Webb v. Hayden

• Decision Date: 19 November 1901
• Citation: 166 Mo. 39,65 S.W. 760
• Court: Missouri Supreme Court
• Parties: WEBB v. HAYDEN.<SMALL><SUP>1</SUP></SMALL>

65 S.W. 760

166 Mo. 39

WEBB v. HAYDEN.¹

Supreme Court of Missouri, Division No. 1.

November 19, 1901.

WILLS — CONSTRUCTION — DECLARATIONS OF TESTATRIX — ADMISSIBILITY — TRUST ESTATE — ACTIVE TRUST — TRUSTEE — APPOINTMENT — INFANT CESTUI QUE TRUST — RIGHTS OF FATHER — PARTIES — ACTION BY CURATOR.

1. Where the meaning of a will, which gives to a son of testatrix a certain sum of money, to be held during his minority by her executrix, can be gathered from the instrument itself, so as to determine whether the legatee obtained an absolute legal title to the gift, so as to enable his father, the divorced husband of testatrix, to secure possession thereof as curator, or whether a trust estate was created during the legatee's minority, evidence of declarations of testatrix, showing her feelings toward her divorced husband, is properly excluded; but, were such meaning in doubt, the state of her feelings toward the husband might properly be considered, and the testimony should then be received.

2. A testatrix's will contained a legacy to her son of $10,000, "to be held by her executrix in trust during his minority, and then given to him," with directions to executrix as to the manner of investing and expending the same. Held, that the will did not make an immediate gift to the son, but created a trust estate during his minority, conferring the legal title upon the trustee; and hence the father, under Rev. St. 1899, § 3478, providing that a father shall be the natural guardian of his children and shall have the care and custody of their estates, could not obtain possession of the legacy.

3. A testatrix's will, which contained legacies to her son and niece, to be held by her executrix in trust during their minority, and then to be theirs absolutely, and which directed the manner in which the executrix should invest and manage the same, and which provided that, in case of the death of the niece during her minority, her share should go to the son, created an active trust, unaffected by the statute of uses; for it called upon the trustee to exercise judgment and discretion in the investment and management of the funds, and required him in a certain contingency to devest the fund from one legatee to use of the other.

4. An executor, assuming to also act as trustee under the will, which gives to testatrix's son a certain legacy, and as such having invested the funds and being liable therefor, has the right, though not legally appointed trustee, to the possession of the trust property as against the father, who claims possession under the statute as curator of the general estate of the minor cestui que trust; for neither the statute nor the will makes the father a trustee of such estate.

5. A petition of beneficiaries of a trust estate, by their respective curators, in a suit against the person acting as trustee, alleged that defendant held certain funds as trustee under a will giving to beneficiaries certain property to be held in trust during their minority, and prayed that he be required to give bond as such trustee. The suit was in a court which had jurisdiction over trust estates and was empowered to appoint trustees. The parties interested in the subject-matter of the suit were in court, and all assumed and asserted that defendant was a trustee under the will. The court entered a decree, which recited that defendant was such trustee, and required him to furnish a bond for the faithful performance of his duties, and such bond was given. Held, that the decree rendered under such circumstances was equivalent to an appointment of defendant as trustee.

6. A curator, in an action to recover property belonging to his ward, must sue in the name of the latter, in whom the legal title vests; for the former has only the care and control of the property of such ward.

Appeal from circuit court, Jasper county; Jos. D. Perkins, Judge.

Action by E. T. Webb, as curator of the estate of Ernest Webb, a minor, against Thomas C. Hayden. From a judgment for defendant, plaintiff appeals. Affirmed.

Plaintiff sues in his own name as curator of the estate of Ernest Webb, a minor, for moneys alleged to belong to the minor in the possession of the defendant. The answer admits that the funds in question have come into the hands of defendant, but that they came to him as trustee, and are held by him as such, with duties in relation thereto to be performed. The answer also pleads that after the defendant became possessed of the funds a suit was brought in the name of the minor as plaintiff against this defendant, charging that he held the funds as trustee under the will of that plaintiff's mother, averring that he had given no bond as such trustee, and praying that such bond be required, and that the court so decreed and bond was given. Issues were joined on these pleas. At the trial it was shown that Ernest Webb, an infant under 14 years of age, was the son of E. T. Webb, the plaintiff in this suit, and Emma I. Webb; that the parents of this child had been divorced, and the child had lived with its mother up to the time of her death; that she left a will in which were the following clauses: "(2) I give, devise, and bequeath to my son, Ernest Webb, the sum of ten thousand dollars, said sum to be held by my executrix, hereinafter named, in trust, until my said son arrives at the age of twenty-one, and then given to him. Said sum, during the infancy of my son, to be loaned out by executrix on real estate in Jasper county, Missouri, and the interest thereon to be used in keeping, maintaining, and educating my said son. (3) I give, devise, and bequeath to my niece, Madge B. Gaston, the sum of two thousand dollars, to be held in the same manner, and invested and expended, as is provided in the preceding paragraph for the holding, investing, and expending of the ten thousand dollars bequeathed to my son, Ernest Webb: provided, however, that in case of the death of the said Madge B. Gaston at any time during infancy, then the said sum herein bequeathed to her shall become the money and property of my son, Ernest Webb, and may be used in educating him. * * * (5) In case, at my death, I should not have in money the sums herein willed to my son and niece, but have the same in property, then I desire that my executrix shall, after having it appraised by three disinterested freeholders of Jasper county, appointed by the probate judge of said county, sell at public or private sale sufficient property to obtain said sums: provided said property shall not be sold at less than three-fourths of its appraised value. (6) I hereby constitute, nominate, and appoint my mother, Rebecca Hayden, of Jasper county, Missouri, executrix of this my last will and testament, and, in case of her death or refusal to act, then I desire that my brother, Thomas C. Hayden, shall become the executor of this will; and he is hereby constituted, nominated, and appointed such executor, in case of my mother's death or refusal to act." The mother of testatrix did not qualify, but the brother, Thomas C. Hayden, did, and administered the estate. On his final settlement as executor he was allowed credit for $13,189.05 as amount transferred by himself as executor to himself as trustee under the will, for the use of Ernest Webb and Madge Gaston, legatees, and his receipt as such trustee was filed as a voucher for the credit in his account as executor. After the death of the mother the father qualified as curator of the estate of the child, Ernest, and one H. G. Gaston became the curator of the estate of Madge Gaston. A suit was filed in the circuit court, in which these two infants, by their respective curators, were plaintiffs, and this defendant was defendant, in which the provisions of the will, the final settlement of the estate, the transfer of the funds, etc., as above stated, were set out in the petition, and it was therein stated that the defendant was in possession of the funds, claiming to hold them as trustee under the will, and "that by said will said trust is to continue until Ernest Webb arrives at the age of...