Bakewell v. Clemens

• Decision Date: 05 November 1945
• Docket Number: 39560
• Citation: 190 S.W.2d 912,354 Mo. 686
• Parties: Paul Bakewell, Jr., Executor Under Will of Crombie S. Chesbro, Deceased; Paul Bakewell, Jr., Trustee Under Trust Instrument Executed by Anne G. Chesbro; Anne G. Chesbro, Minnie D. Chrisholm, Frances Evarts Schlappi, Mabel Evarts, Helen Evarts Coe, and Kingsley Chesbro Evarts v. Olivia J. Clemens, Appellant
• Court: Missouri Supreme Court

190 S.W.2d 912

354 Mo. 686

Paul Bakewell, Jr., Executor Under Will of Crombie S. Chesbro, Deceased; Paul Bakewell, Jr., Trustee Under Trust Instrument Executed by Anne G. Chesbro; Anne G. Chesbro, Minnie D. Chrisholm, Frances Evarts Schlappi, Mabel Evarts, Helen Evarts Coe, and Kingsley Chesbro Evarts v. Olivia J. Clemens, Appellant

No. 39560

Supreme Court of Missouri

November 5, 1945

Rehearing Denied December 3, 1945.

Appeal from Circuit Court of City of St. Louis; Hon. William L Mason, Judge.

Affirmed.

G A. Buder, Jr., for appellant.

(1) Respondent Paul Bakewell, Jr., having been the attorney for Anne G. Chesbro in the preparation and drafting of the agreement dated August 3, 1943, in which he was nominated and appointed trustee, and which purported to irrevocably transfer and assign to him Mrs. Chesbro's property including the 400 shares of stock in the Louis Werner Saw Mill Company, and no consideration having been paid to Mrs. Chesbro for the execution of said agreement, it became incumbent upon respondents to prove that the agreement did not result from the abuse of trust and confidence or from undue influence as a result thereof. Cadwallader v. West, 48 Mo. 483; Street v. Goss, 62 Mo. 226; McClure v. Lewis, 72 Mo. 314; Martin v. Baker, 135 Mo. 495, 36 S.W. 369; Bogie v. Nolan, 96 Mo. 85. (2) The failure of the respondents to call as a witness Cecelia Bleines, the notary who took Mrs. Chesbro's acknowledgment to the agreement dated August 3, 1943, gives rise to a strong presumption that her testimony would not have sustained such agreement, but would have been damaging to respondents' case. Dunkeson v. Williams, 242 S.W. 653; Baldwin v. Whitcomb, 71 Mo. 651; Earley v. Automobile Ins. Co. of Hartford, 144 S.W.2d 860; McCord v. Schaff, 279 Mo. 558, 216 S.W. 320; Sullivan v. G. & N.I.R. Co., 308 Mo. 48, 271 S.W. 983. (3) Respondent Bakewell's refusal to furnish Mrs. Chesbro with copies of the papers she signed on August 3, 1943, especially when she specifically requested the same, was in violation of her right to be fully informed and placed in a position so as to deal with him at arm's length. State v. January, 182 S.W.2d 323. (4) To satisfy the extraordinary burden of proof resting upon respondents, as above mentioned, a mere preponderance of evidence will not suffice; in order to sustain a voluntary trust, it is necessary that the evidence be so clear, cogent, convincing, full and demonstrative as to banish all reasonable doubt from the mind of the chancellor. Van Studdiford v. Randolph, 49 S.W.2d 250; Harding v. St. Louis Union Trust Co., 276 Mo. 136, 207 S.W. 68. (5) Even though a written instrument purporting to create a voluntary trust contain all of the formal elements necessary for that purpose, a valid trust will not result unless nothing remains to be done to complete the transfer of title from the creator of the trust to the trustee. This is true because a voluntary trust will not be enforced unless it is fully executed. Van Studdiford v. Randolph, 49 S.W.2d 250. (6) In the case at bar transfer of title to the 400 shares of stock of the Louis Werner Saw Mill Co. from Mrs. Chesbro to respondent Bakewell was never completed because both an endorsement of the stock by Mrs. Chesbro and the delivery of the certificate to Bakewell were lacking. Brinkerhoff-Farris Trust & Savs. Co. v. Home Lumber Co., 118 Mo. 447, 24 S.W. 129; Mitchell v. Newton County Bank, 220 Mo.App. 223, 282 S.W. 729.

John E. Cramer, Jr., for respondents.

(1) There is a "presumption that a written contract, unambiguous and complete in itself, contains all of the terms of the agreement between the parties." Robinson v. Korns, 250 Mo. 663, 157 S.W. 790. (2) One who asks for reformation of an instrument admits and alleges that there was an understanding between the parties and that the parties were capable of making a valid contract. McReynolds v. Grubb, 150 Mo. 352, 51 S.W. 822; Conrath v. Houchin, 34 S.W.2d 190; Robinson v. Korns, 250 Mo. 663, 157 S.W. 790. (3) One who claims as a donee has no right to reformation as against her alleged donor. Bartlett v. White, 272 S.W. 944; Hoyt v. Oliver, 59 Mo. 188; 53 C.J., sec. 120, p. 978. (4) Where a confidential relationship exists no presumption of undue influence arises unless the contract results in: (a) benefit to the confidential advisor; and, (b) injury to the one reposing the confidence. Cadwallader v. West, 48 Mo. 483; Street v. Goss, 62 Mo. 226; McClure v. Lewis, 72 Mo. 314; Martin v. Baker, 135 Mo. 495; Bogie v. Nolan, 96 Mo. 85. (5) The trust here was fully executed on August 3, 1943. State ex rel. v. Ellison, 216 S.W. 967; Bobb v. Bobb, 7 Mo.App. 508; Trautz v. Lemp, 46 S.W.2d 135, 329 Mo. 580.

OPINION

Clark, J.

From a decree in equity requiring her to turn over to respondents 400 shares of the corporate stock of the Werner Saw Mill Company, defendant, Olivia J. Clemens, has appealed.

Plaintiffs below were Paul Bakewell, as executor of the estate of Crombie S. Chesbro, deceased, and trustee in an instrument executed by Chesbro's widow, and the beneficiaries named in the trust instrument. Defendants were Mrs. Clemens and the Werner Company.

The petition alleged in substance: that Chesbro died in 1941 leaving a will which named Bakewell executor and devised the Werner stock and other corporate stock to testator's widow; that the Werner stock was evidenced by certificate No. 64 made out to Chesbro; that under orders of the probate court the executor on July 6, 1943, assigned this certificate and delivered it to the company with instructions to issue a new certificate to Mrs. Chesbro; that the secretary of the Werner Company stated there would be a delay in issuing a new certificate due to the absence from the State of the company president; that on August 3, 1943 Mrs. Chesbro executed an irrevocable trust instrument to Bakewell as trustee assigning certain personal property including the Werner stock, and at the same time executed a stock power authorizing the transfer of the stock on the books of the company; that on August 4, 1943 Bakewell notified both Mrs. Clemens and the Werner Company of the execution of the trust instrument and instructed the company not to issue a certificate to Mrs. Chesbro, as had previously been requested, but to return certificate No. 64 so that a new one could be issued to the trustee; that the secretary of the company said the certificate could not be removed from a safety box until the president should return in September; that on August 6, 1943 Mrs. Clemens wrote a letter, and procured the signature of Mrs. Chesbro thereto, expressing a desire that the Werner stock go to Mrs. Clemens; that the secretary issued a certificate in the name of Mrs. Chesbro and he and Mrs. Clemens induced Mrs. Chesbro to assign the same to Mrs. Clemens without the payment of any consideration; that the secretary then issued a new certificate to Mrs. Clemens, sent it to the president and induced him to sign it by falsely representing that same was agreeable to Bakewell. Then follows allegations that the assignment was obtained by the secretary and Mrs. Clemens from Mrs. Chesbro by undue influence and a prayer that the certificate to Mrs. Clemens be canceled, Bakewell as trustee be declared the owner of the stock and the company be ordered to issue a certificate to him, etc.

Mrs. Clemens filed an answer and cross bill. In her answer she admitted the 400 shares were among the assets of Chesbro's estate and were transferred by the executor to Mrs. Chesbro. She denied all other allegations of the petition and then alleged that Mrs. Chesbro endorsed and delivered the stock to her. In her cross bill she alleged that on and prior to August 7 Mrs. Chesbro was the absolute owner of the stock and on that date endorsed and delivered the stock to her; that, if Mrs. Chesbro executed the trust instrument, she did not know and understand its contents and had no intention of transferring the Werner stock to the trustee; that the inclusion of that stock in the trust instrument was the result of a mutual mistake, or mistake on the part of Mrs. Chesbro and knowledge on the part of Bakewell. The cross bill prayed to reform the trust instrument and adjudge Mrs. Clemens to be the owner of the stock.

Respondents' answer to the cross bill was a general denial of the new matter.

The decree found all the issues of fact for respondents substantially as alleged in their petition.

Appellant asks us to reverse the decree on the following grounds: (1) As Bakewell had been attorney for Mrs. Chesbro and no consideration was paid for the trust instrument, it was incumbent on respondents to prove the agreement did not result from abuse of confidence and undue influence; (2) Failure of respondents to call as a witness the notary who took the acknowledgment to the trust instrument, she being employed in Bakewell's office; (3) Bakewell's refusal to furnish Mrs. Chesbro copies of the papers she signed on August 3; (4) Burden was upon respondents to sustain a voluntary trust by more than a preponderance of evidence; (5) The trust is invalid because not completed by endorsement and delivery of the stock certificate.

The record of the evidence is voluminous and much of it is irrelevant to any issue made by the pleadings. In saying this we intend no criticism of the chancellor who...