St. Louis Union Trust Co. v. Busch

• Decision Date: 11 December 1940
• Docket Number: 36827
• Citation: 145 S.W.2d 426,346 Mo. 1237
• Parties: St. Louis Union Trust Company, Trustee, et al., Appellants, v. Adolphus Busch III, and August A. Busch, Jr., Executors under the Will of August A. Busch, Jr., et al
• Court: Missouri Supreme Court

145 S.W.2d 426

346 Mo. 1237

St. Louis Union Trust Company, Trustee, et al., Appellants, v. Adolphus Busch III, and August A. Busch, Jr., Executors under the Will of August A. Busch, Jr., et al

No. 36827

Supreme Court of Missouri

December 11, 1940

Rehearing Denied December 11, 1940.

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.

Affirmed.

Isaac C. Orr for St. Louis Union Trust Company, Trustee; Emmet T. Carter, James E. Garstang and Harold R. Small for Edward Magnus et al.; Carter & Small of counsel.

(1) The appellate court in equity cases makes its own findings of fact in accord with the weight of the evidence. Ver Standig v. St. L. Union Trust Co., 344 Mo. 884, 129 S.W.2d 905. (2) The evidence and the weight of the evidence in this case is that the 1330 shares belonged to Adolphus Busch at the time of his death, October 10, 1913, and formed a part of his estate thereafter. The only counter-evidence is that of witness Rassfeld, who testified that in May, 1912, Adolphus Busch told him, as secretary of the Manufacturers' Railway Company, to issue 8330 shares, 7000 by certificate to him, and 1330 shares by certificate to August A. Busch, as a gift, and the certificate for 1330 shares was delivered to August A. Busch September 24, 1912, by Rassfeld. All those who should have known of such claimed gift of $ 133,000 of stock did not know of a claim of such gift until 1932, when August A. Busch, for the first time to their knowledge, ever made claim to it. There was no gift in May, September or December of 1912 or prior to the death of Adolphus Busch. Miller v. Cotton, 5 Ga. 349; Wetzel v. Minn. River Transfer Co., 65 F. 27; Forbes v. Chichester, 8 N.Y.S. 747, 125 N.Y. 769, 26 N.E. 914; Hamlin v. Stevens, 17 N.Y. 39, 69 N.E. 118; Ide v. Brown, 178 N.Y. 26, 70 N.E. 701; Allen v. So. Cal. Ry. Co., 70 F. 370; Moore on Facts, 102, p. 151; Holmes v. Connable, 111 Iowa 298, 82 N.W. 780; Grantham v. Gossett, 182 Mo. 651, 81 S.W. 895; Davis v. Green, 102 Mo. 170, 14 S.W. 876; McElwin v. McElwin, 171 Mo. 244, 71 S.W. 142; Kinney v. Murray, 170 Mo. 674; In re Franz Estate, 127 S.W.2d 401; Henderson v. Hughes, 320 Pa. 124, 182 A. 392; McCune v. Daniels, 225 S.W. 1022; Reynolds v. Hanson, 199 S.W. 279; In re Van Fossen, 13 S.W.2d 1078; Dickson v. Dickson, 101 S.W.2d 774, 231 Mo.App. 515; Gosney v. Costigan, 33 S.W.2d 947, 326 Mo. 1215; Trautz v. Handlan, 46 S.W.2d 135; In re Brueck's Estate, 194 A. 60, 122 N.J.Eq. 329; Duffield v. Rader, 6 N.E.2d 228, 228 Ill.App. 184; Hayes, Adm., v. Patrick, 99 S.W.2d 805, 266 Ky. 713; Bell's Executor v. Lawrence, 114 S.W.2d 517, 272 Ky. 439; In re Chadwick Chapple's Estate, 2 A.2d 719, 322 Pa. 168; Kramer v. May, 8 S.W.2d 110, 223 Mo.App. 57; Kunst v. Walker, 43 S.W.2d 886; Taylor v. Taylor, 290 N.W. 341, 292 Mich. 95; 24 Am. Juris., pp. 798, 799. (3) The holding out by all, including August A. Busch, from October 10, 1913, to 1933, that the shares belonged to the Adolphus Busch estate, and the failure to even make claim thereto, until 1932, and the failure to bring suit in such time, makes the claim, if held valid, barred by the Statutes of Limitation, by laches and by estoppel. One cannot in equity wait to make claim until many of those who might know of it are dead. Here the August A. Busch executors make claim, and when they do, even August A. Busch is dead and so cannot be cross-examined on the claim. Secs. 861, 862, R. S. 1929; Badger v. Badger, 2 Wall. 871; Cox v. Brown, 87 N.J.Eq. 464, 101 A. 260; Strimpfler v. Roberts, 18 Penn. 299, 57 Am. Dec. 606; Bogert on Trusts, p. 2747; 4 Pomeroy, Eq. Juris. (4 Ed.), p. 3419; Burdett v. May, 100 Mo. 18, 12 S.W. 1056; Younger v. Evers, 64 S.W.2d 936, 333 Mo. 931; Breit v. Boland, 100 S.W.2d 599; Bliss v. Prichard, 67 Mo. 181; Ferguson v. Sodden, 111 Mo. 208, 19 S.W. 727; Secs. 170, 179, Restatement on Trusts, American Law Institute, pp. 431, 456.

Ethan A. H. Shepley and Harry W. Kroeger for respondents.

(1) Although cases in equity are reviewable de novo on appeal, the Supreme Court will usually defer to the findings of the chancellor in an equity case, especially where the credibility of witnesses who appeared before him is involved, except when it is convinced that the chancellor's findings are against the weight of the evidence. Taylor v. Hamrick, 134 S.W.2d 53; Robinson v. Burton, 139 S.W.2d 947. (2) The weight of the evidence in this case proves a completely executed gift of the shares of stock by Adolphus Busch to his son, August A. Busch, on September 24, 1912. The intent to make the gift, the delivery of the subject matter of the gift to the donee with intent to pass title, and the acceptance of the gift by the donee -- being the three factual elements essential for the validity of a gift inter vivos of personal property -- were clearly and convincingly established. Thomas v. Thomas, 107 Mo. 463, 18 S.W. 27; Trautz v. Lemp, 329 Mo. 607, 46 S.W.2d 135. (3) The claim of August Busch and his executors was not barred by Statutes of Limitation, by laches, by acquiescence, or by estoppel. Jones v. McGonigle, 327 Mo. 468, 37 S.W.2d 892; Garesche v. Levering Inv. Co., 146 Mo. 436, 48 S.W. 657; 19 Am. Jur., pp. 642-643; sec. 42; Acton v. Dooley, 74 Mo. 67; State ex rel. McKittrick v. Mo. Utilities Co., 339 Mo. 385, 96 S.W.2d 615; Pollard v. Ward, 289 Mo. 275, 233 S.W. 17; State ex rel. Shartel v. Mo. Utilities Co., 331 Mo. 337, 53 S.W.2d 400; 21 C. J., pp. 219-220, sec. 218; Hagan v. Lantry, 338 Mo. 175, 89 S.W.2d 552; Matthews v. Van Cleve, 282 Mo. 19, 221 S.W. 38; Dillmann v. Davison, 239 S.W. 508; 21 C. J., p. 243, secs. 239 (5), 240 (6). (4) Appellants have abandoned all their assignments of error not supported by their points and authorities or argument. Gorman v. Mercantile-Commerce Bank & Trust Co., 137 S.W.2d 574; Pence v. K. C. Laundry Serv. Co., 332 Mo. 930, 59 S.W.2d 639; Coffey v. Higbee, 318 Mo. 10, 298 S.W. 768; Denkman v. Prudential Fixture Co., 289 S.W. 594; 2 Houts, Mo. Pleading & Practice, 490, sec. 534.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

This cause is to determine the ownership of 1330 shares of stock in the Manufacturers' Railway Company in St. Louis. The respective claimants are the trustees of the trust estate created by the will of Adolphus Busch, and a part of the beneficiaries on the one hand, and the August A. Busch estate on the other hand. The trial court found for defendants, that is, that Adolphus Busch gave the stock to his son, August A. Busch, and that it was owned by the August A. Busch estate. Motion for a new trial was overruled, and plaintiffs appealed.

The cause was filed by the St. Louis Union Trust Company and Charles Nagel as trustees of the trust estate, but Mr. Nagel died after the appeal was taken. Adolphus Busch, the alleged donor, died testate October 10, 1913, and August A. Busch, the alleged donee, died testate February 13, 1934. This cause was filed April 24, 1937. It is not necessary to deal with the pleadings or to set out by name those who are appellants and respondents. It is sufficient to say that those who contend that the stock belongs to the trust estate are appellants and all other parties are respondents, and we shall refer to the respective claimants as plaintiffs and defendants.

Plaintiffs, appellants here, contend that the evidence is not sufficient to support a gift inter vivos, and that, in any event, defendants' claim of such gift is barred by limitation, by laches, and by estoppel.

The Manufacturers' Railway Company was organized in 1887, and, in the beginning, was merely a switch track serving the Anheuser-Busch Brewing Association. Adolphus Busch, from time to time, furnished money to the railway company, and the son, August A. Busch, devoted much of his time to the development of the railroad, and sometime prior to 1903, August visioned the development of the railroad into a terminal system to serve not only the Busch brewery, but other industries in South St. Louis, and such vision was finally realized, and was largely due to the efforts of August A. Busch. In a letter to his son, August, written in Germany, and dated July 31, 1911, Adolphus, speaking of the railroad, said:

"The cost of our terminal system will be very heavy. We shall have to pay big sums for real estate wherever we branch out; we shall have to have railroad guards on every cross street to avoid accidents and damages. Our general administration will be a costly one, our taxation will be high, and unless we get fair earnings it will be difficult to make the two ends meet. . . . Now, I am really a terminal enthusiast. I mean to say by that that I shall give you my full support in carrying out your railroad scheme, which you have led very intelligently so far and with untiring perseverence. . . . Naturally, Gussie, of that which we get I am going to give you a fair share, to which you are undoubtedly entitled. I want to make you satisfied and happy so your further zeal is animated and not diminished."

At the time the letter was written there were 250 shares of the railroad stock issued. Adolphus held 200 of these, and August held 38, and 12 were held by others. April 8, 1912, the railway company declared a stock dividend of 1000 shares, and when proportionately distributed, Adolphus held 1000 shares, and August 190. April 30, 1912, the capital stock of the railway company was increased to 10,000 shares per value of each $ 100. At that time the company, for money advanced from time to time, owed Adolphus some $ 900,000, evidenced by promissory notes. It was arranged that 8330 shares of the new stock would be issued to Adolphus for $ 833,000 credit on the railway company's notes. September 24, 1912, the new stock was issued, but instead of issuing 8330...