Wanstrath v. Kappel
| Decision Date | 14 March 1949 |
| Docket Number | 40881 |
| Citation | 218 S.W.2d 618,358 Mo. 1077 |
| Parties | Gertrude Wanstrath, (Plaintiff) Respondent, v. John C. Kappel, Jr., Martha Raney, and Mutual Bank & Trust Company, a Corporation, Trustees Under Declaration and Conveyance in Trust of George J. Wanstrath, Minette McFarland, John C. Kappel, Jr., Executor Under Will of George J. Wanstrath, Deceased, (Defendants) Appellants |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of St. Louis County; Hon. Amandus Brackman, Judge.
Affirmed.
Robert C. Powell, Hensley & Hensley, and Harry G. Neill, Jr., for appellants John C. Kappel, Jr., Martha Raney and Mutual Bank & Trust Co., a Corporation, Trustees.
(1) The trial court erred in not allowing a proportionate part of the costs in the case, the costs of the litigation, and the trustees' fees and expenses, to be charged against plaintiff's "child's share"; and likewise erred in ordering that the allowance to the guardian ad litem for his fees and expenses and the allowance of fees to the attorneys for the trustees should not be borne proportionately by plaintiff's "child's share", but should be taxed as costs against and paid out of the balance of the corpus of the trust estate, after the determination of plaintiff's share to her under the decree of the trial court. Griffin v. Channing, 54 Mo. 282; Howard v. Strode, 242 Mo. 210, 146 S.W 792; In re Bernay's Estate, 126 S.W.2d 209; In re Poe's Estate, 201 S.W.2d 441; Hewitt v. Duncan's Estate, 226 Mo.App. 254, 43 S.W.2d 87; Burr v. Burr, 163 Mo.App. 395, 143 S.W. 1096; In re Dean's Estate, 166 S.W.2d 529; Lucas v Manufacturing Lumbermen's Underwriters, 166 S.W.2d 537; In re Stevens' Estate, 116 S.W.2d 527; In re Carlin's Estate, 47 S.W.2d 213; In re McKinney's Estate, 173 S.W.2d 898; In re Mayhall's Estate, 151 S.W.2d 545; Loud v. St Louis Union Trust Co., 313 Mo. 552, 281 S.W. 744; Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629.
Thomas S. McPheeters and Bryan, Cave, McPheeters & McRoberts for Minette McFarland, appellant.
(1) The trial court erred in entering the order which refused to charge Gertrude Wanstrath (respondent) with her share of the allowance to the guardian ad litem and her share of the attorneys' fees representing the trustees, all incurred in defending the trust, and in entering its order taxing such allowances and fees solely against the remainder of the trust after the setting aside of the widow's one-third share. Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629; Loud v. St. Louis Union Trust Co., 313 Mo. 552, 281 S.W. 744.
McDonald, Bartlett & Muldoon, Daniel Bartlett and Thomas F. Muldoon for respondent.
(1) The trustees are not entitled to an allowance of credit for fees upon transfer of property to the widow pursuant to the court's decree. The widow's share, equivalent to that of a child, is not subject to diminution by such fees. Sec. 323, R.S.A. The widow takes not by will or by intestate laws. In re Rogers Estate, 317 Mo. 994, 250 S.W. 576. (2) The property transferred to appellant-trustees in fraud of the widow's rights was never a part of the trust estate or otherwise subject to trust administration for which fees can be charge to her funds. (3) Even if the property found by the court to be the widow's had been subject to the trust indenture, that instrument makes no provision for payment of the fees claimed upon "distribution" to the widow. (4) The payments and transfers made and to be made to the widow are in compliance with the court's decree, not in pursuance of any power expressly created by the trust indenture or to be implied therefrom. (5) The conduct of the appellant-trustees as shown by the record does not justify, in equity, the allowance of fees to them, particularly fees payable out of the widow's share as decreed by this court. Wanstrath v. Kappel, 356 Mo. 210, 201 S.W.2d 327; Merz v. Tower Grove Bank & Trust Co., 344 Mo. 1150, 130 S.W.2d 611. (6) No part of the burden of the appellant-trustees' cost of this litigation, including attorneys' fees, should fall upon property fraudulently transferred to and held by them and which they are now ordered to pay to the widow. (7) There will be left in the hands of the appellant-trustees (after the full payments and transfers pursuant to court decree have been made to the widow) ample trust funds in the trust estate, to bear all their costs and expenses of this litigation, if they were justifiably incurred by the trustees. It is upon this trust fund, and not upon the widow's property as found by the court, the burden of costs should fall, if, indeed, the trustees are not required to bear it themselves, as they should be, for the trustees should have remained neutral. Baily v. Buffalo Loan, Trust & Safe Deposit Co., 108 N.E. 561. (8) The property, fraudulently transferred to and held by the appellant-trustees and now ordered paid to the widow, was never a part of the trust fund, and hence is not subject to the trustees' costs and expenses. Trusts, C.J., Sec. 590. (9) The conduct of the appellant-trustees does not justify the court allowing them credit for costs and expenses incurred in their futile attempt to defend a fraudulent transfer to them, but the trial court exercised a wise and sound discretion by directing that the allowances it did make of such costs and expenses shall not be exacted from the widow's property. (10) The attorneys applying for fees in this case did not take this appeal and have no direct interest in the allowances involved. Allowances made or refused are the concern of the fiduciaries who are entitled only to credit for justifiable expense which is not the case here. So the conuct of the appellant-trustees has a direct bearing on the allowance of credit for attorneys' fees as well as other costs and expenses of this litigation. Merz v. Tower Grove Bank & Trust Co., 344 Mo. 1150, 130 S.W.2d 611.
Dalton, C. Bradley and Van Osdol, CC., concur.
This is the second appeal in this case. Defendants have appealed from an adverse judgment with reference to certain charges of costs and expenses incident to this litigation and the administration of the trust estate, such as trustees' fees and expenses, attorney fees, guardian ad litem fees and expenses, et cetera, which defendants contend should be taken into consideration in determining the net amount due plaintiff under the prior decree.
The original action was in equity to establish plaintiff-widow's right to a child's share or one-third of certain personal property, which her husband George J. Wanstrath had placed in trust four months and eight days before his death. Substantially all of her husband's property had been transferred to the defendant trustees under the declaration of trust. Plaintiff sought to have such trust set aside as to her "child's share" of such property and to have such share turned over to her by the trustees of the trust, subject only to proportionate deduction for debts. Sec. 323 R.S. 1939; Wanstrath v. Kappel, 356 Mo. 210, 201 S.W.2d 327. The trial court by its decree found that George J. Wanstrath (201 S.W.2d 327, 329). The court retained jurisdiction of the cause for such further orders as the court might determine to be necessary to carry out the terms of the decree.
In partial compliance with the decree, which was affirmed by this court in Wanstrath v. Kappel, supra, the defendant trustees filed certain reports and statements of account, showing securities and cash received as of June 10, 1943 (the date of the death of George J. Wanstrath) and including credits against receipts, income debits, credits against income, recapitulation and also a summary as of June 1, 1947. In said statements and summary, defendants charged against the plaintiff's one-third share of the estate of her deceased husband an item of $ 13,201.53, purporting to be $ 12,500 as "her proportionate part of trustees' fee for services" and $ 701.53, as one-third of the expenses advanced by the trustees, as per their statement. In this connection the defendant trustee Kappel testified: "We are charging $ 12,500 as a trustee's fee in connection with the distribution to Mrs. Gertrude Wanstrath of one-third of the estate." The statements, as filed, further contained suggestions for partial distribution to plaintiff, subject to the payment of the following: (1) one-third of the claims allowed and which might be allowed against the estate of the deceased (Wanstrath); (2) one-third of the costs and expenses in the administration of said estate of deceased, which estate was then pending in the probate court of St. Louis county; (3) one-third of the costs and expenses of the present litigation, including attorney fees for attorneys employed by the trustees and costs, and guardian ad litem fee and expenses, not then determined; and (4) other items not material on this appeal. Objections and exceptions were duly filed by plaintiff. The defendants replied thereto and the issues were ruled by the court, as hereinafter indicated.
Thereafter John A. Nolan, guardian ad litem for certain minor defendants in the original cause, duly filed an application for a fee and expenses and he was allowed a fee in...
To continue reading
Request your trial