Wooden v. Kerr

Grant, J. Bill in equity for an accounting by defendant Kerr as trustee, and for a conveyance by him to> the complainant of the trust property, real and personal. Rayner and TefEt are made defendants as mortgagees of the real property held in trust by Kerr. King is made defendant as administrator with the will annexed and as trustee. The trust was created by the will of one Elias Kerr, — 194 — executed September 20, 1880. The will was admitted to probate June 21, 1882. After providing for tbe payment of his debts, funeral expenses, and for grave-stones, the will contained the following provisions: “Second. All the rest, residue, and remainder of my property, both real and personal, wheresoever situate, I hereby give, devise, and bequeath forever to my brother, Alexander Kerr, of Lodi, Washtenaw county, Mich., and to his son, Alexander Kerr, Jr., and to the survivors of them (whom I hereby appoint joint executors of this, my last will), in trust, nevertheless, as follows: 1. To receive, from time to time, the rents, issues, and profits of my estate; to invest, change investments, collect, call in, reinvest the same; to sell and convey, on such terms and for such price as they shall approve, a part of my said farm (not over 140 acres thereof), in their discretion; also sell (if it be mine at my decease) the said house and lot in Lansing, and convey the same on same terms as above; and to hold the avails and all personal property and money during the continuance of this trust. “2. To allow my son, John M. Kerr, to have a home and his own personal support and maintenance from the avails of the said Ingham farm and the personal property thereon, or the use of so much of it as shall not be sold off, for and during the term of his natural life; and in case of severe sickness, accidents not to be foreseen, or great personal misfortune, my said trustees may, in their discretion, use a further sum of money for his personal comfort, not amounting to over $J.OO annually. But all this provision for my son, John, under this will, is to be purely personal to him, and is not to be aliened, mortgaged, anticipated, or in any wise incumbered by him, or any part of it; and my trustees aforesaid are hereby charged not to tolerate or allow or in any way recognize any such alienation, incumbrance, mortgage, or transfer; and if my said son, John M. Kerr, do make any such attempt by executing, while of sound mind, any instrument of writing with intent to alienate, mortgage, or incumber any part of his claim derived from me under this will, then and in that case this entire clause, and the whole provision for his benefit, is to be null and void, and of no effect whatever. — 195 — 3. In case the property, or the avails thereof, of my grandson, Walter K. Wooden, shall for an.y reason fail to yield him, during his minority, adequate support, maintenance, and education, then said trustee, Alexander Kerr, Jr. (whom I hereby appoint testamentary guardian of the said Walter K. Wooden), is authorized to use of my estate a sum of money not exceeding $250 annually for such support, maintenance, and education. This my grandson has not heretofore had the benefit of proper influence and education, and I desire that he should have a better chance for his morals, his manners, and his character. “ í. Upon and after the decease of my said son, John M. Kerr, and upon my grandson, Walter K. Wooden, attaining the age of 21 years, which, if he lives, will be in April, 1888, then, if in the judgment of said trustees ■or the survivors of them the said Walter shall be of good habits and fair character, I hereby authorize, empower, and direct my said trustees or the survivors of them to convey, assign, transfer in fee-simple, for his own use and benefit, to the said Walter K. Wooden, his heirs and assigns forever, the whole property, both real and personal, remaining in their hands under this will and trust; and in case of the decease of both of said trustees before the said Walter becomes of age, then I hereby pray that the surrogate court of that district, or court of equity, - do appoint a suitable trustee to take the place' of those named, and to discharge the same duty, with the same discretion, under this- will and trust.” Defendant Kerr and his son filed their bonds" as executors under the will, took possession of all the personal and real property, which was inventoried at $9,245.15, and remained in possession thereof until the death of Alexander Kerr, Jr., in March, 1886, after which time Alexander Kerr remained in possession until October, 1886, when he resigned, and 'defendant King was appointed administrator, as above stated, in his stead. At the time of the probate of the will Alexander Kerr was 74 years old, and his son not yet 21. The son was evidently the active manager of the estate. He filed an — 196 — account in the probate court October 15, 1883. Alexander Kerr filed an' account in the name of himself and his son October 9, 1886. This last account was disallowed by the probate court, and no other has since been filed by him. The account of the son does not appear ever to have been acted upon. The mortgage to the defendants Kayner and Tefft was executed by defendant King as administrator under the order of the probate court, for the purpose of paying debts and expenses of administration. ■ The cause was heard in open court, and decree entered for the complainant, holding defendant Kerr to be a trustee, directing an accounting, and directing that he transfer the lands to complainant by a proper conveyance. Defendant Kerr alone appealed. The decree sustained the validity of the mortgage to the defendants Kerr and Tefft. It is -unnecessary to state the terms of the decree as to defendant King, since^ he does not appeal. We think the-defendant Kerr is estopped to assert that he was an executor merely, and not a trustee, and that he and his co-executor took possession of and used the property as executors only. The will created the trust, appointed the trustees, and fixed their duties. No action of any court was necessary to complete this trust in them. Had they considered themselves as executors merely, it must be presumed that they would long ago have settled up the estate, and turned the property over to themselves as trustees. Instead, they took possession of the real estate as well as the personal property, and proceeded to carry out the trust as fully and effectually as they could have done if they had not been ex'eeutors. They filed no account as executors for nearly three years. Equity will not now permit defendant Kerr to refuse an accounting as trustee because the same instrument which — 197 — made him a trustee also made him an executor, in which latter capacity he neglected for several years to ■ render an account. The case of Cranson v. Wilsey, 71 Mich. 356, does not aid him. In that case the defendants sought to avoid liability as executors on the ground that they were trustees. In the present case the trustee seeks .to defend against his liability as trustee, on the ground that he was an executor. It is immaterial in which capacity he is held, his liability is the same; and where his acts and conduct are entirely consistent with his obligation as trustee, he cannot complain when his cestui que trust ■calls him to an account in a court of equity. ' . It is no defense to Mr. Kerr that he settled with King as administrator, and paid over to him an amount which he and King agreed upon. It was King's duty to receive from Mr. Kerr any and all property in his hands belonging to the estate; but he could neither bind the estate nor the complainant by any settlement. The probate court alone possessed the power to allow Mr. Kerr's account as -executor, and discharge his bond. Complainant alone could settle with him for his doings as trustee. Complainant purchased the interest of another heir, and on February 25, 1889, presented a petition to the probate court, setting forth that he was interested in the estate of Flias Kerr, deceased, King’s appointment as administrator, his doings as such administrator, praying that he be compelled to file his final account, and that the remainder of the estate be turned over to the heirs. Upon the hearing of this petition, Mr. King's final account was allowed, his bond, discharged, and the property, including the real estate, turned over to the complainant, who has since been in possession. This does not estop the complainant to require an accounting from defendant Kerr for the moneys and property that — 198 — came into his hands. In this accounting he will be-allowed for all the money and other property turned over to Mr. King, and all which he expended for the-benefit of complainant and the estate. He must account for all received by him, including rents and profits. We find nothing in the record to justify any charge-of dishonesty against defendant Kerr. Decree affirmed, with costs. The other Justices concurred.