
    SIMPSON et al. v. ERISNER et. al., Appellants.
    Division One,
    March 14, 1900.
    1. Will: active trust: eee. The trustees under the will were given power to exercise a control over the real and personal property except the house and garden where the widow was to live, were charged with the duty of applying the rents to the support of the widow and the maintenace and education of the children, of making repairs, and were given discretion in the management of the estate and charged with the duty of protecting it until the death of the widow and until it was divided between certain legatees. Beld, first, that the trust was an active trust, and although the use was not executed the fee vested in the trustees, and still remains in them, although they nine years ago resigned and no successors were appointed in their stead; second, the sale by the widow and surviving children, after their majority, did not entitle the grantee to the possession or divest the trustees, the duty yet remaining on them to control and rent the property and apply the rents to the support of the widow, although she may have ample support from other property or the proceeds of the personalty; third, one of the legatees having died his heirs (sisters of the half-blood) can not sue for possession of their share in the property during the life of the widow but the trustee (to be appointed) alone is entitled to possession.
    2. -: resignation oe trustees. When land is vested in trustees by an active trust, and they resign, the title still remains in them, and if the trust property is surrendered the cestuis que trust have authority to apply to the proper court for the appointment of a trustee, who alone has right to recover the possession in ejectment.
    
      Appeal from Lincoln Circuit Court. — Hon. H. M. Hughes, Judge.
    Reversed.
    
      Norton, Avery & Young for appellants.
    The action of ejectment can only be maintained where the plaintiff had the legal title at the time the action was commenced. Ford v. French, 72 Mo. 250; Dunlap v. Henry, 76 Mo. 106. And since these cases have been universally followed since their enunciation by this court, we think it unnecessary to cite other cases.
    
      Martin & Woolfolk for respondents,
    (1) The will does not give the trustees any power to sell the lands, but only authority to lease and collect the rents for the support of the widow and the support and education of his children until they became of age or should marry. It does not give the executors the primary use of the land, but only a power kv lease and collect the rents for the purposes mentioned. “If a testator give his trustee simply a power of disposition of his estate, as that his executors or trustees or other persons shall let or mortgage or otherwise dispose of his estate to pay debts or legacies or debts or annuities or other charges or when he directs his executors to raise money, no estate vests in the trustees, executors or other persons, but it descends to the heir or other persons to whom it is directed to go in the will until it is wanted for the purposes named and then it is divested only to the extent necessary for the purposes named.” Perry on Trusts, secs. 304, 307, 308. (2) Rules of construction have been adopted by the courts in determining the right and estate of a trustee'. First. Whenever a trust is created, a legal estate sufficient for the purposes of the trust shall, if possible, be implied in tbe trustee. Second. Although a legal estate may be limited to a trustee to the fullest extent as to him and bis heirs, yet it shall not be carried further than the complete execution of the trust necessarily requires. Perry on Trusts, sec. 312. The purposes of the trust, created in J. IT. Simpson’s will, being the support of the widow, and the support and education of his two children, have at least, so far as the children are concerned, been fully completed by the death of tbe little boy and tbe maturity and marriage of tbe daughter Eannie. As to tbe widow, tbe other property of tbe estate is more than ample for her support, if after her action in attempting to dispose of a part of the corpus of tbe estate, she or anyone representing her would be permitted to say that the trust has not been executed. But who is in this case saying that the trusts created by the will of John H. Simpson have been unexecuted? Not the trustees or anyone for them or claiming under them. Both of them have been discharged almost ten years. Mrs. Nelson can not claim that the trust is unexecuted so far as she is concerned. Sbe is married, and' by the terms of the will she is precluded from claiming a support from the estate. Oan Mrs. Simpson, the widow, set up the will as containing a trust for her benefit to be executed out of the land involved in this suit, after she has conveyed by warranty deed the land itself and obtained not the annual rents, but as appears from her deed, tbe full value of tbe land? Sbe will not be permitted to say that the will contains a trust in her favor to be executed out of the land in suit when she has ponveyed the land by warranty deed. She would be estopped from setting up the trust in the executors or any beneficial interest in herself by her conduct. Ketchum v. Christian, 128 Mo. 38; Eox v. Winders, 127 Mo. 502; Rosenberger v. Tones, 118 Mo. 559; Tyler v. Hall, 106 Mo. 313.' And estoppel may be invoked by the plaintiffs against a defendant in ejectment in such a case as this. Sudd'arth v. Robertson, 118 Mo. 286; Hardwick v. Jones, 65 Mo. 54; Wood v. Hilderbrand, 46 Mo. 284. (3) If defendants claim title from any other source, they must produce such other title. Smith v. Lindsay, 89 Mo. J6; Charles v. Patch, 87 Mo. 450; Grandy v. Casey, 93 Mo. 595; Butcher v. Rodgers, 60. Mo. 138; Miller v. Hardin, 64 Mo. 545; Pinch y. Ullman, 105 Mo. 255; Ebersole v. Rankin, 102 Mo. 488. It being shown that both parties acquire and claim title from a common source, the defendants are estopped from setting up an outstanding title in the trustees. Cummings v. Powell, 91 Mo. 524; Pellows v. Wise, 49 Mo. 350; Holland v. Adair, 55 ■Mo. 40.
   MARSHALL, J.

This is an action in ejectment to recover an undivided one-sixth interest in sixty-nine and fifty-three hundredths acres of land in Lincoln county.

John H. Simpson married a widow, who had two children, Belle Simpson and Camelia Woodson who are the plaintiffs in this action. There were born of that marriage two children, Pannie and Riley. Mr. Simpson died January 18, 1816, seized of the land in controversy, besides other real and personal property. By his will he devised all his property, real, personal and mixed, to John Hutton and John Cockrell (and also appointed them his executors) in trust for the following purposes: to have “full power and authority to lease, rent, manage and control all my real estate, and to manage and control and dispose of all my personal property as they may deem best for the interest of my estate,” with power to sell the personal, but no power to sell the real property, and out of the rents' and profits of the real estate and the proceeds of the personal, to provide, first, for the support and maintenance of his widow Leonora (with the right to her to occupy the dwelling house, garden and out houses), as long as she lived and remained single and unmarried; second, for the support, maintenance and education of his two children, Eannie and Eiley and his step-daughter Belle Eorbush (now Belle Simpson, wife of W. EE. Simpson) until they severally became of age or married; third, to pay to his step-daughter, Belle, a special legacy of four hundred dollars out of the personal property, one year after his death, on condition that by so doing it would not jeopardize' the provisions made for the support of his wife and his two children; and fourth, the whole estate, subject to the said provisions to be divided equally between his two children Eannie and Eiley; with a further proviso, that if his widow elected to renounce the will, the special legacy to his stepdaughter should thereupon cease and be void.

About fifteen months after his death Eiley died intestate, leaving as his heirs at law his mother Leonora, his full sister Eannie (now intermarried with Joseph Nelson) and his two half sisters, the plaintiffs. On the 24th of December, 1894, the widow, Leonora, and the surviving child of the testator, Eannie Nelson, conveyed this property, by warranty deed, to the defendant James Erisner for a consideration of $1,390, and he entered upon the possession thereof and has ever since claimed it adversely to every one. The trustee BEutton resigned on the 5th of August, 1887, as did also the trustee Cockrell on. the 8th of July, 1878. Thereupon the probate court appointed Josiah Creech, administrator de bonis non, with the will annexed, and he was still acting as such at the time of the trial of this case. On the 16th of February, 1897, the plaintiffs instituted this action against Erisner to recover an undivided one-sixth interest in the land, to which they became entitled as heirs of their half brother, Eiley Simpson, deceased. Upon their motion, the widow, Leonora, and the half-sister, Eannie Nelson, and her husband, were made parties defendant. The answers are general denials. No instructions were asked, given or refused. The circuit court entered jiidgment for the plaintiffs and defendants appealed.

I.

Upon the faith, of Sieferer v. St. Lonis, 141 Mo. l. c. 592, the judgment of the circuit court might be affirmed because no declarations of law were asked or refused and hence this court is not advised as to the theory upon which the trial court proceeded, and because this court will not apply the law to the facts unless there is an agreed statement of facts, or the evidence is wholly documentary. But we are not content to rest the decision of this case upon that ground, for it would be a miscarriage of justice in this instance.

II.

The sole ground' relied on by the defendants in this court is that the plaintiffs were not seized of the legal title at the time this action was commenced, and Ford v. French, 72 Mo. 250 and Dunlap v. Henry, 76 Mo. 106, are cited and relied on to support the contention. The general proposition established by the cases cited, and many others, can not be denied.

The postulate of this, contention is that the will vested the fee in the trustees so long -as the widow lived and remained unmarried, and that the trustees can not destroy the trust estate by resignation, that none of the children were vested with a fee simple interest until the death of the widow which has not yet occurred, and hence these plaintiffs are not entitled to maintain this action, but that if ejectment is necessary, the proper remedy is to- have a court of equity appoint successors to the trustees who resigned and they, being vested with the- fee, will be charged with the duty of protecting the possession.

The plaintiffs’ answer to this is that the will vested in the trustees only a simple power to manage the estate for the use of the widow and until the children became of age, but the fee was all the time in the legatees (his children) subject to this limitation of power in the trustees, and. upon the. death of Riley the plaintiffs inherited one-sixth of the estate, that is one-third of his one-half, and that 'as the widow and the half sister had sold their undivided interests to the defendant, Erisner, the plaintiffs are entitled to a judgment for an undivided one-sixth, and that as the defendant is in possession and claiming adversely to the whole-' world they will be barred by limitation if they do not sue.

. It is plain that if the will vested the fee in the trustees, and if the trust is an -active trust, it is the duty of the trustees to protect the fee, and that if the trustees become barred by limitation, the cestuis que trust, even though they, be minors or married women or ins’ane persons, will also- be barred. [Walton v. Ketchum, 147 Mo. l. c. 219; Schiffman v. Schmidt, 154 Mo. 204.] And the fact that the trustees resigned does not alter the principle, for it was always in the power of the cestuis que trust to -apply to a court of equity -and have proper trustees appointed.

It is equally plain that the will did not vest in the trustees a simple power, for the language of the will is: “And for the purpose of carrying out my will -and disposing of my property -according to my desire, I hereby give and'bequeath to John Hutton and John Cockrell, both of said county and state, -all my property, real, personal and mixed, -in trust however for the purposes hereinafter mentioned.” Then follows the direction as to the support of his wife, his two children and his step-daughter, Belle, and the specific legacy to Belle, and then the will proceeds: “I desire- that all my property, real, personal and mixed remaining after providing for the comfort and support of my said wife according to the -above plan, limitations and conditions, and the support maintenance and education of my children and step child, be divided equally -share and share- -alike between my two children E-anny and Riley, and any other child or children that may hereafter be born of my marriage with my said wife Leonora Simpson.”

The will also required the trustees to lease, rent, manage and control the real property, to manage, control and dispose of the personal property as they deemed best, to keep the real property in repair and to make bi-annual settlements.

It is manifest that this use was not executed by the Statute of Uses, but that the case falls within the third rule of construction, to wit: “Where such powers or duties were imposed with the estate upon a donee to uses that it was necessary that he should continue to hold the legal title in order to perform his duty or execute the power.” [1 Perry on Trusts (5 Ed.), sec. 800.] Speaking of thiis the learned author says: “The third rule of construction is less technical, and relates to special or active trusts, which were never within the purview of the statute. Therefore if an 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 malcing repairs, or to preserve contingent remainders, or to raise a sum of money, or to dispose of the estate by sale — in all these eases, and in other or like cases, the operation of the statute is excluded, and the trusts or uses remain equitable estates. So if the trustee is to exercise any discretion in the management of the estate, in the investment of the proceeds or the principal, or in the application of the income, or if the purpose of the trust is to protect the estate for a given time, or until the death of some one, or until division, or until a request for a conveyance is made.” [1 Perry on Trusts (5 Ed.), sec. 305.]

The trustees under the will were given power to exercise a control, were charged with the duty of applying the rents to the maintenance of the widow and children, of making repairs, are given a discretion in the management of the estate, are charged with a duty as to the application of the income, and were charged with the duty of protecting the estate until a given time, until the death of the widow and until the estate was divided. Eor all these reasons the trust was an active trust, and not a dry one, the use was not executed, but the fee vested in the trustees and still remains in them, and the children had only the right to support and maintenance until their majority or marriage (which has ceased by the happening of both contingencies) and have not yet'become vested with the fee because the widow is still alive. The will did not contemplate that all the rents and profits arising from the real estate and the proceeds of sale of the personal property would be necessary to support the widow and children, because it provided that whatever remained after satisfying these conditions should, with the real estate, be divided between his children.

The sale by the widow and Fannie to the defendant Erisner did not .give him a right to the possession nor divest the title of the trustees. It is as much the duty of the trustees to control and rent this property as it is any other property belonging to the trust estate, and to keep and apply such rents for the support of the widow, and after her death to divide the remainder among the children of the testator. The fact that the rents from other property or the proceeds of the sale of the personal property is sufficient to support the widow is wholly immaterial. The. rents from this land must be put into the same purse and applied and accounted for in the same manner with the other rents and proceeds.

The deed from the widow and Fannie conferred no present right to possession to any part of the property upon the defendant Erisner, as against the trustees. They had no such right and could confer none upon him. IJpon the death of the widow he will be entitled to the part of the real property acquired from them. But the same reasoning and rule of law which makes the trustee (to be appointed) the only party entitled to sue for possession, also denies the defendants’ right to possession until after the widow’s death. Of course it follows that the trustee having the whole legal title must sue for the possession of the whole tract.

Eor these reasons the judgment of the circuit court is reversed.

All concur, except Robinson, J., absent.  