Bleyer v. Bleyer

• Decision Date: 25 February 1909
• Citation: 117 S.W. 709,219 Mo. 99
• Parties: BLEYER v. BLEYER et al. (two cases).
• Court: Missouri Supreme Court

117 S.W. 709

219 Mo. 99

BLEYER v. BLEYER et al. (two cases).

Supreme Court of Missouri, Division No. 1.

February 25, 1909.

Rehearing Denied March 3, 1909.

1. TRUSTS (§ 56)—VACATION OF DEED OF TRUST—FRAUD.

In a suit to set aside certain conveyances in trust, for fraud, evidence of the existence of a fiduciary relationship between the parties is admissible under a general allegation of fraud.

2. TRUSTS (§ 56)—VACATION OF DEED OF TRUST—FRAUD.

Evidence held to require a finding that certain deeds in controversy were procured by fraudulent representations made to the grantors with reference to the character of the instruments.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Actions by Jigo F. Bleyer and by Jennie Bleyer against William H. Bleyer and others. Judgment for defendants in each case, and plaintiffs appeal. Reversed with directions.

Wm. R. Gentry, for appellants. Bond, Marshall & Bond, for respondents.

GRAVES, J.

This cause is the consolidation of two causes of action. The consolidation was had in the circuit court of the city of St. Louis, wherein both were pending, but in different divisions of that court. The one cause was Jigo F. Bleyer v. William H. Bleyer, Adrien S. Bleyer, Clifford M. Bleyer, and Mildred M. Bleyer, and the other was Jennie Bleyer against the same defendants. The purpose of each suit was to set aside a deed in trust. Jigo F. Bleyer, in the evidence called "Jake," on September 26, 1904, whilst in Queens county, state of New York, had executed a deed to defendant William H. Bleyer, by the terms of which all the property of Jigo F. Bleyer, including valuable real estate in St. Louis and $10,000, were conveyed to William H. Bleyer in trust, which trust is thus crisply described in the deed:

"To have and to hold unto the said party of the second part, his successors and assigns forever, but in trust, nevertheless, for the purposes, objects and intents, and subject to the limitations, discretions and powers hereinafter declared and expressed as follows, to wit:

"That said trust shall continue for and during the natural life of the party of the first part.

"During the life of the party of the first part the trustee shall pay over to him or expend for his benefit, monthly the net income of the trust estate.

"On the death of the said Jigo F. Bleyer, the aforesaid party of the first part, the trust shall end and determine, and the trust estate, real, personal, and mixed, shall go to William H. Bleyer, Adrien S. Bleyer, Clifford M. Bleyer, Mildred M. Bleyer, nephews and grand niece of the said Jigo F. Bleyer, in equal parts, share and share alike."

By the further terms of the deed the trustee is given absolute control of the property, with full power to sell, loan, mortgage, reinvest as to him seemed best, and all this without bond.

The petition then charges that plaintiff, at the time of the execution and delivery of the instrument, "had been and was in feeble health, and was infirm in body and mind, by reason of long-continued sickness; that the defendant William H. Bleyer led the plaintiff to believe that the instrument so executed by him was a mere power of attorney, and the plaintiff, relying upon such representations, executed the said instrument under the belief on his part that it was merely a power of attorney, and the plaintiff was without knowledge that the said instrument was of the kind and character it now proves to be, and in fact was at the time of its execution; that in the execution of the said instrument plaintiff did not intend to make a conveyance of any description of the property described in said instrument, to create the trust which said instrument on its face evidences, or to make any conveyance in trust for the benefit of the said defendants or either of them; that plaintiff was led by the said defendant William H. Bleyer to believe that the said instrument was of the kind and character which he claimed it to be, and the plaintiff executed the said instrument relying upon the representations and statements of the said defendant in that behalf made." The petition also charges that the conveyance was without consideration. The prayer was for the cancellation of the deed and an accounting and a return of the $10,000.

On the same day and at the same place Jennie Bleyer executed a similar deed, which conveyed real estate alone, however. The terms of the trust in the two deeds are identical, and the powers of the trustee the same. The purpose of the suit of Jennie was to annul this deed, and an accounting of the rents and profits. She asks the cancellation upon these grounds, as averred in her petition:

"That at the time of the execution of the said instrument plaintiff was infirm in body and mind; that she was a single woman, without knowledge of the legal operation or effect of instruments of such character; that it was represented to her by the defendant William H. Bleyer that the instrument so executed by her was a power of attorney, and, relying upon such representations, she was led to execute the said instrument; that she did not intend by the execution of said instrument to create any trust or make a conveyance of any property for the benefit of the defendants or any other person, and that had she known or been led to understand the true character of the instrument it would never have received her signature, and she would not have permitted it to have been delivered to the defendant. Plaintiff states further that no consideration for the said instrument proceeded to her from any person or any quarter; that the instrument was purely a voluntary one upon her part, to whose execution she was led by the representations as to its real nature made to her by the defendant William H. Bleyer; that she executed the same and caused the same to be delivered in full reliance upon her part on the representations as to its real character so made to her."

By appropriate answer the alleged mental and physical conditions of the plaintiffs were denied and placed in issue, as were also the allegations that the said William H. Bleyer represented to them that the instruments were mere powers of attorney. In fact, by appropriate language the answers placed in issue all the averments of the petitions, save the allegation as to the execution and delivery of the written instruments. Trial was had before the Hon. Warwick Hough, as the chancellor, nisi, and he concluded the cases with these remarks, as we find them in the printed record:

"The case is one that stands solely upon the weight of the testimony, and nearly all of the parties to the suit testified on the trial, and the direct testimony is irreconcilably conflicting. There are a great many facts and circumstances, and a great deal of correspondence between the parties, which shed light upon the true state of affairs. It would be a very unpleasant task to review the testimony in detail and state what the court believes to be true and what does not wear the hue of verisimilitude. It is sufficient to say that after a careful review of the testimony I have reached the conclusion that the finding should be for the defendants in both cases, and that plaintiffs' bills should be dismissed, and it will be so ordered."

Some history of the Bleyer family appears in the record, thus: The Bleyer family was originally made up of one girl, Jennie Bleyer (plaintiff), and five boys, Samuel T. Bleyer, Dore L. Bleyer, Charles E. Bleyer, William M. Bleyer, and Jigo F. Bleyer (plaintiff). Some 15 years before the transaction out of which this lawsuit grows, William M. Bleyer died, leaving surviving him two sons William H. Bleyer and Adrien S. Bleyer, one a lawyer and the other a doctor, and both beneficiaries in these deeds, and defendants herein. Clifford M. Bleyer is a son of Charles E. Bleyer, and Mildred M. Bleyer is the daughter of William H. Bleyer. On September 26, 1904, the date of these deeds, the Bleyer family consisted of Jennie, aged 62; Samuel T., aged 57; Charles E., aged 46; Clifford M. (son of Charles E.), aged 23; William H., aged 30, and Adrien S., aged 26 (sons of William M., deceased); and Mildred M., daughter of William H. Of the original six, Jennie, Samuel T., Dore L., and Jigo never married.

Shortly prior to and at the time of these deeds, Samuel T. Bleyer was the president of the Hawley Down Draft Furnace Company of Chicago, from which he drew $10,000 per year as salary and some $3,000 as dividends. Samuel T., Jigo, and Jennie had lived together a large portion of their lives. Charles E. Bleyer was vice president of the said furnace company, and William H. Bleyer was also interested in said company. It also appears that the property Jennie and Jigo had came to them largely through the efforts of Samuel T. Bleyer.

In July, 1904, Samuel T. Bleyer left Chicago for Europe to meet his brother, Charles E., upon a business matter. About this time, Jennie and Jigo were traveling in the state of New York. From this point we have the interesting part of the history of this case. It comes from telegrams, cablegrams, letters, written documents, as well as from personal conversations.

From New York, August 1, 1904, Jennie telegraphed William H. as follows: "Sam arrived safely and met Charley. Am at Manhattan Hotel New York."

And on same day, from same place, she telegraphed William H., thus: "Cable from Sam. Arrived safe. Met Charley. Have grass cut on Olive St. lots. Address all mail to office here. Likely to return to Saratoga."

On August 6th, from Bristol Hotel, Berlin, Sam cabled to William H. as follows: "Secure options on Hawley shares below forty pay five dollars for privilege."

However, upon the receipt of this cablegram from Sam, William H. had left his home in St. Louis and gone to Jefferson Highlands, N. H., to join members of his family who were spending the summer there. Upon reaching that place or within 10 minutes thereafter, he received from Charles E. a cablegram from Berlin,...