Summary
In State ex rel. St. Louis Union Trust Co. v. Sartorius, 350 Mo. 46, 164 S.W.2d 356, at l. c. 358, it was held that (quoting from Hall v. Goodnight, 138 Mo. 576, 37 S.W. 916, l. c. 919): "* * * `A party to an action, under our Code, cannot successfully ask for a reversal of judgment because of an error which was not prejudicial to his substantial rights, however greatly the result may appear to him to lack the perfect symmetry which should characterize the performances of courts of law.'"
Summary of this case from In re Estate of SoengenOpinion
Nos. 37873, 37874.
July 28, 1942. Rehearing Denied, September 8, 1942.
1. APPEAL AND ERROR: Appellant a Party Aggrieved: Must be Error Against Appellant. An appellant is not a party aggrieved who is entitled to appeal unless error has been committed against him.
2. APPEAL AND ERROR: Executors and Administrators: Trusts: Executors or Administrators May Not Appeal From Decree Determining Rights of Beneficiaries: Distribution of Trusts Analogous. An executor or administrator as such is not aggrieved or prejudiced by a decree determining the rights of beneficiaries, and hence may not appeal. The distribution of a trust estate under order of court is analogous. [Messersmith v. Messersmith, 264 Mo. 610, overruled in part.]
3. TRUSTS: Suit for Instructions: Trustee Must be in Doubt. The court will give instructions to trustees only where the trustee is in doubt as to his duties.
4. APPEAL AND ERROR: Trusts: Suit for Instructions: Possible Right of Appeal. There may be some situations in which a trustee who brought a suit for instructions might be entitled to appeal from a decree determining the distributees of a trust estate.
5. PROCESS: Trusts: Service by Publication: Decree Binding on Unknown Defendants. Where trustees invoked the jurisdiction of a court of equity to determine the proper distribution of trust property and served the unknown defendants by publication, the decree protects the trustees.
6. APPEAL AND ERROR: Trusts: Missing Heirs Not Represented by Trustee: Not Party Aggrieved. The trustees do not represent missing heirs and are not parties aggrieved by the determination of heirship for the purpose of distribution of the trust estate.
7. MANDAMUS: Appeal and Error: Clear Right of Relator Not Shown. Since the relators have failed to show a clear right to the appeal denied them, the writ of mandamus should be quashed.
8. MANDAMUS: Appeal and Error: Trusts. Where others were permitted to appeal on the merits it was error to refuse the trustees the right to appeal from the order of partial distribution, and mandamus was proper.
ALTERNATIVE WRIT IN CAUSE NO. 37874 QUASHED, AND IN CAUSE NO. 37873 MADE PEREMPTORY.
Daniel N. Kirby, Harry W. Kroeger and Hord W. Hardin for relators.
(1) Mandamus is a proper remedy to control the action of an inferior court in denying to an aggrieved party the statutory right of appeal when all of the steps prescribed by the statutes have been taken. In re Campbell, 323 Mo. 757. (2) The record discloses that relators took all of the statutory steps required by Sections 1171, 1184, 1186 and 1187, R.S. 1939, as prerequisites to the granting of appeals. (3) Consideration of the merits is foreign to the objects and purposes of the statutes relating to appeals. State ex rel. Speckerman v. Allen, 92 Mo. 20. (4) Relators were aggrieved by the circuit court's decree of June 19, 1941. (a) Relators held the legal title to the trust property, so that a decree which purported to divest them of such title by directing the disposition of the trust assets to and among some of the heirs to the exclusion of others injuriously affected their property interests. (b) Relators had active duties to terminate the trust in accordance with its terms, by distributing the trust property to and among all of the heirs, so that a decree which directed termination inconsistently with the terms of the trust injuriously affected relators in the performance of such duties. American Law Institute's Restatement of the Law of Trusts, secs. 226, 345, Comment J; Aetna Ins. Co. v. O'Malley, 342 Mo. 800, 818. A trustee is not relieved of his duty to see that the trust property is distributed to the parties entitled thereto, nor absolved of his liability for an improper distribution, by the mere bringing of a suit for instructions and the entry of a decree therein, but is so relieved and absolved only when he acts in conformity with a decree which has become final, rendering the matters therein contained res adjudicata. 2 Scott on Trusts, sec. 259, p. 1467. Independently of the relators' right of appeal, the decree of the circuit court is not final, because there are pending other proceedings in mandamus for appeals and because unknown heirs brought into court by publication only have rights to file petitions for review within three years after the entry of the decree. Secs. 1247, 1248, R.S. 1939. (5) Relators were aggrieved by the circuit court's order of partial distribution entered on August 22, 1941, for the same reasons that they were aggrieved by the decree, and also for the following reasons: (a) The order of partial distribution, having been entered prior to the expiration of the term at which the circuit court's decree had been entered, was premature and beyond the jurisdictional power of the court, (b) The order of partial distribution was, in view of the circumstances disclosed by the record, excessive, and prejudicial to the protection and safety of relators in the administration of the trust estate.
William M. Fitch for Eugene J. Sartorius, respondent.
(1) The petition for mandamus fails to state facts sufficient to confer original jurisdiction on this court to issue the writ prayed for. (2) Upon the record proper in this case and the admissions made by the respondent, it appears, as a matter of law, that relator is not entitled to have mandamus issued to compel the respondent to grant the appeal denied herein by respondent. The record proper and admissions of relator herein show conclusively, as a matter of law, that relator is not aggrieved by the judgment from which appeal is sought; that if appeal be granted that relator would be limited for its relief to the issues made by the record proper — such record is now before the court. (a) Mandamus is not a writ of right. Its issuance lies in the sound judicial discretion of the court. State ex rel. Cranfill v. Smith, 330 Mo. 252, 48 S.W.2d 891; State ex inf. Barker, Atty-General, ex rel. Kansas City, v. Kansas City Gas Co., 254 Mo. 515, 163 S.W. 854; State ex rel. Howe v. Hughes, 343 Mo. 827, 123 S.W.2d 105; State ex rel. Crow v. Boonville Bridge Co., 206 Mo. 74, 103 S.W. 1052; High on Extraordinary Legal Remedies (3 Ed.), sec. 9. (b) The writ of mandamus is an extraordinary remedy, the granting of which rests with the sound discretion of the court, and such discretion must be exercised to deny the writ unless relator proves a clear legal right to the relief demanded. The burden of establishing such clear legal right rests upon relator. State ex rel. v. Hudson, 226 Mo. 239, 126 S.W. 733; State ex rel. Thomas v. Williams, 99 Mo. 291, 12 S.W. 905; State ex rel. People's Ry. Co. v. Talty, 139 Mo. 379; State ex rel. Kern v. Stone, 269 Mo. 334, 342, 190 S.W. 601. (c) The extraordinary writ of mandamus should not be granted to relator in this case because relator has two statutory remedies open, each of which would afford the Administrator complete relief: (1) under Section 1189, R.S. 1939, which provides that the appellant may present the record, together with his assignment of errors, to a judge of the Supreme Court, which judge is empowered to grant the appeal upon a prima facie showing so made; and (2) under Section 1200, R.S. 1939, the Administrator, relator here, had the statutory right to prosecute his writ of error in the Supreme Court, for the purpose of reviewing all proceedings in said controversy, whether the errors complained of arise on the record proper or on exceptions preserved during the trial of such issues. A writ of error is a writ of right, and the Administrator had that remedy available as a matter of right. He therefore has no right in this case to relief under the extraordinary remedy of mandamus. State ex rel. Howe v. Hughes, 343 Mo. 827, 123 S.W.2d 105; State ex rel. Porter v. Hudson, 226 Mo. 239, 126 S.W. 733; State ex rel. Tate v. Sevier, 334 Mo. 771, 66 S.W.2d 50; State ex rel. Crow v. Boonville Bridge Co., 206 Mo. 74, 103 S.W. 1052; State ex rel. Herriford v. McKee, 150 Mo. 233, 51 S.W. 421. (d) The writ of mandamus will be refused where, if granted, it would be unavailing, or where the act to be performed would be unlawful, for the court will not compel the performance of a vain or unlawful act. State ex rel. Cranfill v. Smith, 330 Mo. 256, 48 S.W.2d 891; State ex rel. Wilcox v. Draper, 50 Mo. 24; Harrington v. Denny, 3 F. Supp. 584; Foster v. Mansfield, C. L.M.R. Co., 146 U.S. 88, 36 L.Ed. 899; Gilbert v. Auster, 135 Wis. 581, 116 N.W. 177; Rust v. Conrad, 47 Mich. 449, 11 N.W. 265; Dixie Grain Co. v. Quinn, 181 Ala. 208, 61 So. 886; Ferris on Extraordinary Legal Remedies, secs. 196, 204. (e) The appellate court will not by mandamus compel the judge of the trial court to grant an appeal which he has refused, where it appears on the face of the record proper and the admissions of the parties that the appeal applied for could give appellant no relief if appeal be granted. State ex rel. People's Ry. Co. v. Talty, 139 Mo. 379, 40 S.W. 942; State ex rel. Fischer v. Vories, 333 Mo. 197, 62 S.W.2d 457; Hatch v. Frazer, 138 Mich. 184, 101 N.W. 228; Harrison v. McCabe, 10 Kan. App. 194, 63 P. 277; State ex rel. Culbertson Ferry Co. v. District Court, 49 Mont. 595, 144 P. 159; State v. Still, 178 Ala. 442, 59 So. 628; People ex rel. Mark v. Walker, 286 Ill. 541, 122 N.E. 92; People ex rel. Dobson v. Kohlsaat, 168 Ill. 37, 48 N.E. 81; Re Buder, 271 U.S. 461, 70 L.Ed. 1036, 46 Sup. Ct. 557; State ex rel. Gold v. Secrest, 33 Minn. 381, 23 N.W. 545. (3) When respondent, as judge, denied the appeal of relator in this cause the relator was then put upon his allegation of remedies. Among those remedies were at least three. (a) The first remedy was by appeal under Section 1189, R.S. 1939. Under said section relator may have presented so much of the record proper or the exceptions arising under the record as he may have deemed appropriate to a judge of this Honorable Court, together with errors assigned by the appellant, for the appeal. Said section vests power in either one of the seven judges of this Honorable Court to inspect the application for appeal, the record and the assignments of error, and if he deems probable error was committed prejudicial to such applicant, then such judge is authorized by certificate to grant the appeal so prayed for and is authorized to fix the appeal bond, etc. (b) Under Sec. 1200, R.S. 1939, the relator had the right to sue out his writ of error from the Supreme Court. Such writ was a writ of right. The relator, under said section, could proceed in said appeal at any time within one year. (c) The remedy was by application made to this Honorable Court for its writ of mandamus, for the purpose of compelling by such mandamus that the appeal be granted which was denied relator by respondent. This remedy was chosen by relator here. Proceedings under mandamus, if relator be successful, would require the appeal ultimately to be granted, which relator might have obtained directly if he were aggrieved by the judgment complained of, without delay, and if he had proceeded under Sec. 1189 or Sec. 1200, supra, an appeal compelled by mandamus would afford no other or greater relief than appeal under Sec. 1189, R.S. 1939, or that obtained by writ of error. (4) The trustees, by their amended petition, placed themselves as trustees, the trust property, and all those persons claiming an interest in said trust property, under the sole and exclusive jurisdiction of the circuit court as a court of equity. (5) The court of equity having acquired original jurisdiction over all of said trust estate and over all parties in interest therein, it will retain that jurisdiction for all purposes until full and complete justice is done, including the final distribution of the trust property to those persons whom the court finds to be legally entitled thereto, and the final dissolution of the trust. Waugh v. Williams, 342 Mo. 903, 113 S.W.2d 223; Waddle v. Frazier, 245 Mo. 391; Morrill v. American Reserve Bond Co., 151 F. 305; Illinois Steel Co. v. Putnam, 68 F. 515; State ex rel. Sullivan v. Reynolds, 209 Mo. 161, 107 S.W. 487; Wehrs v. Sullivan, 217 Mo. 167, 116 S.W. 1104. (6) The court having determined that the one hundred and sixty-one persons named in the twenty-fifth paragraph of the decree of June 19, 1941, were the only persons entitled as vested remaindermen to participate in the distribution of said trust property, the trustees were not aggrieved by such judgment and cannot appeal from it. (a) Responding to that part of the prayer of the amended petition which prays that the court determine the persons entitled to receive said trust property, and the nature of their titles therein, the judgment of the court in the twenty-fifth paragraph of said decree, naming such persons and their pro rata interests in said trust property, gave the trustees the relief prayed for. No appeal lies from a judgment in favor of the petitioner. Kinealy v. Macklin, 67 Mo. 95; Scott v. Parkview Realty Imp. Co., 241 Mo. 112, 145 S.W. 48; McClain v. Kan. City Bridge Co., 338 Mo. 7, 88 S.W.2d 1019. (b) The cestui que trust under the deed of June 12, 1885, having died, and the trust property having been placed under the sole and exclusive jurisdiction of a court of equity, the position of the trustees under said deed became that of dry trustees, or mere stakeholders. As such they are not aggrieved by a judgment declaring that certain persons, and only those, are entitled to the trust property and declaring the respective equities of the parties; the trustees have no interest in the controversy between the claimants to such property such as would give them a right of appeal from such judgment. Rector v. Dalbey, 98 Mo. App. 189; In re Behringer's Estate, 108 A. 414, 265 Pa. 111; In re Derbyshire's Estate, 159 A. 439, 306 Pa. 278. (c) The trustees cannot appeal in their representative capacity from a judgment of the court which adjudicates the rights of the parties claimant to the fund, where the controversy is between the claimants. Franz v. Buder, 11 F.2d 854; Ratliff v. Patten, 16 S.E. 464, 37 W. Va. 197; Bryant v. Thompson, 28 N.E. 522, 128 N.Y. 426; Dockray v. O'Leary, 190 N.E. 798; Virden v. Hubbard, 86 P. 113, 37 Colo. 37; In re Heydenfeldt's Estate, 49 P. 713, 117 Cal. 551; Byrd v. Shell, 168 S.E. 692; King v. Buttolph, 30 F.2d 769. (d) The trustees, all claimants of the property, and the trust property all being within the jurisdiction of the court, the trustees are bound by and protected by the decree of the court and cannot be injuriously affected thereby. Chapman v. Northern Trust Co., 129 N.E. 836; Fisher v. Schwabacher Hardware Co., 186 P. 649; Matter of the Estate of Williams, 54 P. 386, 122 Cal. 76; 2 Perry on Trusts (7 Ed.), sec. 924, p. 1572, sec. 928, p. 1576; 65 C.J. 839, sec. 718, b; 3 Pomeroy's Eq. Jur. (3 Ed.), sec. 1064, p. 2053. (7) The title of the trustees is held for the benefit of beneficiaries of the trust. The trustees are not interested as to what person or what class of persons are adjudged to be the true beneficiaries and entitled to the property. In re Nelson's Estate, 260 N.W. 205; Cairns v. Donahey, 100 P. 334, 59 Wn. 130. The trustees, however, having legal title to the trust property, are required to defend that title as against the claims of all persons who do not come within the class of beneficiaries for whom the trust is held. 1 Perry on Trusts (7 Ed.), 433, pp. 721, 722; Reid v. Mullins, 48 Mo. 344. (8) The court has a right to call to its aid the common-law presumption that, after an unexplained absence or disappearance for a period of seven years, a man is presumed to be dead. St. Louis Union Trust Co. v. Buck, 220 S.W. 716; Secs. 264, 1873, R.S. 1939. The statute of law concerning seven years' unexplained absence of a resident of the State does not apply. (9) "Where a bill in equity brings under the direct control of the court all the property and estate of the defendants . . . to be administered for the benefit of all entitled to share in the fruits of the litigation, and the possession and control of the property are necessary to the exercise of the jurisdiction of the court, the filing of the bill and service of process is an equitable levy on the property, and pending the proceedings such property may properly be held to be in gremio legis. The actual seizure of property is not necessary to produce this effect, where the possession of the property is necessary to the granting of the relief sought." Illinois Steel Co. v. Putnam, 68 F. 515; Chapman v. Northern Trust Co., 129 N.E. 836; Morrill v. American Reserve Bond Co., 151 F. 305; Natl. Exploration Co. v. Robins, 283 P. 237. On relator's right to writ of mandamus to compel allowance of appeal from order of partial distribution. (10) The points and authorities hertofore set out in case No. 37,874 are now adopted as points and authorities in this case. (11) The relators are mere stakeholders after judgment terminating the trust and determining the distributees and their pro rata share, and they cannot be held liable for complying with any order of distribution thereafter made. They therefore are not aggrieved by said order and have no right of appeal therefrom. In re Hand's Estate, 136 A. 684, 288 Pa. 569; In re Correll, 120 A. 104; In re Mackey's Estate, 102 P. 1088, 46 Colo. 100; In re Nelson's Estate, 260 N.W. 205. (12) The order of partial distribution became a final judgment on entry, enforceable thereafter, and relators could not be aggrieved thereby because some of the parties defendant, who were served by publication, did not appear and had a statutory right to petition for review within three years. Chapman v. Northern Trust Co., 129 N.E. 836, 296 Ill. 353. (13) When the court enters an order of distribution and the trustees obey that order and make the distribution according to its terms, the trustees are protected in obeying such order and making such payment and are not liable to those persons who were served by constructive process and who did not appear before the original judgment was entered. Such distribution may be made at any time after the judgment is actually entered, and will not be distributed by a later petition for review. Chapman v. Northern Trust Co., 129 N.E. 836; In re Mackey's Estate, 102 P. 1088, 46 Colo. 100; 65 C.J. 839, sec. 718, b; Matter of the Estate of Williams, 54 P. 386, 122 Cal. 76; 2 Perry on Trusts (7 Ed.), sec. 924, p. 1572; Fisher v. Schwabacher Hardware Co., 186 P. 649, 109 Wn. 257; 3 Pomeroy's Eq. Jur. (3 Ed.), sec. 1064. (14) The trustees had no right to appeal from the order of distribution; it was their duty to distribute the money and to rely upon the order for their protection, as their payment would be made under the order of the court. Chapman v. Northern Trust Co., 129 N.E. 836; In re Mackey's Estate, 102 P. 1088, 46 Colo. 100; 3 Pomeroy's Eq. Jur. (3 Ed.), sec. 1064. (15) The order of partial distribution is immediately enforceable in any event, and an appeal would avail the relators nothing, as they have sought no supersedeas bond from Yale University nor from Madden, Administrator. The trustees, instead of discouraging the appeals by Yale University and by the Administrator, did actually encourage them by themselves attempting appeals of the same general nature, as shown by the record in these cases. In order to protect the trust property the trustees might have requested the circuit court to require appeal bonds from Yale University and from the Administrator, under the provisions of Section 1188, R.S. 1939. (a) Said judgment for distribution became enforceable immediately after its entry, subject only to stay by proper supersedeas bond under an appeal or writ of error. Sec. 1188, R.S. 1939; People's Bank of Glasgow v. Yager, 329 Mo. 767, 46 S.W.2d 585. (b) Supersedeas bond to stay execution must be given although fund against which judgment is directed is held in the registry of the court. State ex rel. Tuemler v. Goldstein, 237 S.W. 814. (c) Where appeal is had without stay of execution on supersedeas, judgment holder is entitled to immediate execution, as later reversal of judgment by appellate court will not affect a sale of property had under execution where purchaser is not a direct party to the original cause and no fraud appears. Sidwell v. Koster, 232 S.W. 1005. (16) Trustees have shown no legal reason for not making the partial distribution of $540,000, as ordered by the court on August 22, 1941.
Relators in these two causes seek the same relief, and by the same method as in Nos. 37,871 and 37,872, ( 349 Mo. 1039, 163 S.W.2d 981), wherein Yale University is relator. No. 37,874 involves the question of the right of the successor trustees, as plaintiffs in the cause below, to appeal from the final judgment and decree of June 19, 1941, on the merits; and in No. 37,873, from the order of partial distribution. No. 37,874 will be treated first.
See statement of facts under heading "General Facts" contained in the opinion in causes Nos. 37,871 and 37,872, which statement is, by this reference, to be treated as part of this opinion. John J. Nangle, Esq., was appointed Special Master to investigate the heirship and to take and hear evidence touching upon heirship from Hazlett, and to report the same, with his findings of fact, conclusions of law, and recommendations for a final decree. The Special Master conducted hearings in the United States, Ireland, Scotland, England and Canada, and on March 3, 1941, filed his final report. The relators here, as plaintiffs in that suit, filed exceptions to said report, wherein they cited seventeen instances in which persons who were descended from Hazlett's paternal grandfather were found by the Special Master to have died before 1938, leaving no descendants, and wherein they averred that there was no evidence to support such findings and that such findings were contrary to the evidence. In all instances the persons named in the exceptions had been found by the Special Master to have been descendants of Hugh Campbell (the paternal grandfather of Hazlett Kyle Campbell), either by his first wife, Catherine Denny Campbell, or by his second wife, Elizabeth Buchanan Campbell (who was the paternal grandmother of Hazlett Kyle Campbell), and such persons who were descended from Hugh Campbell, and who were named in said exceptions, were in the line of heirship, so that either they, if living at the time of Hazlett's death, or their descendants, who were living at the time of Hazlett's death, would have been among his heirs. Said exceptions were overruled, the final report of the Special Master adopted, and the judgment and decree entered accordingly. By said decree 1085 claimants were found and adjudged not to be heirs of Hazlett, and none of said claimants appealed. It further found and adjudged that 161 named persons constituted his heirs (within the meaning of the deed of June 12, 1885), and were the only persons entitled to participate in the distribution of the trust estate. Relators filed their motion for a new trial in which they complained that there was no evidence to support the finding that the 161 persons so adjudged were the only heirs, and in determining that they were entitled to receive distribution of the trust estate to the exclusion of all other persons. After the overruling of the motion, relators' affidavit for appeal was filed, and the appeal denied.
Respondent takes the position that the relators-trustees were not aggrieved by the aforesaid adjudication of heirship because they invoked the jurisdiction of the court for the purpose of determining that question, and the decree having adjudged the same, they were thereby given the relief prayed, and so they are bound and protected by the decree, and may not appeal therefrom. On the other hand, relators assert: (a) that as they held the legal title to the trust property, a decree which purported to divest them of such title by directing the disposition of the trust assets to and among some of the heirs, to the exclusion of others, injuriously affected their property rights; (b) that they had active duties to terminate the trust in accordance with its terms by distributing the trust property to and among all the heirs, so that a decree which directed termination inconsistently with the terms of the trust injuriously affected them in the performance of such duties. No authorities are cited in support of relators' first contention; and under the second, we are cited to Restatement of the Law of Trusts, Sec. 226, and Sec. 345, Comment j, and Aetna Ins. Co. v. O'Malley, 342 Mo. 800, 118 S.W.2d 3. The sections of the Restatement relied on do not deal directly with the liability of a trustee for distributing trust property under a decree in a suit for instructions. But the cited rule (liability of a trustee for payments or conveyances to a person other than the beneficiary) does recognize, at least by implication, that court authorization protects the trustee, for it says that a trustee is liable "if he pays or conveys to a person who is neither the beneficiary nor one to whom the beneficiary or the court has authorized [358] him to make such payment or conveyance." [Sec. 226. Italics ours.] In the O'Malley case it was held that the Superintendent of Insurance had an appealable interest in a judgment appointing custodians to refund excess premiums, as it prevented him from performing his statutory duty of preserving excess premiums and disbursing the excess to the policyholders. There is no similarity between that case and the one at bar either as to the facts or the law.
The question as to whether the trustees are aggrieved by the judgment and decree below so as to be entitled to an appeal presents many interesting features. The right of appeal is statutory. Section 1184, R.S. '39 [Mo. R.S.A., sec. 1184] provides "Any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take his appeal to a court having appellate jurisdiction . . . from any final judgment in the case." But it is held that a party cannot be said to be "aggrieved," unless error has been committed against him. McClain v. K.C. Bridge Co., 338 Mo. 7, 88 S.W.2d 1019; Kinealy v. Macklin, 67 Mo. 95. "A party to an action, under our Code, cannot successfully ask for a reversal of judgment because of an error which was not prejudicial to his substantial rights, however greatly the result may appear to him to lack the perfect symmetry which should characterize the performances of courts of law." [Hall v. Goodnight, 138 Mo. 576, 37 S.W. 916.]
The great weight of authority is to the effect that an executor or administrator as such is not aggrieved or prejudiced by a decree determining the rights of the beneficiaries, and hence may not appeal. The rule appears to be based on the acquiescence of the beneficiaries. [In re. Musser's Estate (Pa.), 17 A.2d 411. See, also, Isham v. N.Y. Assn., etc. (N.Y.), 69 N.E. 367; Bryant v. Thompson, 128 N.Y. 426, 28 N.E. 522, 13 L.R.A. 745; In re. Hart, 239 N.Y. 511, 147 N.E. 174; Reeves' Estate, 62 S.D. 618, 256 N.W. 113; In re. Thomson's Estate, 92 Pa. 407. See annotation, 117 A.L.R., pp. 100-107.] Relators deny the applicability of this rule on the ground that probate administration is a proceeding in rem, and the administrator is an officer of the court having the property in custody, whereas the normal administration of inter vivos trusts does not reside in the court, and it is only where the trustees seek the aid of a court, or where some controversy between the parties in interest in the trust estate has arisen, that the court assumes jurisdiction "for the purpose of giving the requested aid or resolving the controversy." When the analogy between the duties of trustees and executors or administrators in the circumstances mentioned is considered, we think the distinction sought to be drawn is tenuous, regardless of the nature of the trustees' action, in which the non-resident and unknown parties may be brought in under constructive notice by publication, as here. As to those served only by publication and who do not appear, it is essentially in the nature of, and should be classed with, actions in rem.
In their reply brief, relators say "it would be remiss, however to fail to call to the attention of this court its uniform holdings that where the subject matter is an order of distribution, even an administrator has a right of appeal therefrom," citing In the Matter of the Estate of McCune, 76 Mo. 200; Messersmith v. Messersmith, 264 Mo. 610, 175 S.W. 914; State ex rel. Goodloe v. Wurdeman, 286 Mo. 153, 227 S.W. 64. Accordingly, they contend that if the situation of the trustees in the instant case were analogous to that of an administrator, the trustees would stand as aggrieved parties under the doctrine of the above cases.
State ex rel. Goodloe v. Wurdeman, supra, is not in point. The question there involved was the right of an appeal, by sons of an incompetent, from an order overruling their motion to remove the guardian, and to appoint another in his stead. The Messersmith and McCune cases are distinguishable. In the former, the administratrix claimed part of the estate personally; and in the latter, the question involved was one concerning the apportionment, under certain statutes, of a dividend among secured and unsecured creditors of an insolvent estate, and not a distribution among heirs or legatees. Since these decisions, we have had occasion to consider the right of an administrator, as one of the defendants, to appeal in a suit decreeing plaintiff the adopted daughter and sole heir of the administrator's decedent. [Love v. White, 348 Mo. 640, 154 S.W.2d 759.] It was held, in conformity with the rule hereinabove noticed, that, under the circumstances there involved, he was not a party aggrieved, and hence not entitled to appeal. Messersmith v. Messersmith, supra, even [359] when distinguished, is not in accord with the prevailing view that an administrator who is personally interested as an heir or legatee may not appeal in his representative capacity from any order of distribution. It is, accordingly, overruled.
The prime limitation on the availability of instructions to trustees in a suit such as the one with which we are dealing appears to be that they will be given only where the trustee is in doubt as to his duties. "Any trustee placed in circumstances in which he may have reasonable doubt as to the proper disposition of the funds in his hands, has a right, for his own safety, to apply to a court of equity for directions, making the persons interested parties to the proceeding." [Hayden v. Marmaduke, 19 Mo. 403.] "If the trustee is in doubt as to the proper person to whom a conveyance should be made, or as to the shares to which the beneficiaries are entitled, he can apply to a court for instructions and will be protected by the order of the court against claims of all persons who were made parties to the proceeding (see Sec. 259)." [Restatement of the Law of Trusts, Sec. 345, Comment j.]
We find no cases where a trustee has been held a party aggrieved by a decree determining distributees in a suit brought by him for instructions in that regard. The right of appeal is intimated in a somewhat analogous situation, in Bryan v. Rowland (Ga.), 144 S.E. 275, where it was said: "It is argued . . . the administrator has an interest in the protection of the lawful heirs of his intestate. We cannot concur in this view. He filed this petition for his own protection, and the judgment of the court, unexcepted to by any other than himself, so far as this record discloses, affords him full protection. If there appeared in the record any suggestion that there were other beneficiaries than those named in the petition, the case might be different;" (Italics ours.) Compare In re. Stevens et al., 99 N.Y.S. 1070, where trustees were held aggrieved and entitled to appeal from an order allowing fees to special guardians, payable out of the minors' shares, even though neither the infants nor their general guardian objected. In view of these authorities, we are of the opinion that it would be extending the doctrine too far to hold that under no circumstances can a trustee, executor or administrator appeal from a judgment or decree determining rights between parties entitled to the estate. [Evans v. Johnson (S.D.), 281 N.W. 113.]
[5, 6] Here the trustees were in doubt as to the identity of the beneficiaries, and, therefore, properly invoked the court's aid by applying for instructions. The court decreed that certain persons are entitled to take the whole of the estate. The subject matter, the trust property, was within the jurisdiction of the court, and the notice by publication to non-resident and unknown defendants was adequate to warrant the court in decreeing who were entitled to distributive shares; and such a decree protects the trustees. [See Loring v. Steineman, 1 Met. (Mass.) 204.] The trustees "had an interest, and it was their duty, to procure a judicial determination of the questions presented by the facts alleged, but no interest or duty in obtaining a decision according to some view of the law that they may have themselves entertained, or have been advised by counsel." Bryant v. Thompson, supra. In order to have such a determination reviewed, the party complaining must point out the statute giving him the right, and conferring the jurisdiction, and under our statute, supra, the right is limited to the party aggrieved. The trustees expressly disclaim representation of any interest other than their own, for in their brief they say, "Relators do not pretend to represent any missing heirs or to espouse the cause of such missing heirs. They insist merely that the heirs who have appeared take only such proportionate beneficial interests in the trust property to which the evidence adduced by them shows them to be entitled, and that they may not, by establishing their right to part, take all of the trust property."
It does not clearly appear from the record in this case that relators are aggrieved parties within the meaning of the statute so as to be entitled to an appeal, and as the writ of mandamus does not issue in doubtful or other than clear cases, it is apparent that our alternative writ was improvidently issued in cause No. 37,874, and it should be quashed. It is so ordered.
In cause No. 37,873 relators seek to compel respondent to allow them an appeal from the partial order of distribution. That order was doubtless made on the assumption that none of the relators in these proceedings was entitled to an appeal on [360] the merits. But we are holding that both Yale University and Madden, the administrator, are entitled to such appeals, and thus it is made to appear that the trustees, if said decree is reversed as to either of said appellants, will be subjected to conflicting claims, one of which might take from them the whole of the trust estate, and the other one-half thereof. In this situation the trustees are entitled to appeal from the order of partial distribution under the doctrine of Smith v. Oliver (Mo. App., 1942), 157 S.W.2d 558. The alternative writ in said cause No. 37,873 is, therefore, ordered made peremptory. All concur except Gantt, J., absent.