Fullerton v. Fullerton

• Decision Date: 03 November 1939
• Docket Number: 35993
• Parties: Carl G. Fullerton, Homer E. Fullerton, Lucile Stocklos, Thomas M. Fullerton, Alma J. Geary and Frank R. Fullerton, Appellants, v. George B. Fullerton and Alma Judson
• Court: Missouri Supreme Court

132 S.W.2d 966

345 Mo. 216

Carl G. Fullerton, Homer E. Fullerton, Lucile Stocklos, Thomas M. Fullerton, Alma J. Geary and Frank R. Fullerton, Appellants, v. George B. Fullerton and Alma Judson

No. 35993

Supreme Court of Missouri

November 3, 1939

Appeal from Mercer Circuit Court; Hon. Rex H. Moore, Judge.

Reversed and remanded (with directions).

John E Powell, Walter E. Walsh and Walter A. Raymond for appellants.

(1) Title to real estate is directly involved in this action thereby vesting appellate jurisdiction in this court. Cunningham v. Cunningham, 325 Mo. 1161, 30 S.W.2d 66; Park v. Park, 259 S.W. 420; Hudler v Muller, 55 S.W.2d 420; De Hatre v. Ruenpohl, 341 Mo. 749, 108 S.W.2d 357. (2) This being an equitable action, is triable de novo here. There is no conflict in the evidence and the trial chancellor disposed of the case on the theory that plaintiffs' evidence did not make a prima facie case. The rule that this court will defer largely to the finding of the trial chancellor is therefore inapplicable here. Jones v. Peterson, 335 Mo. 242, 72 S.W.2d 84; Noell v. Remmert, 326 Mo. 148, 30 S.W.2d 1013; Krug v. Bremer, 316 Mo. 891, 292 S.W. 704; Matthews v. Van Cleve, 282 Mo. 19, 221 S.W. 37; Davis v. Rossi, 326 Mo. 911, 34 S.W.2d 22; Howard v. Zweigart, 197 S.W. 49; Guaranty Life Ins. Co. v. Frumson, 236 S.W. 318; Bank of Pocahontas v. Miller, 223 S.W. 910; First Natl. Bank of Ft. Scott v. Simpson, 152 Mo. 638, 54 S.W. 511. (3) The undisputed evidence in this case clearly establishes a voluntary executed trust. Van Studdiford v. Randolph, 49 S.W.2d 254; Heil v. Heil, 184 Mo. 676, 84 S.W. 47; Rothenberger v. Garrett, 224 Mo. 191, 123 S.W. 579; Northrip v. Burge, 255 Mo. 641, 164 S.W. 586; Newton v. Newton Burial Park, 326 Mo. 901, 34 S.W.2d 121; 65 C.J., pp. 233, 575, 590, secs. 23, 342, 377; Tootle-Lacy Natl. Bank v. Rollier, 111 S.W.2d 16; Neal v. Bryant, 291 Mo. 81, 235 S.W. 1076; Soulard's Estate, 141 Mo. 642, 43 S.W. 621; Troll v. Spencer, 238 Mo. 81, 141 S.W. 858; Jacobs v. Cauthorn, 293 Mo. 154, 238 S.W. 446; Howard v. Zweigert, 197 S.W. 49; Antonopoulos v. Chouteau Trust Co., 337 Mo. 252, 84 S.W.2d 1062; Cuthbert v. Holmes, 14 S.W.2d 446; Baker v. Chicago, B. & Q. Ry. Co., 327 Mo. 986, 39 S.W.2d 543. (4) The uncontradicted evidence shows the trust funds were invested in the real estate in question, so, that the real estate became impressed with a trust to the extent of such funds invested therein. Hynds v. Hynds, 274 Mo. 123, 202 S.W. 390; Freeman v. Maxwell, 262 Mo. 13, 170 S.W. 1152; Dillard v. Owens, 122 S.W.2d 84.

J. Howard Woods for respondent.

OPINION

Clark, J.

Appeal from the Circuit Court of Mercer County. The suit is by some of the heirs of T. M. Fullerton, deceased, against all his other heirs and seeks to adjudge the title to certain described land in, and partition the same among, said heirs. The petition, among other things, alleges that the second paragraph of the will of T. M. Fullerton, deceased, created a trust; that on the death of said T. M. Fullerton, the defendant George B. Fullerton received as trustee something more than $ 2000 which he held and invested until 1896, when he used the trust fund to purchase the real estate described in the petition and took the title in the name of Mary Jane Cain, in violation of the terms of the trust; that said Mary Jane Cain (a daughter of said T. M. Fullerton) died in April, 1936, leaving no widower or descendants; that she left a will, dated in March, 1931, purporting to devise said real estate to said George B. Fullerton; that in May, 1936, said George B. Fullerton recorded a deed purporting to have been executed by said Mary Jane Cain in January, 1936, and purporting to convey said land to said George B. Fullerton; that both the attempted devise and conveyance of the trust property by said Mary Jane Cain are void.

The separate answer of defendant, George B. Fullerton, denies that he invested any funds of the estate of T. M. Fullerton, deceased; alleged that he purchased and paid for the land in question and took the title in the name of his sister, Mary Jane Cain, "in order that she might receive the income therefrom for her support;" that immediately after the purchase the said Mary Jane Cain executed and delivered a deed conveying the property to him, which deed was lost or destroyed; that in 1936 Mary Jane Cain executed and delivered the deed mentioned in plaintiffs' petition; that he is the sole and unconditional owner of the land and prays the court to so decide.

The only other defendant, Alma Judson, filed a separate answer stating that she "is informed and believes that the real estate described in plaintiffs' petition is and has been for several years the property of defendant, George B. Fullerton;" and she disclaims any interest.

Judgment was for defendant, George B. Fullerton, and plaintiffs have appealed.

The defendants offered no proof in the trial court and have filed no brief in this court.

The proof showed that T. M. Fullerton executed his will in February, 1890, and died in July of the same year. The will was duly admitted to probate, but no further proceedings were had in administering the estate. The second paragraph of said will reading as follows:

"To my daughter, Mary Jane Cain, I give and bequeath the sum of Two Thousand ($ 2000.00) Dollars, in money, and in addition thereto that my forty (40) acre tract of timber land lying in Section Thirty-five (35) Township Sixty-five (65) Range Twenty-four (24) East of Princeton, be sold and the proceeds of said sale be added to said Two Thousand Dollars, and that the same be loaned on ample real estate security at the best rate of interest attainable, interest payable annually, and that said interest be paid to her annually, as long as she lives, and in case of her death then said amount to go to her children, and in case she dies without children living then said sum of money is to be paid to my heirs. And, in addition thereto, I will and direct that my son, Frank R. Fullerton pay her the sum of Four Hundred ($ 400.00) Dollars, in payments as he may be able to spare the money out of his business."

Frank R. Fullerton was sworn as a witness for plaintiffs, whereupon the attorney for defendants objected "to any testimony by the witness, Frank R. Fullerton, for the reason it appears from the pleadings that he is not a competent witness for any purpose in this cause, in that the contracts or agreements which formed the issues now on trial are alleged to have been made between the dead ancestor of Frank R. Fullerton and Mary Jane Cain, also deceased, and for the further reason that it appears under the plaintiffs' petition that a warranty deed, attacked by the plaintiffs, was made by Mary Jane Cain, deceased sister of Frank R. Fullerton."

The trial court overruled the objection and this witness testified: that T. M. Fullerton died in 1890 leaving five children; Frank R. Fullerton, Thomas Fullerton, George B. Fullerton, Alma Judson, and Mary Jane Cain; that Mary Jane Cain died leaving no husband or descendants; that Thomas died leaving four children, all of whom are plaintiffs; that about a week before the death of T. M. Fullerton, the witness and his mother delivered to defendant, George B. Fullerton, somewhat more than $ 2000 in gold belonging to T. M. Fullerton; that only the witness, his mother, and said defendant were present (witness attempted to relate the directions of his father concerning the delivery of this money, but defendants' objection was sustained and the testimony excluded); that in 1896 a meeting was held at which were present the witness and his wife, defendant George B. Fullerton and wife, defendant Alma Judson, and Mary Jane Cain and husband; that at this meeting the defendant, George B. Fullerton, stated that he had increased the fund received from the witness to more than $ 3200 and wanted to invest it for Mrs. Cain, under the terms of the will, in the tract of land described in the petition upon which was and still is a brick building; that this was agreed to and the money so invested; that witness talked to said defendant several times thereafter about this investment. The wife of Frank R. Fullerton corroborated the testimony of her husband as to the conversations with and statements by defendant at the meeting in 1896. Carl Gannon, a carpenter, testified that he did repair work on the building at different times and was paid by Mrs. Cain; that at one time she told him she had money tied up in the building which came from her father's estate; that George B. Fullerton never hired him or paid him to work on the building; Garrett Thogmartin, also a carpenter, gave substantially the same testimony as Gannon and also said that Mrs. Cain told him she had a fund of some kind that she could use to keep the building up.

At the close of plaintiffs' evidence, on April 21, 1937, the defendants presented to the court the following demurrer or motion:

"A. Now at the close of Plaintiffs' evidence, the Defendants move the Court to render Judgment in favor of the Defendants in this cause, for the reason that the evidence offered on behalf of the plaintiffs is wholly insufficient to sustain the allegations of the plaintiffs' petition, and wholly insufficient to entitle the plaintiffs under the law to recover in this action."

Then the record shows that defendants rested their case; the court took the matter under advisement until the next term and, on September 20, 1937, found the evidence insufficient sustained defendants' motion, denied plaintiffs' petition and rendered judgment for defendants and against the plaintiffs for the costs. In due time plaintiffs filed motion for new trial, which was overruled by the court. Plaintiffs saved their exceptions and...