Coon v. Stanley et al.

• Decision Date: 06 April 1936
• Docket Number: No. 18561.,18561.
• Citation: 94 S.W.2d 96
• Parties: PERRY P. COON, TRUSTEE, PLAINTIFF, v. CLAUDE W. STANLEY ET AL., APPELLANTS, BESSIE FINNEY STANLEY, RESPONDENT.
• Court: Missouri Court of Appeals

94 S.W.2d 96

PERRY P. COON, TRUSTEE, PLAINTIFF, v. CLAUDE W. STANLEY ET AL., APPELLANTS, BESSIE FINNEY STANLEY, RESPONDENT.

No. 18561.

Kansas City Court of Appeals. Missouri.

April 6, 1936.

Appeal from Circuit Court of Mercer County. — Hon. A.G. Knight, Judge.

AFFIRMED.

John E. Powell, Hubert Fuller and George E. Woodruff for appellants.

Platt Hubbell for respondent.

SPERRY, C.

Joseph W. Stanley, on October 23, 1930, delivered to Perry P. Coon certain notes and other securities contained in envelopes marked with the names of certain of his nieces and nephews, telling Coon that he was leaving on a trip and if he died or did not return Coon was to call in the parties named on the envelopes and deliver same to them; that they knew about it. Some of said notes bore the indorsement on the back thereof: "In the event of my death this is the property of ____ (naming indorsee) J.W. Stanley." Stanley then and there indorsed one of said notes as follows: "In the event of my death this is to be the property of ____ (name of indorsee) Joseph W. Stanley." Identical indorsements were entered on the back of the others in Coon's handwriting at the direction of Stanley, and signed by Stanley, excepting as to some coupon bonds which were not indorsed but only left in the envelopes bearing the names of certain of respondents. Stanley told Coon to collect interest and payments on principal and credit to his general account, which was done and reported to Stanley from time to time. Stanley checked out said funds from time to time thereafter for whatever purposes he saw fit. Stanley died May 29, 1931, without ever reclaiming said securities, and in April term, 1933, Coon filed petition in circuit court asking that the court declare said securities to be held in trust for the named beneficiaries, and for instruction as to disposition of same.

Respondent, Bessie Finney Stanley, widow of Joseph Stanley, filed interpleader claiming an undivided half interest, denying the trust, and praying for appointment of a receiver to take charge of and collect and dispose of said property.

Appellants, nieces and nephews of deceased, who had no children, filed separate interpleaders claiming respectively under an alleged oral trust.

Upon these issues the court heard the evidence and after trial rendered judgment finding there was no trust, allowing widow an undivided half interest in said property, and appointing a receiver to take charge, collect and dispose of same. From this judgment the appeal is prosecuted.

In addition to the facts stated in the first paragraph hereof, the evidence discloses that Stanley married respondent in December, 1930, and there is no evidence of any prior engagement or that any act done by Stanley was with a view to defraud respondent of her inchoate dower rights in the property. There was some evidence that Stanley had delivered envelopes to one of respondents for safe keeping on two different occasions but what said envelopes actually contained is not disclosed. There was evidence that deceased had told some of respondents upon various occasions that he held certain notes for them and that, when he died, they were to become the property of respondents; that all he wanted was the interest during his life. Aside from Coon, and appellants, the only other witnesses who testified as to declarations of deceased were the following:

Ballew, Mrs. Davis and Ray Davis, stated that one of the notes, signed by him, bore a similar indorsement as that in evidence two or three years before, and that he had renewed the note from time to time, and it always bore that indorsement.

Mrs. Davis said that the note of herself and husband, one of those in controversy, was similarly indorsed several years before death of Stanley; that deceased told her that if anything happened to him to see Claude (one of appellants); that the interest was all he wanted; that the note belonged to Claude, which latter statement apparently was a conclusion on her part.

Ray Davis, testifying about the same note, said deceased said at the conversations related by Mrs. Davis: "If I die the note is Claude's." On cross-examination he testified that deceased said: "If I happen to die this note is Claude's."

Deceased made a will, in one clause of which he mentioned a number of envelopes kept in his safe and that they were to be delivered to parties named thereon and not to be inventoried as a part of the estate, but there is no showing as to what was in the envelopes. Certain account books of deceased were mentioned but the evidence is unsatisfactory as to what the accounts showed with reference to the securities in issue or their ownership. There was evidence that deceased studied and underlined passages in Harris Banking Co. v. Miller, 190 Mo. 640, wherein oral trusts are discussed.

1. Appellants complain of the order of the court appointing a receiver and say that since the court held against them the securities should have been delivered to executors. There is no showing that executors had not been discharged by probate court before the trial, which occurred more than a year after appointment of executors. But aside from this, appellants failed to reserve the point in their motion for new trial or in arrest and the record fails to show that the trial court's attention was ever called to the point. Therefore, this court will not consider it. [Whitehead v. Bank, 56 S.W. 833, l.c. 835; Greer v. Carpenter, 323 Mo. 878, 195 S.W. (2d) 1046.]

2. Complaint is made regarding the trial court's declaration of law denominated No. 1, wherein reference was made to the effect that if deceased did the acts alleged with a view to defraud respondent of her dower rights that such acts were fraudulent and void in law. Such a declaration of law is not supported by any evidence. Even so, if the judgment is for the right party, it will not be reversed even though the reason upon which it is based is not approved. [Harris Banking Co. v. Miller, 190 Mo., l.c. 672.]

Declarations of law have no place in equity proceedings. [Moller-Vandenboom Lumber Co. v. Boudreau, 855 S.W. (2d) 141.]

3. This brings us to the main question. Both parties agree that this is either an oral trust or it is an ineffectual attempted testamentary disposition of property. Such is the correct theory of the case.

A trust is simply a common ordinary perfected gift of the equitable title of property. It differs from a gift inter vivos only in that the one conveys to the beneficiary the legal as well as the equitable title and the other conveys the equitable title only. But in both cases the equitable title must pass immediately and unconditionally. It has been held that the transfer of title must be so complete that donee might maintain trover for the conversion of the property. [Botsford v. Burr, 141 Mich. 370; Bank v. McKenna, 163 Mo. App. l.c. 258.]

We do not mean to say that the beneficial use of the equitable...