Opinion
Nos. 38448, 38449 and 38450.
February 7, 1944. Rehearing Denied, March 6, 1944.
1. DEEDS: Rule of Construction. The rule of construction of deeds is to ascertain the intention of the grantor, and to give effect to such intention, unless it conflicts with some positive rule of law. And it is necessary to take the deed as a whole in arriving at such intention and not to give, any clause undue preference.
2. DEEDS: Trusts: Construction of 1877 Deed of Settlement. The dominant intent of the deed of settlement of 1877 executed by Robert Campbell and his wife Virginia was the support, maintenance and education of Robert Campbell's family as a unit from a common fund until March 16, 1885, when the youngest son became twenty-five years old. And then the property was to be divided among the members of the family.
3. DEEDS: Estates: Trusts: Grantor's Wife Did Not Take Vested Interest. While the grantor's wife, Virginia, had a beneficial interest in the income from the trust estate created by the deed of settlement of 1877 executed by Robert Campbell, she did not acquire any vested interest, and her interest in the trust estate terminated at her death in 1882. Her interest in the fee was contingent upon her living until 1885.
4. DEEDS: Trusts: Contemporary Construction of Parties. The construction that the trustees and two of the beneficiaries placed upon the 1877 deed of settlement in 1885, while not controlling, is entitled to some weight.
5. TRUSTS: Construction Against Settlor. As Robert Campbell's wife, Virginia, was one of the grantors of the 1877 deed of settlement, the deed should be construed against her as a settlor and in favor of the other beneficiaries of the trust.
6. DEEDS: Trusts: Estates: Powers: Contingent Estate in Grantor's Wife: Power Not Exercised. Robert Campbell's wife, Virginia, took only a contingent estate under the 1877 deed of settlement. The power to dispose of her share by deed or will was a mere power of appointment that was never exercised.
7. POWERS: Estates: Unexercised Power of Life Tenant. A power of disposition may be coupled with a life estate or an interest for years, but if not exercised, it leaves both the life estate and the remainder unaffected. The interest of the grantor's wife Virginia terminated in 1882 when she died without having exercised her power of disposition.
8. DEEDS: Estates: Trusts: Powers: No Vested Interest in Hazlett Campbell. Under the deed of settlement of 1877, Hazlett Campbell did not acquire a vested interest, but the interest which he took was subject to the exercise of a power by Hugh Campbell upon the termination of the trust period in 1885.
9. POWERS: Trusts: Exercise of Power Inconsistent With Vested Estate in Hazlett Campbell. In the event of "unforeseen misfortune or a visitation of Providence", Hugh Campbell had the right to direct and appoint in what manner, degree and terms the share of Hazlett Campbell should be vested in him and conveyed for the support of his family, and Hugh Campbell had the right to determine the "limitations" upon such share and the "mode, degree, terms, and trusts" of the conveyance thereof by the trustees under the 1877 deed of settlement. These powers were inconsistent with the vesting of any legal or equitable interest in Hazlett Campbell under the 1877 deed.
10. DEEDS: Estates: No Reversion Under 1877 Deed. No reversionary interest was retained by Robert Campbell and wife under the 1877 deed of settlement.
11. POWERS: Trusts: 1885 Trust Deed Proper Exercise of Power. The 1885 trust deed in favor of Hazlett Campbell for life and his heirs as remaindermen made by the trustees under the 1877 settlement deed pursuant to the directions of Hugh Campbell was a proper exercise of the power conferred upon Hugh Campbell by the 1877 deed.
12. APPEAL AND ERROR: Trusts: Executors and Administrators: Settlement and Distribution of Trust Estate: Administrator of Life Tenant Has no Appealable Interest. The administrator of a life tenant of a trust estate has no right to question upon appeal the settlement of the trustees and the order of partial distribution to the remaindermen.
Appeal from Circuit Court of City of City of St. Louis. — Hon. Eugene J. Sartorius, Judge.
AFFIRMED AND APPEALS DISMISSED.
Igoe, Carroll, Keefe Coburn and Roberts P. Elam for appellant.
(1) The intention of the grantors in the deed of settlement of 1877 is the pole star in the construction of that instrument, and when the entire language of that instrument is considered in the light of the circumstances surrounding its execution and the objects to be subserved by its execution, it was clearly the general intent that the wife and three sons of Robert Campbell — Virginia, Hugh, Hazlett and James — should share equally in the Robert Campbell trust property after Robert's death, and should each receive an "equal fourth part" thereof upon the division and allotment of the property in 1885. The only exception was in the event — which did not occur — that one or more of said sons should die intestate and unmarried prior to the division and allotment in 1885. Eckle v. Ryland, 256 Mo. 424, 165 S.W. 1035. (2) At the time of his death Hazlett K. Campbell had a vested fee simple absolute in one-fourth of the property in the possession of plaintiffs-respondents (being one-twelfth of the entire Robert Campbell trust property). (3) The deed of settlement of 1877 having granted generally to Virginia an equal fourth part of the Robert Campbell trust property, coupled with an absolute power of disposal of her share, the grant carried a fee simple. Green v. Sutton, 50 Mo. 186; Chapman v. Chapman, 336 Mo. 98, 77 S.W.2d 87. (4) The fact that the word "heirs" or other words of inheritance were not used in the creation of her interest does not imply any intention to limit her interest, because such words are not necessary to the creation of a fee simple. R.S. 1939, sec. 3496 (formerly R.S. 1879, sec. 3939, and G.S. 1865, p. 442, sec. 2b); Triplett v. Triplett, 332 Mo. 870, 60 S.W.2d 13; Ball v. Woolfolk, 175 Mo. 278, 75 S.W. 410. (5) Virginia's fee simple interest in an equal fourth part of the Robert Campbell trust property was, at the time of the execution of the deed of settlement of 1877, a vested remainder upon condition subsequent, limited to take effect in default of the exercise by Robert of the powers of appointment reserved to him by the deed of settlement of 1877, and liable to be divested only by the exercise by Robert of such powers — which never occurred. Hamner v. Edmonds, 327 Mo. 281, 36 S.W.2d 929; Von Behrn v. Stoeppelman, 286 Mo. 73, 226 S.W. 875; Dunbar v. Sims, 283 Mo. 356, 222 S.W. 838; Sanford v. Blake, 45 N.J. Eq. 247, 17 A. 812; Brown v. Fidelity Union Trust Co., 126 N.J. Eq. 406, 9 A.2d 311; Tiedeman on Real Property (4th Ed.), sec. 301, pp. 454-456. (6) The power committed by the deed of settlement to Hugh, respecting Hazlett's equal fourth part of the Robert Campbell trust property, was not a general and unrestricted power of appointment, but was a limited and special power, for the purpose of enabling Hugh to direct the conveyance of Hazlett's equal fourth share of the Robert Campbell trust property, in trust or otherwise, so as to protect the corpus from waste and mismanagement by Hazlett, and so as to subject it to the management, administration and control of others for his use and benefit, and for the support and maintenance of his family — i.e., his wife and children — if he had one. 1 Tiffany on Real Property (2d Ed.), sec. 320, p. 1061; Restatement of the Law of Trusts, sec. 186; 49 C.J., p. 1260, sec. 34; Citizens Bank of Lancaster v. Fogelsong, 326 Mo. 581, 31 S.W.2d 779; 25 C.J., p. 664, sec. 1, pp. 664-665, sec. 2; Hall v. Stephens, 65 Mo. 670. (7) The power committed by the deed of settlement of 1877 to Hugh, respecting Hazlett's equal fourth part of the Robert Campbell trust property, was not a power to appoint interests in Hazlett's said part of such property to persons other than Hazlett and his "family" — i.e., his wife and children, if he had any. Hugh's attempt to appoint a remainder over in this property to Hazlett's "heirs at law" after his death — as expressed in the trust deed of 1885 — was in excess of the power committed to Hugh by the deed of settlement of 1877, and both Hugh's action and the trust deed of 1885 are, and always have been, void to that extent. Hopkinson v. Swain, 284 Ill. 11, 119 N.E. 985; In re Johnson's Estate, 276 Pa. 291, 120 A. 128; In re Appeal of Pepper, 120 Pa. 235, 13 521 A. 929; Coffin v. Attorney General, 231 Mass. 579, 121 N.E. 397; Cruse v. McKee, 2 Head. 1, 73 Am. Dec. 186; In re Carter's Estate, 254 Pa. 565, 99 A. 79; Horowitz v. Norris, 49 Pa. 213; 1 Simes, Law of Future Interests, sec. 274. (8) The invalidity of that part of Hugh's action, and that part of the trust deed of 1885, by which there was an attempted appointment of a remainder over after Hazlett's death, did not affect the validity of that part of Hugh's action, and that part of the trust deed of 1885, by which there was set up a trust for Hazlett's lifetime, for his use and benefit and for the support and maintenance of his family, if he should have one. Authorities cited under Point (7), supra; 2 Sugden on Powers (3rd Am. Ed.), pp. 76-78; Kale's "Estates, Future Interests, etc.," (2d Ed.), sec. 642. (9) After the execution of the trust deed of 1885, Hazlett's vested fee simple interest in an equal fourth part of the Robert Campbell trust property was subject only to the trust for his lifetime, for his use and benefit and for the support and maintenance of his family, if he should have one, and his interest in the property was not diminished or qualified at any time except to the extent required for that trust during his lifetime. Guy v. Mayes, 235 Mo. 390, 138 S.W. 510; Cornet v. Cornet, 248 Mo. 184, 154 S.W. 121; Evans v. Rankin, 329 Mo. 341, 44 S.W.2d 644. (10) The interest which plaintiffs-respondents, and their predecessors, acquired in Hazlett's equal fourth part of the Robert Campbell trust property, and under the trust deed of 1885, was nothing more than an estate per auter vie — i.e., for the life of Hazlett — with such powers of disposal respecting the corpus of the property as were necessary to the purposes of the trust for the use and benefit of Hazlett and for the support and maintenance of his family, if he should have one. Stephens v. Moore, 298 Mo. 215, 249 S.W. 601. (11) Upon Hazlett's death, the trust for his use and benefit, and his trustees' legal estate, in his equal fourth part of the Robert Campbell trust property terminated, leaving Hazlett's vested fee simple interest in that property, which had been subject to the trust during his lifetime, as a part of his estate and to devolve under the laws of descent and distribution. Authorities cited, supra. (12) In any event, at the time of his death, Hazlett K. Campbell had a vested fee simple in one-third of the remaining three-fourths (one-fourth of the property in the possession of plaintiffs-respondents and one-twelfth of the entire Robert Campbell trust property). If Hazlett, at the time of the division and allotment of the Robert Campbell trust property in 1885, did not acquire a vested fee-simple interest in an equal fourth part of such property, but acquired only a life estate therein, then the remaining interest therein constituted a reversion in fee in the grantors, Robert and Virginia, subject to absolute conveyance and transfer to Hazlett upon a contingency which never occurred, viz., his recovery from his insanity so as to be capable of managing his own affairs. Collins v. Whitman, 283 Mo. 383, 222 S.W. 840; Bigley v. Watson, 98 Tenn. 353, 39 S.W. 525; Coots v. Yewell, 95 Ky. 367, 25 S.W. 597; Arnold v. Wells, 100 Fla. 1470, 131 So. 400; Collins v. Sanitary District, 270 Ill. 118, 110 N.E. 318. (13) Upon the deaths of the settlors, Robert and Virginia, this reversionary fee-simple interest in this equal fourth part of the Robert Campbell trust property descended to their surviving sons and only heirs at law, Hugh, Hazlett and James, in equal shares, but subject to the trust during Hazlett's lifetime. Authorities cited under Point (12), supra. (14) Appellant Madden, as administrator of Hazlett's estate, is entitled to all of the personal property which became a part of Hazlett's estate. Appellant Madden is, and has been since August 8, 1938, the duly appointed, qualified and acting administrator of Hazlett's estate, under and by virtue of his appointment as such on said date by the Probate Court of the City of St. Louis, Missouri. His appointment by that court is not subject to collateral attack in this or any other proceeding. Sec. 34, Art. VI, Missouri Constitution; R.S. 1939, secs. 2436, 2437; State ex rel. McWilliams v. Armstrong, 320 Mo. 1122, 9 S.W.2d 600. (15) Appellant has the right and duty, as such administrator, to collect and take into his possession all of the personal property of his decedent. The title to such personal property passed to and vested in him as administrator, and the decedent's heirs have no title thereto until the administration of decedent's estate is completed. R.S. 1939, secs. 38 and 57; Jones v. Peterson, 335 Mo. 242, 72 S.W.2d 76; Wass v. Hammontree, 77 S.W.2d 1006; Toler v. Judd, 262 Mo. 344, 171 S.W. 339; Green v. Tittman, 124 Mo. 372, 27 S.W. 391; Todd v. James, 157 Mo. App. 416, 138 S.W. 929; Johnston v. Johnston, 173 Mo. 91, 73 S.W. 202. (16) The appellant, as administrator of Hazlett's estate, also has numerous duties, affected with a public interest, respecting the enforcement, collection and payment of state and federal inheritance and estate taxes upon the property belonging to Hazlett at the time of his death. State ex rel. Madden v. Sartorious, 349 Mo. 1054, 163 S.W.2d 987; R.S. 1939, secs. 575, 578, 579; 26 U.S.C.A. (1934 Ed.), secs. 420, 421, 422, 425, 427, 537. (17) Such state and federal inheritance and estate taxes are "debts" of the decedent's estate, accruing as of the date of death, and constitute a lien upon the property of the estate, giving the state and federal governments vested financial rights in the estate of the decedent equal in degree to that of the personal representative or the heirs or devisees of the decedent. Authorities cited under Point (16), supra; Rosenberg v. McLaughlin, 66 F.2d 271; Ewbanks v. United States, 50 F.2d 409; Hodgkins v. Commissioner of Int. Rev., 44 F.2d 43, 105 A.L.R. 1265; State ex rel. Ziegenhein v. Tittman, 103 Mo. 553, 15 S.W. 936; State ex rel. Rudder v. Hapke, 326 Mo. 788, 31 S.W.2d 788; State ex rel. Ziegenhein v. Tittman, 119 Mo. 661, 24 S.W. 1032; State ex rel. McClintock v. Guinotte, 275 Mo. 298, 204 S.W. 806; Shepherd v. Murphy, 332 Mo. 1176, 61 S.W.2d 746; Natl. Safe Deposit Co. v. Stead, 250 Ill. 584, 95 N.E. 973. (18) Appellant Madden is made personally liable for payment of both state and federal inheritance and estate taxes. R.S. 1939, sec. 579; 26 U.S.C.A. (1934 Ed.), sec. 422b. (19) There being debts against Hazlett's estate, a lack of legal age in all of Hazlett's heirs, and an absence of unanimity among Hazlett's heirs to dispense with an administration of his estate, the administration of his estate cannot be dispensed with, or cut short, but must be carried through in the manner prescribed by the statutes. Griesel v. Jones, 123 Mo. App. 45, 99 S.W. 769. (20) The probate courts have exclusive jurisdiction of the administration of the estates of decedent. Jurisdiction of the court below and of this court in this proceeding, as to personal property belonging to Hazlett's estate, is limited to adjudging that it be turned over by plaintiffs-respondents to the defendant-appellant Madden as administrator of Hazlett's estate. Secs. 22, 34, Art. VI, Missouri Constitution; R.S. 1939, secs. 2100, 2436, 2437; Hax v. O'Donnell, 234 Mo. App. 636, 117 S.W.2d 667. (21) Appellant Madden, as administrator of Hazlett's estate, is not barred by the Statutes of Limitations from asserting his claim to such personal property as may be found to have belonged to Hazlett, because, with respect to the property discussed in Points (6) to (13), of this brief no cause of action existed in either Hazlett or anyone else to recover possession of that property from plaintiffs-respondents, and their predecessors, until the death of Hazlett occurred. Until the death of Hazlett, plaintiffs-respondents and their predecessors had the exclusive right to the possession of that property, as trustees under the valid portions of the trust deed of 1885, and the rights of others thereto, being postponed by the life estate during the trust for Hazlett, were not barred until five years after Hazlett's death. R.S. 1939, sec. 1014; R.S. 1879, sec. 3230; Souder v. Kitchens, 344 Mo. 18, 124 S.W.2d 1137; Herndon v. Yates, 194 S.W. 46; Powell v. Bowen, 279 Mo. 280, 214 S.W. 142; 37 C.J., p. 922, sec. 289. With respect to the property discussed under Points (3) to (5) of this brief, although Hazlett's cause of action to recover that property accrued in 1885, the facts that Hazlett had become insane long prior to that time, and continued to be insane at all times thereafter until his death, prevented the Statutes of Limitation from barring his cause of action until one year after the date of his death. R.S. 1939, secs. 1020, 1022; R.S. 1879, secs. 3234, 3245. (22) The doctrine of estoppel is not applicable to the claims of defendant Madden (appellant here), as administrator of Hazlett's estate, because, whatever Hazlett did or did not do with respect to the property here involved, there is, and can be, no showing that the respondents changed their positions, or had them changed, or that the respondents have suffered or can suffer any damage from the mere fact that the property remained in the possession of the plaintiffs-respondents and their predecessors during Hazlett's lifetime. Wilkinson v. Lieberman, 327 Mo. 420, 37 S.W.2d 533; State ex inf. McKittrick v. Mo. Utilities Co., 339 Mo. 385, 96 S.W.2d 607; State ex rel. Ben Hur Life Assn. v. Shain, 342 Mo. 928, 119 S.W.2d 236. (23) The order entered August 6, 1941, supplementary to the decree below, and the order for partial distribution entered August 22, 1941, having been based upon the findings and adjudications of the decree entered June 19, 1941, the appeals from those orders are controlled by the result of the appeal from the decree. State ex rel. Madden v. Sartorius, 349 Mo. 1054, 163 S.W.2d 987.
William M. Fitch, Jessie E Bishop, Clarence J. Neudeck, Jas. A. Henderson, Edwards, Metcalf Strong, Jones, Hocker, Gladney Grand, Edw. J. McCarty, Fordyce, White, Mayne, Williams Hartman and N.W. Hartman, G.W. Marsalek and Bryan, Williams, Cave McPheeters for certain heirs of Hazlett Kyle Campbell, deceased, as shown by the Twenty-fifth paragraph of the Decree and on behalf of other respondents.
(1) The issues in this case arise out of three trust instruments. Courts of equity have exclusive jurisdiction over all matters pertaining to trusts, trustees, and persons claiming an interest in the trust property. State ex rel. North St. Louis Trust Co. v. Wolfe, 343 Mo. 580, 122 S.W.2d 909; State ex rel. Clay County State Bank v. Waltner, 346 Mo. 1138, 145 S.W.2d 152; Rawlings v. Rawlings, 332 Mo. 503, 58 S.W.2d 735; Hamer v. Cook, 118 Mo. 476, 24 S.W. 180; Butler v. Lawson, 72 Mo. 227. (2) When plaintiff trustees filed their original petition on March 28, 1938, the circuit court was thereupon vested with original jurisdiction over the plaintiff trustees, over all property described in the tenth paragraph of said petition, over all persons named therein as defendants and over all persons who claimed or might claim an interest in said property, and that court will retain its jurisdiction over said property and said parties to the exclusion of all other courts. State ex rel. Sullivan v. Reynolds, 209 Mo. 161, 107 S.W. 487, 15 L.R.A. (N.S.) 963, 123 Am. St. Rep. 486, 14 Ann. Cas. 198; State ex rel. Townsend v. Mueller, 330 Mo. 641, 51 S.W.2d 8; McDaniel v. Lee, 37 Mo. 204. (3) The circuit court having obtained original jurisdiction over the plaintiff trustees, over the property described in their original petition, and over all persons having an interest in said property, that court as a court of equity was vested with sole and exclusive jurisdiction over all said property and persons; and that court had the power and duty, by proper process, to bring in all other persons who had or claimed to have an interest in said property, and that court will retain that jurisdiction until the rights and interests of all parties in such property are fully determined, and until the plaintiff trustees make distribution of said property to said parties according to their respective rights and interests as determined by said court, even though in determining such interests it be necessary to adjudicate matters of law. Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135; Waugh v. Williams, 342 Mo. 903, 119 S.W.2d 223; State ex rel. Clay County State Bank v. Waltner, 346 Mo. 1138, 145 S.W.2d 152; Waddle v. Frazier, 245 Mo. 391, 403, 151 S.W. 87; Leyden v. Owen, 150 Mo. App. 102, 129 S.W. 984. (4) The jurisdiction of the trial court to grant relief under the administrator's cross bill being questioned by respondents, and the administrator having brought his entire record here on appeal, then the statutory duty devolves upon this court to examine such record to determine whether or not the cross bill of the administrator has vested jurisdiction in the trial court to grant the relief prayed for; and if this court finds that the trial court was without jurisdiction to grant such relief, then this court will dismiss this appeal for want of jurisdiction. Sec. 1229, R.S. 1939; St. Louis v. Senter Comm. Co., 102 S.W.2d 103, 340 Mo. 633; American Fire Assur. Co. v. O'Malley, 342 Mo. 139, 113 S.W.2d 795; McQuitty v. Wilhite, Admr., 218 Mo. 586, 117 S.W. 730; General Amer. Life Ins. Co. v. Leavenworth, 347 Mo. 876, 149 S.W.2d 360. (5) The record here shows that the administrator was not entitled under his cross bill to have judgment sustaining his claims thereunder, because: The cross bill of the administrator is in the nature of an intervening petition for the purpose of discovering assets, and is not in subordination to or in recognition of the objects sought to be accomplished in the main proceeding, but seeks to impose an independent cause of action on this proceeding, under which the administrator seeks relief contrary to the relief sought by the parties under the issues then pending in that proceeding, by directly challenging the title of the plaintiffs as successor trustees and by directly challenging the title of the heirs of Hazlett, who claimed all of said trust property as beneficiaries under said trust deed. Davis v. Austin, 348 Mo. 1094, 156 S.W.2d 903; Monticello Bldg. Co. v. Monticello Inv. Co., 330 Mo. 1128, 52 S.W.2d 545; Mountain Grove Creamery Co. v. Willow Springs, 202 S.W. 1054. (6) The cross bill states no facts which would bring the claim of the administrator within the jurisdiction of the trial court as a court of equity, or entitle the administrator to relief in law or in equity; it states only conclusions of fact and conclusions of law. (7) The administrator admits that the three trust instruments were executed by the parties thereto, and that said deeds conveyed both real and personal property. The cross bill, in the name of the administrator, attacks the validity of said trust deeds, and seeks to determine the rights, titles, and interests of the several parties thereto. The administrator cannot be heard to question the title to real estate passing under said trust deeds. McQuitty v. Wilhite, Admr., 218 Mo. 586, 117 S.W. 730; Thorp v. Miller, 137 Mo. 231, 38 S.W. 929; Dildine v. DeHart, 293 Mo. 393, 239 S.W. 112. (8) The administrator cannot attack the validity of deeds conveying both real and personal property, for the reason that the construction of deeds conveying both real and personal property is governed by the laws applicable to realty. Lich v. Lich, 158 Mo. App. 400; In re Collier's Will, 40 Mo. 287. (9) The administrator cannot maintain this action under his cross bill, which is a suit in equity to quiet title and, because, under Section 1684, R.S. 1939, only "any person claiming any title, estate or interest in real property . . . may institute an action . . . to ascertain and determine the estate, title and interest . . . in real estate. The administrator, "under our law, . . . has no personal interest in the property" whether real or personal. In re Estate of Elliott, 98 Mo. 379, 11 S.W. 739. (10) No property could descend from Hazlett to his heirs except under the provisions of the statutory law of descent. Under that law, only property actually owned by him passed to his heirs. Secs. 306-317, R.S. 1939; 33 C.J.S. 1074, sec. 119. (11) By claiming that the heirs of Hazlett took by descent the personal property held by the trustees, the administrator assumes that Hazlett had title to said trust property which did descend to his heirs, notwithstanding the fact that the administrator admits in his cross bill that the plaintiff trustees held title to, and were in possession of, such trust property under a valid trust for the life of Hazlett. (12) If Hazlett had been vested with title to real and personal property, the same would have descended on his death to his heirs under Sec. 306, R.S. 1939, and no part of his property would have passed to his administrator. Under that section, the title to personal property actually owned by Hazlett at the time of his death did not pass by descent to his administrator. In re Estate of Elliott, 98 Mo. 379, 11 S.W. 739; Byers v. Weeks, 105 Mo. App. 72, 79 S.W. 485; Bell v. Farmers' Traders' Bank, 188 Mo. App. 383. (13) There is no statute in Missouri which makes it mandatory to have administration where debts are paid and where the property is not exposed, and where neither creditor nor heirs request it. Neither is there a statute which confers upon the administrator title to the personal property of decedent; he only has right of possession as statutory trustee when administration is proper. Bell v. Farmers' Traders' Bank, 188 Mo. App. 383; McCracken v. McCaslin, 50 Mo. App. 85; Richardson, Admr., v. Cole, 61 S.W. 182, 160 Mo. 372, 83 Am. St. Rep. 479; Secs. 1, 7, 38, 57, 94, 299, 306, R.S. 1939. (14) The statutes of Missouri do not authorize an administrator to obtain possession of personal property held by a trustee. State ex rel. N. St. Louis Trust Co. v. Wolfe, 343 Mo. 580, 122 S.W.2d 208; Davis v. Johnson, 332 Mo. 417, 58 S.W.2d 746; State ex rel. Clay County State Bank v. Waltner, 145 S.W.2d 152; Casey v. Casey, 416 N.Y.S. 348. (15) There is no statutory authority which vests power in the administrator to enforce equitable rights on behalf of the heirs of the deceased against the trustees who hold title to and possession of such assets. Such equitable rights must be claimed by the heir individually. State ex rel. St. Louis Union Trust Co. v. Sartorius, 164 S.W.2d 356; Sec. 849, R.S. 1939. (16) The cross bill, having admitted the execution of the trust instruments and that the trust created by the trust deed of June 12, 1885, was a valid trust, then in this suit, wherein the plaintiffs, as trustees under said deed, had asked the court for instructions as to the further execution and the termination of their trust and a declaration of the rights of the beneficiaries of the trust, and wherein all those persons for whom the administrator of the estate of Hazlett K. Campbell, deceased, would act as statutory trustee, being the heirs at law of Hazlett, had previously been made defendants and were then claiming their own several individual rights in equity in the trust property — the administrator was not and still is not a necessary nor an indispensable nor a proper party. McKee v. Downing, 224 Mo. 115, 124 S.W. 7; Love v. White, 348 Mo. 640, 154 S.W.2d 759; Hale v. Campbell, 127 F.2d 594; Clay v. Walker, 6 S.W.2d 961. (17) The sole purpose of the cross bill of the administrator is an attempt to discover and to get possession of assets through this suit in equity, after he failed in his attempt to get possession of the trust property held by the trustees, by citation issued from the probate court on his application. Equity will regard the substance and not the form, and will recognize the cross bill as nothing more than an attempted proceeding to discover assets. 1 Story, Eq. Jur. (14 Ed.), p. 89, sec. 88. (18) The administrator cannot maintain a suit in equity for the discovery of assets. Bank of Willow Springs v. Lillibridge, 316 Mo. 968, 293 S.W. 116; David v. Johnson, 332 Mo. 417, 58 S.W.2d 746. (19) The judgment denying the claim asserted by the administrator in his cross bill did not deprive the administrator of any right or title to the trust property; he was not injured, for he suffered no material loss or damage under the judgment. For that reason the judgment on the face of the record should be affirmed and the appeal should be dismissed; upon a review of this whole record it appears that the administrator was not aggrieved by the judgment dismissing his cross bill with prejudice. The appeal was improvidently allowed and should now be dismissed. Secs. 1184, 1228, R.S. 1939; Love v. White, 154 S.W.2d 759. (20) Under the opinion in the mandamus suit, this court ordered the trial court, as respondent there, to grant the appeal in this case. The issue there was whether the administrator, on the face of the record in the mandamus case, was entitled to have this court consider his whole record. The court in directing the appeal did not adjudicate the claims of the administrator against the plaintiff trustees or against the heirs of Hazlett. Such questions were not held in judgment under the opinion in that case. State ex rel. Madden, Admr., v. Sartorius, 349 Mo. 1054, 162 S.W.2d 987. (21) If any error was committed as a matter of law in the rulings in that opinion, then such errors, if material, may be corrected by this court on this appeal. Mangold v. Bacon, 237 Mo. 496; Fuchs v. St. Louis, 167 Mo. 620; Hogan v. K.C. Pub. Service Co., 322 Mo. 1111, 19 S.W.2d 707; Murphy v. Barron, 286 Mo. 390, 228 S.W. 492. (22) The cardinal rule to be observed in the construction of the trust instruments is to ascertain the intention of Robert and Virginia Campbell in the deed of settlement of February 14, 1877, and the powers of Gantt and Ranken as trustees under the deed of settlement when such trustees, as grantors, under the direction of Hugh, conveyed one-third of the entire trust property held by them to James A. Campbell, as trustee for Hazlett under deed dated June 12, 1885, and under receipt of James for personal property and his declaration that such property was received and held by him under the same conditions and trusts as set out in the deed of June 12, 1885. The court should ascertain such intention from all of the provisions of these instruments "from cover to cover" and give effect to such intention if the same are not in conflict with some positive rule of law. Norman v. Horton, 344 Mo. 290, 126 S.W.2d 187; Humphreys v. Welling, 341 Mo. 1198, 111 S.W.2d 123; Long v. St. Louis Union Trust Co., 332 Mo. 288, 57 S.W.2d 1071; Utter v. Sidman, 170 Mo. 284, 70 S.W. 702; Sims v. Brown, 252 Mo. 58, 158 S.W. 624; Walton v. Drumtra, 152 Mo. 489, 54 S.W. 233. (23) The interpretation given by the trust instruments by General Noble, David Ranken, Thomas T. Gantt, Hugh Campbell and by Hazlett Campbell himself, as shown by their acts and declarations, will be adopted by the court if a reasonable person could attach such interpretation to the instruments and if such interpretation were not contrary to a positive rule of law. Knisely v. Leathe, 178 S.W. 453; Warne v. Sorge, 258 Mo. 162, 167 S.W. 967; Keller v. Keller, 343 Mo. 815, 123 S.W.2d 113; Carter v. Foster, 145 Mo. 383, 47 S.W. 6; 3 Williston on Contracts, sec. 623; 4 Page on Contracts (2 Ed.), pp. 3510-3513, sec. 2034. (24). The transfer of title by Robert and Virginia Campbell in the deed of settlement having been made by words of general warranty under the statute and at common law, to wit: "Grant, Bargain, Sell, Enfeoff and Convey, Transfer and Assign to the said Parties of the Second Part (Gantt and Ranken) and their heirs and assigns forever, as joint tenants," etc., and said trustees having been given the duty to convey the estate in 1885, as therein directed, the trust became an active one, the Statute of Uses did not operate, and the trustees took all estate in fee simple. Deed of Settlement, February 14, 1877; 1 Restatement of Trusts, sec. 69; Ibid., sec. 88; 1 Perry on Trusts and Trustees (7 Ed.), sec. 305, pp. 535-538; 1 Scott on Trusts, Sec. 69; Ibid., sec. 88, pp. 484, 485; Simpson v. Erisner, 155 Mo. 157, 55 S.W. 1029; Eckle v. Ryland, 256 Mo. 424, 165 S.W. 1035; Humphreys v. Welling, 111 S.W.2d 123, 341 Mo. 1198. (25) Virginia Campbell, having been named in the deed of settlement of 1877 as a grantor and not as a grantee, took only a right of support until the termination of that trust on the 16th day of March, 1885, with power of disposition of one-fourth of the estate by deed or testament, which power was in effect only a power of revocation of her original grant to her trustees, and on her failure to exercise such power of revocation all of her rights in said deed of settlement and in the property conveyed therein lapsed with her death in 1882, and the title in fee thereto remained in her grantees, Gantt and Ranken, where the deed of herself and Robert Campbell had placed the title in fee under their original grant and warranties. Deed of Settlement, February 14, 1877; Keller v. Keller, 343 Mo. 815, 123 S.W.2d 113; Grace v. Perry, 197 Mo. 550; Walton v. Drumtra, 54 S.W. 233, 152 Mo. 489; Coleman v. Haworth, 320 Mo. 852, 8 S.W.2d 931; Sims v. Brown, 252 Mo. 58, 158 S.W. 624. (26) Under the deed of settlement of 1877. James and Hazlett took identical estates, to wit: a right of support in the income from the trust property until the termination of the trust on March 16, 1885, contingent on their surviving to that date, and if surviving, then they took such estate as Hugh Campbell might ascribe and direct to them. They took no vested interest or estate of any kind in the trust property conveyed under the deed of settlement of 1877. Bixby v. St. Louis Union Trust Co., 323 Mo. 1014, 22 S.W.2d 813; Mathews v. Van Cleve, 282 Mo. 19, 221 S.W. 34; Eckle v. Ryland, 256 Mo. 425, 165 S.W. 1035; Becker v. Anchor Realty Co., 71 F.2d 355. (27) "The Deed of Settlement of 1877 gave Hugh broad powers to direct disposition of Hazlett's `share' on the termination of that trust, and because Hazlett had no vested estate or title of any kind in the property conveyed thereby, Hugh had the right to direct the execution of a trust for the benefit of Hazlett during his life, with the remainder over `to the heirs of said Hazlett as they may exist by law at the time of his (Hazlett's) death.'" Sec. 3500, R.S. 1939; DeCharette v. DeCharette, 94 S.W.2d 1018. (28) The trust vesting in the trustee the power to hold, manage and control in every conceivable manner the trust property, giving the trustee or his successor the right to convey the property ultimately on its termination, and devolving upon the trustee the duty to maintain and care for Hazlett, and devolving upon the trustee the duty on the death of Hazlett to determine and to distribute the property to those persons then entitled to receive the same, was certainly an active trust which continued through the life of Hazlett and until the dispositions provided therein to be made on the death of Hazlett were actually accomplished, the original trustee and his successors in said trust took thereunder title to the property conveyed in fee simple absolute subject only to the trusts therein set forth. See cases cited under Points (22), (23); Garland v. Smith, 164 Mo. 1, 64 S.W. 188. (29) Hazlett Campbell, under the trust of June 12, 1885, took only an equitable interest in the income for life, and not title to the one-third of the trust property therein conveyed. Title remained in the trustee, James Campbell, and in his successors thereafter appointed. In the absence of title in Hazlett during his lifetime, no title could descend to his heirs. The appellant admits that legal title was vested in the trustee and his successors at least until the death of Hazlett. Deed of trust, Gantt and Ranken to James A. Campbell, trustee, dated 6/12/85. Buxton v. Kroeger, 219 Mo. 224, 117 S.W. 1147; Sec. 306, R.S. 1939. (30) The heirs of Hazlett Campbell took under the deed of trust of June 12, 1885, a contingent remainder until the death of Hazlett when his then heirs at the time of his death became vested with a remainder interest as tenants in common in the entire trust estate conveyed by that deed. The heirs take by purchase and not by descent. Sec. 3500, R.S. 1939; Eckle v. Ryland, 256 Mo. 424, 165 S.W.2d 1035; Norman v. Horton, 344 Mo. 290, 166 S.W.2d 187; Buxton v. Kroeger, 219 Mo. 224, 117 S.W. 1147. (31) The grantors in the deed of trust to James A. Campbell, trustee, were empowered under the deed of settlement of 1877, to leave a remainder over to the heirs of Hazlett Campbell, because the deed of settlement of 1877 vested no estate in Hazlett as ultimate beneficiary unless upon the contingency that Hugh should determine it expedient that a share may vest directly in Hazlett. Hugh did not so determine, but Hugh did determine, in the form of the deed of trust of June 12, 1885, that if James, as trustee for Hazlett, should find it expedient to vest title in Hazlett or make appropriations for Hazlett's family, such power vested in the trustee under such deed, but such power was not exercised by James, was not exercised by Hugh as successor trustee of James, and was not exercised by plaintiff trustees, so that on the death of Hazlett the entire title to said property was held by the plaintiff successor trustees for the then heirs of Hazlett. Deed of Settlement, 1877; Trust Deed of 1885; DeCharette v. DeCharette, 94 S.W.2d 1018. (32) Even if Hazlett Campbell had a vested remainder under the Deed of Settlement of 1877, absent a testamentary disposition or a disposition during his lifetime, the same property would have gone to his "heirs as they may exist at the time of his death" and under these circumstances a direction that a particular fund shall go in the way in which the law would make it go in the absence of such direction, cannot be said to be an invalid exercise of the power vested in Hugh or contrary to the policy of the law. Hopkins v. Grimshaw, 165 U.S. 342, 41 L.Ed. 739. Leahy Leahy, Otey McClellan, H.A. Hamilton, Isaac C. Orr, Cox, Blair Kooreman and Richard T. Brownrigg for respondent Heirs.
(1) In construing the deed of settlement the intention of the parties is to be ascertained by considering all the provisions of the deed as well as the situation of the parties and such intention is to be given effect unless it conflicts with positive rules of law. Walton v. Drumtra, 152 Mo. 489; Krause v. Jeannette Inv. Co., 62 S.W.2d 890, 330 Mo. 509. (2) In ascertaining the intent of the parties to a deed, the construction they placed thereon, as shown by what they did, is strong evidence of what the deed was intended to mean. Blumenthal v. Blumenthal, 251 Mo. 693; Petty v. Griffith, 165 S.W.2d 412. (3) Hazlett Campbell did not inherit one-fourth of the present trust estate (i.e., one-third of a one-fourth share of the Robert Campbell trust) from his mother, Virginia Campbell, because she at no time has a vested interest which would pass by descent, as her acquiring such an interest was contingent on her survival at the time of allocation on March 16, 1885. There was no grant generally in the deed of settlement of February, 1877, to Virginia Campbell of a one-fourth interest in the Robert Campbell trust property, prior to March, 1885. The provision that after the death of Robert Campbell the trust property was to be controlled and managed by Virginia and Hugh for the common use and benefit of Virginia and her children, Hugh, Hazlett and James, until March, 1885, the time of allotment of shares, is not a grant to her of any interest to her separate or sole use, evidencing any intent on the part of the grantors that any interest should then vest in her. Gifford v. Thorn, 9 N.J. Eq. 702; In re Morris, 33 Week. Rep. (Eng.) 895. (4) The power of disposition over a one-fourth part of the estate during the period from Robert Campbell's death to the time of allocation would not alone vest an interest in Virginia, as failure to exercise the power leaves unchanged any interests created by the deed. Grace v. Perry, 197 Mo. 550, 95 S.W. 875; Coleman v. Haworth, 8 S.W.2d 931; Keller v. Keller, 123 S.W.2d 113, 343 Mo. 850. (5) That Virginia Campbell took an inheritable interest in the Robert Campbell trust, which at her death passed by descent to her three sons, is contrary to the intention of the grantors as evidenced by the provisions of the deed of settlement of 1877 and the construction placed thereon by the parties to the deed. (6) Hugh Campbell, under the power granted him by the deed of settlement of 1877, was authorized to direct and appoint in what manner, degree and terms this equal share of the estate was to be conveyed, and the trustees were directed to effectuate whatever disposition, settlement and limitation Hugh might by deed declare with respect thereto. These provisions conferred on Hugh the power to appoint the fee. Maitland v. Baldwin, 70 Hun, 267, 24 N.Y.S. 29; Hill v. Jones, 65 Ala. 214; Seibels v. Whatley, 2 Hill's S.C. Rep. 605; C.C.C. St. L.R. Co. v. City of Cincinnati, 1 Ohio Prob. 269; Re Brown's Estate, 137 A. 132, 289 Pa. 110; 25 Am. and Eng. Enc. of Law (2d Ed.) 628; Mills v. Davison, 35 A. 1072, 54 N.J. Eq. 659; Stone v. Hill, 14 S.E. 1011, 112 N.C. 1. (7) The donee of a power to appoint a fee may under that power appoint a less estate with remainder over. Butler v. Huestis, 68 Ill. 594, 597; Mays v. Beech, 114 Tenn. 544, 86 S.E. 713; Appeal of Appleton, 20 A. 521, 136 Pa. 354; In re McClellan's Estate, 70 A. 733, 221 Pa. 261; Seibels v. Whatley, 2 Hill's S.C. Rep. 605.
Daniel N. Kirby and Harry W. Kroeger for plaintiffs-respondents, St. Louis Union Trust Company and Allen C. Orrick, Successor Trustees.
(1) The pole star in the construction of a trust instrument is the intention of its makers. Eckle v. Ryland, 256 Mo. 424; Krause v. Jeannette Inv. Co., 333 Mo. 509; Long v. St. Louis Union Trust Co., 332 Mo. 288. (2) If the provisions of an instrument creating a trust are capable of two constructions, the court will adopt that construction which will render the trust legal and operative rather than one which will render it void. 65 C.J. 498, Trusts, sec. 242; Davis v. Rossi, 326 Mo. 911. (3) Where an instrument is capable of more than one meaning, the construction to be given it is the construction which was placed upon the instrument by the immediate parties thereto. Keller v. Keller, 343 Mo. 815; Warne v. Sorge, 258 Mo. 162; Blumenthal v. Blumenthal, 251 Mo. 693; Carter v. Foster, 145 Mo. 383. (4) No part of the property in controversy may be treated as derived by Hazlett by intestate succession from Virginia and as having been owned by Hazlett free from trust. The Statute of Limitations has long since barred the interposition of a claim by appellant that Hazlett acquired by intestate succession from Virginia one-third of that one-fourth of the trust property which would have been hers had she survived March 16, 1885. (5) Where a cause of action is vested in a fiduciary and the fiduciary becomes barred by limitation, the cestuis que trust will also be barred even though they be under disability. Such doctrine applies to a cause of action vested in the trustee of an active trust. Ewing v. Shannahan, 113 Mo. 188; Walton v. Ketchum, 147 Mo. 209; Simpson v. Erisner, 155 Mo. 157; Simpson v. Jennings, 163 Mo. 332; Huntington Real Estate Co. v. Megaree, 280 Mo. 41. (6) It also applies to a cause of action vested in an executor or administrator. Meeks v. Olpherts, 100 U.S. 564; McLeran v. Benton, 73 Cal. 329; Dennis v. Bint, 122 Cal. 39; Worthy v. Johnson, 10 Ga. 358; Cornelison v. Sansom, 165 S.E. 264; Shelley's Estate, 287 Pa. 105; Jenkins v. Jensen, 24 Utah, 108; Wych v. East India Co., 3 P. Wms. 309, 24 Eng. Rep. 1078; Cf. Spann v. First Natl. Bank of Montgomery, 240 Ala. 539, 200 So. 554; 2 Woerner's Law of Administration (3rd Ed. 1923) 1120; 34 Am. Jur. 300, Limitations of Actions, sec. 387; 37 C.J. 720, Limitation of Actions, sec. 35. (7) No intent was expressed in the deed of 1877 to vest in Virginia prior to 1885 an equitable estate in fee in one-fourth of the family property. In the construction of instruments creating trusts, all intendments are in favor of the beneficiary of the trust, and against the settlor. 65 C.J. 499, Trusts, sec. 243; Dibert v. D'Arcy, 248 Mo. 617; Stein v. Natl. Bank of Commerce, 181 S.W. 1072; Cf. Wood v. Paul, 250 Pa. 508; Rothchild v. Dickinson, 169 Mich. 200. (8) Where there is a gift in remainder or otherwise to a class of persons, survivorship occurs in favor of the members of the class living at the time of the vesting to the exclusion of the heirs of predeceased members of the class. Crecelius v. Horst, 9 Mo. App. 51, 78 Mo. 566; Holloway v. Burke, 336 Mo. 380; Walker v. First Trust Savings Bank, 12 F.2d 896. (9) A power of appointment not exercised leaves the estates created by the instrument in the same condition as if the power had never been conferred. Coleman v. Haworth, 320 Mo. 852; Keller v. Keller, 343 Mo. 815; Buxton v. Kroeger, 219 Mo. 224; Grace v. Perry, 197 Mo. 550. (10) The property in controversy did not upon the death of Hazlett pass to his heirs by intestate succession, but passed to them as remaindermen under the deed of 1885. The absolute restraint imposed by the deed of 1877 upon Hazlett's alienation by deed or will of any property not directly conveyed to him was utterly inconsistent with the theory that an equitable estate in fee was created. Restraints upon the alienation of either income or principal by a beneficiary of a trust, such as were imposed by the deed of 1877 in respect of Hazlett's share, have been uniformly upheld in this State. Bixby v. Union Trust Co., 323 Mo. 1014; Gordon v. Tate, 314 Mo. 508; Matthews v. Van Cleve, 282 Mo. 19; Lampert v. Haydel, 96 Mo. 439, 451; 119 A.L.R. Anno. 24, 33, 56; 91 A.L.R. Anno. 1091. (11) A beneficiary of a trust who has no right ever to receive possession of property and who is denied power to dispose of it either by his deed or by his will, cannot be possessed of an equitable estate in fee simple. Matthews v. Van Cleve, 282 Mo. 19; Jarboe v. Hey, 122 Mo. 341; Humphreys v. Welling, 341 Mo. 1198. (12) That provision of the deed of 1885 which limited the remainder, upon the death of Hazlett, to his heirs, was fully sanctioned by the deed of 1877 and constituted a valid limitation. Under such limitation, the heirs took as purchasers. Sec. 3500, R.S. 1939. (13) There is no justiciable controversy in this case. There is no controversy in this case concerning Missouri inheritance taxes. Taxation follows as a result of a change in legal relations, and a court, in applying the tax law to a given set of legal relations, is bound by a prior adjudication of the rights of the parties under the property law. Blair v. Commissioner of Internal Revenue, 300 U.S. 5; Freuler v. Helvering, 291 U.S. 35; Helvering v. Rhodes Estate, 117 F.2d 509; In re Franz' Estate, 127 S.W.2d 401. (14) Appellant neither represents creditors nor is subject to any liability to creditors. Executors, administrators and trustees are liable for inheritance and estate taxes only in respect of property transferred by them without the payment of a tax thereon. Sec. 579, R.S. 1939. (15) A claim by an administrator, when made without representation of any creditors, against the persons who are both beneficiaries of the trust and beneficiaries of the estate of Hazlett, does not constitute a justiciable controversy. Bank of Willow Springs v. Lillibridge, 316 Mo. 968. (16) The supplementary order entered on August 6, 1941, must in any event be affirmed. The trustees had an unquestionable right to invoke the jurisdiction of a court of equity to instruct them in respect of their duties upon termination of the trust. Trustees when in reasonable doubt are entitled to apply to a court of equity for instructions concerning the manner of the winding up of a trust. American Law Institute's Restatement of the Law of Trusts, sec. 259, Comment "a"; Hayden's Executors v. Marmaduke, 19 Mo. 403; Shaller v. Mississippi Valley Trust Co., 319 Mo. 128; Chapman v. Chapman, 336 Mo. 98; Walker v. First Trust Savings Bank, 12 F.2d 896; Brittain v. First Trust Savings Bank, 42 F.2d 613; Talbot v. the Earl of Radnor, 3 My. K. 252; Curteis v. Candler, 6 Mad. 123; Lewin on Trusts, *344, *350, *618; Hurst v. Hurst, 9 L.R. Ch. App. 762; Re Primrose, 23 Beav. 590; Lonergan v. Stourton, 11 W.R. 984; 2 Scott on Trusts, sec. 259, p. 1466; 65 C.J. 680, Trusts, sec. 540. (17) The ancient jurisdiction of a court of equity to take the accounts of trustees is also beyond question. 21 C.J. 116, Equity, sec. 93; 19 Am. Jur. 152, 154, Equity, secs. 165, 168. (18) Because the circuit court had full jurisdiction over the trust property and the parties, its determination with respect to the assets constituting the trust estate and the compensation to be allowed was within its jurisdiction, and, in the absence of exceptions to the accounts of the trustees or the reasonableness of the compensation, such determinations were final.
Roy McKittrick, Attorney General, and John S. Phillips, Assistant Attorney General, amicus curiae.
(1) The administrator is the conduit through whom the State operates in the collection of its inheritance and estate taxes. Secs. 38, 57, 575, 578, 579, R.S. 1939; Art. 24, Chap. 74, R.S. 1939; School Dist. of Kansas City v. Smith, 342 Mo. 21, 111 S.W.2d 167; Love v. White, 154 S.W.2d 759, 348 Mo. 640; In re Rosing's Estate, 337 Mo. 544, 85 S.W.2d 495; Natl. Safe Deposit Co. v. Stead, 250 Ill. 584, 95 N.E. 973. (2) A trustee is not permitted to change the nature, objects and purposes of the trust and vary the rights of the beneficiaries. Britton v. School Dist. of University City, 44 S.W.2d 33, 328 Mo. 1185; Loud v. St. Louis Union Trust Co., 281 S.W. 744, 313 Mo. 552; Arnold v. Brockenbrough, 29 Mo. App. 625; Rapp v. St. Louis Union Trust Co., 229 S.W. 1105; 65 C.J., p. 645, sec. 518; Clark v. Maguire, 16 Mo. 302.
This is an action by the St. Louis Union Trust Company and Allen C. Orrick, as successor trustees of the estate of Hazlett Kyle Campbell, deceased, asking the court to instruct them as to their title, powers, and duties in respect to the trust estate, and to construe a deed of settlement of 1877 executed by Robert Campbell and Virginia Campbell, his wife, to Thomas T. Gantt and David Ranken as trustees for Hugh Campbell, Jr., Hazlett K. Campbell, and James A. Campbell; a trustee deed of June 12, 1885, executed by Gantt and Ranken to James Campbell, trustee for Hazlett Campbell; and also, a declaration of trust dated July 6, 1885, involving the same parties. The last two instruments were executed in compliance or attempted compliance with the deed of settlement of 1877. The petition, also, asked the court to determine and declare the validity of these conveyances and the nature of the titles vested in the trustees and the beneficiaries thereunder, and to determine and declare the identity of the person to whom and proportions in which the trust estate is to be distributed. The appellant, Thomas R. Madden, was appointed administrator of the estate of Hazlett Kyle Campbell by the Probate Court of the City of St. Louis.
The various contentions in these appeals primarily involve the construction of the deed of settlement of 1877. This deed may be summarized as follows:
On February 14, 1877, Robert Campbell and Virginia Campbell executed this deed of settlement of 1877 by conveying to Thomas T. Gantt and David Ranken, as parties of the second part, all property belonging to the grantors in trust, and Hugh Campbell, Jr., Hazlett K. Campbell, and James A. Campbell were named as parties of the third part. The conditions of the trust were, first, that the parties of the second part were to hold the property for Robert Campbell for his natural life and to such uses as Robert Campbell may by deed of appointment or will direct (Robert Campbell never exercised such power of appointment); and in default of such appointment, the parties of the second part were to hold the property in the following manner: Some personal property not involved in these appeals was given absolutely to Virginia, and the use of the family residence for her life was also given her; the residue of the property conveyed to the parties of the second part was left in the possession, control, and management of Virginia and Hugh Campbell, Jr., for the common use and benefit of Virginia and Hugh Campbell, Jr., Hazlett K. Campbell, and James A. Campbell, and that Virginia and Hugh were to act as guardians and curators of Hazlett and James until March 16, 1885. Up to that time, neither Hazlett nor James was to have any power of alienating, encumbering, or charging any share or interest in the estate, "and until that time no interest or estate therein or thereto shall vest in them or either of them." The deed, also, provided that in the event either Hazlett or James married or went into business, Virginia and Hugh at their discretion could advance to Hazlett or [361] James the sum of $25,000 prior to March 16, 1885, and charge interest to that date, (however, neither Hazlett nor James married or went into business) and "if on or before the sixteenth day of March, Eighteen and Eighty-five, no misconduct or irregularity of life should appear in the said Hazlett K. Campbell and James A. Campbell or either of them and no unforeseen misfortune or visitation of Providence which in the judgment of the said Virginia J. Campbell and Hugh Campbell, Jr., (to whom and to the survivor of whom is committed the power of determining and existence of such misconduct, irregularity, unforeseen misfortune, or visitation of Providence) will render it inexpedient to vest in the said Hazlett K. Campbell or James A. Campbell a full share" of the said estate, then Virginia and Hugh shall cause to be divided into four parts, as nearly equal as possible, the property held by the parties of the second part and it shall be awarded by lot. "And thereupon the said parties of the second part . . . shall execute fit deeds conveying to the said Virginia J., Hugh, Hazlett K., and James A. Campbell, respectively, in fee simple absolute the shares and parts to them respectively awarded." But if "Virginia J. Campbell and Hugh Campbell, Jr., or the survivor of them shall be of opinion that in contemplation of misconduct or irregularity of life on the part of the said Hazlett K. Campbell and James A. Campbell or either of them, or in view of unforeseen misfortune or visitation of Providence occurring to them or either of them . . . it is inexpedient that an equal fourth part of said real and personal estate should be conveyed to and vest in the said Hazlett K. Campbell and James A. Campbell, or either of them, then the said Virginia J. Campbell and Hugh Campbell, Jr., or the survivor of them shall by deed direct and appoint in what manner degree and terms the one equal fourth part of said real and personal estate shall be by conveyance and assignment of the said parties of the second part vested in the said Hazlett K. Campbell and James A. Campbell or either of them directly," and the same powers were given as to the remainder in reference to their families. The deed then directs that the parties of the second part shall by deed and assignment complete whatever disposition, settlement, and limitation Virginia and Hugh or the survivor of them may by deed declare in respect of the mode, degree, terms, and trust in which Hazlett and James shall take respectively the one equal fourth part of the real estate. The making of the deeds and conveyances contemplated by the provisions of this deed on March 16, 1885, shall be on their part a full performance of the trust in them hereby reposed and vested. In the event of the death of Hazlett, James, or Hugh unmarried and intestate prior to March 16, 1885, the share of the such deceased shall be added to the share of the survivors. "But the said Virginia J. Campbell may at any time by deed or will dispose of her share, being one equal undivided fourth part of said real and personal Estate and a like power is also given to the said Hugh Campbell, Jr., and no such power of alienation or encumbrance shall exist in the said Hazlett K. Campbell and James A. Campbell until the sixteenth day of March in the year Eighteen hundred and Eighty-five (1885) nor then except as to the estate or interest to them directly conveyed as herein before provided." The deed then provided that "The net income as may be needed for the maintenance, support, and education of the said Hazlett K. Campbell and James A. Campbell and the keeping up of the establishment and homestead of the said Virginia J. Campbell as to her shall seem meet and expedient and if there be a residue of income not needed for these purposes, that the said Virginia J. Campbell and Hugh Campbell, Jr., shall according to their best judgment invest the same for the common benefit of themselves and the said Hazlett K. Campbell and James A. Campbell."
When the deed of settlement was executed, Robert Campbell's family consisted of his wife, Virginia, and his three sons, Hugh, Jr., Hazlett K., and James A. At this time, Robert was seventy-three years old and died about two years later; his wife, Virginia, was about fifty-four years old and she died on January 30, 1882, without having by deed or will disposed of any of her interest in the property affected by the trust under the deed of settlement of 1877; Hugh, Jr., was about twenty-nine years old and he died on August 9, 1931, without having married; Hazlett K. was about nineteen years old and died on March 27, 1938, without having married; and James was about seventeen years old and died on July 13, 1890, without having married.
[362] March 16, 1885, having arrived and passed, Hugh Campbell, Jr., as survivor of the power granted to Virginia and Hugh, Jr., by the deed of settlement of 1877, caused the property constituting the Robert Campbell Trust to be divided into three equal parts and one such part of such property was allotted to each Hugh, Hazlett, and James. By deeds dated June 12, 1885, the trustees, Gantt and Ranken, conveyed the shares of real estate so allotted to Hugh and James directly. Because Hugh was of the opinion that, in the contemplation of the "unforeseen misfortune and visitation of Providence" which had occurred to Hazlett, it was inexpedient that his share should be conveyed to him directly, Gantt and Ranken conveyed by deed Hazlett's share in the real estate to James, as trustee, for the use and benefit of Hazlett, and, upon Hazlett's death, the remainder to the heirs of said Hazlett as the same may exist by law at the time of his death. The deed contained provisions for the application of the income for the maintenance and support of Hazlett "to the most liberal degree," during his lifetime; provisions for conveyance to Hazlett in fee simple if, in the opinion of the trustee, Hazlett recovered from his then existing ailment; and, also, provisions for the application of the income to the support of both Hazlett and his family, if he should have one. Hugh joined the trustees in the execution of this deed and in the same instrument James accepted the trusteeship. After the death of James in 1890, Hugh was appointed successor trustee of the trust estate of Hazlett, and he administered the property until 1926 when he resigned; then the St. Louis Union Trust Company and Allen C. Orrick were appointed successor trustees of this estate. When Hugh died in 1931, he left a will devising his property in trust for the benefit of Hazlett, which provided that the net income was to apply for the "liberal maintenance" of Hazlett and upon the death of Hazlett, the residue was to be paid over to Yale University.
On September 8, 1931, Hazlett was adjudged of unsound mind by the Probate Court of the City of St. Louis. There was evidence to the effect that he was of unsound mind prior to the year 1885. There were no debts left unpaid by Hazlett at his death in 1938, as the executor or administrators pendente lite of Hugh's estate paid a federal income assessment assessed against Hazlett and, also, his funeral expenses.
It is the contention of the appellant, Madden, that a proper construction of the deed of settlement of 1885 would give at least an equitable fee in Hazlett and, therefore, there would be both a Federal and State inheritance tax due, and it is his duty to pay the same as administrator.
Briefly, the trial court found the persons who were the heirs-at-law of Hazlett and the respective share of each heir. There is no issue on this appeal regarding who were his heirs or their respective shares. The court, also, found that Virginia took only a contingent interest in the property conveyed by the deed of settlement, one-fourth of which would vest in her if she were alive on March 16, 1885, but since she died in the year 1882 without having exercised the power of appointment by deed or will in this one-fourth interest, her interest in this property lapsed on her death and the trust property was properly divided into three equal parts in 1885 instead of four equal parts. The court, also, found that the one-third share of the property conveyed by the deed of settlement of 1877 and allotted to Hazlett was subject to the terms and provisions of the trust deed of 1885 and the declaration of trust of July 6, 1885, and that the conveyance of Hazlett's allotted share to a trustee for Hazlett's support and maintenance during his life, with the remainder over to Hazlett's heirs upon his death pursuant to the deed of 1885, was within the intent, meaning, and effect of the deed of settlement of 1877, and, therefore, valid; that the only persons having any interest in the property were Hazlett's heirs-at-law who took by purchase as remaindermen under the deed of 1885, and not by descent from him; and that none of the property in the hands of respondent trustees constituted an asset of Hazlett's estate, so as to be subject to any claim by his administrator.
On August 6, 1941, the court made a supplemental order approving the accounts of the respondent trustees and made allowance for compensation to them up to the date of said decree and, among other things, it was held that they were trustees of a "trust created by the deed dated June 12, 1885, of Thomas T. Gantt and David Ranken, trustees," allowing the respondent [363] trustees gross compensation of $135,738.78, as such trustees. The appellant has, also, taken an appeal from this order.
On August 22, 1941, the trial court entered an order of partial distribution; that is, the order directed the respondent trustees to distribute to the heirs of Hazlett the sum of $540,000. From this order the appellant, also, appealed.
We do not understand that there is any dispute as to the legal effect of the deed and declaration of trust of 1885. These instruments gave legal title to the trustees, and the beneficial interest to Hazlett for maintenance for life, with the remainder to his heirs who took as purchasers and not by descent from him. But appellant contends that under the deed of settlement of 1877, the trustees did not have the power to execute the kind of deed that they did execute in 1885 and since Virginia died before 1885, that Hazlett inherited from her one-third of the one-fourth of the property conveyed to her by the deed of settlement of 1877, on the theory that her one-fourth was deeded to her in fee. In other words, the rights of the parties to this appeal are to be determined by the construction of the deed of settlement of 1877.
It is well settled in this state that the rule to be observed in the construction of deeds is to ascertain the intention of the grantor, and to give effect to such intention, unless it conflicts with some positive rule of law. It is necessary to take the deed as a whole in arriving at such intention and not to give any clause in the deed undue preference. It is our duty in construing the deed to so construe it as to carry out the intention of the makers. We, therefore, look to the deed of settlement of 1877 to find the grantors' (Robert Campbell's and Virginia J. Campbell's) meaning and intention as therein expressed. Eckle v. Ryland, 256 Mo. 424, 165 S.W. 1035; Welch v. Harvey, 281 Mo. 684, 219 S.W. 897; McAlister v. Pritchard, 287 Mo. 494, 230 S.W. 66; Long v. St. Louis Union Trust Co., 332 Mo. 288, 57 S.W.2d 1071; Triplett v. Triplett, 332 Mo. 870, 60 540 S.W.2d 13; Krause v. Jeannette Investment Co., 333 Mo. 509, 62 S.W.2d 890. Also, "where two clauses are inconsistent, the paramount rule is that the deed must be construed so as to give effect to the intention of the parties as collected from the whole instrument. The primary or dominant intent expressed in the instrument, when ascertained, will control." 16 Amer. Jur., Sec. 173, p. 536; Petty v. Griffith, 165 S.W.2d 412.
Looking at the deed of settlement of 1877 as a whole, the primary or dominant intent as expressed by that deed is the support, maintenance, and education of Robert Campbell's family as a unit from a common fund until March 16, 1885, the date that the youngest son, James, becomes twenty-five years old. And then, at that date, to divide the property conveyed by this deed equally in fee among the members of his family, which, at the date of the deed consisted of his wife, Virginia, and his three sons, Hugh, Hazlett, and James, unless an unforeseen misfortune or visitation of Providence had happened to Hazlett or James. If such misfortune or visitation of Providence had happened to Hazlett and James, or either one, then their, or his, share was to be conveyed in the manner, degree and term that Hugh, as survivor of Virginia and Hugh, should by deed direct.
The appellant contends Virginia had a fee simple interest in an equal one-fourth of the property conveyed by the deed of settlement of 1877 upon the execution of that deed, subject to be divested by the exercise of the power of appointment reserved in Robert, and if not then, it vested in her upon Robert's death in default of his exercise of that power, and upon her death, her equal one-fourth interest descended to her three sons, Hugh, Hazlett, and James. Also, the share inherited from her by Hazlett was never divested out of him.
By the deed of settlement of 1877, certain property was conveyed absolutely to Virginia, none of which is involved in the appeal. The clauses dealing with the property conveyed to her that is involved in this appeal are summarized as follows: The residue of the property conveyed to the trustees should be held " . . . in possession, control, and management of said Virginia J. and Hugh Campbell, Jr., to be managed, controlled, and administered for the common use and benefit of the said Virginia J. Campbell and her children Hugh Campbell, Jr., Hazlett K. Campbell, and James A. Campbell . . . until the sixteenth day of March, in the year Eighteen hundred and eighty-five (1885). . . ." At that time, the trustees [364] were to convey to her an equal one-fourth of the property held by them. The deed, also, provided that ". . . the said Virginia J. Campbell may at any time by deed or will dispose of her share, being one equal undivided fourth part of said real and personal estate, and a like power is also given to the said Hugh Campbell, Jr." The deed further provided that "if there be a residue of income not needed for the purposes . . . (that is, the support and maintenance of Virginia and the three sons) that the said Virginia J. Campbell and Hugh Campbell, Jr., shall, according to their best judgment, invest the same for the common benefit of themselves and the said Hazlett K. Campbell and James A. Campbell."
Considering the deed of settlement of 1877 as a whole, and particularly the clauses dealing with Virginia's interests conveyed by this deed, we are of the opinion that Virginia had only a beneficial interest in this trust estate for her support and maintenance, because she died before March 16, 1885. In the first place, the title to the trust estate was vested in the trustees, Gantt and Ranken. It was an active trust because after the allotment of the respective shares of Virginia, Hugh, Hazlett, and James, the trustees shall execute fit deeds conveying the shares so allotted to them. These trustees had the power to convey or lease the real property by deeds prior to the time of the division of this property, upon the written request of Virginia and Hugh. Scott on Trusts, Vol. 1, page 417; Perry on Trusts and Trustees, Vol. 1, pages 535-538; Walton v. Drumtra, 152 Mo. 489, 54 S.W. 233; Simpson v. Erisner, 155 Mo. 157, 55 S.W. 1029. It was not until March 16, 1885, that the trustees were to convey to Virginia her one-fourth equal part of this property. That contingency never happened as she died in 1882. Moreover, she did not have the right to one-fourth of the income of the trust estate for her support and maintenance because that income was to be used for the common use and benefit of Virginia and her three sons. The deed, also, provided that if there was a surplus from the income not needed for the maintenance of Virginia and her sons, such surplus shall be invested for the common benefit of Virginia and her sons. If Virginia had a vested interest in this property at her death, would she not have had the right to one-fourth of the income of the trust estate? Under any circumstances, would she not have a right to one-fourth of the surplus of the income not needed for the support of Robert Campbell's family?
We think these questions are answered by the case of Gifford v. Thorn, 9 New Jersey Equity 702, l.c. 708, where the court said: "But in the present instance there is no severance of the legacy from the rest of the estate, and no appropriation of the interest to the separate benefit of the legatee; on the contrary, the whole estate, real and personal, is vested in the hands of the trustees, who are to receive the entire interest, rents, and profits for the general purposes of the will. The legatee is to receive not the interest of the residuary legacy, but a maintenance and education from the general fund, in common with the other children of Jane Mary Thorn. Such a disposition of the estate can raise no presumption of an intention on the part of the testator that the legacy should vest immediately."
Under the deed of settlement of 1877, there was no separation of the income so as to give Virginia one-fourth of the income; she was not even given the one-fourth of the surplus of the income. There was no estate to vest in her until the year 1885. Her interest in the fee was contingent upon her living until that date.
This was the construction that Gantt and Ranken, Hugh Campbell, Jr., and James Campbell put upon the deed of settlement of 1877 as evidenced by the deed of June 12, 1885, and the declaration of trust dated July 6, 1885. It is to be remembered that Gantt and Ranken were parties of the second part of this deed and Hugh and James were parties of the third part of this deed. Keller v. Keller, 343 Mo. 815, 123 S.W.2d 113. In Warne v. Sorge, 258 Mo. 162, l.c. 170, 167 S.W. 967, l.c. 969, it was held that the life tenant, Chas. G. Warne, could not place upon the deed there under consideration a construction which would bind the remaindermen but the court said, "While all this is true, it is well known that many people place a somewhat different shade of meaning upon the same words — Charles G. Warne was likely to understand the language of his mother and the trustee, and the meaning they intended to convey by the words used in the deed, better than others who did not know those parties, and who are called upon to construe their language forty to fifty years after [365] the deed was written. For this reason, the interpretation which Charles-G. Warne placed upon this deed is entitled to some weight."
While it is not controlling, the construction placed upon the deed of settlement of 1877 in 1885 by the trustees and two beneficiaries is entitled to some weight. They knew the meaning of words used by the grantors better than people who are called upon to construe these words sixty years later.
To construe the deed of settlement of 1877 as giving Virginia a vested estate prior to 1885, would give Hazlett a vested interest in part of this trust property prior to 1885. Such a construction would be contrary to the express language in the deed. The deed says ". . . and until that time (March 16, 1885) no interest or estate therein or thereto shall vest in them or either of them." (That is, Hazlett or James.) Again the deed reads, "No such power of alienation or encumbrance shall exist in the said Hazlett or James . . ." until the 16th day of March, 1885.
Virginia was a grantor in the deed of settlement of 1877 and not one of the named beneficiaries. That fact is to be given some consideration in construing this deed, for the reason that the rule is well settled that in the construction of instruments creating trusts, all intendments of instruments creating trusts are in favor of the beneficiary of the trust and against the settlor. 65 C.J. 499, Sec. 243; Dibert v. D'Arcy, 248 Mo. 617, 154 S.W. 1116.
For these reasons, and for the further reason that we have already found the dominant intent, as expressed by the deed of settlement of 1877, was that the family was to be treated as a unit and was to be supported and maintained from a common fund until 1885, we conclude that Virginia did not have a vested interest in the property at the time of her death, and the part of the deed that says, "But the said Virginia J. Campbell may at any time by deed or will dispose of her share, being one equal undivided fourth part of said real and personal estate," was a mere power of appointment that was never exercised.
It is a well-settled principle of law that a power of disposition may be coupled with a life estate or an interest for years, but if not exercised, it leaves both the life estate and the remainder unaffected. If this is exercised, it cuts off the remainder. Grace v. Perry, 197 Mo. 550, 95 S.W. 875; Krause v. Jeannette Investment Co., supra; Coleman v. Haworth, 320 Mo. 852, 8 S.W.2d 931; Keller v. Keller, supra.
It is significant that under the deed of settlement of 1877, Robert Campbell reserved a life estate with, also, the power of disposition of the remainder either by deed or will, which power he never exercised, yet the appellant does not contend that he held a fee simple estate at his death in 1879.
To sustain his position, appellant relies strongly upon Chapman v. Champman, 336 Mo. 98, 77 S.W.2d 87. In that case, two beneficiaries were given "the sole use and exclusive benefit and disposal" of the property "share and share alike." No words were contained in the deed of settlement of 1877 which conferred upon Virginia at any time prior to her death the "sole use" and "exclusive benefit" of a one-fourth share in the corpus of the trust estate or even a one-fourth share in its income. The case of Green v. Sutton, 50 Mo. 186, is similar to the Chapman case. We think that both of these cases are not in point.
We, therefore, hold that Virginia had no vested interest in the property at the time of her death, and that this property was properly allotted in three parts in 1885.
Appellant next contends that upon the division and allotment of the trust property, Hazlett acquired a vested fee in an equal fourth part of the Robert Campbell Trust property under the deed of settlement of 1877, subject only to the powers committed to Hugh by that deed. He contends the powers vested in Hugh had only the effect of cutting down the dominion of Hazlett over the management, control, and disposition of his share during his lifetime, or for such time that he should remain incapable of managing his property.
The deed of settlement of 1877 contemplated that when March 16, 1885, had arrived, the following steps were to be taken: (1) a division of the property into parts; (2) an allotment of the parts; (3) a determination of inexpediency; and (4) the conveyance.
The appellant contends that when this property was divided into shares and a share was allotted to each beneficiary, the share became his own, and, therefore, a [366] fee was vested in each beneficiary. In other words, when the property was divided into shares, and Hazlett's share was allotted to him, he became vested with the fee, subject to Hugh's power to determine the expediency of a direct conveyance to Hazlett. The question arises as to what kind of a conveyance the trustees should make in conveying Hazlett's share.
There can be no doubt that if Hugh had determined it was expedient to convey to Hazlett, the trustees must convey to him an absolute fee of this share of the trust estate; but Hugh made no such finding. On the contrary, he determined, as he was directed by the deed of settlement of 1877, that an unforeseen misfortune or a visitation of Providence had occurred.
As we view the deed of settlement of 1877, the steps taken in 1885, pursuant to that deed, were not independent of each other but were interrelated; that is, the interest passing to Hazlett by virtue of the allotment might be qualified by the determination of Hugh made in the exercise of his powers. Of course, Hugh had only such powers as were conferred upon him by the deed of settlement of 1877.
Prior to the division of 1885, Hazlett had no vested interest in the trust property, only the right for his support and education. The deed says, "until that time no interest or estate therein or thereto shall vest in" Hazlett. This deed, also, says no "power of alienation or encumbrance shall exist in the said Hazlett . . . until the sixteenth of March in the year Eighteen hundred and eighty-five (1885) nor then except as to the estate or interest to them directly conveyed as hereinbefore provided." (Italics ours.)
Since Hazlett's estate or interest in the trust property was to be determined by the conveyance after the allotment, it follows that appellant's contention that Hazlett was entitled to a fee on the allotment of the shares is unsound.
The phrase "hereinbefore provided" quoted above refers to the power vested in Hugh, as survivor of Virginia and Hugh, to determine the expediency or inexpediency of conveying Hazlett's share to him directly.
Since Hugh determined that it was inexpedient for Hazlett's share to be conveyed to him directly, we must look to the deed of settlement of 1877 and to the language dealing with that power and the power of the trustees, Gantt and Ranken, in making the conveyance. It is as follows:
"But these presents are upon this further trust that if the said Virginia J. Campbell and Hugh Campbell, Jr., or the survivor of them shall be of opinion that in contemplation of misconduct or irregularity of life on the part of the said Hazlett K. Campbell and James A. Campbell or either of them, or in view of unforeseen misfortune or visitation of Providence occurring to them or either of them (none of which things are regarded as in any way probable, but the purpose of this deed is to provide as far as possible against contingencies of unlikely event) it is inexpedient that an equal fourth part of said real and personal estate should be conveyed to and vest in the said Hazlett K. Campbell and James A. Campbell, or either of them then the said Virginia J. Campbell and Hugh Campbell, Jr., or the survivor of them shall by deed direct and appoint in what manner degree and terms the one equal fourth part of said real and personal estate shall be by conveyance and assignment of the said parties of the second part vested in the said Hazlett K. Campbell and James A. Campbell or either of them directly and in what manner degree and terms the remainder of the said equal fourth part of said real and personal estate shall be by said parties of the second part conveyed and assigned for the support and maintenance of the families of the said Hazlett K. Campbell or James A. Campbell respectively. And the said parties of the second part shall by deed and assignment effectuate and complete whatever disposition settlement and limitation the said Virginia J. Campbell and Hugh Campbell or the survivor of them may by deed declare in respect of the mode degree terms and trusts in which the said Hazlett K. Campbell and James A. Campbell shall take respectively the one equal fourth part of the said Real and personal estate and the mode manner and degree upon or in which the residue thereof not by them respectively directly taken shall be conveyed to the use of their families respectively."
The above language is entirely devoid of words evincing an intent that Hazlett, if denied the right to receive the fee, was, nevertheless, to possess an equitable title in fee. The power given to Hugh to determine in what "manner degree and terms" the property might be vested in Hazlett necessarily meant that Hugh had the power to prevent or qualify the vesting, [367] and, therefore, was inconsistent with the theory that Hazlett was vested with an equitable fee. Hugh, also, had the power, not only the power but the duty, to provide for the support of Hazlett's family if he had one. This is inconsistent with an equitable fee in Hazlett. The deed of settlement of 1877, also, gave the power to declare the "limitations" affecting Hazlett's share. We have already said that there was no vesting of any kind in Hazlett upon the allotment of his share, but only upon conveyance as to the "mode, degree, terms, and trusts" in accordance with Hugh's directions to the trustees, and those directions did not give Hazlett a fee. Hazlett had no power of "alienation or encumbrance" unless Hugh directed the trustees to make such a conveyance of his share. This he did not do. It, therefore, follows that Hazlett did not have a fee or equitable fee in the share allotted to him.
Appellant contends that even though Hazlett did not have a vested equitable fee, there was a reversion in fee simple of the trust property of Robert and Virginia Campbell here in controversy which upon their deaths passed in equal shares to Hugh, Hazlett, and James, so that one-third of such reversionary property became vested in Hazlett and passed in intestate succession from him to his heirs.
We find nothing in the deed of settlement of 1877 that would show any intention to retain a reversionary interest in the property, but on the contrary, the deed shows that it was their intention to pass all their interest in this property. The deed of settlement of 1877 provides that ". . . all the property of whatsoever kind and description whether real person or mixed and wheresoever being to the parties of the first part or either of them belonging together with all the appurtenances thereof To have and To hold to the parties of the second part. . . ." (Gantt and Ranken.) This deed further provided, "And the making by the said parties of the second part of the deeds and conveyances contemplated by the provisions of this instrument in the various events herein ascertained and provided for, on or about the Sixteenth day of March in the year Eighteen hundred and eighty-five shall be on their part a full performance of the trust in them hereby reposed and vested."
The first quoted clause clearly shows that Robert and Virginia conveyed all their interest in this trust property. The second quoted clause shows that there was to be no title left in Gantt and Ranken when they executed the conveyances in 1885. There was no language in the deed that would indicate that Robert and Virginia intended to retain a reversion. Moreover, we must not overlook Section 3496, R.S. Mo. 1939, which says ". . . and every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear, or be necessarily implied in the terms of the grant."
We think the provisions of the conveyance of 1885 which limited the remainder upon the death of Hazlett to his heirs, was sanctioned by the deed of settlement of 1877. We have already held that Hazlett's "share" was not a vested share, but the word "share" as used in this deed was used in the sense to distinguish from the share of the other two sons, Hugh and James, and to be exclusively devoted to the benefit of Hazlett to the extent that Hugh, the trustee whom he appointed, and his successors, should deem advisable.
Since Hazlett had no family, his death ended the entire interest directly conveyed out of his share and the remainder conveyed by the trustees to the heirs of Hazlett was the only conveyance in remainder that was consistent with the express intent of Robert and Virginia, so that the trustees had no alternative open to them except the conveyance of the remainder to the heirs of Hazlett pursuant to their power expressly given by the deed of settlement of 1877, to dispose of the entire title.
We, therefore, hold that the conveyance of 1885 conformed to the provisions of the deed of settlement of 1877, and that the appellant has no interest in the property in question.
It, therefore, follows that the appellant cannot question on this appeal of the supplemental order approving the successor trustees' settlement and their commission or the supplemental order of partial distribution.
It follows that the judgment should be affirmed, and the appeals from the two supplemental orders dismissed. It is so ordered. All concur.