Ketcham v. Miller

• Decision Date: 31 March 1931
• Docket Number: No. 28550.,28550.
• Citation: 37 S.W.2d 635
• Parties: KETCHAM et al. v. MILLER.
• Court: Missouri Supreme Court

37 S.W.2d 635

KETCHAM et al. v. MILLER.

No. 28550.

Supreme Court of Missouri, Division No. 1.

March 31, 1931.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

Suit by Golda M. Ketcham and another against Elsie C. Miller. Judgment for defendant, and plaintiffs appeal.

Reversed and remanded, with instructions.

W. Rogers Revelle, of Pasadena, Cal., and Kirshner, Remley & Stroheker, of Kansas City, for appellants.

Battle McCardle, of Kansas City, for respondent.

STURGIS, C.

The purpose of this suit is to have the court declare and enforce an express trust in land. The essential facts are that Edwin M. Miller was the sole owner of a tract of improved land in Kansas City, Mo. He married the second time, and the plaintiffs are his two daughters, children of his first marriage, and the defendant is the second wife. In this situation he desired to make provision for both his second wife and such children by the former wife, and sought legal advice and assistance in doing so. The result was that on October 27, 1920, he, joined by his second wife, executed a warranty deed conveying this property now in dispute to Helen S. Kelly, who was selected for that purpose. This grantee, on the same date and as part of the same transaction, executed a warranty deed conveying the same property to said Edwin M. Miller and his then wife, Elsie C. Miller, defendant herein. Both these deeds were at once delivered and recorded. The purpose and result of this transaction was to vest title to this property in the husband and wife as tenants by the entirety with the right of survivorship. This secured to his wife, this defendant, the full title to the property in case of her husband's death while she was yet living. No question is made as to the validity of these deeds or their legal effect.

At the same time and as part of the same transaction, and in order to make provision for his two daughters, plaintiffs herein, in the same contingency, said Edwin M. Miller caused to be prepared, with his said wife's consent, and she signed and executed, the following writing or declaration of trust, sometimes referred to as a contract, to wit:

"In consideration that Edwin M. Miller has this day caused the following described property, to-wit: All of Lot Thirty-one and the North half of Lot Thirty, Block Two, Hyde Park, an addition in Kansas City, Missouri, to be deeded to himself and the undersigned, husband and wife, in such a way that in case the undersigned shall survive him, the entire title to this property shall pass to the undersigned, I hereby agree that in case I shall survive the said Edwin M. Miller so as to acquire the full title to said property, I will forthwith convey unto his daughters, Mrs. Golda M. Ketcham and Mrs. Elizabeth M. Johnson (afterwards Thatcher), a one-half interest in said property to be shared by them in equal moieties, I to retain the other one-half interest for my own.

It is understood and agreed that the terms upon which the conveyance herein recited was made is that said daughters shall succeed to a one-half interest in said property on condition that I should survive my husband.

"In case of the death of either of the two daughters named, the survivor shall take the entire one-half interest in the property.

                                         "Elsie C. Miller."
                

This instrument was duly acknowledged before a notary public on October 27, 1920, but was not put of record. A carbon copy, however, was sent by Edwin M. Miller to one of plaintiffs, Mrs. Ketcham, then living in California, explaining the purpose of the conveyances and instructing her to preserve the same for future use. It is interesting to know, though perhaps not material, that Edwin M. Miller and his former wife had owned this same property as tenants by the entirety, and on her death some years previous he had become the sole owner by survivorship. In his letter to his daughter in California transmitting her the carbon copy of the agreement or declaration of trust, he said:

"My home here stands in the names of Elsie (defendant) and myself. In case I should die, then under the manner in which the property stands of record, it would all go to Elsie. Should she die first, then it would all come back to me. This is the way it stood in your mother's name, and mine. Hence when your mamma died the property at once became my own.

"You will see from a copy of the enclosed agreement that, should I die before Elsie, then the property is to be deeded by her, one-half to you and Bessie (Elizabeth Thatcher). In other words, one-fourth to each of you.

"I have never put this instrument on record, as I have absolute faith in Elsie. I think she will treat you and Bessie, instead of justly, she would be a little more than just. But should she and I both go, then her heirs would get all of the property, unless you had the enclosed copy, to show that you and Bessie are entitled to one-half.

"Messrs. Kirschner & House, 100 New York Life Building, Kansas City, are my attorneys and they drew this contract. Therefore, save this copy and this letter, so that if anything happens to Elsie and myself, at one time, or near to one time, that you will have the necessary papers to prove your rights."

This, along with much evidence, some of which was irrelevant and perhaps incompetent went in without objection, as both parties were disposed to lay the whole matter before the court.

The trial court decided the case for defendant, denying plaintiffs any relief, and they have taken all proper steps for an appeal to this court. In defendant's first answer, she denied the execution by her of the trust agreement relied on and set out in the petition. In the face of the overwhelming evidence on this point, the defendant later receded from this contention and conceded the signing and execution of this instrument.

In the view we take of this case, it will not be necessary to discuss all the legal propositions raised by the respective briefs. One proposition relied on by defendant to uphold the decision of the trial court is that the agreement in question made by defendant is void for want of any consideration. This is based on the fact that neither of the plaintiffs paid or furnished any consideration, and, as to them, it was a mere gratuity. It is not necessary, however, that the consideration for an agreement flow from all or even any of the beneficiaries. A contract made for the benefit of third parties is generally without consideration moving from such third parties, and it is sufficient to bind the promisor that a consideration be furnished by the second party, and it is not even necessary that the third party benefited be consulted or have knowledge at the time of the making of such contract. Rogers v. Gosnell, 58 Mo. 589; Ellis v. Harrison, 104 Mo. 270, 16 S. W. 198; Scheele v. Lafayette Bank, 120 Mo. App. 611, 624, 97 S. W. 621; City of St. Louis to the Use of Glencoe Lime & Cement Co. v. Von Phul, 133 Mo. 561, 565, 34 S. W. 843, 54 Am. St. Rep. 695; State ex rel. v. Laclede Gaslight Co., 102 Mo. 472, 14 S. W. 974, 15 S. W. 383, 22 Am. St. Rep. 789. Sometimes it is said that it is sufficient that the grantor or person furnishing the consideration be under a legal or moral obligation to the party for whose benefit the contract is made, such as a father to his child, in order that such beneficiary may enforce the agreement, but even this is not necessary. Crone v. Stinde, 156 Mo. 262, 55 S. W. 863, 56 S. W. 907; Scheele v. Lafayette Bank, 120 Mo. App. 611, 624, 97 S. W. 621.

The agreement now under consideration was made by defendant for the benefit of plaintiffs, though the consideration was furnished by Edwin M. Miller. He was the owner of this property, and his deed to Miss Kelly and her deed back to Edwin M. Miller and this defendant, then his wife, clothed the latter with all the rights of a tenant by the entirety. It placed her in a position to become, as she later did, the sole owner of this property. In consideration for this valuable property right conveyed by these deeds, and as part of the same transaction, the defendant agreed that, in case she survived her husband and thus became the sole owner, she would convey half of it to these plaintiffs, his daughters. This point must therefore be ruled against the defendant.

It is next contended that such agreement is void under the rule, somewhat inaccurately stated, however, that, when an estate in fee is granted by deed or will, such estate cannot be cut down to a lesser estate by a subsequent repugnant provision, citing such cases as Gannon v. Albright, 183 Mo. 238, 252, 81 S. W. 1162, 67 L. R. A. 97, 105 Am. St. Rep. 471; Kessner v. Phillips, 189 Mo. 515, 88 S. W. 66, 107 Am. St. Rep. 368, 3 Ann. Cas. 1005; Elsea v. Smith, 273 Mo. 396, 202 S. W. 1071. The rule of law referred to is one applied in the construction of deeds and wills in an endeavor to determine what estate is created thereby, and has no application to the question of creating or evidencing trusts with reference to the estate conveyed. It is not at all necessary that the instrument conveying the estate shall also embody the writing evidencing the trust. It is not uncommon that the party executing the writing necessary to evidence the trust has received the title in fee, and it is such fee title that is held in trust. The question is not as to the quantum or quality of the estate or title received or held by the alleged trustee, but as to whether that estate or title, whatever it may be, is taken or held for the benefit of another, and on what conditions. Our statute in regard to express trusts, section 2263, Rev. St. 1919, merely requires that "all declarations or creations of trust or confidence of any lands, tenements or hereditaments shall be manifested and proved by some writing signed by the party who is, or shall be, by law, enabled to declare such trusts, or by his last will, in writing, or else they shall be void." As said,...