Harding v. St. Louis Union Trust Company
| Decision Date | 14 December 1918 |
| Citation | 207 S.W. 68,276 Mo. 136 |
| Parties | WILLIAM H. HARDING, Appellant, v. ST. LOUIS UNION TRUST COMPANY, Executor of Estate of ROGER E. HARDING |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Leo S. Rassieur Judge.
Affirmed.
Grant & Grant for appellant.
(1) When a person sui juris orally or in writing explictly or impliedly declares that he holds personal property for another, he thereby constitutes himself an express trustee. Perry on Trusts, secs. 82, 86. (2) The evidence showed a valid declaration of trust because the inscription on the outside of the envelope in the handwriting of the deceased taken together with the signed letter of the deceased, also in his handwriting, contained three things necessary to create a parol trust in personal property: first, a clear declaration that the property did not belong to Roger E Harding, but that he held it for another; second, there was a definite subject-matter of the trust, to-wit, the sixteen railroad bonds; and, third, there was a definite object or beneficiary of the trust, to-wit, Wm. H. Harding. Northrip v. Burge, 255 Mo. 654. (3) In order to render a sufficiently expressed, voluntary trust valid, it is only necessary that the trustor should have done everything which could have been done, the character of the property comprising the trust being considered, to transfer the property to the trustee in such mode as will be effectual to pass the title; and the settlement being beneficial to the donees, acceptance will be presumed. In re Soulard's Estate, 141 Mo. 662. (4) It is no objection to the validity of a trust that it is purely voluntary. Leeper v. Taylor, 111 Mo. 324; Pomeroy Eq. Jur. (2 Ed.) secs. 996-997; Harris Banking Co. v. Miller, 190 Mo. 640; Watson v. Payne, 143 Mo.App. 721; Stone v. Hackett, 12 Gray (Mass.), 227. (5) It is not necessary that a third person should be trustee. The donor may constitute himself trustee. Northrip v. Burge, 255 Mo. 654. (6) The donor or trustor may not only make himself the trustee, but he may even reserve a life interest in the property and collect the interest or income thereof without impairing the validity of the trust. Davis v. Ney, 125 Mass. 590; Harris Banking Co. v. Miller, 190 Mo. 640. (7) The Statute of Limitations did not apply in this case in either suit to any portion of the property involved because this was a continuing express trust in favor of Wm. H. Harding, and there was no evidence showing or tending to show that the trustor, the deceased, ever openly repudiated the trust, to the knowledge of the plaintiff. Johnson v. United Railways, 243 Mo. 296; Bent v. Priest, 86 Mo. 475; Johnson v. Smith, 27 Mo. 591; Smith v. Ricords, 52 Mo. 581.
E. T. & C. B. Allen for respondent.
(1) A disputed trust cannot be enforced at law. Ewing v. Parrish, 148 Mo.App. 492; Johnson v. Rd., 243 Mo. 304; Landis v. Saxton, 105 Mo. 489. Until the trust is determined, plaintiff would have neither a legal or equitable right to possession. Until such right was established plaintiff could not maintain replevin or conversion. Leete v. Bank, 141 Mo. 586; O'Toole v. Lowenstein, 177 Mo.App. 665; Botsford v. Bradfield, 141 Mich. 375; Fischer v. Alstein, 186 Mass. 549; Penton v. Hauser, 13 Okla. 452; Fulton v. Fulton, 48 Barb. 581; 38 Cyc. 2049. (2) Any right plaintiff had to money collected on the coupons or bonds arose at the time defendant's testator is alleged to have collected them, and to all such collections prior to September 8, 1909, plaintiff's right has been barred by the five-year Statute of Limitations. Landis v. Saxton, 105 Mo. 491; Prewitt v. Prewitt, 188 Mo. 683; Johnson v. Railroad, 243 Mo. 300; Eliott v. Machine Co., 236 Mo. 546. (a) Plaintiff knew as early as 1898 that his father was in no wise accounting to him for the coupons and bonds which his petition alleges his father collected. Plaintiff acquiesced therein although he was estranged from his father. This is inconsistent with the idea that Roger E. Harding held the bonds as trustee for plaintiff. (b) It necessarily indicated that both parties regarded the bonds and coupons as Roger E. Harding's. The claim is barred by the ten-year statute. Brown v. Selding, 105 A.D. 509, 94 N.Y.S. 292; Oelke v. Theis, 70 Neb. 405; Sims v. Sims, 2 Ala. 117; Trubey v. Pease, 240 Ill. 523; Crissman v. Crissman, 23 Mich. 218. (3) There is no evidence that plaintiff ever made a demand on the defendant for the bonds. Defendant's possession being lawful, it so remained until it refused to give up possession. Nansen v. Jacobs, 93 Mo. 331. (4) There was not a sufficient delivery to support a gift either inter vivos or causa mortis. Foley v. Harrison, 233 Mo. 460; Northrip v. Burge, 255 Mo. l. c. 674; Terry v. Glover, 235 Mo. 550; Harris Banking Co. v. Miller, 190 Mo. 640; In re Soulard Estate, 141 Mo. 660; Bank v. McKenna, 168 Mo.App. 254; Mulock v. Mulock, 156 Mo. 441; Pitts v. Weakley, 155 Mo. 135. (5) Equity does not lend assistance to voluntary disposition of property while they are yet executory. Pennell v. Ennis, 126 Mo.App. 360; 28 Am. & Eng. Ency. Law (2 Ed.), 865. (6) The question in this class of cases is not whether the preponderance of the competent evidence shows that the alleged trust was executed, but it is, whether that fact is established by evidence so clear, certain, complete and convincing as to remove all reasonable doubts on the subject. Northrip v. Burge, 255 Mo. 655; Ferguson v. Robinson, 258 Mo. 113; Pitts v. Weakley, 155 Mo. 109; Mulock v. Mulock, 156 Mo. 431; Heartley v. Nicholson, 19 L. R. Eq. 233; Ferguson v. Robinson, 258 Mo. 113; Evans v. Evans, 196 Mo. 20. (7) For a man to make himself a trustee there must be an expression of an intention to become a trustee, whereas words of present gift show an intention to give over property to another and not to retain in the donor's own hand for any purpose, fiduciary or otherwise. What is intended as a gift but is imperfect as such, cannot be treated as a declaration of trust. Young v. Young, 80 N.Y. 437; Bank v. Webb, 21 R. I. 218; Richard v. Delbridge, 18 L. R. Eq. 11; Achman Estate, 223 Pa. St. 543; Hamilton v. Hall, 111 Mich. 291; Clay v. Layton, 134 Mich. 331; Trimmer v. Danby, 25 Law J. Ch. 421; Lane v. Ewing, 31 Mo. 86; Ferguson v. Robinson, 258 Mo. 113; Northrip v. Burge, 255 Mo. 674; McKee v. Allen, 204 Mo. 655; Pitts v. Weakley, 155 Mo. 135; Knapp v. Publishers, 127 Mo. 77. (8) In determining the validity of a voluntary settlement, the fact that the gift is not to take effect until after the donor's death, is often of controlling weight. The instant case was an attempted testamentary disposition. Sims v. Brown, 252 Mo. 66; Heartley v. Nicholson, 19 L. R. Eq. 233; Young v. Young, 80 N.Y. 437; Sterling v. Wilkinson, 83 Va. 798.
OPINION
In Banc
I. These are suits by one of the children of Roger E. Harding, against his executor, to recover certain street railway bonds, and also the amount collected by the executor upon certain coupons attached to said bonds.
The answer was a general denial, coupled with a plea of the Statutes of Limitations of five and ten years. Issue was taken by reply. The defendant had judgment and the plaintiff duly appealed.
II. The preponderance of the competent evidence in the record shows the facts upon which plaintiff's claims are based to be that on December 10, 1897, Roger E. Harding, living in St. Louis and about to make a trip to California to aid his daughter who had married unhappily and was in dire distress, wrote to his son in New York, informing him of these facts and that he would begin the journey on December eighteenth, adding: "If anything occurs to me, you will find sixteen instead of fourteen R. R. bonds in that package I told you about in the safe deposit box; the two additional are Suburban; in all four Suburban, Nos. 96, 176, 179, 181 -- instead of two."
This letter also inclosed a list of the bonds and their estimated value at $ 17,005.
On December seventeenth, Roger E. Harding, still in St. Louis, wrote plaintiff, stating that he did not know what his address would be in Los Angeles, but to write him in care of his daughter, concluding:
The endorsement referred to in these two letters is, to-wit:
Roger E. Harding.
Witnesses:
After the daughter of Roger E. Harding, who lived in California, had been granted a divorce, she came to St. Louis with her father and he took her to the safe deposit box and opened it in her presence and took out the sealed envelopes containing the sixteen bonds and put them back loosely in the deposit box, tore up the envelope endorsed as above, and threw it in the waste basket, making certain explanations to his daughter why he did so, which we exclude as incompetent.
The trust officer who opened the safe deposit box in order to make an inventory after the death of Roger E. Harding, states that it did not contain an envelope sealed and endorsed as described in the memorandum sent to plaintiff, and that he thought the sixteen bonds were lying loose in the box.
Roger...
To continue reading
Request your trial