assign, exchange, transfer, convey, mortgage, pledge, incumber, or otherwise dispose of any or all of the said stocks, bonds, notes, obligations, mortgages, deeds of trust, collaterals, and securities, and the principal and proceeds thereof to them hereby transferred, assigned, conveyed and delivered, whenever in their judgment they deem it proper to do so, upon such terms, conditions, and provisions as they may deem best and for the best interests of the trust estate of the undersigned hereby created.

"In case of such conveyance, transfer, assignment, exchange, or other disposal of any of the assets, or any part of the assets, to them hereby conveyed, assigned, transferred, and delivered, they shall have and are hereby granted full power, right, and authority, and are hereby empowered, directed and authorized to invest and reinvest the proceeds of any such sale, transfer, or exchange, including principal, in such manner and in such form and securities as they may deem proper and for the best interests of said party of the first part and the trust estate hereby created."

Also they were empowered:

"To expend, disburse, retain, and pay out of said trust estate and funds, any and all assessments, charges and taxes, whether general or special, attorneys' fees, outlays, compensation, charges and costs of administration, necessary, incident or essential to and for the care, protection, preservation, administration, management and distribution of the assets hereby conveyed or hereafter acquired and are authorized and empowered to make, create, and pay all necessary debts, expenses and outlays for repairs, betterments, or improvements, which they may deem necessary or proper for the protection, preservation, improvement, sale or transfer of any and all real estate of which they may become owners as such trustees, whether acquired by foreclosure or otherwise, and are authorized and empowered to make any and all such other payments, outlays, and expenditures as they may deem necessary, expedient or proper for the protection of such real estate and the assets of such trust estate."

Certain disbursements to Mrs. Franz and to the children (or their heirs) were provided for as follows: $4,000 annually "shall" be paid to Mrs. Franz "providing the income, rents, earnings, and profits of the estate which they may hold and securities hereby conveyed, admit of such payments being made," with the power, in named emergencies, to "in their discretion increase said quarterly payment to her to such an amount, and for

such time and upon such terms and conditions as they may deem best and proper"; after these payments to Mrs. Franz, the trustees "may pay" $625.00 quarterly to each of the ten children (or the heirs thereof) but:

"In the event the earnings, income, rents, receipts and profits received by said trustees are not sufficient to admit of such payment quarterly to each of the distributees above named and cannot be conveniently made, then the said trustees, after so making payment to said Sophie Franz, of one thousand dollars ($1,000.00) quarterly, or such other sum as they may deem necessary as aforesaid may pay to each of the said distributees such sum as they may deem proper, but in no event and under no circumstances shall the said payment encroach upon or impair the principal and assets of the trust estate hereby created."

The instrument provided, also, that semiannual statements of the condition of the trust estate should be made to Mrs. Franz and:

"If it appears from the statement of said trustees that there remains on hand any earnings, income, rents, receipts and profits from the said trust estate, which have not been drawn by or set aside, or paid out for account of said Sophie Franz, or to the distributees above mentioned or otherwise expended as herein provided, such sums shall be invested and become and remain as part principal of said trust estate hereby created."

The payments were to be made to Mrs. Franz during her life:

"And upon her death all these stocks, bonds, notes, collaterals, commercial paper, mortgages, deeds of trust, securities or other assets to them hereby conveyed or hereafter acquired or by them held, owned or controlled as such trustees, and any and all real estate by them acquired as such trustees, shall be held by them for account of the estate of said Sophie Franz, to be administered by the probate court of the city of St. Louis, Missouri, in accordance with the last will and testament of said Sophie Franz, and in accordance with the laws of the state of Missouri in such case made and provided."

The trustees were required to employ "Buder & Buder as their counsel and attorneys in the management and administration of said estate" and to appoint Oscar E. Buder (member of Buder & Buder) as the successor of either trustee. The certificates of stock in the Burroughs Company (and in two other companies-30 shares of the Germania Savings Institution and 50 shares of the Third National Bank of St. Louis, Mo.) were to re

main in a designated safety deposit box which could not be opened unless Mrs. Franz and both trustees were present-she to have no power to remove any of such stock without "the consent and in the presence of both of said trustees." What was to be done with other securities or valuable papers is not designated although 300 shares in two other companies and 20 bonds ($1,000 each) are described therein. Also an irrevocable power of attorney given the trustees to vote the Burroughs, Germania and Third National stock at all stockholders' meetings and for all purposes-nothing said as to the stock in other companies. There was no requirement that any bond be given by the trustees.

About sixty days after this trust deed was executed, Ehrhardt W. Franz (one of the sons) brought an action in the state court, at St. Louis, Missouri, attacking the validity of the trust agreement, seeking to have it set aside, a receiver appointed and for other relief. The decree therein sustained and construed the trust agreement and required the trustees to give a bond of $100,000 "for the use and benefit of any and all parties interested in said trust estate" and to charge the cost and expense thereof to the trust estate.

Thereafter, dissention arose between Ehrhardt W. Franz (one of the sons) and the trustees which resulted in this suit. The parties defendant were Mrs. Franz, the trustees, the six children then living and the heirs, guardians of heirs and administrators (or executors) of three children who had died after the father, Ehrhardt D. Franz. The amended bill sets forth that the trust estate, coming from the estate of the father, exceeds three million dollars in value and includes 31,500 non-par shares and 7,875 preferred shares in the Burroughs Adding Machine Company besides other stocks, bonds and securities; that the bond of $100,000 is "wholly inadequate in amount"; that the trustees refuse to give plaintiff "any information or account" concerning the "present nature, condition, extent and value of the various properties taken by them as aforesaid from the life tenant"; that the trustees are asserting and contending that "plaintiff no longer has or owns his said remainder interest in said properties." The prayer is for disclosure and accounting, for restraint in disposing of the Burroughs stock, for a bond to plaintiff to protect his remainder interest, for an adjudication of the vested interest of plaintiff, and for general relief.

The administrator of the estates of Ernest H. Franz and of Walter G. Franz (two de

ceased sons) and the guardians ad litem of several grandchildren (heirs of deceased children of Ehrhardt D. Franz) answered, praying substantially the same relief as sought in the amended bill.

Answers were filed by G. A. Buder (one of the trustees), jointly by Mrs. Franz and the trustees, G. A. Franz and G. A. Buder, by the other defendants jointly. In so far as the issues presented on this main appeal are involved, those answers were as follows: First, that the action was premature because the parties seeking relief have, until the death of Mrs. Franz, "no right to the possession or enjoyment of any remainder interest, if any he has, and no right to have the amount or value of such interest, if any, determined or ascertained." Second, denies the right of such parties to "demand any security." Third, denies any duty to furnish any information or account. Fourth, estoppel to assail trust agreement and bound thereby because of receipt of payments thereunder. Fifth, that the decree in the state court suit found that "any and all stock dividends were part of the earnings, usufruct, profits and income of said estate to which the life-tenant was entitled in her own right," which made the interest of the children res adjudicata. Sixth, estoppel because of agreements made January 7 and 30, 1920. Seventh, the parties seeking relief have "no interest, remainder or otherwise, under the will of Ehrhardt D. Franz" because of certain advancements and payments in excess of the value of their shares in the estate of Ehrhardt D. Franz, deceased.

The decree herein determined that the increase of Burroughs stock (as well as certain other property) belonged to the corpus of the residuary estate of Ehrhardt D. Franz, deceased; that the plaintiff had a one-tenth vested right, as remainderman under the will (the complaining defendants having similar rights); that such remaindermen will be entitled to possession thereof upon the death of Mrs. Franz, the life tenant; that the trustees file, within 30 days, a complete statement, under oath, of the property coming to their hands and their administration thereof, and, thereafter, render semiannual statements to the parties here asking relief; that the trustees, within 30 days, give bond for $500,000 for the "joint and several" protection of the parties here asking relief, said bond to be additional to the existing bond for $100,000 and the cost thereof to be paid by or charged to such parties. Jurisdiction was expressly retained to order an accounting and for other necessary orders and de

crees. The costs of this proceeding to be paid by the trustees and charged "to the

trust estate."

Issues on Main Appeal.

Appellants argue here five matters. One is a matter of procedure that this action is prematurely brought. Two are urged as a bar to recovery-res adjudicata and estoppel. Two have to do with the merits of the action on the main facts-the increase of Burroughs Company stock is income and, therefore, the property of the life tenant and the intent of the testator, Ehrhardt D. Franz.

Premature Action.

This contention is that while the life tenant survives, there can be no action to adjudicate title of the remaindermen or to protect the remainder estate. The present action does not involve nor seek to affect the enjoyment of possession or other rights of the life tenant. Its sole purpose is to protect from spoliation and loss property which is in possession of the life tenant, but alleged to belong to the estate coming to the remaindermen (with absolute right of possession upon death of the life tenant), and, as to which, the life tenant is entitled only to the income therefrom. Therefore, the legal issue is whether a remainderman is entitled to equitable relief to have protected property be longing to him in the rightful possession of the life tenant who is entitled to the income, for life, therefrom. As a necessary incident to such relief (if allowable), the remainderman must prove that he is such as to the property involved but this is not a proceeding where the only or main purpose is to have the title of the remainderman adjudicated-it is a bona fide action to protect a remainder estate alleged to exist.

Appellants rely upon several state cases and the following cases in the Supreme Court or in inferior federal courts: Williams v. Hagood, 98 U. S. 72, 25 L. Ed. 51; Marye v. Parsons, 114 U. S. 325, 5 S. Ct. 932, 962, 29 L. Ed. 205; Singer Mfg. Co. v. Wright, 141 U. S. 696, 12 S. Ct. 103, 35 L. Ed. 906; United States v. Evans, 213 U. S. 297, 29 S. Ct. 507, 53 L. Ed. 803; Muskrat v. United States, 219 U. S. 346, 31 S. Ct. 250, 55 L. Ed. 246; Arnold v. Garth (C. C.) 106 F. 13; Pluche v. Jones (C. C. A.) 54 F. 860; Preston v. Smith (C. C.) 26 F. 884. The Williams and Marye Cases involved the validity of state statutes relating to securities issued by the state and in each the court said that no existing or threatening injury was alleged and, therefore, the issue presented was pure

The

ly abstract and courts would act only upon legal rights actually in controversy. Singer and Evans Cases were refused determination because the issues therein were purely moot. The Muskrat Case refused decision because the issue was not a justiciable controversy. The Arnold and Pluche Cases held merely that a statute of limitations did not begin to run against a remainderman until his right to possession accrued. The Preston Case (being a ruling on demurrer to a bill) held the action was "more like an effort to establish a doubtful title than a proceeding to protect from serious wrong a clear or adjudicated title" (page 889), and that "only upon an adjudicated or a clear title will a court of equity issue an injunction to restrain waste" by the life tenant. Thus, it appears that none of the above cases are applicable here nor are any statements in the opinions therein except those above quoted Those expressions clearly imply that, at least from Judge Brewer in the Preston Case. under certain circumstances, such right of action would exist during the life estate.

Cross v. Del Valle, 1 Wall. 5, at page 15, 17 L. Ed. 515, the court said:

However, the matter is not in doubt. In

"A remainderman may have a decree to protect the estate from waste, and have it so secured by the trustee as to protect his estate in expectancy. The court will interfere under all needful circumstances to protect his rights, but such cases do not come within the category of mere declaratory decrees as to future rights."

Undoubtedly, the same rule prevails in the state courts. See 23 R. C. L. 579, where it is said:

"One who has a vested remainder in land has a right to protect the estate, so that he may receive the same when it ought to come to him by the terms of the limitation, and may maintain a proper action for any injury to the inheritance, committed or threatened, whether by the tenant in possession or by a stranger."

Also, at page 580, it is said:

"While a court of equity will not maintain a bill merely to declare future rights, it will interfere in all needful cases to protect the rights of remaindermen.”

Again, at page 581, the right of the remainderman to require security bond and accounting (the relief here sought and accorded by the trial court) is stated as follows:

"Formerly it was the practice to exact from the tenant for life security that the property should be forthcoming on the happening of the contemplated event. This se

Sophie Franz, and in accordance with the laws of the State of Missouri in such case made and provided." If this quoted provision were followed, all of this property would be subject to various taxes, fees and costs (in course of such administration) which should not attach to any of such property belonging to the remaindermen because such would be deliverable direct to them by the trustees, upon termination of the life estate, and would not pass through the administration of the estate of Sophie Franz.

The above discussed law leaves no doubt that equity does afford, during the life tenancy, remedies for remaindermen to protect their estates and the above facts make it equally clear that a situation is here present justifying the use of such remedies at this time. Therefore, the suit was not prematurely brought.

Res Adjudicata.

[2] Appellants contend that the decree (June 16, 1910) in the state court suit brought by plaintiff, shortly after the trust agreement was made, determined that "the stock dividends and other increases" in the property belonged to the life tenant and not to the remaindermen. The supporting argument

takes two lines.

The first is that the fourth finding of that court was that Sophie Franz was entitled to all of such increases. That finding is as follows:

"4. The court doth further find that under and by virtue of the terms of the will of said Ehrhardt D. Franz, deceased, the defendant Sophie Franz, during her natural lifetime, became and was and is entitled to all of the usufruct and benefit of all of the property of said deceased and to all of the income, profits and earnings thereof, in her own right and absolutely."

Standing alone, this language is far from meaning that increases in the corpus of the estate, as distinguished from income there from, is the property of the life tenant. Nor do the words "profits and earnings," used in conjunction with "income," suggest such a meaning. The obvious meaning of the entire paragraph is that Sophie Franz is entitled to the revenue produced by the estate, in the nature of income. But even supposing the paragraph were ambiguous and, taken alone, might have either of the above meanings, yet the issues presented to the court and the entire decree leave no doubt.

The petition therein was an attack upon the trust agreement as being contrary to the rights of plaintiff under the will because it

turned over to trustees property which would, at the end of the life estate, belong to the remaindermen and in which they had a present vested interest; also, that this property was being managed and wasted by the trustees without information or accounting to the remaindermen and without "being amenable to the plaintiff and the other remaindermen named in the said will by any bond or security whatever." It set forth that G. A. Buder (trustee) was denying that plaintiff had "any vested interest in the said property" and that plaintiff was the owner of "a one-tenth vested interest in the corpus of the aforesaid property." The prayer was for cancellation of the trust agreement and delivery of the property to a receiver; that the court construe the will and determine the rights and interests of the parties named therein and "whether their interests became contingent or vested at the death of the aforesaid testator"; and for general relief.

A joint and separate answer was filed by the trustees and other defendants (Mrs. Franz and other of her children). This answer alleged that Mrs. Franz owned absolutely considerable property which did not come from her husband's estate or which "had been acquired by her out of income which was hers." Further answering:

"These defendants say that at the time that she executed said instrument of January 30, 1909, defendant Sophie Franz was possessed in her own exclusive right as aforesaid of certain property and had a life estate and life interest in the property derived by her from the estate of her said deceased husband, and that the object and purpose of said instrument was to transfer to her son, the defendant G. A. Franz, and to defendant Buder, all such interest, right and title as she might and could properly and lawfully convey; that she intended to convey, and by said instrument did convey, to said two named defendants all of her said life estate, and no more, in the property so derived from her said deceased husband, and the absolute title to the property owned by her in her own exclusive right; that her object and purpose was to enable said two named defendants to distribute the income of all of said property, that in which she had but a life estate and that which belonged to her absolutely, between herself and her nine children, including the plaintiff, and her two grandchildren, the minor defendants herein. That in order to accomplish such purpose, she provided that $4,000 annually should be paid to her in quarterly installments and that $2,500 annually, in like installments, should be paid to each