Markel v. Peck , 168 Mo. App. 358 ( 1912 )

, CAULFIELD,

J. (after stating the facts). — At the time of sustaining the motion for a new trial, the learned trial judge, in a memorandum filed, stated the legal theory influencing his action, as follows:

“This is an action at law against certain persons as trustees under the last will of Charles H. Peck, deceased. Though the ease was tried on the theory that a judgment was sought against the trustees as such, yet neither the petition nor the judgment so limits the case. In both the petition and the judgment the word trustees, when used as descriptive of the parties, is properly to be taken as merely designatio personae. That no recovery could be had in this action against the trust estate is, I think, unquestionable. The plaintiff’s case is against the individuals who wronged him. If he be unable to obtain satisfaction from them, after obtaining a judgment he may in a proper proceeding and upon a proper showing have his judgment made a charge against the trust property. Notwithstanding the fact that the parties may have had in their minds an erroneous theory of the case, if the pleadings, instructions and judgment make a ease, when tested by the proper theory, the judgment should stand. As I have stated above, there is nothing in the pleadings or the judgment which would justify the claim that this action, or its result, in any way exceeded the power of the court. A judgment in effect against the trust property would exceed that power. Proceeding to an examination of the instructions, I find that the .first instruction tells the jury that all of the defendants are bound by the acts of a majority of them. The pleadings show no relation between these defendants, other than that of co-trustees. There is no law which authorizes the majority of a set of trustees to bind the minority in such a way as to render them or him liable de bonis propriis, in a case such as this. This instruction, therefore must necessarily be based upon the theory that the act of the majority was binding upon the trust fund in this action. That theory being clearly erroneous, the court erred in giving the instruction marked (1 ), and because of such error the defendants’ motion for a new trial must be sustained.”

We agree with the conclusion so stated by the learned trial judge. Trust property cannot be reached in an action at law to recover damages for breach of an executory contract. It can be reached solely in equity. [Moore v. Stemmons, 119 Mo. App. 162, 95 S. W. 313.] This being so, the only judgment, if any, which could be rendered in this action would be one based on the personal liability of the trustees, and, of course, a minority trustee or trustees could not be rendered personally liable on.a contract which he or they did not personally make, authorize or adopt, merely because others, composing a majority of the trustees, did authorize it. The provision of the will, that a majority shall govern, etc., clearly concerns only the matter of binding the estate and cannot be given the effect of rendering the minority personally liable on contracts made or authorized only by the majority. Whether, then, this instruction allows a recovery against the trustees solely in their representative capacity, or allows a recovery against all if a mere majority authorized the contract sued upon, in either event it was erroneous, and the trial court was right in granting a new trial on that account.

The judgment is affirmed and the cause remanded.

Reynolds, P. J., and Norloni, J., contur.