Page images
PDF
EPUB
[ocr errors]

safety arbitrarily devised and set up to fit | been comprehended by a person of ordinary the actionable necessities of every casualty, prudence, whose mental and physical capacities, and such shifting, arbitrary methods, how for observing the facts indicative of danger,

both natural and acquired, and opportunities erer incongruous, would be urged as being the were the same as those of the servant himself.' only safe method and only sane way of ar

4 Labatt's M, & S. 1310; Porter v. Hannibal ranging and conducting the master's business. & St. Joe Railroad Co., 71 Mo. loc. cit. 77, 36

Am. Rep. 454; Hollenbeck v. Railroad, 141 We do not understand counsel for defend- Mo. 97, 38 S. W. 723, 41 S. W. 887; Nicholds ant to contravene the rule contended for by v. Plate Glass Co., 126 Mo. loc. cit. 64, 28 N. plaintiff that the same rule of law applied to W. 991. plaintiff in going to, and returning from, the In the case of Porter v. Railroad, supra, at premises of defendant as protected him while page 77 of 71 Mo. (36 Am. Rep. 454), it was on such premises and just as if plaintiff had said: actually been engaged there at work. Upon If, however, the defect is patent, open to the facts before us no other view is tenable. machine in the business the servant is engaged

observation, or such as the ordinary use of the All the duties which the master owed to in would disclose to an ordinarily observant plaintiff while the latter was upon the prem- man operating it, and the servant bad ample ises attached at the moment plaintiff was in opportunity, by operating it, before being injured. Jackson v. Butler, 249 Mo. 342, 155 | know would be held as knowledge, whether, in

jured, to observe the defect, his opportunity to S. W. 1071; Lewis v. Railroad, 59 Mo. 495, fact, he knew of the defect or not. Keegan v. 21 Am. Rep. 385; Porter v. Railroad, 71 Mo. Kavanaugh, 62 Mo. 232; Hulett v. St. L., K. 66, 36 Am. Rep. 454; Huhn v. Railroad, 92 C. & N. Ry, Co., 67 Mo. 239." Mo. 440, 4 S. W.937; Alcorn v. Railroad, 108

Commenting upon the entire trend and Mo. 81, 18 S. W. 188; Williams v. Railroad, scope of the hundreds of cases cited by him 119 Mo. 316, 24 S. W. 782. At this precise on this point, the above distinguished author moment it was incumbent on the defendant

says: to furnish to plaintiff, who was on the prem- these cases is that an adult servant of ordinary

"It will be seen that the general effect of ises in the line of duty, a reasonably safe intelligence is presumed to have been capable of way of ingress and egress.

ascertaining every fact which could have been [2] Reciprocally it was the duty of appel- apprehended by the senses of a person having lant to use his senses as to an appliance those senses in relation to the dangerous condi

the same opportunities as he had for exercising plainly in sight, which appliance respondent tions which caused the injury.” 4 Labatt's had the right to install, and touching which, Master & Servant, § 1313, and numerous cases as we have seen, no duty lay upon the master

cited. to place at any location other than that

No case holding to the contrary has been which was convenient to, and suited, the called to our attention. The cases of Alexmaster.

ander v. St. Joseph, 170 Mo. App. 376, 156 We think, upon the facts here, the plaintiff S. W. 729, Graney v. St. Louis, 141 Mo. 180, was guilty of contributory negligence, as a

42 S. W. 941, and O'Donnell v. Hannibal, 144 matter of law, in failing to see, in the light Mo. App. 155, 128 S. W. 819, are all sidewalk he had and under the circumstances here, the cases, wherein injuries occurred to pedesmud scraper by which he was injured; for it trians upon public streets and sidewalks. We was the duty of the plaintiff himself to ex

need scarcely pause to say that there is a ercise ordinary care for his own safety, to difference between the actual degree of care use his eyes, which he says were reasonably reciprocally enjoined by law upon a city as to good, and to avoid running into permanent its sidewalks and pedestrians thereon, as erections and appliances, plainly visible and compared to that required of a master and open, upon his employer's premises.

his servants while the latter are at work upIt is true that plaintiff denies absolutely case there is an implied assurance that the

on the master's premises. In the former that he ever saw the scrapers or either of them until he was hurt. But does it ma

sidewalks are clear and unincumbered and terially aid his case that in broad daylight reasonably safe and free from dangerous obin an open and otherwise clear space he fail- structions, and reasonably safe for the use ed to observe a fixed and permanent appli- of pedestrians, for which use alone they are ance, which was in plain view and was prac- viously no business could ordinarily be car

maintained; while, on the other hand, obtically as big in bulk and presented to the ried on, for neither machinery, machines, mavision an object as large as one of the volumes of the Revised Statutes? We think

terials, and appliances could be installed or not. Negligence, and likewise contributory

used upon the master's premises, if an assurnegligence, may, and oftentimes does, consist and smoothness of way were warranted to

ance of absolute freedom from obstructions as well in failing to know as in failing to do. the servant by the master. Such cases are for, says Labatt:

not so in point here as to be decisive, how"The juridical theory of imputed knowledge, which is applied in actions by a servant against ever much in point upon a different state of bis employer, is simply this: That he is or facts, and however similarly we may loosely is not chargeable with a comprehension of the define generally the degrees of care respecconditions which caused his injury and of the tively enjoined. risks created by those conditions, according as it may reasonably be inferred that those condi.

The case of Strobel v. Mfg. Co., 148 Mo. tions or those risks would or would not have | App. 22, 127 S. W. 421, cited by appellant,

169 S.W.-3

while superficially seeming to be controlling | remaining in the trustees became vested by the as to the facts, is yet not so. For the reason statute of uses (Rev. St. 1909, § 2867) in the that in the Strobel Case, supra, the obstruc- person or persons entitled to the equitable es

tate under the will. tion was abnormal or unusual, was in a dark

[Ed. Note.—For other cases, see Conversion, passageway used by the employés as a means Cent. Dig. $8 66–72; Dec. Dig. $ 22;* Trusts, of exit, and was composed of material loosely Cent. Dig. $$ 175, 17542 ; Dec. Dig. 131.*] and carelessly, but temporarily, piled therein. 5. TRUSTS (8 191*) — CREATION – PUBPOSE Yt was an obstruction which lacked the fea

TERMINATION.

Where testator devised his real property ture of permanence; it was therefore ab

to certain of his executors as trustees for the normal—i. e., “not conforming to system" sole and only purpose of selling the land and (Webster's Dictionary)—and rendered the paying over the proceeds to the executors for passageway dangerous beyond the ordinary distribution, the power of sale vesting in the at the time of the injury to Strobel, and an settlement, and discharge of the executors, when

trustees could not survive a final distribution, injury occurring therefrom was therefore ac- the title vested in the persons holding the benetionable.

ficial estate, so that a substituted trustee subseIt results from what has been said that the quently appointed had no power to exercise the

power of sale. judgment should be affirmed.

[Ed. Note. For other cases, see Trusts, Cent. Let this be done.

Dig. $ 243; Dec. Dig. § 191.*]

6. TRUSTS (8 189*) – TRUSTEES POWERS WALKER, P. J., and BROWN, J., concur. RIGHTS OF REMAINDERMEN-LIFE ESTATE.

Where a trustee held title for a life tenant only, and not for the remaindermen, the trustee

could not bind the remaindermen or their title DE LASHMUTT et al. v. TEETOR et al.

in any way that the life tenant could not have

bound them by her acts had no trustee inter(No. 15700.)

vened, and hence could not dispose of the re(Supreme Court of Missouri. Division No. 1. mainder by estoppel or by ratification of a void June 2, 1914. Rehearing Denied

deed. July 14, 1914.)

[Ed. Note. For other cases, see Trusts, Cent. 1. PROPERTY (8 6*)-TRANSFERS - VALIDITY

Dig. 88 240, 241, 244; Dec. Dig. 8 189.*] WHAT LAW GOVERNS.

7. ESTOPPEL (8 52*)—“EQUITABLE ESTOPPEL" Real estate transfers, whether by act of —“ESTOPPEL IN PAIS." the parties or by operation of law, depend for “Equitable estoppel" or "estoppel in pais" their validity and effect on the laws of the ju- is that condition in which justice forbids that risdiction in which the property is situated. one speak the truth in his own behalf, and when

[Ed. Note.-For other cases, see Property, a party by his conduct or language has caused Cent. Dig. $ 3; Dec. Dig. & 6.*]

another reasonably to believe in the existence 2. Trusts ($ 189*)—TRUSTEES-FOREIGN AP- rigắt to do so, to act on the belief he will not

of a certain state of things and, having a legal POINTMENT CONVEYANCE OF DOMESTIC be permitted to set up the contrary to the REAL PROPERTY-AUTHORITY, A substituted trustee, appointed by a Mary- conduct may be the simple failure of one against

prejudice of the person so acting. The act or land court exercising equity jurisdiction in

whom it is invoked to speak when it is his duty place of a surviving testamentary trustee authorized by will to sell testator's real property of negligence or design, it may be corrected be

to do so, but whether his conduct be the result had no power, by virtue of such appointment fore the party invoking it has acted upon it to or will, to convey real property belonging to

his prejudice. testator located in Missouri. [Ed. Note. For other cases, see Trusts, Cent. Cent. Dig. 88 121-125, 127; Dec. Dig. $ 52.*

[Ed. Note.-For other cases, see Estoppel, Dig. 88 240, 241, 244; Dec. Dig. § 189.* ]

For other definitions, see Words and Phrases, 3. CONVERSION ($ 22*)-SALE OF REAL PROP- vol. 3, pp. 2497-2508; vol. 8, p. 7655.] ERTY-RECONVERSION. While a testa tor by the provisions of his

8. TRUSTS ($ 237*) — TRUSTEES' DEED – INwill may convert real property into personalty

VALIDITY-RAȚIFICATION-ESTOPPEL. whenever his plan of distribution requires it,

Where certain remaindermen, entitled to which conversion takes place at the moment of the fee of certain property discharged from a testator's death, it is nevertheless subject to be trust under their grandfather's will, had no reconverted into its original character, and will knowledge of an invalid sale of the land by a be reconverted by the election of the ultimate substituted trustee when they accepted a partial and absolute owner under the will, being at distribution, the fact that such distribution conthe time sui juris, to take the land in its orig. sisted in part of the proceeds of such sale did inal condition before sale.

not constitute a ratification thereof, nor estop [Ed. Note: --For other cases, see Conversion, them thereafter to object to the sale. Cent. Dig. $$ 66–72; Dec. Dig. $ 22.*]

[Ed. Note.-For other cases, see Trusts, Cent.

Dig. 88 325, 344; Dec. Dig. § 237.*] 4. CONVERSION ($ 22*)-TRUSTS (8 131*)-Pow. ER OF SALE.

Appeal from Circuit Court, St. Clair CounWhere a trust consisted of a naked power ty; C. A. Denton, Judge. in the trustees to sell land in controversy when and as they deemed best and pay the proceeds

Suit by John S. De Lashmutt and others to testator's executors for distribution, one of against G. 0. Teetor and others. From a dethem being required to hold an undivided one cree in favor of defendants, complainants apsixth for the benefit of complainants' mother peal. Reversed and remanded, with direcfor life, remainder to her children, the trustees were invested with the legal title for the pur

tions. pose of sale only, having no right to possession This suit was begun by filing the petition or management of the property, and, they hav- in the St. Clair county circuit court October ing failed to exercise the power, the land was reconverted into realty, and the legal estate only 13, 1907, and summons was taken at the same •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

date. The plaintiffs are the surviving hus- | and qualified and entered upon his duties as band and three sons and one daughter of such. In 1887 John E. Sifford filed in the Cleanthe Eugenia De Lashmutt, deceased, a circuit court for Frederick county, Md., a daughter of John Sifford, deceased, who is court of general jurisdiction, sitting in equity, the common source of all title asserted by any his petition to be relieved from the trust with party to the suit. The plaintiffs claim title reference to the St. Clair county lands, and to 19/150 of a tract of land in said county, for the appointment of Aubrey Pearre as his particularly described as the W. 12 of the successor. This proceeding was ex parte. S. E. 14 of section 7, township 37, range 28. The court relieved Sifford of the trust and The defendant Teetor claims title to the appointed Pearre, who, purporting to act in whole through a conveyance dated April 7, both capacities of executor and trustee, exe1893, by one Aubrey Pearre, purporting to cuted the deed to Dade already referred to. act as trustee for Mrs. De Lashmutt, as well That the will was not filed for record in St. as administrator with the will annexed of Clair county until February 24, 1904, and no the estate of John Sifford, to one D. L. Dade, ancillary or other administration on the Siffor a consideration of $1,000. The defend- ford estate was ever taken ont in Missouri; ants Darrow and Henry are beneficiary and that the only color of title held by Teetor is trustee in a deed of trust under the Dade title. through the said deed to Dade, which is utThe other defendants, of whom there are 15, terly null and void. The petition further are descendants of John Sifford, and would states that under the will of John Sifford, bis represent all the other interests in the land, daughter Cleanthe E. De Lashmutt was getif the theory upon which the plaintiffs are ting a life estate in equity of an undivided proceeding be the true one. They, however, one-sixth of all lands of the testator, which are seeking no relief and do not answer. The was devised to his daughter Josephine Sifford theory of the plaintiffs is that the deed of in trust for the said Cleanthe, with direcPearre to Dade is void for want of power to tions to permit her to use and enjoy the convey in any of the capacities assumed by same, and receive the rents, issues, and inthe maker.

come thereof during her life; that she died The amended petition upon which the March 25, 1903, leaving surviving her her cause was tried was filed November 14, 1908, husband, the plaintiff Van E. De Lashmutt, and is in two counts. The first count states to whom she was married prior to the death the interest of the parties in connection with of her father, and the other plaintiffs, totheir relationship to John Sifford. That he gether with Frank T. De Lashmutt and Gerdied testate in Frederick county, Md., in trude D. Jackson, her children and sole heirs. 1878, seised of the land. That his will was Frank T. De Lashmutt has since died, and duly admitted to probate by the orphans' Gertrude Jackson has refused to assert any court of Maryland for said county, and es- interest in the lands in suit and is made detablished as such will by the formal decree fendant. The petition then proceeds as folof said court. That letters testamentary is- lows: sued out of said court to his son John Sifford "Plaintiffs further state that they each (exand one John Loats, the only surviving execu- cept Van E. De Lashmutt) and including Frank tors named in said will, who thereupon duly from the estate of John Sifford, deceased, paid to

E. De Lashmutt have received some money qualified, and entered upon the discharge of them by and through their said mother's trusthe duties of said office. Loats soon died, and tee under the will of said John Sifford; and John E. Sifford became the only surviving these plaintiffs say that according to their in

formation and belief a portion of the money executor,

so received was derived from the proceeds of "That by said last will all the lands of said the sale of the land in suit, but that these testator in St. Clair county, Mo., were devised plaintiffs have no sufficient knowledge or into John E. Sifford and two others and the suc- formation concerning same to state definitely cessor or successors of them, in trust, with pow. what amount or proportion of the proceeds of er to sell and convey all or any portion of said the sale of said land have been received by lands as might be considered in the discretion them or any of them. And these plaintiff's say of said trustees for the best interest of said tes that, having no right to participate in the be. ta tor's estate, and, further, to pay over all of quests and devises so made by John Sifford to the proceeds of such sales to testator's execu- Cleantbe E. De Lashmutt until after her death tors to be divided amongst his devisees, includ-in 1903, they bad no knowledge or information ing plaintiffs."

as to the manner and method in which the land

in dispute bad been disposed of, or whether disThat the other trustees died without hav-posed of at all, and did not know and were not ing assumed to execute the powers vested in advised that said land had been disposed of by them by the will, and that John E. Sifford ac- said Aubrey Pearre in the illegal manner herecepted said trust and entered upon the per- of the facts aforesaid as to the manner and

inbefore set out; and they were first advised formance of his duties as such trustee. That method of the sale of the said land in suit durJohn E. Sifford in July, 1885, resigned as ing the year 1905, and after a portion of the executor, and refused to act further under money held by Cleanthe E. De Lashmutt's trussaid will in that capacity, and thereupon inbefore recited.

tee had been received and receipted for as hereAubrey Pearre (who had since the execution "Plaintiffs further state that defendant G. O. of the will intermarried with the testator's Teetor, by mesne conveyances, derives his predaughter Ann Josephine Sifford) was by the tended title to said land from said D. L. Dade,

and that said land is reasonably worth the sum said orphans' court duly appointed adminis- of $2.800, or an increase of $1.800 over the trator de bonis non cum testamento annexo, consideration paid the said Aubrey Pearre by

said D. L. Dade for said land, and there is now, interest and title in and to said land as against an existing deed of trust on all said land in fa- these plaintiffs and their interest in said land." vor of Hez H. Henry, beneficia ry, and F. L. Darrow, as trustee therein, for the sum of

The second count of the petition repeats or $1,600, placed on the land by the grantees of adopts the facts stated in the first count, said D. L. Dade, and for this reason said Henry and prays “for a decree finding and determinand said Darrow are made parties to this suit.

"Plaintiff's further state that the rights and ing their interest in said lands, finding and equities existing between them and the defend- stating an account between plaintiffs and ants herein cannot be determined or adjusted defendants, and decreeing partition of said in a suit at law, and that they have no ade. quate remedy in a court of law, and that they lands, and appointing commissioners, and dehereby invoke the aid of the powers of this creeing plaintiffs' interest in said land free court of equity to adjust the rights, interests, from the lien of said deed of trust, and that and equities in and to said lands as between the same is valid only as against the interest plaintiffs and defendants.

"Plaintiffs further a ver that the fair and rea- of said Teetor herein, and for such other sonable rental value is now, and has been since orders, judgment, and decrees in the premises the pretended sale thereof by Aubrey Pearre to D. L. Dade, the sum of $1.50 per acre per year;

as to the court shall seem right, just, and and plaintiffs here now offer to do and perform equitable.” toward defendants such equity as to the court The answer states, substantially as it is may seem just and right under the facts which stated in the petition, the acceptance by John shall develop in this cause.

“Wherefore, plaintiff's pray the court by its E. Sifford of the trust created in the will, judgment and decree to ascertain, determine, together with his appointment and resignaand define as between plaintiffs and defendants tion as executor, and the appointment of the title to said land, and to ascertain, deter- Pearre as his successor, his application in mine, and define that plaintiffs are entitled to an undivided 10/180 interest in fee in and to the 1887 to the circuit court for Frederick counland in this suit involved as against the de- ty, Md., a court of general equity jurisdiction, fendant G. 0. Teetor, and that said interest be to resign as trustee, and his petition for the divested out of said Teetor and fully vested and perfected in these plaintiffs, and, in order to pre- appointment of a successor; his refusal to vent further litigation, that this court of equity act further; the acceptance of his resignaaward to plaintiffs a writ of restitution and tion and appointment of Aubrey Pearre his possession for their interest in said land as ascertained by this court; and plaintiff's pray for successor as trustee; acceptance by Pearre such other, further, or different orders, judg- of the appointment; and that the latter conment, and decrees as to the court shall seem tinued to act as such trustee until the St. just, right, and equitable in the premises as between them and defendant Teetor; and in this Clair county lands were all sold, and turned connection, and in order that the court may over the proceeds to himself as administrator do complete, full, and ample justice between the de bonis non of the estate. The answer then parties litigant, plaintiff asks that the court

proceeds as follows: ascertain the amounts received, if any, by plaintiffs out of the purchase money paid by such

“Defendant further states that the said AuDade for said lands, and the amount, if any, brey Pearre, as said administrator of the will that should now be chargeable against plain annexed of the estate of said John Sifford, retiffs and in favor of defendant Teetor, by rea- ceived from said trustee the proceeds of the son of such sums and taxes paid by said Teetor sale of said real estate, and in accordance with or his grantees, and to charge said Teetor and the provisions of said John Sifford's will dishis grantees with fair and reasonable rent as tributed the same among and to the beneficiarshall be just and right, and on stating such ies under said will, including the plaintiffs to account to make such orders and decrees touch this action, and that said beneficiaries, including the settlement of same as shall be just and ing plaintiffs, with full knowledge of all the right. And plaintiff's say that in the event that foregoing facts as above set forth, received and the court shall deem it inequitable and unjust receipted for the same, and that by reason of to defendant Teetor to deprive him of any por- the premises and said conduct of said benetion of said land, but that said Teetor should ficiaries, as well as under said conveyance, this be permitted to retain all of said lands and ac- defendant is now the owner of said real estate, count to plaintiffs for their interest and share and plaintiffs are estopped thereby to assert therein, then these plaintiffs are willing to re- title to said real estate. lease and surrender to defendant Teetor all "(2) And further answering in this cause, deof their right, title, and interest in said lands fendant adopts without repeating the several upon defendant fully accounting to them for allegations in the first count or paragraph of the fair and reasonable value of said land in this answer, and avers that there is a defect creased or diminished by the accounting between of parties to this cause in this: (a) That the them as found by the court, and plaintiffs are lands in controversy were devised in trust to willing to receive such sum of money as to the trustees named in the will of John Sifford, decourt shall seem just and right under all of the ceased, and plaintiffs aver that successor in facts in this cause.

trust has never been appointed, and in that "And as against defendants F. L. Darrow and event the appointment of Aubrey Pearre is held Hlez G. Henry, plaintiffs say that they are en to be void, then the original trustees named in titled to a decree, finding, and determining that the will, and in the event of their death their said deed of trust is not a lien upon or against heirs are necessary parties to this action; (b) plaintiffs' interest in said land, either in kind that the trustee for Cleanthe E. De Lashmutt or in any sum adjudicated due plaintiffs, and during her lifetime and upon her death for the that as against them and their interest in said children of said Cleanthe is not alleged to have land, said deed of trust and the debt evidenced ever conveyed to said children, and for that thereby be ordered and decreed canceled and reason is a necessary party to this action. for naught held; and plaintiffs say that the *(3) And, further answering in this cause, value of said lands is so greatly in excess of the defendant adopts without repeating the several amount of said debt that the beneficiary under allegations in the first count or paragraph of said deed of trust will not be endangered in the this answer, and avers that plaintiffs alleged collection of his said debt, and that said de cause of action did not accrue within 10 years fendants be divested of all and any apparent next before the filing of the original petitior

in his cause, and is barred under the statutes y members of her family except her oldest of limitation in this state.”

child, Mrs. Jackson, who remained in BaltiA copy of the will of John Sifford with the more, and John S., who went to Ohio before proof taken in the orphans' court for Fred- 1888, and resided at different places in that • erick county, Md., and its order establishing state, had settled upon leaving Pennsylvania, the same and admitting it to probate, is filed and resided ever since. At the time the with the answer. The devise of John Sifford family moved to Indiana, the youngest child, and others as trustees is as follows: Mrs. Mills, was about three years old, and

"I give and devise to my son John E. Sif- the oldest, Mrs. Jackson, about 13. The ford and my sons-in-law John Loats and John plaintiff John S. was then about 9 years old, 1. Boyd, of the state of Maryland, all my lands, and Oscar 6 years old. The estate of John tenements and real estate situate in St. Clair county, Missouri, to them, their heirs and as- Sifford had been fully administered and dissigns upon the following trust:

tributed, and the final settlement of Pearre "Nevertheless upon trusts that they, or the was approved and passed June 8, 1897. John survivor, or survivors of them, shall sell said lands and real estate in whole or in parts, at E. Sifford died in 1904. public or private sale, and upon such terms, While Mr. Pearre testified that after his and at such times as they or the survivor, or appointment as trustee by the Frederick cirthe survivors of them, shall deem most advan-cuit court in Maryland, and in 1888 or 1889 tageous to my estate, and upon the further trust and with full power and authority in he made “one or two" visits to St. Clair counthem, or the survivors or survivor of them to ty, Mo., and stopped off at the De Lashmutt convey said lands when sold to the purchasers home in Shelburn, Ind., and discussed with or purchaser by a good and sufficient deed or deeds, and upon the further trust to pay over the whole family his sales and proposed sales the proceeds of such sales to the executors of land in St. Clair county, the De Lashmutts bereinafter named and appointed by this, my all say that during the visit he did not talk will, or to the survivors or survivor of them, about any sales he had made or was going to be my said executors, the survivors or survivor of them, distributed according to the pro- to make, but did say that he was going to visions of this, my will, among the legatees Missouri to recover some lands that had therein mentioned.'

been sold or thrown away by John E. SifThe will also contains the following be- ford, administrator, and spoke about bringing quest:

suits for it. They also say, in substance, “I give and bequeath to Ann Josephine Sif- that the first information they had that any ford, one other seventh part of my estate, in of the lands had been sold was about three trust to invest the same, or such part as she months after their mother's death when they may in her discretion think fit, in real estate within or without the state of Maryland, and received a quitclaim deed for their signature, to permit my daughter Cleanthe De Lashmutt covering some of these lands, which were to occupy the said real estate and to take and said to have been sold to one E. S. Knowles. receive to her own, sole, separate and exclusive use during her life, the issues, rents and prof. This was returned without signing. its thereof, and upon the further trust in case On August 7, 1903, Mr. Pearre wrote John my said daughter shall not occupy my said real s. De Lashmutt the following letter about estate, either to sell the same, or to rent out the same, and if sold, to reinvest the same from the estate left in Mrs. Pearre's hands at the time to time in other real estate and to pay death of Mrs. De Lashmutt: over the rents, issues and profits thereof, to

8/7/3. my said daughter Cleanthe for and during her life, and for her sole, separate and exclusive Bucyrus, 0.-Dear Nephew: Yours of July

“J. S. De Lashmutt, 811 S. Sandusky Ave., use' and benefit. And upon the further trust to 30th to hand. Your mother's estate consists of invest any portion of this bequest not invested $5,000 in bonds and the property in Shelburn, in real estate in such securities, public or pri

Ind. vate, as she may deem best, vesting in said Aunt Nannie J. Peårre.

This property stands in the name of

Out of the property trustee full discretion as to said investments, with power to call in said investments and from $500, is to be returned to the Loats Orphan Asya time to time reinvest the same, and upon the $500 each in it. My understanding is that the

Your sisters have further trust to pay my said daughter Cleanthe Shelburn property belongs to your sister, after for and during her natural life the income from the Loats asylum get its $500. If that is the such investments for her own sole, separate and exclusive use free from the marital rights of case, the only other property is the 5 bonds of her present or any future husband. And from $1,000 each to divide between the 5 heirs, or and after the death of my said daughter Clean- one bond to each heir. I will send you the the, in trust, to convey to her children now born bond, or sell it, and send you a 0. K. with or hereafter to be born, the real estate held un- statement of sale. You can send me a receipt der the provisions of this clause of my will and in full for your interest in your mother's es

account just as you may view the to transfer and hand over to such children the tate, or investments held under this clause of my will." status of the property in Shelburn. Make the

receipt to Anna J. Pearre, née Sifford, trustee. His son, John E. Sifford, his daughter, Mrs. "Your aunt is absent until September. Also Loats, and his sons-in-law John Loates and your sister, Mrs. Jackson, or I would confer

with them. John J. Boyd were named as executors. By

"Very truly yours,

A. Pearre." a codicil the share so disposed of became one. sixth instead of one-seventh.

On April 26, 1904, he wrote the following: Issue was taken by reply to the new mat

“4/26/04. ter in the answer.

"Mr. J. S. De Lashmutt, 811 S. Sandusky

Referring Mrs. Cleanthe Eugenia De Lashmutt died Ave., Bucyrus, 0.--Dear Nephew:

to your favor of the 25th., would say the bond March 25, 1903, at Shelburn, Sullivan county, you would get is one issued by the city of MontInd., where she, with her husband and all the gomery, Ala. It is a 5% bond, has only two or

« PreviousContinue »