Kennedy v. Estate of Kennedy

• Decision Date: 31 July 1874
• Citation: 57 Mo. 73
• Parties: JOHN KENNEDY, Defendant in Error, v. Estate of A. A. KENNEDY, Plaintiff in Error.
• Court: Missouri Supreme Court

57 Mo. 73

JOHN KENNEDY, Defendant in Error,

v.Estate of A. A. KENNEDY, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1874.

Error to Franklin Circuit Court.

Henry Flanagan & T. W. B. Crews, for Appellant.

I. Mrs. Kennedy, wife of the plaintiff, was in no sense his agent. The facts show that he was present when the alleged payment was made to A. A. Kennedy, in the full possession of his faculties, acquainted with all the circumstances, qualified, by education and otherwise, to manage his own affairs. His wife, on the other hand, could neither read nor write, and was in no respect peculiarly fitted for the office. But there is no evidence from which her agency can be inferred. Her statement that she was her husband's agent does not, of itself, make her such. The payment, by her, of the money in her husband's presence, was not such an act as will raise the presumption of agency. (Sto. on Agency, § 3; 41 Mo., 510.)

II. Where it is sought to establish a resulting trust in lands the payment of the purchase money by the cestui que trust must be proved by clear and undoubted evidence; otherwise, a court of equity will not interfere. The payment of the purchase money by the cestui que trust, and not the agreement of the parties, is the fact from which the law implies the trust; and that must not be left in doubt, but must be established beyond a question. No inferences can be indulged. (Farrington vs. Barr, 36 N. H., 86; Gascoigne vs. Twing, 1 Ver., 366; Enos vs. Hunter, 4 Gill., 211; Kellogg vs. Wood, 4 Paige, 579; Partridge vs. Havens, 10 Id., 618; Farringer vs. Ramsey, 4 Md. Ch., 33; Baker vs. Vining, 30 Me., 121; Johnson vs. Quarles, 46 Mo., 423; Ringo vs. Richardson, 53 Id., 385; Paige vs. Paige, 8 N. H., 187.)

III. Where the purchaser is dead, (as in the case at bar) evidence of his declarations is very unsatisfactory, on account of the facility with which it may be fabricated and the impossibility of contradicting it. It has never been considered, of itself, sufficient to establish a resulting trust. (Lench vs. Lench, 10 Ves., 518; Enos vs. Hunter, 4 Gill., [Ills.] 211; 1 Hoffman Ch., 90; Jackson vs. Moore, 6 Cow., 706; Jackson vs. Bateman, 2 Wend., 570; Jackson vs. Matsdaf, 11 John., 91; Boyd vs. McLean, 1 John. Ch., 216.)

IV. Giving the evidence of the plaintiff full credit, we submit that he cannot recover. In order to raise a resulting trust, “the whole consideration for the whole estate, or for a moiety, or for a third, or for a joint tenancy or tenancy in common in the whole or in a particular fraction, or for some other definite part of the whole, or for a particular interest, must be paid in order to be the foundation of the trust. The contribution or payment of a sum of money, generally, when such payment does not constitute the whole consideration, does not raise a trust by operation of law, for him who pays it. The reason of this distinction is, that neither the entire interest in the whole estate, nor in any given part of it, could result from such a payment to the party who makes it, without injustice to the grantee by whom the residue of the consideration is contributed.” (Per Chancellor Jones, in White vs. Carpenter, 2 Paige, 241.)

In the case at bar, the important element of a resulting trust, namely, that the grantee should receive the title without paying or incurring any liability to pay any part of the consideration money is wanting. It is admitted that the grantee paid a considerable portion of the purchase money; hence, no trust results to plaintiff. (Smith vs. Burnham, 3 Sum., 467; Sayre vs. Townsend, 15 Wend., 647; Freeman vs. Kelley, 1 Hoff., 90; Perry vs. McHenry, 13 Ill., 227; McGowan vs. McGowan, 14 Gray, [Mass.] 119; Cutler vs. Tuttle, 4 E. C. Green., [19 N. J.,] Eq., 549; Dudley vs. Batchelder, 53 Me., 403.)

V. “Where it is sought to establish a resulting trust by parol evidence, courts have ever been careful to examine into every circumstance which may affect the probability of the alleged claim, as a lapse of time, the means of knowledge and circumstances of the witnesses; and the relief sought will not be granted, when the evidence is not clear in support of the alleged right; especially where no claim has been set up during the life-time of the trustee, but is raked up and charged against the heirs, who may not be supposed to know anything about, or able to defend it as their ancestor would.” (Per Caton, J., in Enos vs. Hunter, 4 Gill., [Ills.] 211.)

Jesse White and R. H. Husser, for Respondent.

SHERWOOD, Judge, delivered the opinion of the court.

This was a suit in the nature of a bill in equity brought by John Kennedy against the heirs and widow of Allen A. Kennedy deceased, and also against the administrator of the decedent's estate to have a resulting trust established in plaintiff's favor as to a lot in Pacific, in Franklin County, the petition alleging that decedent was the agent of plaintiff, had been employed by him and furnished with $900 to buy said lot for plaintiff and had agreed to purchase the same as the agent of plaintiffs and supply any defect which might arise in completing the payment of the purchase money; that decedent afterwards bought the lot of the railroad company for $1,200, received a conveyance in his own name and agreed with plaintiff to re-convey to him upon the payment of the sum of $400 which decedent has advanced in addition to the $900 previously furnished; but that decedent had died without having executed to the...