Garesche v. Levering Investment Co.

48 S.W. 653, 146 Mo. 436, 1898 Mo. LEXIS 43

• Court: Supreme Court of Missouri
• Decided: December 8, 1898
• Status: Published

Opinion

Marshall, J.

This is a proceeding in equity to divest the title to property, real and personal, out of the Levering Investment Company, and vest it in the devisees under the will of Lawrason Levering, and to secure an accounting.

On the 20th of September, 1889, Lawrason Levering died, testate, and seized of a large estate, real and personal. After specific legacies, not here involved, the will provided: “All the rest and residue of my estate, real, personal and mixed, of whatever kind, and wherever situated, I give, devise and bequeath to my wife, Brianna Levering, and Robert B. Whittemore, and the survivors or survivor of them, upon the following uses and trusts: In trust to pay my wife, Brianna Levering, in cash, so long as she shall live, and for uses and support, and in such sums and such times as she may desire and deem proper. I also give my executors, hereinafter named, full authority to sell, exchange, lease, convey, or in any other way dispose of the property, real, personal and mixed, given to my wife during her life, and to invest and reinvest the proceeds arising, therefrom as they may deem best for the interest of my wife and others interested in this, my last will and testament. It is my will and desire upon the death of my wife, and I give, devise and bequeath all the remainder of the property given to my wife, during her life, real, personal and mixed, to be equally distributed among my daughter, Kate Whittemore, and our grandchildren, share and share alike,” etc. He appointed his wife, Brianna Levering, and his son-in-law, Robert B. Whittemore, executors, to serve without bond.

The will was duly admitted to probate, and letters testamentary granted to the executors selected by the will in September, 1889.. The devisees were a daughter (Katie Whittemore) and fourteen grandchildren, Mrs. Levering took no active part in the management of the trust estate, but let Mr. Whittemore control it, ratifying, however, whatever he did. The executors, pending the administration, without permission of any court and pursuant to the power contained in the will, sold parts of the real estate and reinvested the proceeds in other real estate.

Before the close of the administration, and on June 23, 1890, Robert B. Whittemore (the co-executor), his two sons, Robert B., Jr., and Lawrason L., together with John S. Parrish, a clerk and stenographer in the office of. Mr. John F. Lee, attorney for thó executors, organized the Levering Investment Company, under article 8 of the corporation laws of this State, with a capital stock of $300,300, divided into 3,003 shares of a par value of $100 each, of which Mr. Whittemore and his two sons subscribed for one share each, and John S. Parrish subscribed for 3,000 shares of the par value of $300,000, and it was stated in the articles of agreement that one half of the stock was paid up in lawful money of the United States and was in the custody of the first board of directors. Mr. Parrish was not a capitalist, and was used as a means of organizing the corporation, and was to profit or lose nothing by the transaction. To secure the money to pay up the fifty per cent of the three thousand shares subscribed for by him, Mr. Whittemore and his two sons made their joint note to a bank, the proceeds of which were placed to their credit, they three being the first board of directors of the new company. The said board of directors then purchased from Mrs. Levering and Mr. Whittemore, as executors and also as trustees under the will, practically all the property of the Levering estate, at the price of $150,000, and the property was conveyed by them to the company, and the company turned over to them the $150,000, which was secured from the bank, as aforesaid, and thereupon Mrs. Levering and Mr. Whittemore, as such trustees, purchased from Mr. Parrish the three thousand shares of the capital stock of the Levering Investment Company, for which he had subscribed for $150,000, but instead of paying Parrish the money, he agreed that the executors and trustees should apply the money ($150,000) to the payment of the note of Mr. Whittemore and his two sons given to and discounted by the bank in the manner described, which was accordingly done. In this way the $150,000 was employed to pay up Parrish’s subscription for $300,000 worth of stock, and to pay the executors for all the property of the Levering estate, and to buy Parrish’s stock in the new company and to pay the Whittemore note to the bank, and actually no part of the money ever left the bank for an instant. The devisees were not consulted and their consent was not asked or given to this arrangement and scheme.

Howbeit, the new company became the owner of all the property of the Levering estate, the executors reported that the’ personal property of the estate amounted to $315,850.24 (of which $300,000 was the stock so acquired), and they were allowed five per cent commission thereon, amounting to $15,000; they made final settlement, turned over the stock to themselves as trustees, and were discharged as executors.

The executors and trustees say that the purpose of this transaction was to prevent and avoid the expense of a partition of the property, and to preserve the estate intact and prevent a sacrifice of the property at a public partition sale.'

As Mrs. Levering had a life estate, the trustees held all the three thousand shares of stock, and voted it at all elections held by the company. Mr. Whittendore was made president of the company, and paid a salary of $200 a month, from July 1, 1890, to July 1, 1892, amounting to $4,800, and of two hundred and fifty dollars a month, from July 1,1892, to” February 1,1896 (when this suit was brought), amounting to $10,500, and aggregating $15.300. Mrs. Levering was paid the income from the estate, thus corporationized, until her death in August, 1895, having received in this way some $38,000. She, having taken no part in the management of the estate, turned over her share of all commissions allowed the executors to Mr. Whittemore.

Thus the matter stood in August, 1895, when Mrs. Levering died. In September, 1895, all the remaindermen were invited to the house of Mr. Whittemore. Statements were made by him and his attorney as to the management of the estate. It was represented that under Mr. Whittemore’s wise management the estate had nearly doubled in value since Mr. Levering’s death. The matter of compensation to Mr. Whittemore was then brought up. It was stated that he had received the commissions allowed by-the probate court, and it was also understood that he had been receiving a salary as president of the company, but it was asserted that he had received nothing as trustee, and that a proper compensation to him as trustee could either be allowed him by the devisees, or the matter would have to be settled in court. Thereupon the sum of $10,000 was agreed to be allowed him, one half to be paid in cash and the other half in stock. After deducting the stock so allowed, the stock of the company was distributed among the remaindermen, according to their respective shares under the will.

Between September, 1895,' and February, 1896, the dividends on plaintiff’s interest in the estate, which is valued at from $20,000 to $25,000, amounted to $530.33, of which $333.33 was applied as her part of the $5,000 cash allowance to Whittemore, and $197 was paid to her. She and her husband were shown to be inexperienced in business matters and do not seem to have a very clear idea of the workings of a corporation. No one even attempted to explain to her how the estate of her grandfather came to be vested in a corporation, nor had she ever seen the will, but when Whittemore undertook to explain the matter to her husband he told Whittemore he could talk to him until doomsday and not convince him that it was to the interest of Mrs. Garesche that Mr. Whittemore should manage her affairs, and that he would rather lose his property than have it managed by any one else, no matter how honestly or efficiently it was managed. Mrs. Garesche consulted attorneys, who, upon investigation, gave the opinion that the transfer of the property to the corporation was illegal, demanded her share of the estate and, being refused, instituted this action4 asking to have the title to the property divested out of the company and vested in the devisees, for an accounting by the executors and trustees, for the appointment of a receiver and for a partition. The circuit court entered a decree divesting the property out of the company and vesting it in the devisees, as tenants in common, directing an accounting and appointing a special master to state the account, appointing a receiver, finding that the property is not susceptible of partition in kind, and appointing a special commissioner to sell it and directing the personal property to be turned over to the receiver. Defendants then appealed to this court.

I.

With commendable zeal and industry the counsel on both sides have presented this ease, both by able oral arguments and upon voluminous and exhaustive printed briefs, covering a wide field of research and investigation, and raising a multiplicity of questions as to the powers and duties of trustees, but they have been compelled to admit that they have found no case that is a precedent for this. The truth is that the case lies in a small compass. The fact that it is the first instance where executors or trustees under a will, with power to sell and reinvest, have ever attempted to incorporate the estate without the consent of the cestuis g%ie trusient, is, in itself, persuasive'that until now no such power was ever thought by the profession to be possessed by such trustees. The law has long been regarded as settled that it is the duty of trustees to collect and preserve, intact, the trust property, and that they have no power to change the character of the trust property, unless it is of a perishable or transitory nature, and then only to convert it into a substantial,' enduring and revenue-producing investment. Converting personalty into realty has been often sanctioned by courts of equity, and selling real estate and reinvesting in personal property is within the power of a court of equity, when it is for the interest of the cestui que trust. Mason v. Bank of Commerce, 90 Mo. 452; Perry on Trusts, sec. 449. It is likewise an old rule of equity that trustees shall not, without leave of court, invest trust moneys- in personal securities. Perry on Trusts, sec. 460. The rule has been relaxed in some states so as to permit investments in bonds, other than governmental, and in stocks of corporations that are firmly established and of recognized standing among prudent business men. Perry on Trusts [4 Ed.], secs. 452 to 460. In Gamble v. Gibson, 59 Mo. l. c. 595, Wagner, J., delivering the opinion of the court, said: “The general doctrine is, that a trustee has no power to change the character of the trust fund, and if a change be deemed necessary, or for the interest of the beneficiary, the permission or sanction of the court should be obtained. This rule is necessary for the preservation of the fund. The temptations to tamper with the fund by a trustee are so powerful and so numerous, the hopes of bettering the estate so often prove delusive, that the power of changing the character of the fund is most safely reposed in the discretion of judicial tribunals. This is the invariable rule in reference to converting money into real estate or real estate into money.” In Drake v. Crane, 127 Mo. l. c. 106, Burgess, J., said: “We quite agree with counsel for defendants, and as abundantly shown by the authorities cited by them in their brief, that, where, by the provisions of a will, trustees therein named are empowered to invest and reinvest the funds of the estate, a duty is imposed upon them to so place the money that it shall be safe and productive (Gray v. Fox, 1 Saxt. Ch. 259); and the investment of trust property-should be made with a view of permanency, and not in a spirit of speculation.”

In Haydel v. Hurck, 5 Mo. App. l. c. 274; 72 Mo. 253, the will granted to the executor and the testamentary trustee full power to “sell, deed in trust, lease, mortgage, convey, or in any manner dispose of the same at private' or public sale,” and the court said: “A court of equity will never favor a construction that confers upon the trustee absolute and uncontrollable powers. Tophan v. Duke of Portland, 1 De G. J. & S. 568. In this case the will provides: ‘The proceeds of such sale, together with the rents, income, or revenue of my estate, my said trustee may invest and reinvest in such securities as to him may seem best.’ The intent and purpose of all such powers is universally held to be the preservation and amelioration of the trust estate. It is said that trustees ought always to have an immediate and advantageous investment in view before they sell existing securities. Watts v. Girdlestone, 6 Beav. 188; Wormley v. Wormley, 8 Wheat. 421. A sale for the mere purpose of converting real estate into personal, or vice versa, or without some well defined and proper purpose in view, will render the trustee responsible for any resulting loss.”

In the case at bar the trust property was principally real estate. The executors sold the portions which appeared likely to depreciate in value, and reinvested in other real property. Of this there is no complaint except as to the apportionment of the proceeds, to which fuller reference is hereafter madq. At the time the estate was thrown into the corporation the character of the trust property was unexceptionable, and no loss or depreciation was threatening. The whole scheme was to place the title to the property, real and personal, in the corporation, so as to prevent a partition at the instance of any of the devisees, and to save the expense and alleged loss incident to and arising out of a partition proceeding, with a public sale. Much stress is laid by defendants on the allegations of the bill that it was done fraudulently, to obtain a personal advantage by the trustee, Whittemore, and much testimony was taken which shows that it was done in good faith and under the advice of counsel learned in the law, and the increase in the value of the trust estate in five years, is pointed out as proof of the wisdom of such an arrangement. For the purpose of this case, the perfect good faith of the trustee, Whittemore, the fact that he acted under legal advice, and the increase in the value of the trust property, may be fully conceded. Yet the case is not dependent upon any of these considerations. It is a question of the power of the executors and trustees under the terms of the Levering will — of whether the power to sell and reinvest gives the authority to the executors and trustees to incorporate the estate. If there is no such power conferred by the will, the bona fides of the executors and trustees, and the benefits accrued to the trust property can not justify the proceeding.

The will itself nowhere gives any intimation of any such idea in the mind of the testator. He provided for his wife for life, and after her death directed the remainder of his property, ‘‘real, personal and mixed,” to be equally distributed among my daughter, Katie Whittemore, and our grandchildren, share and share alike.” This language can not impart the idea that the trust estate was to be changed in character and converted into a corporation, and the shares of stock distributed. The corporation is organized for a duration of fifty years. The Whittemore branch of the devises controlled about two thirds of the stock— the Levering share comprising only one third. When Levering directed that upon the death of his wife, the property remaining “real, personal and mixed,” should be distributed among the devisees share and share alike, he can not fairly be said to have intended that the Leve rings should become minority stockholders in a corporation that was to hold the property he left for fifty years, and that these devisees were only to have the benefit of his devise, whenever the majority of the stockholders chose to declare dividends, nor that the management of the interests bequeathed to the Leverings should be in the hands of the Whittemores exercised by a majority vote of the stock, and executively attended to by the officers, who were of the Whittemore devisees. The testator was a man of wealth and experience, and when he directed that his property should be distributed, share and share alike, he could have meant only, that as he provided no special method of distribution, the methods provided by law should be followed, that is, that the property should be divided between the legatees by the voluntary act of the parties themselves or failing in that the aid of the courts should be invoked, and the property partitioned in kind if possible, otherwise it should be sold and the proceeds be distributed. The executors and trustees were clothed with power over the property only until the termination of the life estate. Then the trust ceased. They were not authorized to prolong their tenure of office. They were not charged with any right or duty to act as guardians for the remaindermen and protect them and the property from their own improvidence or from the expenses and sacrifices incident to the recognized legal methods of partitioning undivided intórests. In other words the plan adopted in this case by the trustees was to establish a protectorate over the property, and to deprive the true owners of one of the elements of ownership, the right to manage, control, squander, waste or give it away as they saw fit. The plan is without precedent in the law, and is a doubtful compliment to the wisdom and justice of the law, and as the experience of mankind for ages affords no example for the transaction, the courts can not be expected to look upon it with admiring eyes. The evidence discloses that by thus converting the realty into stock the executors were allowed five per cent commission on three hundred thousand dollars, or $15,000, not one cent of which could they have been allowed if it had remained realty; that Whittemore received $15,300 as president of the company from July 1, 1890, to February 1, 1896, and that at the termination of the life estate he procured the assent of the devisees to a further allowance of $10,-000, because under his wise management the estate had doubled in value in five years (though how his management effected it is by no means clear from the evidence), thus in commissions, salary and bonus, he obtained forty thousand three hundred dollars in five years and a half, whereas if he had not converted the real estate into stock of a corporation he would have been entitled only to the usual commissions allowed trustees. If the property had been partitioned, the legal costs and expenses, which the trustees so much feared, would never have reached anything like so large a sum. The other alleged purpose of holding the estate intact, and reducing the expense of handling it, is likewise dissipated by the evidence, for it appears that the expense of managing the business from 1891 to 1895, estimated on a basis of every one hundred dollars collected was, for 1891, 42 per cent; for 1892, 63 per cent; for 1893, 75 percent; for 1894, 64 per cent and for 1895, 61 per cent; and that Whittemore’s salary, as president, amounted to from thirteen to seventeen per cent of the gross income, or from thirty to thirty-three per cent of the net income. The advantage to the beneficiaries of this scheme over the legal methods are not therefore easy to discern. But our attention has been called to other estates that have been incorporated, as the Collier, Tyler and Turner estates. The evidence- does not disclose whether this was done with or without the consent of the heirs and beneficiaries, but if it was with the consent of persons sui juris, it would be good as a contract inter sese; if without such consent it would be of no more legal effect than what was done in this case. It is perfectly clear that the executors and trustees had no power to convert the property of the estate into stock in a corporation. The power conferred by the will was only intended to authorize the sale of such portions of the property as were likely to depreciate in value, and the reinvestment of the proceeds in some other property of recognized value and of a durable character. No power was granted them to tie up the interests of the remaindermen, to retain for years a control of the property or to invest the proceeds in stock of a corporation where only fifty per cent was paid up and the devisees who accepted the stock were left liable for unpaid stock subscriptions. Neither can any authority be found in the law for such a proceeding.

H.

But it is insisted that the plaintiffs are estopped from drawing in question the legality of these acts. To constitute an estoppel it must appear that the party acted with full knowledge of all the material facts and circumstances and with a knowledge of his legal rights, and that the position of the party invoking the doctrine would be changed if the matter was opened up. Gamble v. Gibson, 59 Mo. l. c. 597; Noble v. Blount, 77 Mo. 235; Blodgett v. Perry, 97 Mo. 263; Taylor v. Zepp, 14 Mo. 482; Terrill v. Boulware, 24 Mo. 254; Burke v. Adams, 80 Mo. 504; Olden v. Hendrick, 100 Mo. 533. Herrman on Estoppel, section 1062, states the rule to be: “To fix acquiescence upon, a party, it must unequivocally appear that he knew or had notice of the fact upon which the alleged acquiescence-is founded, and to which it refers. Acquiescence imports and is founded upon knowledge. Acquiescence can not arise unless the party against whom it is set up is aware of his rights. A person can not acquiesce in .what he is ignorant of, nor can he be bound by acquiescence unless fully apprised as to his rights and all the material facts and circumstances of the case.”

in this case it is not pretended that Mrs-. G-aresche was advised or consulted about the conversion of the land into stock in the company, nor that any of the facts or circumstances were communicated to her, nor that she knew them or understood her rights. In fact at the so-called ratification meeting at Whittemore’s house, after Mrs. Levering’s death, there was no rendering account of stewardship by the trustee, in any proper sense; it partook rather of generalities as to the increased value of the estate, upon which to predicate a claim foi an additional bonus to the trustee. She can not be said to have had knowledge of her rights nor of the facts and acts which she is claimed to be estopped to deny. When Mrs. Knapp, one of the devisees, asked Mr. Whittemore by what authority the estate had been incorporated, he answered, by authority of her grandfather’s will under the power “to invest and reinvest,” and his son Robt. B. Whittemore said, “By order of the court.” It is upon this sandy foundation that the temple of estoppel — good conscience — is built in this case. The evidence is wholly insufficient to establish either an estoppel or a ratification. The meeting was in September and within a short time — a few weeks — Mrs. Q-aresche consulted a lawyer, who, upon investigation, advised her the plan was illegal, and she refused to attend any more meetings, and made a formal demand for her share of the estate, and failing, instituted this suit, the following April. No laches, even, can be ascribed to her. When Mr. Whittemore talked to her husband about it, he promptly repudiated the scheme, and told him he could talk to him until doomsday and not convince him that it was to his wife’s interest to have any one manage her affairs — that he would rather lose it all than have any one else manage it no matter how honestly it was done. There is, therefore, no merit in the claim of estoppel or ratification in this ease.

III.

As the circuit court referred the case to a special master to take an account, and as no judgment on an accounting was rendered against the trustee in that court, it is only necessary to say that whether the executor gave the estate its proper portion of the proceeds of the sale of the former residence property and the adjoining property belonging to the executor, is a question of fact, which must be settled in the accounting, and that if the houses were substantially the same, and the land of equal value per foot, as Mr. Whittemore testified was the fact, the estate should receive eleven sixteenths and Mr. Whittemore five sixteenths of the $37,000, as the estate owned one hundred and ten feet, and Mr. Whittemore fifty feet, which would make the estate’s interest $25,437.50 and that of Mr. Whittemore $11,562.50. Mr. Whittemore gave the estate credit for $21,000 which, upon the basis of value so placed upon the property by Mr. Whittemore himself, was $4,437.50 less than the estate was entitled to, and for which he should be held accountable.

Inasmuch also as Mr. Whittemore received as executor, $15,000 'as commissions on the property turned into stock, and inasmuch as he was not entitled thus to change the character of the trust property, and as executor he was not entitled to any commissions on the real estate, his accounts should be surcharged by deducting from the $15,000, the proportion thereof which represented the realty turned into stock, and allowed only the portion which represented commissions on the personalty distributed.

As the $10,000 bonus allowed Mr. Whittemore at the first meeting of the heirs after the termination of the life estate was based upon claimed meritorious and beneficial services rendered the estate, and as it was allowed, so far as the plaintiff is concerned, without full knowledge of the facts and upon the erroneous supposition that he had power under the will to do as he had done or that it had been done by order of court, it can not be allowed to stand, and the cash and stock so received must be brought into the accounting.

The formation of the corporation being illegal, Mr. Levering is not entitled to any salary for acting as its president, and the $15,300 received as such must also be brought into the accounting. This restores the legal status quo of the parties, and Mr. Whittemore must be allowed a reasonable compensation as trustee for managing the trust property. Tracy v. Railroad, 13 Mo. App. 295; s. c., 84 Mo. 210; Kemp v. Foster, 22 Mo. App. l. c. 649; Gamble v. Gibson, 59 Mo. l. c. 593.

The decree of the circuit court was right, and the orders made regular and proper, and it is, therefore, affirmed.

All concur.