Clark v. Clark

• Decision Date: 24 March 1928
• Docket Number: 26390
• Citation: 4 S.W.2d 807,319 Mo. 591
• Parties: O. E. Clark, Appellant, v. U.S. Clark et al.; Cora C. Dent, Respondent
• Court: Missouri Supreme Court

4 S.W.2d 807

319 Mo. 591

O. E. Clark, Appellant, v. U.S. Clark et al.;

Cora C. Dent, Respondent

No. 26390

Supreme Court of Missouri

March 24, 1928

Appeal from Dent Circuit Court; Hon. William E. Barton Judge.

Reversed and remanded.

E W. Bennett for appellant.

(1) This was a deed directly to Laura A. Clark without any limitations or provisions in favor of the husband. It therefore became a gift absolute to the wife, which could not be changed by the husband during his lifetime or controlled by his will after his death. After the death of Laura A Clark it descended to her heirs. Costello v. Brum, 272 S.W. 1057; Conqueror Trust Co. v. Craig, 204 Mo.App. 650. When the husband causes real estate to be conveyed to his wife, prima facie it is presumed that he intended the conveyance as a provision or settlement for his wife and a trust will not result. It is a clear gift or settlement. Stevens v. Stevens, 273 S.W. 1069; McGehee v. Garringer, 224 S.W. 828; Bender v. Bender, 220 S.W. 929; 21 Cyc. 1255. If no trust resulted to Hamlet Clark he could not have set aside the deed so made to the wife, and the respondent herein is in no better position than her father. Case v. Espenschied, 69 S.W. 276; Wimbush v. Danford, 238 S.W. 466. (2) Hamlet Clark recognized the town property as the property of his wife, Laura A. Clark. When this town property was purchased it was conveyed to Laura A. Clark. When Hamlet Clark made his will he made emphatic and unquestionable disposition of every thing he owned by saying in his will "I give and bequeath," but when he came to the town property he clearly recognized the title of this as belonging to his wife for he did not attempt to "give and bequeath" it, he simply stated what his wish and desire was in the matter. (3) While it is true that, standing alone, or where used throughout a will, the words "wish, will and desire" have been construed as mandatory and as conveying a title. Yet when used as they are used in this will they cannot be so construed. He did not own it.

Wm. P. Elmer and Frank H. Farris for respondent.

(1) A parol partition made in good faith is valid and binding upon all who take part in it, and vests the equitable title in the land set out to respective partitioners, who can defend the possession, control legal title and compel its transfer. Sutton v. Porter, 119 Mo. 100; Nave v. Smith, 95 Mo. 596; Elliott v. Delaney, 116 S.W. 498; 30 Cyc. 155 C, 158 D, 160 E; Edwards v. Latimer, 183 Mo. 626; Hazen v. Barnett, 50 Mo. 506. The partition made by Mr. Clark was just as binding on all who took part in it, as if he had been dead and the partition made by his heirs afterwards. He was in a sense their agent, tho owner of the land. 30 Cyc. 158 D, 159 (2 & 3); Elliott v. Delaney, 217 Mo. 14. Had Hamlet Clark left no will the descent would have been cast by statute, and the parol partition as made would have been binding on the children. The will fixed the boundary lines and confirmed the parol partition. Sutton v. Porter, 119 Mo. 102. (2) A party participating in a partition will be estopped to deny the validity thereof. Cases cited above; 21 C. J. 1221 (225). Plaintiff acquired equitable title by the parol partition, accepted the benefits thereunder and led his father and sister to believe there was no objection to the will in pursuance thereto. He knew all the facts. He is now estopped to repudiate his former conduct to her injury. 21 C. J. 1216 (221). The decree of the trial court in divesting the title from plaintiff and investing it in defendant Dent is fully sustained on the grounds of equitable estoppel. The trial court had a right to render such a decree. Hubbard v. Slavens, 117 S.W. 1110. (3) A resulting trust arises from the facts and not from any agreement, but regardless of and sometimes in spite of, an agreement. It is presumed that the holder of the title intends to hold it in trust for the person who paid the money. When a husband purchases real property with his own funds and causes same to be conveyed to his wife, prima facie it is presumed he intended the conveyance as a provision for his wife and a trust will not result. This presumption is rebuttable. Bender v. Bender, 220 S.W. 930. A resulting trust arose at the instant the deed was taken. It could not of course be created by subsequent occurrences. When Mr. Clark paid the purchase money and took the title in his wife's name, that act created the trust relation, and if the rebuttable presumption of a gift was overcome by the testimony her case was made out under the will, regardless of estoppel by partition. Bender v. Bender, 220 S.W. 930; Stevenson v. Haynes, 119 S.W. 348. The whole foundation of the trust is the payment of the money. Stevenson v. Haynes, 119 S.W. 348. (4) Equitable or trust interest in land can be devised. 40 Cyc. 1046 (D).

OPINION

Walker, J.

This is a suit to partition an improved town lot in Salem, Dent County. Upon a trial there was a judgment for Cora C. Dent, from which O. E. Clark has appealed.

The title to the property sought to be partitioned was in Laura A. Clark and had been since 1901, when it was bought by her husband, Hamlet Clark, who directed that the deed to the same be made to her, which was done. From that time until the death of the husband in 1903, he and she occupied the property as a home. After his death she continued in the possession of the same, exercising all of the attributes of ownership until she died intestate in 1923, leaving as her heirs three sons, O. E. Clark, the plaintiff and appellant, U.S. Clark and F. L. Clark, and a daughter, Cora, one of the defendants and the respondent herein, intermarried with one E. F. Dent. F. L. Clark died a few weeks after his mother, leaving a widow and five children.

Hamlet Clark owned eighteen hundred acres of land. On one of these tracts he made his home. About two years before the purchase of the town lot he decided to divide one thousand acres of his land among his four children. With the aid of a surveyor this was done and the particular tract given to each child was designated by its Governmental description and each was put in possession of their respective portions. It was evidently in anticipation of these donations that the town property was bought by him and the deed thereto made to his wife. In March, 1903, or about four years after he had subdivided and allotted a portion of his land to his children, he made a will devising all of his land, consisting of about eighteen hundred acres, to his four children in accordance with the gifts of the same theretofore made by him to them, and also his land which had not been allotted. In addition to these devises the will provides that:

"Seventh: It is my will, wish and desire that Cora C. Dent after my death and the death of my wife, have and hold the house in Salem in which I now reside, being located in Section 13, Township 34, N., Range 6, West."

Upon the death of Laura A. Clark, Cora C. Dent took possession of the property in question and has since occupied it. She has subsequently, so to speak, buttressed her claim of title by procuring conveyances to her of the respective interests in the property of her brother, U.S. Clark, and Alice Clark, the widow of her deceased brother F. L. Clark and three of the latter's children who have reached their majorities. This leaves as the present defendants, Cora C. Dent, and Pauline and Katherine Clark, the two minor children of F. L. Clark, deceased. It is the contention of the plaintiff, O. E. Clark, that the will of the father, Hamlet Clark, did not effect a devise of the property to Cora C. Dent, but that his mother, Laura A. Clark, died seized and possessed of the same and that he is entitled to a one-fourth interest in it as one of her heirs at law. This is the gist of his petition, which in other respects conforms to the conventional requirements of a pleading of this character.

Cora C. Dent avers in the first count of her answer, and so contends in her testimony, that the clause in her father's will, above quoted, devised the property to her. Much matter by way of inducement is pleaded in connection with this averment, which so far as relevant will be discussed later. She further contends, despite the fact that the property at the time of its purchase was, under the direction of her father, made to her mother, that the father intended to retain the title in himself and that due to ill health and a bad memory he overlooked the fact that he had taken the title in the name of his wife; that the father gave greater and more valuable portions of his land to her brothers than to the respondent, Cora C. Dent; and that all of the heirs, except the plaintiff, accepted the provision of the will upon the assumption that the property in controversy was owned by their father, Hamlet Clark, and that it was devised by him, in the clause of his will above quoted, to Cora C. Dent.

In the second count of her answer she avers that the apportionment or setting apart of a portion of his land to his heirs by her father constituted a parol partition of the same. Her contention in this regard, as expressed by her counsel, is to the effect that her father's act constituted such a partition and that under the clause of the will a trust estate in the property in question was created in her and that the other heirs were equitably estopped from claiming an interest in the same.

The answer of the minor defendants by their guardian ad litem was in the customary form and required proof of the averments of the petition and answer.

The testimony concerning the division of his land by Hamlet Clark, so far as the same can be considered relevant, may be thus summarized: Hamlet Clark determined to divide one thousand acres of his land equally among...