Gaugh v. Gaugh

• Decision Date: 24 November 1928
• Docket Number: No. 26365.,26365.
• Parties: MAUDE F. GAUGH v. GEORGE M. GAUGH (Impleaded with WALTER W. GAUGH ET AL.), Appellant, and KARALEE RANKIN.
• Court: Missouri Supreme Court

11 S.W.2d 729

MAUDE F. GAUGH v. GEORGE M. GAUGH (Impleaded with WALTER W. GAUGH ET AL.), Appellant, and KARALEE RANKIN.

No. 26365.

Supreme Court of Missouri. Court en Banc.

November 24, 1928.

Appeal from Jackson Circuit Court. — Hon. O.A. Lucas, Judge.

AFFIRMED (in part) AND REVERSED (in part) AND REMANDED.

Hackney & Welch for appellant.

(1) The trial court erred in admitting the evidence of Dean Franklin, M.J. Pendergast and others, as to declarations of Judge Gaugh to the effect that he had bought the farm; that it was his farm, and what he intended to do with it. Such declarations are not competent evidence to show title in the person making them. Swope v. Ward, 185 Mo. 316; Farmers Bank v. Barbee, 198 Mo. 465; Coulson v. LaPlant (Mo.), 196 S.W. 1147; Heynbrock v. Hormann, 256 Mo. 21. (2) The evidence is wholly insufficient to show that in the purchase of the Courtney farm and its conveyance to Mort Gaugh a resulting trust was created or arose in favor of his father, Judge Gaugh. To establish a resulting trust the evidence must be so clear, definite and positive as to leave no room for reasonable doubt as to the right to have the trust established, and it must be clearly shown that the funds of the party, in whose favor the trust is sought to be established, went into the purchase of the property sought to be impressed with such trust. Wavrin v. Wavrin (Mo.), 220 S.W. 932; Aeby v. Aeby (Mo.), 192 S.W. 99; Smith v. Smith, 201 Mo. 533; Curd v. Brown, 148 Mo. 82. (3) The evidence is insufficient to show an express trust in favor of Judge Gaugh for the Courtney farm. The testimony of alleged verbal admissions of Mort Gaugh that the farm belonged to his father is insufficient to show an express trust. Sec. 2263, R.S. 1919; Curd v. Brown, 148 Mo. 92; Price v. Kane, 112 Mo. 419; Heil v. Heil, 184 Mo. 665. (4) Maude F. Gaugh was not entitled to rescind. The evidence showed that she brought this suit, claiming an interest in this and other land, took depositions of Walter W. Gaugh and George M. Gaugh and other witnesses, and two months later on December 28, 1922, under the advice of her attorneys, sold and conveyed to George M. Gaugh all her interest in the real and personal estate of her late husband for a cash consideration of $12,900 then paid her. She has held onto this money, never offering to return it, and take a reconveyance of her property rights passed by her deed. She did not offer in her amended bill to refund the money to George M. Gaugh, but stated her willingness to account for it only to the administrator or her co-heirs. She cannot rescind in part and affirm in part. Furthermore her attempted rescission came too late. Estes v. Reynolds, 75 Mo. 563; Taylor v. Short, 107 Mo. 384; Morgan Co. Coal Co. v. Halderman, 254 Mo. 596.

John S. Wise, Jr., for respondent.

(1) The trial court committed no error in admitting the testimony of witnesses Franklin and Pendergast. The answer to all the argument of appellant is that it had been shown that the appellants had stolen and destroyed the papers and records of the decedent, and the question of fact of ownership had to be reached by evidence explanatory of the disappearance of these papers and contradictory to the appellants' claims of ownership, the truth of which would be evidenced by the papers they had stolen and burnt up. Any evidence that impugned their claims of titles to the decedent's properties and any evidence that explained their secrecy and suspicious conduct was admissible and proper. Among these were the statements of decedent evidencing what papers appellants probably destroyed to avoid disproof of their claims of title to this farm. (2) The evidence was sufficient. With the proof of the witnesses Earl Rankin and Karalee Rankin, that the appellant Mort Gaugh had admitted that he had stolen and burned up the evidence of the decedent showing title to his properties and had admitted that the title to the Courtney farm was held by him as trustee for his father, was sufficient to justify the finding of the trial court in the face of any of the claims of the appellant George M. Gaugh. The claim that the moneys paid for the farm came from the interest of Mort Gaugh in the Union Printing & Binding Company is predicated upon the forged bill of sale above mentioned. The case was one in which the trial judge's decision of every question of fact rested upon testimony disproving the evidence of the appellant given as an interested party, and the appellant's own testimony was so irreconcilably conflicting as to every important fact that the trial court was justified in refusing to give him any credence where it would serve his interest.

LINDSAY, C.

The respondent, Maude Gaugh, is the widow of George G. Gaugh, deceased, who died intestate, leaving as his only heirs the other named parties, Walter W. Gaugh and George M. Gaugh, his sons, and Karalee Rankin, a daughter.

The decree herein appealed from by George M. Gaugh adjudged that he held title to a certain farm in Jackson County in trust for his father, George G. Gaugh, in the latter's lifetime, and thereafter in trust for the widow and heirs of his father, and that decree also cancelled a conveyance made by Maude Gaugh to George M. Gaugh of all her interest in the estate of the deceased.

George G. Gaugh was a judge of the County Court of Jackson County in the years 1919 and 1920, and throughout the testimony is generally referred to as Judge Gaugh; George M. Gaugh is generally referred to as Mort Gaugh; the farm in question is referred to as the Courtney farm; and for brevity and certainty of statement they will be so referred to herein.

Prior to his election as county judge in 1918, for thirty years or more, Judge Gaugh operated a printing and binding establishment in Kansas City. His two sons, Walter and Mort Gaugh, assisted their father in the business from the time they were boys, but appear not to have drawn salaries. Walter Gaugh was forty-five years old at the time of the trial, and Mort Gaugh was forty-one years old. Karalee Rankin, the daughter, was younger; was married ten or more years prior to the trial, and lived in New York City with her husband, Earl Rankin.

Maude Gaugh was the second wife of Judge Gaugh. Their marriage occurred about 1900. The three defendants in the suit were children of a former wife of Judge Gaugh, who had divorced him, but who was living at the time of the trial, her name then being Carrie M. Knox.

The printing and binding business referred to was carried on at 408-410 Admiral Boulevard, Kansas City. From June, 1917, the title to the undivided one-half interest in the real estate known as 408-410 Admiral Boulevard was in the Queen City Building & Investment Company, a corporation, which also, after the date mentioned, held title to the adjoining property, 404-406 Admiral Boulevard. One Henry A. Fratcher owned an undivided one-half interest in the property at 408-410 Admiral Boulevard. After January 1, 1919, the printing and binding business was done by Walter Gaugh and Mort Gaugh under the name of Union Printing & Binding Company, which was not a corporation. It had formerly been George G. Gaugh Printing & Binding Company.

Judge Gaugh died on September 12, 1922. On October 9, 1922. Maude Gaugh brought this suit, joining the three heirs as defendants, and alleging that Judge Gaugh died being the equitable owner of certain tracts of land bought with his own money, though title to certain of the lands was in the name of Mort Gaugh, and certain other in the Queen City Building & Investment Company. Demurrers were filed and sustained by the court, and plaintiff, on November 24, 1922, filed her amended bill, omitting the Queen City Company as a party, and omitting the real estate, the title to which was alleged in the original bill to be in the Queen City corporation. The first amended bill thus covered property only which was alleged to stand in the name of Mort Gaugh — the Courtney farm, and certain property in Ashburn's Addition in Kansas City, and referred to by the witnesses as the Ninth Street property.

Maude Gaugh qualified as administratrix, and as such, on October 16, 1922, brought another suit joining the three heirs as defendants, and alleging that legal title to certain personal property, shares of the capital stock of the Queen City Company, and also certain other personal property, the property used in the printing and binding business and belonging to that business, held by the defendants, was actually the property of Judge Gaugh and asked that the defendants be adjudged to hold said personal property in trust for the administratrix, and for the estate of the deceased. In that suit the court found that Walter Gaugh and Mort Gaugh were owners of the Union Printing & Binding Company property, but found that Judge Gaugh owned the stock of the Queen City Company and that appellants held the stock under a constructive trust. That cause is here as Seehorn, Administrator, Respondent, v. Walter W. Gaugh and George M. Gaugh, Appellants, Karalee Rankin, Respondent, post page 456.

On December 28, 1922, Maude Gaugh filed her election as widow, electing to take a share in the estate equal to that of a child of the deceased, and also on that day, pursuant to an agreement made with Mort Gaugh, and for a consideration of $12,900 paid to her by him, conveyed and assigned to Mort Gaugh all of her interest and claims to the estate of the deceased. About that time also she resigned as administratrix, and Mort Gaugh was appointed administrator in her stead, and both suits languished for a time. Prior to this transaction, Maude Gaugh had taken the depositions of Walter Gaugh and Mort Gaugh and of some other persons. In this, the land suit, Walter and Mort Gaugh had answered, denying that their father was the owner of the lands sought to be subjected to a trust — the Ninth Street Property, in Kansas City, and the Courtney farm — and Mort Gaugh answered, claiming...