Hynds v. Hynds
| Decision Date | 08 April 1918 |
| Citation | 202 S.W. 387,274 Mo. 123 |
| Parties | A. J. HYNDS et al., Appellants, v. GEORGE HYNDS |
| Court | Missouri Supreme Court |
Appeal from Macon Circuit Court. -- Hon. Nat M. Shelton, Judge.
Affirmed.
J. M McCall, P. J. Reiger and Joseph Park for appellants.
(1) Parol testimony to impress upon the clear legal title an inplied trust, in order to accomplish such an object and secure such an end, must be clear, strong and unequivocal, so degnite and positive as to leave no reasonable doubt in the mind of the chancellor as to the existence of such trust. Allen v. Logan, 96 Mo. 591; McFarland v LaForce, 119 Mo. 590; Adams v. Burns, 96 Mo 361; King v. Isley, 116 Mo. 155; R. S. 1855, sec. 4, 669. (2) A resulting trust can only arise where the person claiming the benefit of the trust has furnished the consideration money. The payment of the consideration money is the foundation of the trust; that is, the trust arises out of the circumstance that the money of the real purchaser, and not of the grantee in the deed, paid for the land. Shaw v. Shaw, 86 Mo. 594; Johnson v. Quarrels, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385. (3) Do not all the known facts, coupled with the Dower law as it stood at the date of her husband's death, raise a reasonable doubt? If she was entitled by law to one-third of her deceased husband's estate at the time of her husband's death, in the absence of conclusive evidence that she waived it, is not the presumption conclusive that she took it? Especially so, in view of the irresistible mathematical calculation based on the record that a child's share was $ 558.74. The record shows that there were six children when she accounted for $ 2234.96, which was four-sixths. The whole estate going to the children would therefore be $ 3352.44. If she took her third then $ 3352.44 is two-thirds of the whole estate and one-third of her share was $ 1676.22, and the whole estate was evidently of the value of $ 5028.66. The consideration she paid for all the land she bought and kept to the date of her death was $ 1650.
Campbell & Ellison and Higbee & Mills for respondent.
(1) It is conclusively shown by the evidence of plaintiffs and defendant that at the time of the death of John Hynds, his widow, Permelia Hynds owned no property. That all of the property transferred to their children was purchased with the trust funds which came into the hands of the widow while she was acting as administratrix and guardian. That many years ago she had settled with each of her children by segregating the interests of each in said estate, and setting apart to them their respective interests. That after the settlements with those children there remained in the estate only the lands involved in this controversy. It is conclusively shown, in fact admitted, that the defendant, George Hynds, never received anything from the estate except the lands involved in this controversy. (2) It is well settled law in this State when a guardian, curator, or administrator purchases property with trust funds, a trust results in favor of the ward or beneficiary. Patterson v. Booth, 105 Mo. 405; May v. May, 189 Mo. 485; In re Ferguson estate, 124 Mo. 574. The conceded fact that Permelia Hynds owned no property at the time of her husband's death and that she afterwards acquired title in her own name to various tracts of land, is in itself sufficient evidence to show that the lands were brought with trust funds. Prewitt v. Prewitt, 188 Mo. 675. (3) Plaintiffs insist, however, that the 80 was bought by Mrs. Permelia Hynds with her individual money. If that be true it was not clothed with a trust and she could give it to her son George, as she did when he attained his majority. The failure to execute a deed will not defeat her purpose. Equity regards that as done which was intended to be done. Besides, the evidence shows that Mrs. Hynds and all her children dealt loosely with each other. (4) On the first trial the court found that the 80 acres belonged to George Hynds but that the other two tracts belonged to plaintiffs and defendant, ordered them sold and the proceeds distributed. By stipulation it is agreed that at the instance of the plaintiffs this was done, and the proceeds divided. Plaintiffs took the fruits of that judgment and are concluded by it. If the trial court took that view of the case, absent declarations of law, it cannot be reviewed. 2 Cyc. 651, e.
This is ejectment begun in the Adair Circuit Court in March, 1909, to recover three tracts of land in that county. The first and largest of these tracts is described as follows: The south half of the southwest quarter of Section 12 of Township 61 of Range 15 except the right of way of the Wabash Railroad. It is not necessary to describe the two smaller tracts.
The petition was in the ordinary form, alleging that plaintiffs were entitled to possession on October 4, 1899, and the ouster on May 18, 1908.
The answer was (1) a general denial; (2) a prayer that the court ascertain and adjudge the right, title and interest of the parties plaintiffs and defendant respectively, and to adjudge the defendant to be the absolute owner; (3) that his father, John Hynds, died in June, 1858, leaving his widow, Permelia Hynds and their children W. G. Hynds, A. J. Hynds, Richie Hynds, Jennie Mahaffy and defendant as his only heirs; that his mother took letters of administration of the estate, consisting of money, notes and other personal property, out of which she purchased the land in controversy; that afterward she settled with each of the other heirs, paying them in full their respective shares, after which there only remained these lands, which did not exceed his distributive share of the estate, and which she promised to convey to him, and which he accepted as his distributive share of the estate of his father, and took possession of the same, and that for more than ten years before the death of his mother and up to the time of the beginning of the suit had remained in actual and continuous possession, claiming title thereto.
The affirmative matters so pleaded were put in issue by the reply, which alleged that from the time of the death of her husband, his mother had furnished the defendant with food, clothing and shelter, by which all his interest in his father's estate had been consumed.
The cause came on for trial in the Adair Circuit Court, and resulted in a judgment vesting the entire title to the eighty-acre tract we have described, in the defendant, to the exclusion of plaintiffs and each of them, and declaring the title in fee to the two smaller tracts to be in the plaintiffs and defendant according to their respective interests as heirs of Permelia Hynds.
From this judgment an appeal was taken to this court, in which it was reversed in so far as it was in favor of defendant as to his full ownership of the eighty-acre tract, and remanded for a new trial upon that issue, which is all that is left in the case. Upon the going down of our mandate a change of venue was taken to the circuit court for Macon County, where a new trial was had, resulting in the judgment from which this appeal is taken. It adjudges the title to the eighty acres to be in defendant free from all claims of plaintiffs or either of them.
Although the title of the cause is not mentioned, there is enough information scattered through the appellant's abstract of the record to justify the inference that the plaintiffs include all the living children of John and Permelia Hynds excepting defendant, together with the living children of William G. Hynds, a son, who died in March, 1899. The defendant is their youngest son. John Hynds died in Adair County in June, 1858, leaving surviving him the said Permelia, his widow, and six children, to-wit, W. G. Hynds (since deceased as above stated), A. J. Hynds, Richie Hynds, Jennie Mahaffy, Mary Hynds and George Hynds, the defendant. Richie died about two years before the institution of this suit, childless and unmarried. Mary died at sometime not stated in the evidence. Permelia Hynds died in 1898, seized in fee simple of the eighty acres of land in controversy. At the time of the death of Mr. Hynds, the defendant, his youngest child, was but two years old. Nothing is said about Mrs. Mahaffy's husband, so that we may assume that she is a widow.
Immediately after the death of Mr. Hynds his widow took out letters of administration and filed an inventory of his estate, which consisted entirely of personal property, mostly cash and notes, and amounting in all to $ 5452.91. She had no property of her own other than her interest in this estate. The inventory was dated and filed August 11, 1858.
September 21, 1858, Mrs. Hynds purchased the west forty acres of the land in controversy, taking title in her own name and paying $ 750 therefor. On the same date she purchased the two small tracts of timber land originally involved in this suit for $ 225, taking the title in her own name, and April 27, 1864, she obtained the other forty now involved in this suit, taking the title to herself.
On May 6, 1865, she made a statement as guardian of the persons and estates of "the minor heirs of John Hynds deceased," in which she reported that she made final settlement as administratrix of his estate at the April term, 1863, of the probate court, at which she paid W. G. Hynds, one of the heirs, $ 450, and that there was in her hands at that time belonging to the minors $ 3343.39. This statement showed a balance still in her hands of $ 2234.96, with which she accordingly charged herself as of that date. On the next day after this statement, she gave bond as guardian in the sum of $ 5000, which was duly approved. The...
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