Cornet v. Cornet
| Decision Date | 28 February 1913 |
| Parties | GEORGE A. CORNET et al., Appellants, v. HENRY L. CORNET, Trustee, et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. George C Hitchcock, Judge.
Reversed and remanded (with directions).
Ryan & Thompson for appellants.
(1) Equity has jurisdiction to rescind an instrument, the execution of which has been procured through fraud, actual or constructive, or mistake of fact. Where a court of equity once acquires jurisdiction of the subject-matter and the parties, upon any recognized branch of equitable jurisprudence, it will retain jurisdiction until a complete disposition has been made of the case. Barnard v Keathley, 230 Mo. 224; Wehrs v. Sullivan, 217 Mo. 179; Reyburn v. Mitchell, 166 Mo. 365; Real Est. Sav. Inst. v. Collonious, 63 Mo. 295. (3) The jurisdiction of our circuit courts as courts of equity to construe the doubtful provisions of a will on application by a trustee named therein or by an executor or administrator acting thereunder or by any party or parties in interest, is undoubted. Davidson v. R. E. & Inv. Co., 226 Mo. 23; Heady v. Crouse, 203 Mo. 114; Clark v Carter, 200 Mo. 515; Mersman v. Mersman, 136 Mo. 244; Hanner v. Cook, 118 Mo. 476; Bank v. Chambers, 96 Mo. 459; Church v. Robberman, 71 Mo. 326; Jameson v. Hay, 46 Mo. 546; Collier's Will, 40 Mo. 287; Lich v. Lich, 158 Mo.App. 400. The court should have admitted the oral testimony offered by plaintiff to prove the nature of the relations existing between the plaintiff and his father and the statements of his father as to the disposition he would make of his property. Tisdale v. Prather, 210 Mo. 402; Trustees v. May, 201 Mo. 369; Meiners v. Meiners, 179 Mo. 625; Webb v. Hayden, 166 Mo. 39. (5) The plaintiff under his father's will took an equitable fee simple estate in the property therein devised and bequeathed to him. Guy v. Mayer, 235 Mo. 390; Settle v. Shafer, 229 Mo. 561; Jackson v. Littell, 213 Mo. 589; Sevier v. Woodson, 205 Mo. 203; Gannon v. Pauk, 200 Mo. 75; Gannon v. Albright, 183 Mo. 238; Roberts v. Crume, 173 Mo. 572; Roth v. Rauschenbusch, 173 Mo. 582; Yocum v. Siler, 160 Mo. 281; Nichols v. Boswell, 103 Mo. 151; Small v. Field, 102 Mo. 104; Chew v. Keller, 100 Mo. 362. (6) The instrument of January 14, 1892, should be set aside and cancelled because (a): Of the relationship of the parties and the circumstances attending its execution. 2 White and Tudor's Leading Cases in Equity, p. 1156; Elliott v. Machine Co., 236 Mo. 567; Barnard v. Keathley, 230 Mo. 209; Bleyer v. Bleyer, 219 Mo. 99; Stevens v. De La Vaulx, 166 Mo. 20; Martin v. Baker, 135 Mo. 503; McClure v. Lewis, 72 Mo. 314; Miller v. Simonds, 72 Mo. 669; Garvin v. Williams, 44 Mo. 469; Clarkson v. Creely, 40 Mo. 114. (b). Its execution was secured through a mistake of law and fact. Clark v. Carter, 234 Mo. 90; Griffith v. Townley, 69 Mo. 13. The execution of this instrument was secured upon the assumption that the will created a spendthrift trust and empowered George Cornet as the beneficiary thereof to execute and make effective such an instrument as that of January 14, 1892, whereas the will created no spendthrift trust empowering the beneficiary thereof to create a trust such as was attempted to be created by the instrument of January 14, 1892. Heaton v. Trust Co., 153 Mo.App. 312; Kessner v. Phillips, 189 Mo. 515; Partridge v. Cavender, 96 Mo. 452; Lampert v. Haydel, 96 Mo. 439; Jarbo v. Hey, 122 Mo. 341; McIlvaine v. Smith, 42 Mo. 45; Sevier v. Woodson, 205 Mo. 203. (7) If George Cornet was by the will vested with an equitable title in fee, then the instrument of January 14, 1892, should be canceled and set aside, because (a) of the relation of the parties and the circumstances attending its execution; (b) mistake; and (c) he could not by this instrument create of such title the trusts in said instrument attempted to be created. See authorities supra; Bispham on Equity, secs. 20, 49 and 52; Adams on Equity, p. 62, sec. 38, and p. 180. (8) If George Cornet was by the will vested with an equitable life estate, then the instrument of January 14, 1892, should be set aside and canceled, because (a) of the relation of the parties and the circumstances attending its execution; (b) mistake; and (c) said instrument is violative of the terms of the will and the beneficiaries under said instrument would become trustees maleficio. Stevens v. De LaVaulx, 166 Mo. 20; Ewing v. Shannahan, 113 Mo. 188; Elliott v. Machine Co., 236 Mo. 556.
Luther Ely Smith for respondents.
(1) This is not and cannot be regarded as a technical suit for the construction of a will. Church v. Robberson, 71 Mo. 326; Jarboe v. Hay, 122 Mo. 341; Gibson v. Gibson, 239 Mo. 490; 40 Cyc. 1846. Plaintiffs assert no immediate equity to entitle them to a construction of the will. All the questions discussed by plaintiff as to the construction of the will are speculative, and may never arise. State ex rel. v. Prewett, 20 Mo. 163; Strawn v. Trustees, 240 Ill. 111; Cross v. DeValle, 68 U.S. 1; Griggs v. Veghte, 47 N.J.Eq. 179; Teller's Estate, 215 Pa. St. 263; Bullard v. Chandler, 149 Mass. 532; Bullard v. Attorney-General, 153 Mass. 249; Hall v. Cogswell, 183 Mass. 521. (2) The instrument of January 14, 1892, was executed under circumstances showing uberrima fides on the part of each of the three persons concerned therein -- George A. Cornet, Henry L. Cornet and Judge Muench. It was absolutely free from even the remotest suggestion of fraud or unfairness. Hatcher v. Hatcher, 139 Mo. 614. (3) The doctrine of mistake is not available to plaintiffs. (a) The facts completely demonstrate that there was no mistake. Copenhaver v. Copenhaver, 78 Mo. 55; Aull v. Day, 133 Mo. 337. (b) Plaintiffs' petition completely negatives the possibility of mistake, legal or actual. (c) Plaintiffs have not pleaded facts showing mistake. (d) Plaintiffs have not prayed relief on the ground of mistake. (e) Plaintiffs have, in this court, raised the issue of mistake for the first time. St. Louis v. Klausmeier, 212 Mo. 728; Burk v. Pence, 206 Mo. 335; Chapman v. Calahan, 66 Mo. 299; Ramsey v. Henderson, 91 Mo. 560; Kuhn v. Weil, 73 Mo. 213; Davis v. Bonds, 75 Mo.App. 32; Knoop v. Kelsey, 102 Mo. 291; Weil v. Posten, 77 Mo. 284; Walker v. Owen, 79 Mo. 563; Whetstone v. Shaw, 70 Mo. 575; McMerty v. Morrison, 62 Mo. 140; Dashiell v. Grovesnor, 66 F. 334; Lawence v. Lawrence, 181 Ill. 248. There was no mistake; the deed is not voidable on any theory. Ashursts' Appeal, 77 Pa. St. 468; Heermans v. Schmaltz, 7 F. 566; Wright v. Miller, 8 N.Y. 9; Stone v. Hackett, 12 Gray, 227; Kelly v. Simon, 185 Mass. 288; Lawrence v. Lawrence, 181 Ill. 248; Massey v. Huntington, 118 Ill. 80; 21 Am. & Eng. Ency. Law (2 Ed.), 899; 39 Cyc. 36. (4) Plaintiff is entitled to the income for life, under item five of said will, and nothing more. Rutherford v. Greene, 2 Wheat. 196; Armor v. Frey, 226 Mo. 646; Cross v. Hoch, 149 Mo. 325; Dozier v. Dozier, 183 Mo. 137; Munro v. Collins, 95 Mo. 33; Schorr v. Carter, 120 Mo. 409; Morrison v. Thistle, 67 Mo. 596; Bean v. Kenmuir, 86 Mo. 666; Gibson v. Gibson, 239 Mo. 494; Threlkeld v. Threlkeld, 238 Mo. 459; Jarboe v. Hay, 122 Mo. 341. (5) Plaintiffs' cause of action, if any, is barred by: (a) Acquiescence. (b) Laches. Taylor v. Short, 107 Mo. 384; Thiemann v. Heinze, 120 Mo. 630; Hatcher v. Hatcher, 139 Mo. 614. (c) The Statute of Limitations. Secs. 1888 and 1889, R.S. 1909; Hoester v. Sammelman, 101 Mo. 619; Stark v. Zehnder, 204 Mo. 442. (6) The amendment proposed by plaintiffs at the end of the whole case was a matter clearly within the sound discretion of the chancellor. It would have been an abuse of discretion to have permitted it. Wilkerson v. Sampson, 56 Mo.App. 276; Singer Mfg. Co. v. Givens, 35 Mo.App. 602; Ensworth v. Barton, 67 Mo. 622. (7) Plaintiffs' evidence which was excluded, both oral and documentary, was wholly irrelevant, immaterial and incompetent. Roberts v. Crume, 173 Mo. 572; Garth v. Garth, 139 Mo. 456; Mersman v. Mersman, 136 Mo. 244; Massey v. Huntington, 118 Ill. 80. (8) No facts were shown justifying the granting of the prayers for accounting, removal of trustee, requiring trustee to give bond, etc.
This is a bill in equity, asking for a construction of the will of Francis Cornet, deceased, and for the cancellation of a certain deed executed January 14th, 1892, by the plaintiff, George A. Cornet, to the defendant, Henry L. Cornet.
Since the bill is quite lengthy, covering fourteen printed pages, we will content ourselves by briefly stating the substance of it.
The bill in substance charges that Francis Cornet died testate in the city of St. Louis on December 20th, 1891, seized and possessed of certain real estate and personal property worth about $ 235,000; that said will was duly probated in the probate court of the city of St. Louis, Missouri; that the deceased left surviving him, his widow, Julia Cornet, and the following six children: George A. and Henry L. Cornet, the plaintiff and defendant, John Fred, Ida, William and Isabella Cornet, now the wife of Alexander Henneman. That since the death of the testator, Ida, William and John Fred Cornet have departed this life.
That by item one of the will the widow was given certain personal property, together with a life estate in certain real estate described, in lieu of dower, and upon her death the same was given to the testator's children or their heirs in equal parts.
That item two made certain bequests to certain charitable institutions, which are unimportant in this case.
That items three, four and five of the will are in the following words and figures:
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