Bobb v. Bobb

• Decision Date: 28 October 1879
• Parties: JOHN H. BOBB, Respondent, v. CHARLES BOBB ET AL., Appellants.
• Court: Missouri Court of Appeals

7 Mo.App. 501

JOHN H. BOBB, Respondent,

v.CHARLES BOBB ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Oct. 28, 1879.

1. A direct conflict of testimony is conclusive against the reformation of a written instrument.

2. Where a reformation of a deed is sought, evidence of the grantor's intentions is inadmissible unless it be shown that they were understood by the grantee.

3. Equity cannot secure equality against the manifest intention of the donor.

4. Where one makes an irrevocable disposition of his property for the benefit of his existing children, a court of equity cannot, at the donor's instance, disturb the vested rights thus acquired, in order to let in after-born children.

5. Where the deed expresses a consideration, the title passes whether the consideration is paid or not, the grantor is estopped, and no use can be raised in him.

6. Where, by recorded conveyance, the father conveys promissory notes to his minor children, the fact that he retains the notes in his possession is not fatal to the title of the children. The situation of the parties may render the manual delivery of personalty unnecessary.

7. The appellate court will not disturb a finding of compound interest against a trustee where the evidence is not preserved, so that it does not appear that the trustee's profits were not large enough to warrant the computation.

APPEAL from St. Louis Circuit Court.

Affirmed.

MARTIN & LACKLAND and M. KINEALY JEFF. CHANDLER, for appellants.

HITCHCOCK, LUBKE & PLAYER and HENRY A. CLOVER, for respondents.

LEWIS, P. J., delivered the opinion of the court.

In April, 1843, defendant Charles Bobb, who is the father of all the other parties beneficially interested in this cause, conveyed to Miss Hannah Letcher, now Mrs. John D. Stevenson, for the expressed consideration of $10,000, a considerable quantity of real estate situate in the city of St. Louis. It does not satisfactorily appear that any consideration was really paid. Miss Letcher was a relative, and an inmate of Charles Bobb's household, enjoying his entire confidence. It appears to have been his wish to place this property in her hands in order to secure it against possible vicissitude in his own affairs, and so that it might be ultimately enjoyed by his wife and children. At that time his children were three,--Charles L., John H., and William H., all infants of tender years. Afterwards, and prior to January, 1845, William H. died, and a daughter Lucy G., now the defendant Lucy G. Taylor was born. In January, 1845, Miss Letcher, being about to marry, executed and delivered a deed conveying all of the property remaining in her hands to Charles Bobb, as trustee, for the sole use and benefit of Mary H. Bobb, his wife, and John H., Charles L., and Lucy G. Bobb, his children, with power to sell and dispose of the same as the beneficiaries might direct. Miss Letcher had previously sold some parcels of the real estate, and held notes of the purchasers, secured by deeds of trust. These notes went into the possession of Charles Bobb, who collected the proceeds. There were certain other notes known as the Kelly and Sellick notes, which, with the deed of trust securing their payment, were in December, 1843, conveyed, in a deed which was duly acknowledged and recorded, by Charles Bobb and the trustee in the deed of trust, to Charles L. Bobb, John H. Bobb, and William H. Bobb.

The present suit was commenced in 1859. Its general objects are, to restrain the defendant Charles Bobb from further acting as trustee, or in any manner disposing of or interfering with the property; to compel an accounting for his receipts and disbursements as trustee; and to divest the entire legal title out of the trustee and cause it to be vested in the cestuis que trust. After a lengthy trial upon preliminary issues, and two successive references, the whole occupying a period of more than eight years, the Circuit Court decreed substantially according to the prayer of the second amended petition.

The first question to be here considered arises upon the prayer of defendants, Charles Bobb, George L. Bobb and his sister Cora S. Taylor, for a reformation of the deed of January, 1845, from Hannah Letcher to Charles Bobb, trustee. It is claimed that the real intention of the parties was to establish a trust for the benefit of Mary H. Bobb, wife of Charles Bobb, and of all their children then in being or thereafter to be born, but that the scrivener, by mistake and without authority, inserted the names of the then living children only. As the deed now stands, John H. Bobb, Lucy G. Taylor, and the representatives of Charles L. Bobb, who have died since the institution of the suit, are each entitled to six-twentieths of the estate, while George and Cora, who were born after the execution of the deed, can claim only one-twentieth part each, as heirs of their mother, Mary H. Bobb, who died in 1853. A reformation of the deed as proposed would give to the defendants George and Cora shares equal with those of the other beneficiaries.

As to what was intended at the execution of the deed, there is a direct conflict in the testimony given by the parties themselves. Charles Bobb, the grantee, swears positively that it was understood that provision was to be made for his after-born children, if any, as well as for those named in the deed. Mrs. Stevenson, the grantor, testifies that no such understanding existed. On the contrary, she says an objection was raised by Mrs. Bobb, who was present, to the effect that children might be born to her and her husband thereafter, who would get no benefit of the estate. To this Charles Bobb made answer that if any such should be born he would provide for them by other means. We may assume an equal degree of credibility in each of these witnesses. They are the only persons living who can testify directly to the facts in issue. Were there no other testimony, such a conflict would be in itself conclusive against any reformation of the deed. The instrument itself, as a chosen record of what the parties intended, would turn the scale. The well-known rule requires that, in order to effect the reformation of a deed in material particulars, the proofs must be satisfactory and conclusive that the paper does not express what both the parties intended, understood, and agreed upon at the time when it was written. But there are in this case facts in evidence which strongly corroborate the presumption that the deed under consideration truly sets forth the original purposes of its execution.

In the year 1854, Charles Bobb was actively managing the trust property. He was, or should have been, familiar with his duties as trustee. The creation of the trust, and the incidents of its contrivance, were then comparatively fresh in his recollection. If he cared about keeping correct accounts and properly preserving the rights of his cestuis que trust, their several and respective shares and titles, as originally established, must have been at least occasional subjects of contemplation. In that year a suit was instituted by Charles Bobb, as trustee and guardian, together with his children, John H., Charles L., Lucy G., Cora S., and George L. Bobb, against John D. Stevenson and wife, to procure a reformation of the deed of January, 1845, so that the trustee might sell any of the trust property at his own option, without a written direction from the beneficiaries, which the face of the deed required. The petition in that case was sworn to by Charles Bobb. It sets forth as the interests of the several beneficiaries, that Charles L., John H., and Lucy G. Bobb were each entitled...