Atl. Natl. Bk. of Jacksonville v. St. L. Union Tr.

• Citation: 211 S.W.2d 2
• Decision Date: 12 April 1948
• Docket Number: No. 40444.,40444.
• Parties: THE ATLANTIC NATIONAL BANK OF JACKSONVILLE, FLORIDA, a Corporation, Executor Under the Last Will and Testament of S. HOXIE CLARK, Deceased, and MARY CLARK LIND and ELIZABETH CLARK GURGANIOUS, Also Known as ANNIE CLARK GURGANIOUS, Beneficiaries Under a Certain Declaration of Trust, v. ST. LOUIS UNION TRUST COMPANY and ROY McKITTRICK (J.E. Taylor), Attorney General of the State of Missouri, Appellants.
• Court: United States State Supreme Court of Missouri

211 S.W.2d 2

THE ATLANTIC NATIONAL BANK OF JACKSONVILLE, FLORIDA, a Corporation, Executor Under the Last Will and Testament of S. HOXIE CLARK, Deceased, and MARY CLARK LIND and ELIZABETH CLARK GURGANIOUS, Also Known as ANNIE CLARK GURGANIOUS, Beneficiaries Under a Certain Declaration of Trust, v. ST. LOUIS UNION TRUST COMPANY and ROY McKITTRICK (J.E. Taylor), Attorney General of the State of Missouri, Appellants.

No. 40444.

Supreme Court of Missouri.

Division One, April 12, 1948.

Motion for Rehearing or to Transfer to Banc Overruled, May 10, 1948.

Appeal from Circuit Court of City of St. Louis. — Hon. Eugene J. Sartorius, Judge.

AFFIRMED AND REMANDED (with directions).

Fordyce, White, Mayne, Williams & Hartman, Frank E. Williams and Joseph Renard for appellant St. Louis Union Trust Company.

(1) The execution and delivery of the instrument of November 9, 1898, resulted in a valid conveyance of the legal title to the property therein described and created a good trust inter vivos, because, the words of conveyance and transfer used in the instrument show an unequivocal intention on the part of the grantor to pass the legal title, in praesenti, to the trustees designated in the instrument. Sims v. Brown, 252 Mo. 258, 158 S.W. 624; Wimpey v. Ledford, 177 S.W. 302; Cribbs v. Walker, 74 Ark. 104, 85 S.W. 244; Nichols v. Emery, 109 Cal. l.c. 301; Thorp v. Daniel, 339 Mo. 763, 99 S.W. (2d) 42. (2) The conveyance being one in trust, the reservation of the power to revoke or amend did not preclude the passing of the legal title to the trustees instanter, and did not make the instrument testamentary in character. Sims v. Brown, 252 Mo. 258, 158 S.W. 624; Davis v. Rossi, 326 Mo. 911; Kansas City Life Ins. Co. v. Rainey, 353 Mo. l.c. 484; St. Louis Union Trust v. Dudley, 162 S.W. (2d) 290; Goins v. Melton, 343 Mo. 413. (3) The condition that the grantor "shall be permitted to use, occupy and enjoy" the property conveyed during his lifetime did not affect the validity of the instrument as a transfer in praesenti, nor make it testamentary in character. Sims v. Brown, 252 Mo. 258, 158 S.W. 624; Wimpey v. Ledford, 177 S.W. 302; Davis v. Rossi, 326 Mo. 911; Christ v. Kuehne, 172 Mo. 199, 72 S.W. 537; Kelly v. Parker, 181 Ill. 49, 54 N.E. 615; Owen v. Trail, 302 Mo. 292; Sec. 3502, R.S. 1939; Restatement of the Law of Trust, sec. 57; See Annotation in 164 A.L.R. 881; Harvard Law Review, February, 1930, p. 521. (4) The fact that the securities were not endorsed nor transferred of record to the trustees on the books of the corporations during the life of the grantor is not proof that they were not delivered. Talbot v. Talbot, 32 R.I. 72; Grissom v. Sternberger, 10 Fed. (2d) 764. (5) The delivery of the instrument was alone sufficient to pass the legal title and future beneficial interests. Sims v. Brown, 252 Mo. 258, 158 S.W. 624; Trautz v. Lemp, 329 Mo. l.c. 607; Smith v. Smith, 192 S.W. 691; In re Harlow's Estate, 192 S.W. (2d) 5; Napier v. Eigel, 350 Mo. l.c. 117; Alker v. Alker, 54 R.I. 326, 173 Atl. 887; Monroe v. Lyons, 98 S.W. (2d) 544; Southern v. Southern, 52 S.W. (2d) 868. (6) The subject matter of the trust was sufficiently described in the instrument. Id certum est quod certum reddi potest. The evidence points to the fact that the character and extent of the property was actually ascertained. Sims v. Brown, 252 Mo. 258, 158 S.W. 624; Hall v. Burkham, 59 Ala. 349; Sinclair v. Purdy, 235 N.Y. 245, 139 N.E. 255; In re Hirsh's Trust Estate, 334 Pa. 172, 5 Atl. (2d) 160; 1 Scott on Trusts (1939 Ed.), sec. 76; 65 C.J., p. 271, sec. 51. (7) Every doubt, if any, must be resolved in favor of the validity of the instrument. 16 Am. Jur., p. 541, sec. 183; 76 A.L.R. 636 (Annotation); 11 A.L.R. 50 (Annotation). (8) Item XV of the trust indenture creates a valid charitable trust and is not within the scope of the rule against perpetuities. Newton v. Newton Burial Park, 34 S.W. (2d) 118, 326 Mo. 901; Kerner v. Thompson, 6 N.E. (2d) 131; Kitchen v. Pitney, 119 Atl. 675, 94 N.J. Eq. 485; 14 C.J.S., secs. 38, 39, pp. 473-474. (9) The respondent bank, as the personal representative of Snyder Hoxie Clark, is estopped from challenging the validity of the trust indenture because Snyder Hoxie Clark accepted the trust during the life of the trustor and as co-trustee executed the same according to its terms for a period of at least forty-four (44) years. A trustee who has accepted the trust and executed the same cannot challenge its validity. Meldahl v. Wallace, 270 Ill. 220, 110 N.E. 354; Saunders v. Richard, 16 So. 679, 35 Fla. 28. (10) It is an established principle that one cannot accept the beneficial interest under the terms of a trust and also claim against it. Fox v. Windes, 127 Mo. 502; Stone v. Cook, 179 Mo. 534; Holloway v. Creamery Co., 286 Mo. 494; Austin v. Collins, 317 Mo. 435; Rossi v. Davis, 345 Mo. 363; Seifner v. Weller, 171 S.W. (2d) 617; Bernays v. Major, 344 Mo. 136; William v. Gideon, 7 Heisk. 617; In re Smith, 25 Pa. Dist. 683. (11) The claim of the respondent bank is barred by limitations. Ricords, Admx. v. Watkins, 56 Mo. l.c. 555; Burdett v. May, 100 Mo. 13; Graham v. Wilson, 168 Mo. App. 186; Kerber v. Rowe, 348 Mo. 1125, 156 S.W. (2d) 925; Harris v. Ross, 86 Mo. 89; Teder v. Teder, 108 S.C. 271, 94 S.E. 19; Chamberlain v. Anderson, 190 N.W. 501, 26 A.L.R. 957; Henderson v. Fielder, 215 S.W. 187; Beedle v. Tuller, 33 N.W. (2d) 80; Whitcomb v. Wright, 223 N.W. 294; 34 Am. Jur., p. 300, sec. 387.

Boyle, Priest & Elliott, Howard Elliott and Aubrey B. Hamilton for respondents; Chamberlain, Clark, Buchner & Willi,

Thomas G. Chamberlain; Edward J. Willi

and Cecil L. Head of counsel.

(1) Where an instrument, as here, is intended by the settlor to operate only in future, and does not convey any title or right in praesenti, it is testamentary in character and is void for any purpose when it has not been executed in accordance with the statute of wills. Nichols v. Emery, 109 Cal. 323, 41 Pac. 1089; Van Studdiford v. Randolph, 49 S.W. (2d) 250; Eschen v. Steers, 10 Fed. (2d) 739; Knapp v. Publishers George Knapp & Co., 127 Mo. 53, 29 S.W. 885; Goins v. Melton, 343 Mo. 413, 121 S.W. (2d) 821; Thorp v. Daniel, 339 Mo. 763, 99 S.W. (2d) 42; Aldridge v. Aldridge, 202 Mo. 565, 101 S.W. 42; 26 R.C.L., p. 1186, sec. 22; A.L.I., Restatement of Trusts, sec. 57. (2) The language employed by the settlor in the case at bar gave him unrestricted control over the property during his lifetime. Ex parte Smith, 212 Ala. 262, 102 So. 122; Kennedy v. Pittsburgh, 216 Pa. 575, 65 Atl. 1102; Board of Trustees of Westminister College v. Dimmitt, 113 Mo. App. 41, 87 S.W. 536. (3) In determining the validity and construction of an instrument, where an apt expression has been used in one part thereof, the use of a different expression in another part raises the inference that a different disposition was intended. 69 C.J., p. 85; Williams v. Fundingsland, 221 Pac. 1084; Strickland v. Delta Inv. Co., 137 So. 734. (4) The court may properly consider how the parties themselves interpreted the instrument. They regarded it as operating like a will. Warne v. Sorge, 258 Mo. 162, 167 S.W. 967. (5) A party seeking to uphold a trust inter vivos, as defendant does in the case at bar, must establish all essential elements of the trust by clear and convincing evidence. Harding v. Trust Co., 276 Mo. 136, 207 S.W. 68. (6) Even aside from being testamentary, the instrument cannot be effective as a deed inter vivos. (7) There was no delivery of property by Clark to the named trustees. Where the settlor does not make himself trustee and the property is susceptible of delivery, there is no valid trust unless complete delivery is made. Brannock v. Magoon, 141 Mo. App. 316, 125 S.W. 535; Napier v. Eigel, 350 Mo. 111, 164 S.W. (2d) 908; Albrecht v. Slater, 233 S.W. 8; Allen-West Commission Co. v. Grumbles, 129 Fed. 287; Scott, "Trusts and the Statute of Wills," 43 Harvard Law Review 521. (8) Where, as here, there was no identification of the subject-matter of the purported trust, no valid trust has been created. In re Ihmsen's Estate, 3 N.Y.S. (2d) 125; McCandless v. McCandless, 111 S.W. 302; A.L.I. Restatement of Trusts, sec. 76, comment b. (9) The instrument being absolutely void, no acts of the parties can give it validity, and estoppel does not apply. Miller v. Bowen Coal & Mining Co., 40 S.W. (2d) 485; Doherty v. Bartlett, 81 Fed. (2d) 920; Niccolls v. Niccolls, 168 Cal. 444, 143 Pac. 712; Bailey v. Buffalo Loan Trust & Safe Deposit Co., 213 N.Y. 525, 107 N.E. 1043; 31 C.J.S., secs. 15, 36, pp. 223, 438. (10) Estoppel applies only to the assertion of facts, and has no application to propositions of law. McDonald v. Richard, 13 So. (2d) 712; 31 C.J.S., p. 191, note 1. (11) Estoppel does not apply because no one has changed his position for the worse as a result of the claim of invalidity not having been previously made. No benefits were received, allegedly under the instrument, by plaintiff bank's predecessors in interest that they would not have been entitled to in any event. 31 C.J.S., pp. 239, 350; Cook v. Ball, 144 Fed. (2d) 423; In re Peaslee's Will, 25 N.Y.S. 940. (12) Plaintiffs' predecessors in interest did not waive their right to assert the invalidity of the instrument. There is no showing that they had any knowledge of the existence of such a right. Burke v. Murphy, 275 Mo. 397, 205 S.W. 32; Andrews v. Washington Ins. Co., 93 S.W. (2d) 1045. (13) Where all interested parties affected by an instrument are before the court and all request the court to construe that instrument, there can be no bar by lapse of time. St. Louis Union Trust Co. v. Kelley, 199 S.W. (2d) 344. (14) Where a trustee holds and administers a fund, but makes no personal claim to the fund, no lapse of time can deprive those legally entitled to said fund of their right to claim and receive it. St. Louis Union Trust Co. v. Kelley, 199 S.W. (2d) 344; St. Louis Union Trust Co. v....