Graham v. Stroh

• Decision Date: 26 May 1938
• Docket Number: 35487
• Citation: 117 S.W.2d 258,342 Mo. 686
• Parties: Walter H. Graham, an Infant, by his Guardian and Curator, Walter H. Graham, v. Oscar Stroh, William Stroh, Henry Stroh and Helen Stroh, his wife, and Oscar Stroh, Executor of the Estate of Annie Stroh, Appellants
• Court: Missouri Supreme Court

117 S.W.2d 258

342 Mo. 686

Walter H. Graham, an Infant, by his Guardian and Curator, Walter H. Graham, v. Oscar Stroh, William Stroh, Henry Stroh and Helen Stroh, his wife, and Oscar Stroh, Executor of the Estate of Annie Stroh, Appellants

No. 35487

Supreme Court of Missouri

May 26, 1938

Appeal from Circuit Court of City of St. Louis; Hon. Max G Baron, Judge;

Affirmed and remanded (with directions).

Lashly Lashly & Miller and Jacob M. and Arthur V Lashly for appellants.

(1) The alleged trust could not and did not attach to the personal property in question because the testator did not own said property and hence no property of this character passed to the surviving widow under the testator's will. Evidence disclosing that the testator's widow inventoried personal property consisting of the Blase and Stroh notes; the Gaier and Stroh Millinery Company note and the certificate of stock in the Gaier and Stroh Millinery Company as a part of the testator's estate is insufficient to establish that the testator was the owner thereof where the undisputed evidence shows that the record title to said property was in the widow. Hall v. Dodson, 274 S.W. 462; Roberts v. Roberts, 291 S.W. 485; In re Abddulah's Estate, 214 Wis. 336, 252 N.W. 158; Henshaw v. Gunter, 169 Tenn. 305, 87 S.W.2d 561; In re Murphy's Estate, 30 Wash. 1, 70 P. 107; In re Sloan's Estate, 254 Pa. 346, 98 A. 966; Dodge v. Hunt, 181 Mass. 329, 63 N.E. 891; In re Langenbach's Estate, 201 Wis. 336, 230 N.W. 141; Baker v. Brickell, 87 Cal. 329, 25 P. 489; Perry v. Perry, 67 Utah 45, 245 P. 695; Rollins v. Rollins, 92 A. 339. (2) Testator's widow was not a trustee for remaindermen or those claiming thereunder. Because the will of William Stroh, deceased, vested his surviving widow Anna Stroh with a defeasible fee, terminable only upon remarriage in such property, if any, the testator may have owned on the date of his death. Gaven v. Allen, 100 Mo. 293, 13 S.W. 501; In re McClelland's Estate, 257 S.W. 808; Rohrbach v. Sanders, 212 Pa. 636, 62 A. 27; Squier v. Harvey, 16 R. I. 226, 14 A. 862; Fidelity Trust Co. v. Bobloski, 228 Pa. 52, 76 A. 720; Frey v. Thompson's Admr., 66 Ala. 287; Weiss v. Mt. Vernon, 142 N.Y.S. 250, 157 A.D. 383. (3) Plaintiff had burden of proof to establish resulting and constructive trusts by clear, convincing, and unequivocal evidence. (a) Plaintiff-respondent did not satisfy the burden of proof by clear, convincing and unequivocal evidence that the property held by Anna Stroh and later acquired by each of appellants was held as a resulting trust for his alleged proportionate share thereof. Gaugh v. Gaugh, 321 Mo. 414, 11 S.W.2d 729; Hodges v. Hodges, 292 S.W. 12; Roberts v. Roberts, 291 S.W. 485; Jacks v. Link, 291 Mo. 282, 236 S.W. 10. (b) Plaintiff-respondent did not satisfy the burden of proof by clear, convincing and unequivocal evidence that the appellant Oscar Stroh held his mother's property as a constructive trustee or trustee ex maleficio. Tweedle v. Treasure, 44 S.W.2d 216; In re Cooper County State Bank, 67 S.W.2d 109; Gates Hotel Co. v. Davis Real Estate Co., 331 Mo. 94, 52 S.W.2d 1011. (4) Trust property was not identified. (a) The evidence does not sustain the trial court's finding that there was a connection between the various properties acquired by each of the appellants from the surviving widow and the property claimed by plaintiff-respondent to have passed under the testator's will to the widow as trustee. Phillips v. Overfield, 100 Mo. 466, 13 S.W. 705; Easter v. Easter, 246 Mo. 409, 151 S.W. 413; Jones v. Smith, 282 S.W. 83; Benz v. Powell, 93 S.W.2d 877; Green v. Coleman, 4 S.W.2d 856; Clay v. Walker, 6 S.W.2d 961; Horigan Realty Co. v. First Natl. Bank, 273 S.W. 772; 65 C. J., secs. 885, 985, pp. 965, 1055; 21 C. J., sec. 73, p. 941. (5) Self-serving statements were erroneously admitted. The testimony of Walter Graham that Anna Stroh stated, when she gave her daughter Clara $ 5000 in bonds that "everything I have came from, I inherited from your father," was inadmissible since it was a self-serving statement and also inadmissible under the statute prohibiting testimony of conversations with deceased persons. Lanphere v. Affeld, 99 S.W.2d 36; Roberts v. Roberts, 291 S.W. 485; Bernblum v. Travelers Ins. Co., 105 S.W.2d 941; Johnson v. Burks, 103 Mo.App. 221, 77 S.W. 133; Armstrong v. Johnston, 93 Mo.App. 492, 67 S.W. 733; Watson v. Bissell, 27 Mo. 220; Sec. 1723, R. S. 1929. (6) Decedent's statements regarding verbal contact were erroneously admitted. The testimony of Louis Blase to the effect that William Stroh transferred interests in the Gaier & Stroh Millinery Company to Eugene Stroh and to him prior to William Stroh's death under a verbal agreement was inadmissible, since Louis Blase was incompetent under the statute to testify as to a contract with the decedent. Sec. 1723, R. S. 1929; Scott v. Scott, 265 S.W. 864; Moore v. McCutchen, 190 S.W. 350; Marshall v. Hall, 200 S.W. 770.

Shepard R. Evans and Malcolm I. Frank, for respondents; William M. Fitch of counsel.

(1) The will of deceased, William Stroh, bequeathed a life estate to his wife, with remainder to his four named children, and the words of the will being in clear, unambiguous language the intention of the testator must be carried out. Payne v. Reese, 297 Mo. 54, 247 S.W. 1006; Tillerson v. Taylor, 282 Mo. 204, 220 S.W. 950; Armor v. Frey, 226 Mo. 669, 126 S.W. 483; Coleman v. Haworth, 8 S.W.2d 931; Roth v. Rouschenbusch, 173 Mo. 582, 73 S.W. 664; Scott v. Fulkerson, 332 Mo. 734, 60 S.W.2d 36; Gibson v. Gibson, 239 Mo. 490, 144 S.W. 770. (2) And a power of disposition to sell and reinvest, added to a life estate, is not repugnant nor fatal to the life estate nor to the remainder over. Grace v. Perry, 197 Mo. 550, 95 S.W. 875; Cromwell v. Wulff, 148 Mo. 542, 50 S.W. 439; Garland v. Smith, 164 Mo. 16, 64 S.W. 188; Mauth v. Breckenridge, 284 S.W. 149; Gibson v. Gibson, 239 Mo. 490, 144 S.W. 770. (3) And where the power is given the life tenant to sell and reinvest, the life tenant has no power to convey it or any part thereof as a gift. Burnet v. Burnet, 244 Mo. 491, 148 S.W. 876; Tallent v. Fitzpatrick, 161 S.W. 689, 253 Mo. 10; Dougherty v. Dougherty, 204 Mo. 235, 102 S.W. 1099; Cook v. Higgins, 235 S.W. 810, 290 Mo. 402; Citizens Bank of Lancaster v. Foglesong, 326 Mo. 581, 31 S.W.2d 781; 2 Washburn on Real Property (5 Ed.), p. 707. (4) The admission by the deceased, Anna Stroh, that everything she had came from her husband is competent evidence. Robertson v. Garrison Estate, 21 S.W.2d 203; Stoff v. Schuetze, 240 S.W. 144; Boynton v. Miller, 144 Mo. 687, 46 S.W. 764; Anderson v. McPike, 86 Mo. 293; Meir v. Meir, 105 Mo. 411, 16 S.W. 223; 1 Greenleaf on Evidence (16 Ed.), sec. 108, p. 190; 2 Jones Commentaries on Evidence (2 Ed.), p. 1686. (5) The evidence amply supports the judgment of the court below.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This cause is in equity and the first count of the petition asks that certain real estate conveyances be set aside and to have the property conveyed thereby to be adjudged to be the property of plaintiff and defendants as tenants in common, and that partition be had. The second count asks for an accounting from defendants as to money, stocks, bonds and securities alleged to have been received by them from Annie Stroh, deceased, and for partition of the personal property, and that defendant, Oscar Stroh, executor of the estate of Annie Stroh, be enjoined from further administering said estate. The trial court found for plaintiff on both counts of the petition, ordered partition, appointed a receiver, and appointed special commissioner to sell, in the event partition in kind could not be made. Motions for a new trial were overruled and defendants appealed.

Plaintiff is the grandson of William and Annie Stroh. William died in St. Louis, June 8, 1894, and Annie, his widow, died in St. Louis, December 23, 1933. William and Annie had four children, Clara, and defendants, Oscar, William and Henry. Defendant Helen Stroh is the wife of Henry. Clara married Walter H. Graham, and died September 22, 1923, leaving her husband and her infant son, who is plaintiff.

William Stroh, the father, died testate. His will disposed of his property as follows:

"1st I give, bequeath and devise all of my estate and property, whether real, personal or mixed, and wheresoever situate unto my wife, Annie Stroh, for and during the time she shall remain my widow: giving and granting unto her, however, full right and power whenever for any cause she may deem it wise, necessary or expedient, to sell and convey or exchange the same or any part thereof, and to reinvest the proceeds of sale, in such manner and in such property as she may think best. I also give and grant unto her full power and authority to lease the real estate or any part thereof, to such tenant or tenants, upon such terms and conditions and for such periods of time as she may desire. I also give and grant unto her full power and authority to encumber my property, or any part of it, by mortgage or deed of trust, if and whenever in her judgment and discretion, it becomes necessary to do so. All this I do, having full confidence in my wife and being satisfied that she will not disregard the interests of my children.

"2nd: Should my wife remarry, or in the event of her death should she remain my widow, I give, bequeath and devise all of my said estate then yet remaining, or its substitute, should my wife have availed herself of the powers herein given her, unto my children Clara, Henry, William and Oscar, and any other child or children, should any be born to us hereafter, in equal shares, share and share alike, absolutely and forever."

The widow, Annie...