
    Walton et al., Appellants, v. Ketchum et al.
    Division Two,
    December 20, 1898.
    1. Life Estate by Implication. Tbe deed in this case, conveying certain land to a trustee, for the benefit of a wife during her life, with power of sale by her with her husband’s assent, and in ease of their death without sale to be held by the trustee for the use of their children, is held not to create a life estate in the husband by implication, nor to confer on him the power of alienation.
    2. -: husband’s entby: postponement op remaindermen. If the husband had no life estate in land which was conveyed to a trustee for the use of the wife for her life, and after her death to the use of their children, the use being executed at her death by the statute, he could not lawfully postpone the possession of the children after his wife’s death, and if he took possession of the property he can assert a claim thereto adverse to his children, by adverse possession.
    
      3. Trusts: termination op trust estate: peme covert: LIMITATIONS. Where the duty was imposed on the trustee to whom was conveyed certain lands, to collect the rents and turn them over to a wife, and in case of the death of herself and her husband before the lands were disposed of, then to hold them in trust for the sole use and benefit of their children, and one of the children rvas a feme covert at the time of her death, the statute did not execute the uses, but the legal title remained in the trustee after the death of the wife, for the benefit of such feme covert. And when he permitted the husband to assume actual possession of the land, and to collect and use the rents, for ten years and longer, he was barred to sue for the recovery of the premises; and, hence, as he had the legal title and the sole right to sue for possession, the children, though minors or married women, are likewise barred.
    
      Appeal from St. Louis Giiy Circuit Court.- — -Hon. James E. Withrow, Judge.
    Aeeirmed.
    Webster & Webster for appellants.
    (1) The deed from O’Elahertv to Meegan, under which all parties claim title, should be given such construction as will effectuate the intent of the parties thereto, and to that end all its parts should be considered in gathering its meaning, as well as the circumstances under and the purposes for which it was made; and the construction given to it must be reasonable, so as to fairly give effect to its intent. Jennings v. Brizeadine, 44 Mo. 332; Long v. Wagoner, 47 Mo. 178; Jamison v. Eopiano, 48 Mo. 194; Bruensman v. Carroll, 52 Mo. 313; Wolfe v. Dyer, 95 Mo. 545; Cook v. Couch, 100 Mo. 29; Louis v. Pitman, 101 Mo. 291; Davis v. Hess, 103 Mo. 31; Long v. Trimons, 107 Mo. 512; Mc-Culloch v. Holmes, 111 Mo. 445; Eosburgh v. Rogers, 114 Mo. 122; Hanna v. Land Co., 126 Mo. 1; Lakenan v. Railroad, 36 Mo. App. 363; Church v. Kellar, 39 Mo. App. 441. (2) A life estate may be created by necessary implication from the terms of a deed. Bean v. Kenmuir, 86 Mo. 666; Cornwell v. Orton, 126 Mo. 355; Elston v. Schilling, 42 N. Y. 79; Loekridge v. McOammon, 90 Tex. 234; Anderson’s Law Diet., title “Dispose;” Black’s Law Diet., title “Dispose;” Bouvier’s Law Diet., title “Dispose;” Century Diet., title “Dispose.” (3) Upon the death of Ann Yore the trust created by the deed was executed in the children of Patrick and Ann Yore. 1 Perry on Trusts, secs. 298, 305, 307; 27 Am. and Eng. Ency. of Law, 107-125, 309; Eoberts v. Mosely, 51 Mo. 282; Pitts v. Sheriff, 108 Mo. 117; Laurens v. Jenney, 1 Speers, 356. (4) The intent of the deed from O’Elaherty to Meegan as trustee, was clearly to give to Patrick Yore, in case he survived his wife, the use, occupation and control of the property during his lifetime, and the legal effect of such grant of the use was to create a life estate in him. 3 Washb. on Eeal Prop. [5 Ed.], p. 406. (5) The statute of limitations did, and could not begin to run against plaintiffs until the termination of Patrick Yore’s life estate, notwithstanding the trust was executed in her children upon the death of Ann Yore. Brown v. Moore, 74 Mo. 633; Sutton v. Casseleggi, 77 Mo. 397; Colvin v. Hauenstein, 110 Mo. 575; Thomas v. Black, 113 Mo. 66; Eischer v. Siekman, 125 Mo. 165. (6) Patrick Yore having the right to use and occupy said property during his lifetime, lawfully took and remained in possession; but, being only a life tenant, he could not, by any act, claim or words, enlarge his estate therein, or make his possession adverse to his children. Salmon’s Adm’r v. Davis, 29 Mo. 176; Keith v. Keith, 80 Mo. 126.
    Ered. Wislizenus for respondents.
    (1) Patrick Yore had no interest under the deed from C’Elaherty to Meegan. First. Life estates by implication are known in wills, not in deeds. 2 Woerner’s Am. Law of Adminis., p. 882, sec. 418; 1 WasKb. on Real Prop.. *89; Tndor on Real Prop., p. 640; 1 Preston on Estates, p. 190; 1 Eq. Abr. Oases, 196; 2 Ld. Raymond, 1152. Second. Even in wills the implication will not be raised, unless the intention so clearly appears that a contrary intention can not be supposed to have existed in the testator’s mind. Barlow v. Barnett, 28 Atl. Rep. 597; Barnett v. Barnett, 29 Beav. 239. (2) On the death of Ann the trust was not executed but remained active. First. A trust will not be executed if its continuance serves a legal useful purpose, such as protection of a remainder, nor will it be executed if there are active duties reposed in the trustee. Pugh v. Hayes, 113 Mo. 428; 1 Sanders on Uses [Am. Ed.], 253; Hill on Trustees, sec. 361; Perry on Trusts, sec. 306; Barber v. Greenwood, 1 Horn and Hurl, 389; 27 Am. and Eng. Ency. of Law, p. 309. Second. A trust will always continue where the interests of a married woman are involved. Tiedeman on Real Prop., sec. 569; Schouler on Dom. Rel., sec. 105; Sanders on Uses, p. 387; Bank v. Taylor, 53 Mo. 450; Morrison v. Thistle, 67 Mo. 596; Perry on Trusts, secs. 310, 329; Weekman v. Berry, 55 Pa. St. 70. (3) When the statute of limitations runs against a trustee, it also runs against all beneficiaries of the trust. Yore v. Yore, 63 Fed. Rep. 645; Ewing v. Shannahan, 113 Mo. 188; Boswell on Lim., sec. 340; Deeouche v. Savetier, 3 Johns. Oh. 190; Walker v. Walker, 16 S. & R. 379; Winnfield v. Virgin, 51 Ga. 139.
   GANTT, P. J.

— From a judgment for defendants the plaintiffs appealed.

The facts are undisputed. All parties claim title under a deed from Thomas O’Flaherty to James Meegan, trustee, and the only questions raised on this appeal arise upon the construction to be given that deed. The deed omitting formal matters is as follows:

“This deed, made and entered into this twenty-sixth day of April, in the year of our Lord one thousand eight hundred and fifty-two, by and between Thomas O’Elaherty and Eliza, his wife, of the city and county of St. Louis, and State of Missouri, parties of the first part, and James Meegan, of the same place, of the second part, and Ann Tore, wife of Patrick Tore, party of the third part, all of St. Louis, aforesaid, witnesseth: That the parties of the first part, for and in consideration of the sum of three thousand dollars, to them in hand paid by the said Patrick Tore, the receipt of which is hereby acknowledged, have granted, sold, remised, released and forever quitclaim unto said Meegan, a certain lot of ground in said city, in block one hundred and ninety-four in the addition to St. Louis” (the lot in controversy).
“To have and to hold the said lot of ground above described, with all the privileges and appurtenances to the same belonging or in anywise appertaining unto him, the said James Meegan, his heirs, executors, administrators and successors, in trust, and confidence, however, for the following uses and purposes, and for none other, to wit: Eor the sole use, benefit and behoof of the said Ann Tore during her natural life and no longer, to receive the rents, profits and issues arising from or growing out of the said premises, and to pay over the same to the said Am Tore, or to dispose of the said premises by sale, hypothecation, mortgage, or otherwise, as the said Ann Tore, with the assent of her said husband in writing, signed by them and attested by two respectable witnesses, shall direct, and in case of the death of said Patrick Tore and Am, his wife, before the said premises shall be disposed of, then the same to be held by said James Meegan, as trustee as aforesaid, for tlic sole use and benefit of the children of the said Patrick Yore and Ann, his wife.”

The other facts, essential to an understanding of the points involved, are, Ann Yore died intestate in 1876, without having made any disposition of the property. She left six children of her marriage with Patrick Yore, of which plaintiff, Sarah O. Walton, is one. She was married to her co-plaintiff, Frederick Walton, before Barbara Ann’s death.

It is admitted that Patrick Yore, on the death of Barbara Ann, entered into possession of the property in controversy, openly and notoriously claiming and holding the same as his own against all the world, and collecting the rents thereof to his own use till the marriage settlement hereinafter mentioned.

Patrick Yore in 1879 married defendant, Sophia Yore. A marriage settlement was made whereby Sophia released all rights including dower in Patrick Yore’s property, and was granted a life estate m the property involved in this', suit. The essential parts of that marriage settlement are set forth in appellants’ abstract. Ever since the marriage Sophia Yore has held the property openly and notoriously claiming and holding the same as her own against all the world, and is still doing so.

Patrick Yore died in 1889, claiming the property, subject to Sophia Yore’s life estate.

Defendant Ketehum is Sophia Yore’s tenant.

Plaintiffs contend that the property in controversy was not disposed of, within the meaning and intent of the deed prior to the death of Patrick Yore who survived his wife; that it was the intention of all parties to the deed that Patrick Yore, in case he survived his wife, should have the sole right to the use and occupancy of said premises during his lifetime and that therefore the right of entry and of action did not accrue to them until his death in 1889, and hence the statute of limitations is no bar to their recovery. Defendants on the other hand insist that Patrick Yore took no estate whatever under the deed. Obviously not a curtesy, because Mrs. Yore only took an equitable life estate herself, and not a life estate by implication, because such a construction would clearly defeat the plainly expressed intention of the grantor. Secondly, that the statute of limitations is a bar because having run against the trustee Meegan it also ran against the beneficiaries.

I. The substratum of plaintiffs7 argument is that the deed by implication created a life estate in Patrick Yore and the right of immediate possession never vested in plaintiffs until his death in 1889. Much discussion was had'at the bar and is repeated in the briefs of the proposition advanced by defendants, that a life estate by implication can never be created by deed but must necessarily be by will. If as we take it plaintiffs only contend that in the construction of a deed as well as a will, courts no longer look to the mere formal words of grant to ascertain what is granted, but. gather the intention and purpose of the grantor from all the corners of the deed and effectuate that purpose unless prohibited by some positive provision of law, then we agree with them that the life estate need not have been created by express words. [Lewis v. Pitman, 101 Mo. 281; Davis v. Hess, 103 Mo. 31.] But the decisions of this court are not authority for the proposition that where no conveyance whatever is made an estate may arise in a deed by implication alone. But conceding that in the absence of express words of grant, we may examine the whole instrument to ascertain the meaning of the parties, it is said that the implication of a gift must rest upon evidence of intention so strong that a contrary intention to that which is imputed to the grantor or testator can not be supposed to have existed in his mind. Looking now to the deed under consideration can it be said that the purpose of creating a life estate in Patrick Yore is so strong that a contrary intention can not be supposed to liave entered into the mind of the grantor O’Elaherty ? On the contrary is it not obvious that it was the intention to provide for the support and maintenance of Mrs. Ann Tore and her children by Patrick Tore? On this point there can be no doubt and yet if by invoking this implication a life estate is created in Patrick, it at once defeats the plainly expressed intention of providing for the children, for so long as Patrick lived his children would lose the rents which the trustee was directed to collect and pay over to them. The whole deed refutes the idea of a life estate in Patrick. Neither is there any power to alien conferred by the deed on Patrick. His wife alone with his consent could direct a conveyance. [Barnet v. Barnet, 29 Beavan, 239.]

II. We shall not undertake to follow the discussion of counsel as to the proposition that Patrick’s provision for his second wife by way of marriage settlement was “a disposal” of the land in suit within the meaning of the deed. In our opinion he had no power to dispose of it. He could assent to a conveyance or disposition by the trustee Meegan at the request of Barbara Ann his wife in her lifetime and had aro power to dispose of it otherwise.

III. It is agreed and admitted that upoai the death of his wife, Ann Tore, Patrick Tore eaitered into possessioai of the property in disprate, opeaaly aard notoriously claiming and holding the samé as his own against all the world, and collecting the rents to his own use until his marriage to Sophia Tore, and ever since 1819 she has held the open, notorious and unbroken possession thereof. Upon this coarcession defeaadants insist that Sophia Tore’s title was perfected by the adverse possession of Patrick aard herself, under him, and plaintiffs are barred. To aneet this coartention plaintiffs reply, first, that Patrick Tore had a life estate and their right of entry did arot accrue till his death iar 1889, and that, having the right to use and occupy the premises during his life and being a life tenant, he could not by any act, claim or words enlarge his estate. The propositions so elaborately argued and maintained by defendants’ counsel that the statute having run against Meegan, the trustee, also ran against the beneficiaries the children of Ann, is not seriously controverted. That plaintiffs’ two propositions can not avail them is apparent because of the fallacy of the premises assumed. Patrick Yore was not a life tenant by virtue of the deed and therefore he could not lawfully postpone the possession of his children after his wife’s death. He had not acquired possession in a lawful manner as a life tenant and hence he was not on that account estopped to claim the premises adversely.

A most interesting question however does arise as to whether the adverse possession held against the trustee also barred the children who survived their mother. Of these, the plaintiff, Mrs. Walton is one and she was married to her co-plaintiff before her mother’s death. Being under coverture when her mother died it becomes at once very important to determine whether the statute executed the use so to speak which had been created by the deed and devolved the legal title upon her as to her share, or whether the trust was an active one and remained in Meegan, the trustee, with power to represent her interest. Recurring to the terms of the deed, it will be seen, that the trust was an active one to receive the rents, profits and issues arising from or growing out of said premises and to pay over the same to said Ann Yore and in case of the death of said Ann and Patrick before the said premises were disposed of, then to be held by said trustee as aforesaid for the sole use of the children of Patrick and Ann.

As to when a trust is executed little if anything can be added to what was said in Pugh v. Hayes, 113 Mo. 431. It was there held that: “If an estate is conveyed or devised to one in trust or for the use of another, and nothing more is said, the statute executes the use, that is to say, it transfers the legal estate to such other person; but, if the donee in trust or to uses is invested with duties and powers, then a trust is created and the legal title does pass to the ceslui que trust. Such trusts are not and never were 'affected by the statute of uses. Therefore if any agency, duty or power be imposed on the trustee, as by a limitation to a trustee and his heirs to pay the rents, or to convey the estate, or if any control is to be exercised., or duty performed by the trustee in applying the rents to a person’s maintenance, or in making repairs,* or to preserve contingent remainders, or to raise a sum of money, or to dispose of the estate by sale — in all these, and in other and like cases, the operation of the statute is excluded, and the trusts or uses remain mere equitable estates.’ 1 Perry on Trusts (4 Ed.), sec. 305; see to the same effect, Hill on Trustees (Am. Ed.), 360. Where the estate is limited to a trustee to pay the rents and profits to another person for life, the trustee takes the legal estate, for he must receive .them before he can malee the payments: but, where the estate is limited to a trustee to permit and suffer another to have the rents, the statute vests the legal estate in such other person, because the trustee has no duties to perform. [1 Sanders on Uses and Trusts (Am. Ed.), 253; Hill on Trastees (Am. Ed.), 361; 1 Perry on Trusts (4 Ed.), sec. 306; Upham v. Varney, 15 N. H. 463; Barker v. Greenwood, 1 Horn & Hurlstone, 389.]”

In addition to the active duties of the trustee as to all the children, Mrs. Walton was then a married woman and the case of a feme covert has uniformly been held as taking the case out of the statute. [Tiedeman on Real Prop., sec. 469; 1 Perry on Trusts (4 Ed.), sec. 310.]

It follows then that the statute did not execute the use but the legal title remained in Meegan, the trustee, after the death of Ann Yore for the benefit of Mrs. Walton. It was his plain duty to protect the possession for her benefit and not permit Patrick Yore to take possession. But lie permitted Patrick Yore to assume actual possession of the premises and collect and use the rents.

It is conceded that this adverse possession continued until the trustee was barred and the question recurs, what effect did it have upon the beneficiaries, his children? It must now be regarded as settled in this State that when the trustee who has the legal title and the sole right to sue for possession is barred, the cestui que trust though a minor or married woman is likewise barred. [Ewing v. Shannahan, 113 Mo. 188.] That decision met the unanimous approval of this court and decides this proposition against plaintiffs.

The judgment is affirmed.

Sheravood and Burgess, JJ., concur.  