Cartall v. St. Louis Union Trust Co., No. 37102 and 37103.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Bohling
• Citation: 153 S.W.2d 370
• Docket Number: No. 37102 and 37103.
• Decision Date: 25 July 1941
• Parties: MARY E. CARTALL v. ST. LOUIS UNION TRUST COMPANY, a Corporation, as Executor of the Estate of OTTO M. CARTALL, and MASONIC HOME OF MISSOURI, a Corporation, Appellants.

153 S.W.2d 370 MARY E. CARTALL
v.
ST. LOUIS UNION TRUST COMPANY, a Corporation, as Executor of the Estate of OTTO M. CARTALL, and MASONIC HOME OF MISSOURI, a Corporation, Appellants. No. 37102 and 37103. Supreme Court of Missouri. Division Two, July 25, 1941.

[153 S.W.2d 371]

Appeal from Circuit Court of City of St. Louis. — Hon. Ernest F. Oakley, Judge.

REVERSED AND REMANDED.

Jacob M. Lashly and Lashly, Lashly, Miller & Clifford for Masonic Home of Missouri; Bryan, Williams, Cave & McPheeters for St. Louis Union Trust Company.

(1) Plaintiff-respondent is estopped to assert a claim of title to the property involved here. (a) Where (as here) an executor or administrator takes possession or control of the decedent's estate he is estopped to set up in his individual capacity an adverse title or claim to all or any part of the estate in his possession or control in his capacity as executor or administrator. Sessions v. Willard, 172 So. 242; Wiseman v. Swain, 114 S.W. 145; Second Natl. Bank v. Ford, 123 S.W. (2d) 867; Colburn v. Broughton, 9 Ala. 351; Henderson's Succession, 113 La. 101, 36 So. 904; White v. Swain, 3 Pick. 365; Maingault v. Holmes, 8 S.C. Eq. (Bail) 283; Snodgrass v. Snodgrass, 1 Baxt. 157. (b) Where (as here) an executor or administrator includes certain property in his inventory, and the inventory has not been amended and is in full force and effect, he is conclusively estopped from asserting that such property does not belong to the estate under administration. Rinkel v. Lubke, 246 Mo. 377, 152 S.W. 81; Henshaw v. Gunter, 169 Tenn. 305, 87 S.W. (2d) 561; United States Fid. & Guar. Co. v. Clutter, 74 Okla. 254, 179 Pac. 754; Escallier v. Great Northern Ry. Co., 46 Mont. 238, 127 Pac. 458; Pluchino v. Piccolo, 114 N.J. Law 82, 175 Atl. 812. (2) Weight of testimony as to oral statements of decedents. Testimony as to oral statements claimed to have been made by persons since deceased is regarded as the weakest kind of evidence and is subject to the closest scrutiny. Johnson v. Quarles, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73; Modrell v. Riddle, 82 Mo. 31; Daudt v. Steiert, 205 S.W. 222; Lea v. Polk County Copper Co., 21 How. 493, 16 L. Ed. 203; Makinson v. Shumick, 196 Iowa, 980, 193 N.W. 407; Overlander v. Ware, 102 Neb. 216, 166 N.W. 611; Plath v. Mullins, 87 Wash. 403, 151 Pac. 811; Hoffman v. Condon, 134 App. Div. 205, 118 N.Y. Supp. 899; Tweedale v. Barnett, 172 Cal. 271, 156 Pac. 483; Heitman v. Bruns, 37 Cal. App. 489, 174 Pac. 67; Foscue v. Mitchell, 190 La. 758, 182 So. 741; Welch v. All Persons, etc., 78 Mont. 370, 254 Pac. 179. (3) Burden of proof was upon plaintiff-respondent. The burden of proof was upon plaintiff-respondent to show by clear, unequivocal, convincing and conclusive evidence all of the necessary requisites of a gift inter vivos, namely, (a) donative intent, (b) delivery of the subject matter of the alleged gift to plaintiff, and (c) acceptance of the subject matter by plaintiff. Gosney v. Costigan, 326 Mo. 1215, 33 S.W. (2d) 947; Geude v. Eiben, 328 Mo. 373, 89 S.W. (2d) 960; Jones v. Falls, 101 Mo. App. 536, 73 S.W. 903; In re Van Fossen, 13 S.W. (2d) 1076; Light v. Graham, 199 S.W. 570; Hays Admrs. v. Patrick, 266 Ky. 713, 99 S.W. (2d) 805; Rothwell v. Taylor, 303 Ill. 226, 135 N.E. 419; Ries v. Ries' Estate, 322 Pa. 211, 185 Atl. 288; Rosenmann v. Belk-Williams Co., Inc., 191 N.C. 493, 132 S.E. 282; Andreas v. Andreas, 84 N.J. Eq. 368, 94 Atl. 417; Casey v. Topliffe, 80 Fed. (2d) 543. (4) The judgment appealed from cannot be sustained upon any legal theory supported by the record. (a) The declarations claimed to have been made by the alleged donor in respect to the ownership of property which is claimed as the subject matter of gift by plaintiff-respondent are not in themselves sufficient evidence to establish the essential elements or requisites of a valid gift, which must be shown by other evidence than the mere declarations of the alleged donor. Albrecht v. Slater, 233 S.W. 8; Campbell v. Sech, 155 Mich. 634, 119 N.W. 922; Fouts v. Nance, 55 Okla. 266, 155 Pac. 610; Thomas v. Riley, 147 Ala. 189, 41 So. 854; Atchley v. Rimmer, 148 Tenn. 303, 255 S.W. 366; Collins v. Mande, 144 Cal. 289, 177 Pac. 945; Short v. Patton, 79 W. Va. 179, 90 S.E. 598; Bolles v. Toledo Trust Co., 132 Ohio St. 21, 4 N.E. (2d) 917; In re Brown's Estate, 130 Misc. 865, 226 N.Y. Supp. 1; Casey v. Topliffe, 80 Fed. (2d) 543; Chambers et ux. v. McCrerry, 106 Fed. 364. (b) The other evidence in the record is insufficient to show one of the necessary requisites of a gift, namely, a delivery of the securities to plaintiff-respondent. Albrecht v. Slater, 233 S.W. 8; Trautz v. Lemp, 329 Mo. 580, 46 S.W. (2d) 135; Bauernschmidt v. Bauerschmidt, 97 Md. 35, 54 Atl. 637; Dingley v. Robinson, 149 Wash. 301, 270 Pac. 1018; Mitchell v. Weaver, 242 Mass. 331, 136 N.E. 166; Dodson v. Matthews, 22 Tenn. App. 49, 117 S.W. (2d) 969; Andreas v. Andreas, 84 N.J. Eq. 368, 94 Atl. 417; Bolles v. Toledo Trust Co., 132 Ohio St. 21, 4 N.E. (2d) 917; Casey v. Topliffe, 80 Fed. (2d) 543. (c) The evidence is insufficient to show another essential element of a valid gift, to-wit, that plaintiff-respondent accepted the securities. Albrecht v. Slater, 233 S.W. 8; Gottstein v. Hedges, 210 Iowa, 272, 228 N.W. 93. (d) Nor can the judgment or decree appealed from be affirmed upon the theory that Otto M. Cartall, during his life, created a trust in the securities under determination here for the use and benefit of plaintiff-respondent because the record and the evidence fails to support such a theory. Goodman v. Crowley, 161 Mo. 657, 61 S.W. 850; Pennell v. Ennis, 126 Mo. App. 355, 103 S.W. 147; Martin v. Martin, 266 S.W. 750; Citizens Natl. Bank v. McKenna, 168 Mo. App. 254, 153 S.W. 521; In re Smith's Estate, 144 Pa. 428, 22 Atl. 916; Noble v. Learned, 153 Cal. 245, 94 Pac. 1047; Young v. Young, 80 N.Y. 422; In re Crawford, 113 N.Y. 560, 21 N.E. 692; Wadd v. Hazelton, 137 N.Y. 215, 33 N.E. 143; Mitchell v. Weaver, 242 Mass. 331, 136 N.E. 166; Robertson v. Parker, 287 Mass. 351, 199 N.E. 645; Mulloy v. Charlestown Five Cent Saving Bank, 285 Mass. 101, 188 N.E. 608; Moore v. Lawton, 147 Md. 244, 127 Atl. 756; Ariett v. Osage County Bank, 120 Kan. 286, 242 Pac. 1018; Elliot v. Gordon, 70 Fed. (2d) 9; Eschen v. Steers, 10 Fed. (2d) 739.

Clarence T. Case, David W. Voyles and T. Jackson Case for respondent.

(1) To constitute estoppel in pais, the conduct of the party sought to be estopped must be shown to be not only inconsistent with the rights he or she now claims, but, as respects the real interests of another, that its application is required in justice and equity, because of some benefit he or she received or some disadvantage or change of position caused to the party who claims estoppel, by such conduct. Fitts v. Cook, 5 Cush. 596; Hauser v. Murrey, 256 Mo. 58; Stone v. Gillian, 81 Mo. App. 9; Moran v. Stewart, 173 Mo. 207; McBride v. Bank & Trust Co., 330 Mo. 259; First State Bank v. Braden, 39 S.D. 53; Peck v. Peck, 137 Pac. 137; Natl. Match Co. v. Storage & Ice Co., 227 Mo. App. 115, Cert. Den., 290 U.S. 668; Williams v. Reid, 37 S.W. (2d) 537; State v. Fidelity & Cas. Co., 82 S.W. (2d) 123; McWilliams v. Ramsey, 23 Ala. 813; In re Murphy's Estate, 30 Wash. 1. (a) Estoppel does not create a cause of action, if none otherwise existed. State v. Shell Pipe Line Co., 139 S.W. (2d) 510. (b) It is an affirmative defense, and must be pleaded with the facts necessary to constitute it. Ambruster v. Ambruster, 326 Mo. 51, 77 A.L.R. 782; Scanlon v. Kansas City, 325 Mo. 125; Grafeman Dairy Co. v. Northwestern Bank, 315 Mo. 849; Mo. Cattle Loan Co. v. Great So. Life Ins. Co., 52 S.W. (2d) 1; Briscoe v. Merchants Bank, 102 S.W. (2d) 751; Noell v. Remmert, 326 Mo. 148. (2) It is well-settled doctrine that declarations of a donor in the nature of admissions against interest are admissible as tending to show that he had given the property in question to the donee. 24 Amer. Juris., p. 793, secs. 121, 125; Durham v. Shannon, 116 Ind. 403; Anno. 105 A.L.R. 409; Harvey v. Long, 260 Mo. 374; Albright v. Davis, 64 S.W. (2d) 121; In re Dayton's Estate, 121 Neb. 402, 237 N.W. 303; Brown v. Fore, 12 S.W. (2d) 114, 65 A.L.R. 435; Northrup v. Burge, 255 Mo. 641; Harris Banking Co. v. Miller, 190 Mo. 640; Rollestone v. Bank of Commerce, 299 Mo. 57. (a) When declarations or acts accompany the fact in controversy, and tend to illustrate or explain it, they are treated, not as hearsay, but as original evidence. Jones on Evidence (2 Ed.), sec. 35. (b) When shown to have been made with deliberations, such evidence is not necessarily weak evidence, nor requiring corroboration; but when admissions are so proved, they may have great inherent force. Jones on Evidence (2 Ed.), sec. 295. (c) When evidence by law is not allowed to be contradicted, it is said to be "conclusive." 1 Jones Comm. on Ev. (2 Ed.), p. 31. (d) The weight and sufficiency of evidence in actions involving gifts inter vivos and causa mortis are governed by the general rules of evidence, and in most jurisdictions, it has been held such evidence must be clear and convincing. 24 Amer. Juris., p. 797, sec. 129; Gosney v. Costigan, 326 Mo. 1215; Jones v. Falls, 101 Mo. App. 536; Light v. Graham, 199 S.W. 570. (3) The rule is well established that all things in action consisting of the promises or undertakings of third persons, of which the legal title or equitable title can pass by delivery, may be the subjects of a valid gift, including promissory notes. 3 Pomeroy Eq. Jur. (3 Ed.), sec. 1148. (a) The test of the question whether a debt has been assigned is whether under the circumstances the debtor would be justified in paying the debt to the person named as assignee. Fairbanks v. Sargeant, 117 N.Y. 320; In re Steger, 202 Fed. 791. (b) Any act of the assignor indicating that he relinquishes control over the chose in action amounts to a...