In re Estate of Soulard

• Decision Date: 07 December 1897
• Citation: 43 S.W. 617,141 Mo. 642
• Parties: In Re Estate of Soulard; Harney, Administrator, Appellant
• Court: Missouri Supreme Court

43 S.W. 617

141 Mo. 642

In Re Estate of Soulard; Harney, Administrator, Appellant

Supreme Court of Missouri, First Division

December 7, 1897

Appeal from St. Louis City Circuit Court.

Reversed and remanded (with directions).

Walter B. Douglas and P. Taylor Bryan for appellant.

(1) Every person claiming title by gift necessarily admits that up to the time when the gift was alleged to have been made the chattel was the property of the donor. Dickeschied v Bank, 28 W.Va. 360; Samson v. Samson, 67 Iowa 253; Barnum v. Reed, 136 Ill. 388. (2) The power of attorney to Mrs. Soulard neither conferred nor purported to confer upon her any authority to give away her husband's property. Clarke's Lessee v. Courtney, 5 Peters, 319; Frost v. Cattle Co., 81 Tex. 505; Bank v Schaumburg, 38 Mo. 228. (3) The alleged ratification by Mr. Soulard was written on each instrument of gift under the signature of Mrs. Soulard, and by its terms is confined to the foregoing act, namely, to the signing of the instrument. Steunkle v. Railroad, 42 Mo.App. 73; Hyde v Larkin, 35 Mo.App. 365; Bank v. Gay, 63 Mo. 33. (4) Since both Mr. Soulard, the principal, and Mrs. Soulard, the socalled agent, were dead at the time LaMotte's testimony was taken, any testimony of LaMotte as to what was said or done by either of them is clearly incompetent. R. S. 1889, sec. 8918; Banking House v. Rood, 132 Mo. 256; Lins v. Lenhardt, 127 Mo. 289; Dunn v. Bank, 109 Mo. 101. (5) In order to constitute a valid gift of personal property it is necessary that the subject-matter be definite and specific. Thornton on Gifts, p. 11; 2 Kent's Commentaries, 439; Barnum v. Reed, 136 Ill. 388. (6) The possession of the subject-matter must be delivered to the alleged donee, or to someone for him. An attempted transfer by writing alone will not suffice. Cochrane v. Moore, 25 Q. B. D. 57; Seminary v. Robbins, 128 Ind. 85; In re Breton's Estate, L. R. 17 Ch. Div. 416; McMahon v. Bank, 67 Conn. 78; Giselman v. Starr, 106 Cal. 651; Walsh's Appeal, 122 Pa. St. 177. (7) This delivery of possession must be made in execution of a purpose to give as distinguished from a mere delivery in bailment, as, for example, to donor's agent. Dunn v. Bank, 109 Mo. 90; Tomlinson v. Ellison, 104 Mo. 105; Walter v. Ford, 74 Mo. 195; McCord v. McCord, 77 Mo. 166. (8) This delivery must be with the intent on the part of the alleged donor to absolutely pass all present title to the property entirely out of himself, and to irrevocably deprive himself of all control thereof, and dominion thereover. Dunn v. Bank, 109 Mo. 90; Nasse v. Thoman, 39 Mo.App. 178; Knapp v. Publishers, 127 Mo. 53; Thomas v. Thomas, 107 Mo. 459; Basket v. Hassel, 107 U.S. 602; Cook v. Lum, 55 N. J. L. 373; Beaver v. Beaver, 117 N.Y. 421; Yancey v. Field, 85 Va. 756; Jones v. Weekly, 99 Ala. 441. (9) A gift inter vivos has no reference to the future. It must pass the entire title in praesenti; Spencer v. Vance, 57 Mo. 427; Tygard v. McComb, 54 Mo.App. 85; Sem. v. Robbins, supra; Basket v. Hassel, 107 U.S. 602; Young v. Young, 80 N.Y. 422. (10) Whether the executrix claims that these notes and bonds were a gift passing the legal title to the alleged donees, or whether she claims that they were gifts passing the legal title to LaMotte as trustee for them, the requirements to make the transaction a valid gift of personal property are the same. Perry on Trusts [4 Ed.], sec. 100, p. 93; Dunn v. Bank, 109 Mo. 90; Sem. v. Robbins, 128 Ind. 85; McCartney v. Ridgeway, 160 Ill. 129; Barnum v. Reed, 136 Ill. 338; Withers v. Weaver, 10 Barr, 391. (11) The alleged gifts in this case were not to take effect until the death of the donor. They were therefore testamentary in character and not valid as gifts inter vivos. Dunn v. Bank, 109 Mo. 90; Tygard v. McComb, 54 Mo.App. 85; Basket v. Hassell, 107 U.S. 602; Barnum v. Reed, 136 Ill. 388; Olney v. Howe, 89 Ill. 556; Buswell v. Fuller, 156 Mass. 309. (12) Expenses incurred by an executor for fees paid to counsel for defending in a contest of the will of which he is executor, are not chargeable against the estate in the absence of a legal duty imposed upon the executor to defend such case. 2 Woerner's Am. Law of Adm., sec. 517; Mumper's Appeal, 3 Watts & S. 441; Yerkes' Appeal, 99 Pa. St. 401; Shaw v. Moderwell, 104 Ill. 64; Andrews v. Andrews, 7 Ohio St. 143; In re Parsons, 65 Cal. 240; R. S. 1889, sec. 13. (13) It is no part of the duty of an executor to collect rents of real property of the testator, and when he does so he should not be allowed to charge a commission against the estate for so doing. R. S. 1889, secs. 129, 222; Hitchcock v. Mosher, 106 Mo. 578. (14) Equity can not be successfully invoked to perfect an imperfect gift by creating a trust where the words employed are insufficient of themselves to have such effect. Richards v. Delbridge, L. R. 18 Eq. Case, 11; McCartney v. Ridgeway, 160 Ill. 129; Roth v. Michael, 125 Ill. 325; Barnum v. Reed, 136 Ill. 388; Young v. Young, 80 N.Y. 422; Beaver v. Beaver, 117 N.Y. 421; Matthews v. Hoagland, 48 N.J.Eq. 455; Marcy v. Amazeen, 61 N.H. 134; Pope v. Bank, 56 Vt. 286.

Frost & Foy and Lubke & Muench for respondent.

(1) The instruments in this case create an executed express trust, and constitute a valid gift in praesenti of the bonds and notes. Young v. Young, 80 N.Y. 422; Pope v. Bank, 56 Vt. 288; Barlow v. Loomis, 19 F. 677; Davis v. Ney, 125 Mass. 592; Stone v. Hacket, 12 Gray, 227; Ireland v. Geraghty, 11 Bissell, 465; Blanchard v. Sheldon, 43 Vt. 513. (2) A remainder after a life estate can be created in personal property when conveyed in trust. R. S. 1889, sec. 8837; Pemberton v. Pemberton, 22 Mo. 339; Hayden v. Stinson, 24 Mo. 182; Smith v. Bell, 6 Peters, 78; Jaggers v. Estes, 2 Strob. Eq. 344. (3) No particular words are necessary to create a trust. Seavey v. Seavey, 30 Ill.App. 625; Gerrish v. Bank, 128 Mass. 159; Uran v. Cates, 109 Mass. 501; Estate Thos. Smith, 144 Pa. St. 438; Hellman v. McWilliams, 70 Cal. 449; Meriwether v. Morrison, 78 Ky. 572. (4) The restraint in the instruments on the grantees from "making any disposition of the principal of said bonds and notes during my life," is consistent with transfer of title in fee. Dougal v. Fryer, 3 Mo. 40; Van Cott v. Prentice, 104 N.Y. 45. (5) The reservation by grantor of the right to reinvest any money from the payment of the notes and bonds does not enlarge the life interest before reserved to grantor into a fee, and is not inconsistent with a complete title in grantee subject to the exercise of this right. Thornton on Gifts, p. 435; Harbison v. James, 90 Mo. 427; Russell v. Eubanks, 84 Mo. 83; Jarboe v. Hey, 122 Mo. 341. (6) The reservation by grantor of a life estate is conclusive evidence of the intent to pass title in praesenti. Sneathen v. Same, 104 Mo. 209; Williams v. Latham, 113 Mo. 174. (7) There was a complete delivery of both instruments and notes. Rumsey v. Otis, 133 Mo. 85; Hill v. Stevenson, 63 Me. 364; Hamilton v. Armstrong, 120 Mo. 597; Meriwether v. Morrison, 78 Ky. 573; McCord v. Same, 77 Mo. 174; Rinker v. Same, 20 Ind. 185; Dresser v. Same, 46 Me. 68; Rothenbarger v. Same, 111 Mo. 1; Sneathen v. Same, 104 Mo. 201; Williams v. Latham, 113 Mo. 165. (8) Assent of donees, especially minors, is presumed. Rothenbarger v. Same, 111 Mo. 1; Sneathen v. Same, 104 Mo. 201; Standiford v. Same, 97 Mo. 236. (9) Even if grantors had possession of notes or bonds after the gift had been completed, this does not defeat gift. Thornton on Gifts, p. 182, par. 209; Geraghty v. Ireland, 11 Bissell, 465; Van Hesse v. MacKaye, 62 Hun. (N. Y.) 458; Brandon v. Dawson, 51 Mo.App. 237. (10) The court will endeavor to give effect to the grantor's intention. Bean v. Kenmuir, 86 Mo. 666; Fisher v. Nelson, 8 Mo.App. 90; McCullock v. Holmes, 111 Mo. 448. (11) The grantees could be at the same time trustees and cestuis que trustent. Young v. Young, 68 N.C. 309; Cummings v. Corley, 58 Mich. 492; Love v. Francis, 63 Mich. 182. (12) The words "to the use of" on the instruments of gift are equivalent to "in trust for," "for the benefit of." Pugh v. Hayes, 113 Mo. 424; Young v. Young, 80 N.Y. 422; Donlin v. Bradley, 10 N.E. 11. (13) A trust may be declared in a fund constantly changing. Leland v. Culver, 34 Mich. 418; Beach, Mod. Eq. Jur., secs. 281, 285, 286. (14) LaMotte's testimony was competent. Tomlinson v. Ellison, 104 Mo. 105; Gunn v. Thurston, 130 Mo. 359; Dunn v. Bank, 109 Mo. 101; Banking House v. Rood, 132 Mo. 264. (15) After proof of delivery of instruments of gift, and notes and bonds, the burden of proof is upon appellant to invalidate gift. Tobin v. Bass, 85 Mo. 654; Hamilton v. Armstrong, 120 Mo. 597; Standiford v. Same, 97 Mo. 231; Tyler v. Hall, 106 Mo. 319. (16) The executor's right to reimbursement out of the estate is made to depend, not upon his success, but simply upon his good faith in incurring the expense. Williams v. Goude, 1 Haggards, 610; Wilkinson v. Corfield, 6 Prob. Div. 27; Phillips' Ex'r v. Phillips, 81 Ky. 328; John v. Tate, 7 Humph. 388; Hazard v. Engs, 14 R. I. 5, 8; Douglas v. Yost, 18 N.Y.S. 830.

OPINION

Macfarlane, J.

The controversies in this case arose in the probate court of the city of St. Louis on exceptions to the final settlement of the accounts of Joseph Soulard LaMotte as executor under the will of Henry G. Soulard, deceased. LaMotte died prior to the approval of his settlement, and Augusta F. LaMotte was appointed his executrix and as such asked the approval of the settlement. John M. Harney, who after the death of LaMotte was appointed administrator of the unadministered goods of the said Soulard, deceased, filed exceptions to the settlement.

The propositions upon which the exceptions are based are fairly stated by appellant as follows:

First. The failure of...