Edwards v. Welton

25 Mo. 379

Opinion

Soott, Judge,

delivered the opinion of tire court.

This is an attempt by an action in the nature of trover to execute a constructive trust. The prayer of the petition is for the possession and delivery of the slave, and in default of delivery a judgment for his value and his hire. In this aspect of the case, if the facts warranted it, the plea of the statute of limitations was a defence to the action. That the plaintiff Elizabeth was a married woman does not prevent the running of the statute, if she was of age when the action accrued and afterwards married. The disabilities specified in the statute are not cumulative. If a plaintiff, when a cause of action accrues, is laboring under several disabilities, they must all be removed before he is compelled to sue ; but if he is subject to one or more disabilities when the cause of action arises, and afterwards another disability supervenes, the suit must be brought within the time limited for the first disability or disabilities. (Keeton v. Keeton, 20 Mo. 530.)

It is obvious that this action has been misconceived, or at least that the plaintiffs have misconceived their rights and have instituted their action in such a way as will not secure the adjustment of the trust by one suit. The trust is a joint one. One of its beneficiaries has no sole or exclusive right to any particular part or subject of the trust. Each beneficiary has a right in every part; and this is the first instance which has fallen under our notice in which one of several joint cestuis que trust has been permitted to single out one part of the trust fund, assert an exclusive right to it, and enforce that right by an action in the nature of trover. There is nothing whatever in the record which shows that this proceeding has any sanction in the approbation of the other parties who are interested. The instructions, given at the instance of the defendants other than Solomon Welton, do not help the matter. According to their own showing the plaintiffs were not entitled to more than one-fiftli of the value and hire of the slaves in controversy. This fifth would be exclusive of the interest to which they have a right as one of the heirs of the mother and sister. As the plaintiffs hare been excluded from all participation in a joint trust in which they have an interest, it is obvious that their rights can only be enforced in an action in which the whole trust fund is sought to be adjusted. The other cestuis que trust being made defendants, the portions they have received on the taking of an account before a commissioner would be taken into consideration, and the entire property divided or sold so as to do full justice between the parties. The parties who are sui juris may arrange matters by consent, but that consent, to avoid future litigation, should be made apparent by the record.

Justice has not been done by the judgment rendered in the cause. The money by the will was to be laid out in negro girls for the “ mother and her daughters.” These words would constitute the mother and her daughters tenants in common, and upon the death of the mother her share — one-fifth, as there were four daughters — would be distributed among all her heirs. So, on the death of Hannah, her interest would devolve on her mother and her sisters and brothers. All these interests have been overlooked, and the judgment is based on the pretension that the rights of Hannah and her mother survived to the remaining cestuis que trust.

The defendant Solomon Welton, taking under the deed, is estopped from controverting its terms. The deed recites that the trust money was appropriated to the purchase of slaves. A.s only two slaves were purchased, of whom Tamar, the mother of the slave in controversy, was one, it is obvious that he is subject to the trust. The property purchased with the trust money, whether it was of the kind required or not, would be impressed with the trust., if the cestuis que trust elected so to consider it.

Solomon Welton, being a volunteer, stands in no bettor situation than his father, and can hot insist on the want of notice. Although the executors under the will are liable to the cestuis que trust for the misapplication of the trust fund, if they see proper to pursue them, yet that does not prevent those interested from following the property acquired by means of the trust fund into whosesoever hands it may be affected with notice of the trust.

Judge Ryland' concurring,

judgment reversed, and cause remanded;

Judge Leonard absent.