trust. In such case the preponderance of authority goes no further than to allow a lien in favor of the fund wrongfully converted. .)
( c) Where the consideration of the investment by a trustee does not consist entirely of the trust estate, and the proportion of the trust estate entering into the investment is known, a court of equity either declares a lien against the investment for the amount of the trust fund it contains, or it decrees an undivided interest in favor of the trust estate to the extent of the trust fund so contained in the investment. (Price v. Blackmore, 6 Beav. 507; Oliver v. Pratt, 3 How., U. S., 403; Heth v. Richmond, 4 Gratt. 482.)Glover & Shepley, with whom was Espy, for respondent.
Opposing counsel contend that a wife may sue her husband (1) only in reference to property conveyed to her separate use; (2) in respect to her right to a settlement. If this is correct, then the laws create many other interests of property in a wife which it will not protect. This is a contradiction. No such anomaly is known. The law protects every right which it admits to exist. The wife may sue for other rights than those to separate property. (Sto. Eq. Pl. 63, note 2; Fry v. Fry, 7 Paige Ch. 461.) A wife may sue her husband to secure her distributable share of an estate against his creditors. (Eubank v. Montelien, 5 Ves. Jr. 737.) Where the wife claims an interest adverse to her husband, she may sue him. (Bradley v. Emerson, 7 Verm. 369; Smith v. Pinscomb, 10 Eng. Law & Eq. 50; Monday v. Wagham, 11 Eng. Law & Eq.; O'Brien v. Hilburt, 9 Texas, 297; Coleman v. Satterfield, 2 Head, 265; Lampert v. Lampert, 1 Ves. 21; Sydney v. Sydney, 3 P. Williams, 269; Kirke v. Clark, Prec. Ch. 275.) A wife may sue a husband in equity in all cases of wrongful acts done against her property. (Barber v. Barber, 21 How. 582; Bright on Husband and Wife, 471; 2 Sto. Eq. 167, § 847; id. 264, § 956; 1 Sto. Eq. 30, § 29.)
This was a proceeding in the nature of a bill in equity for the purpose of reinstating a trust. It appears that the plaintiff and defendant, on the 18th of May, 1857, mutually agreed to convey, or procure to be conveyed, certain real estate belonging to them, or their friends respectively, to a trustee, to hold to the joint use of both. This agreement was made in contemplation of marriage. Afterward the plaintiff, in pursuance of this agreement, procured from her mother, Charlotte J. Purdy, a conveyance of certain real estate to one John Burkholder, for the use, benefit and behoof of said Mary R. (the plaintiff) and the said Littleton H. (the defendant), as joint tenants and not as tenants in common, to be used and enjoyed by the said plaintiff and defendant, to be by such trustee conveyed in such manner, to such persons and for such considerations as the plaintiff and defendant might at any time direct and appoint, whether in fee simple absolutely, in mortgage, trust, by lease, or in any other manner; and in case of the death of either said plaintiff or defendant without having directed or appointed the manner in which said estate should be conveyed or disposed of, then the trustee should hold the property in trust for the children of the body of the plaintiff by the defendant; and in case there should be no children of the marriage living at the time of the death of either of them, then the trustee was to hold the property in trust for the survivor, and for the heirs and legal representatives of the survivor forever. At the same time, and by way of complying with his part of the agreement, the defendant conveyed certain real estate to Burkholder upon the same trusts as those expressed in the deed of Mrs. Purdy. Several years subsequent to the marriage the parties directed Burkholder, the trustee, to convey the property of the plaintiff to one Hatch, and they joined also in a deed conveying the same to Hatch in fee simple for the consideration of one dollar, and in a short time thereafter Hatch conveyed it to the defendant by absolute title for the nominal consideration of five dollars. By this means the defendant obtained the complete title discharged of all trusts. This suit was instituted by the plaintiff to have these conveyances set aside and declared void on the ground that they were procured by falsehood, fraud, misrepresentation and undue influence, and asking that the trust might be reinstated and a new trustee appointed. The Circuit Court, after referring the matter to a commissioner to take testimony, on the coming in of his report granted the prayer of the petitioner, appointed a new trustee, and re-established the trust upon certain property owned by the defendant which the court found was obtained from the proceeds and the rents and profits of the property of the plaintiff. From this decree the defendant appealed. In the first place it is argued here by the counsel for the appellant that the deeds did not raise a trust in Burkholder at all, as it was a dry trust and executed by the statute of uses, leaving no equitable or trust estate to invoke the jurisdiction of a court of equity. But this is obviously a mistake. The statute of uses does not, and was never intended to, apply to such a case. To say that the use was...
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