Gosney v. Costigan

• Citation: 33 S.W.2d 947,326 Mo. 1215
• Parties: Esra S. Gosney, As Trustee, Appellant, v. Ralph E. Costigan et al
• Decision Date: 31 December 1930
• Court: United States State Supreme Court of Missouri

33 S.W.2d 947

326 Mo. 1215

Esra S. Gosney, As Trustee, Appellant, v. Ralph E. Costigan et al

Supreme Court of Missouri

December 31, 1930

Appeal from Buchanan Circuit Court; Hon. Guy B. Park Special Judge.

Affirmed.

Dryer Castle & Richards and Mosman, Rogers & Buzard for appellant.

(1) The notes or letters (Ex. C, D, F and G), alleged to have been written by Mrs. Noyes to Costigan, upon which defendant Costigan bases his claim of ownership of the bonds in question, were not sufficiently identified as to entitle them to admission in evidence, and the court erred in admitting said writings in evidence, because it was not shown that the letters or notes were ever mailed by Mrs. Noyes to Costigan or ever placed in his possession by her authority. Evidence merely that one wrote a letter without any showing that it was properly addressed, stamped, and mailed raises no presumption of its receipt. Best v. German Ins. Co., 68 Mo.App. 598; National Bldg. Assn. v. Quin, 120 Ga. 358; Bankers Mutual Cas. Co. v. Peoples Bank, 127 Ga. 326. A letter will not be presumed to have been received by its addressee unless it is shown that it was deposited in the post office, addressed and stamped. Trezevant v. Powell, 61 Tex. Civ. App. 449; Royle Mining Co. v. Fidelity Co., 161 Mo.App. 185; Sills v. Burge, 141 Mo.App. 148; Butterworth v. Cathcart, 168 Ala. 262; O'Connor Co. v. Dickson, 112 Ala. 301; Union Gas Co. v. Petroleum Co. (Ky.), 259 S.W. 57; Boon v. State Ins. Co., 37 Minn. 426. (2) Defendant's evidence wholly fails to establish a gift of the bonds in question. The burden of proof is on the defendant, Costigan, to prove conclusively and by evidence so cogent as to leave no reasonable doubt in the mind of an unbiased person that the gift was actually made and accepted. This, he failed to do. 28 C. J. 681; McCune v. Daniels, 225 S.W. 1020; Jones v. Falls, 101 Mo.App. 536; Meyer v. Koehring, 129 Mo. 15; In re Soulard's Estate, 141 Mo. 642; Foley v. Harrison, 233 Mo. 460; Hunter v. Ry. Co., 149 Mo.App. 243. (3) The letters only express an intention to make a gift, and as such are insufficient to establish a transfer of title. A valid gift must be complete. The transaction must show a completely executed transfer to the donee of the present right of property and possession. No such showing was made in this case. Harris Bank Co. v. Miller, 190 Mo. 640; Thomas v. Thomas, 107 Mo. 459; Foley v. Harrison, 233 Mo. 460. The letters passing between Costigan and Mrs. Noyes failed to show any acknowledgment on Costigan's part of the alleged gift. (4) Even if an intention was expressed by Mrs. Noyes of making a gift to Costigan, nevertheless the gift was not completed during her life and was revoked by her death. 28 C. J. 681; 23d Street Baptist Church v. Cornell, 117 N.Y. 601. (5) Costigan's conduct in failing to assert a gift until after the death of Mrs. Noyes, and his conduct in transferring the registered bonds to coupon bonds as property of the estate of Mrs. Noyes, and payment to her of interest on the bonds after the date of the alleged gift, create an estoppel against him to make claim of ownership to the bonds. First Natl. Bank of Mexico v. Ragsdale, 171 Mo. 168; Stevens v. Stevens, 309 Mo. 130, 273 S.W. 1066; Piper v. Mfg. Co., 253 S.W. 437. (6) Costigan's failure to testify and to explain his alleged wrongful conduct raises an inference against his claim that the bonds were given to him by Mrs. Noyes. Leeper v. Bates, 85 Mo. 224; Stephenson v. Kilpatrick, 166 Mo. 262; Schooler v. Schooler, 258 Mo. 83; Guthrie v. Gillespie, 6 S.W.2d 886. (7) The conduct and attitude of the defendant trustees in respect to the trust and in respect to the disposition of the bonds in question, and their evident attempt to protect Costigan in his wrongful claim of ownership of the bonds, unfit them to act as trustees of this charitable trust, and they should be removed.

Culver, Phillip & Voorhees for respondents.

(1) A valid, completed and irrevocable gift inter vivos of the bonds was made by Mrs. Noyes to Costigan. (a) Delivery was unnecessary, because the bonds which were the subject of the gift were all in possession of the donee, Costigan. 28 C. J. 633, 637, 638; 12 R. C. L. 935, 936, 941; Miller v. Neff, 33 W.Va. 186; Tenbrook v. Brown, 17 Ind. 410; Wing v. Merchant, 57 Me. 383; Toley v. Harrison, 233 Mo. 460. (b) No written assignment or indorsement of the bonds was necessary to complete the gift or effect delivery. 12 R. C. L. 941; 28 C. J. 637, 659; Pennell v. Ennis, 126 Mo.App. 359; Telle v. Roeber, 159 Mo.App. 115; In re Stockman's Estate, 186 N.W. 650. (c) Acceptance of the gift is presumed. Thornton on Gifts, 2, 72, 225; Deval v. Dye, 123 Ind. 329; 28 C. J. 672, 695; Tygard v. McComb, 54 Mo.App. 85; Jones v. Jones, 201 S.W. 551; Foley v. Harrison, 233 Mo. 460. (2) No unfavorable inferences can be drawn from the fact that Costigan did not testify, because he was an incompetent witness. Sec. 5410, R. S. 1919; Allen West Com. Co. v. Richter, 286 Mo. 707; Swearingen v. Moore, 215 Mo.App. 538. (3) The declarations or admissions of a donor as to the fact of delivery and as to his intention are admissible to support an alleged gift, but not to impeach his gift. Townsend v. Schaden, 275 Mo. 227; Woods v. Woods, 13 S.W.2d 573.

OPINION

Blair, P. J.

This is an equitable action by one trustee to require his co-trustee to restore to the trust estate certain bonds alleged to have been improperly appropriated from such estate, or for judgment in favor of the estate in lieu thereof. A third trustee was made a party defendant. Trustees of two closely related organizations were afterward brought in as defendants. The trial court found for defendants and denied all prayers for removal of trustees. From such decree plaintiff has appealed.

The pleadings should first be noticed briefly. The following facts appear from the allegations of the petition. Sarepta W. Noyes, to whom we will usually refer as testatrix, died in Los Angeles, California, December 13, 1923. Her will was filed in the Probate Court of Buchanan County, January 4, 1924, and was duly probated January 14, 1924. By the fifth clause of her will she gave the residue of her estate to the plaintiff, the defendant Costigan and John D. Richardson, as trustees for the benefit of Noyes Hospital of St. Joseph and the Home for Little Wanderers of St. Joseph. For convenience, we will usually refer to the parties by their surnames. Costigan and Richardson were named as executors of said will. Richardson died very soon after the death of testatrix and before her will was probated, and Costigan was afterwards appointed as sole executor. Under the provisions of the will Gosney and Costigan afterward agreed upon and appointed Burnes National Bank of St. Joseph as trustee to succeed Richardson. The petition named Costigan and said bank as defendants, and alleged that testatrix owned five Fourth 4 1/4% United States Liberty bonds, of the par value of $ 10,000 each, at the time of her death, and that Costigan took possession of said bonds after her death, refused to account therefor to the estate and appropriated the same to his own use.

The answer of Costigan admitted that he was executor of the estate of testatrix and one of the trustees under her will, and that provisions five and seven of the will, which created the trust and provided for the provisional appointing of executors, were correctly set forth in the petition; that testatrix died December 13, 1923, and denied all other allegations of the petition.

In its separate answer Burnes National Bank admitted that it was one of the trustees under the will, of which Costigan and Gosney were co-trustees. It alleged that it had made full investigation of Gosney's claim that Costigan had appropriated $ 50,000 in bonds belonging to the estate, that it had taken advice of counsel and had reached the conclusion that Costigan was the rightful owner of said bonds. Nevertheless, it prayed the court to require strict proof as to the ownership of said bonds, and asked it to enter such judgment as the law and the evidence warranted.

Upon motion of the bank, it and E. D. Plummer, as trustees of Noyes Hospital, and Marmaduke B. Morton and Charles B. Farish, as trustees of the Home for Little Wanderers, were made parties defendant. Said motion alleged that Charles W. Noyes, deceased husband of testatrix, had by his will created a trust fund of approximately $ 500,000 for the benefit of said hospital and said home; and further alleged that testatrix left approximately $ 500,000 in trust, the income from which was to be used by her trustees for the maintenance of said hospital and home, and that the trustees of those institutions for that reason were interested in the funds of testatrix and were necessary and proper parties to this action.

After said motion was sustained, the trustees of the hospital and the home filed separate answers. It is unnecessary to set out more than the substance of such answers. Both alleged the investigation made by the respective trustees concerning the claim of Gosney that Costigan had misappropriated $ 50,000 in bonds belonging to the estate, and that they had reached the conclusion that the estate was not the owner thereof at the death of testatrix. Both answers alleged the confidence of the trustees in the ability and integrity of Costigan and prayed that he be retained as trustee and asked the removal of Gosney as trustee under the will of testatrix.

The replies of Gosney to the several answers need not be noticed further than to say that they denied the allegations of such answers and particularly allegations concerning the qualifications of all of the other trustees and the allegations concerning the unfitness of Gosney to serve as trustee and...