Larue v. Larue

• Decision Date: 24 May 1927
• Docket Number: 25858
• Parties: Paulina F. E. Larue, Mathias Larue, Peter Larue and Paulina Larue, by Albert H. Miller, Her Guardian, Appellants, v. Elizabeth Larue
• Court: Missouri Supreme Court

294 S.W. 723

317 Mo. 207

Paulina F. E. Larue, Mathias Larue, Peter Larue and Paulina Larue, by Albert H. Miller, Her Guardian, Appellants, v. Elizabeth Larue

No. 25858

Supreme Court of Missouri

May 24, 1927

Appeal from Circuit Court of City of St. Louis; Hon. A. B Frey, Judge.

Affirmed.

Robert Walker and William Hilkerbaumer for appellants.

(1) When a cause in equity comes to this court on appeal, it is for hearing de novo and will be considered as if it had originated here and was to be heard for the first time. The appellate court will sift the whole evidence and determine what the finding of the trial court should have been, and is the judge of both fact and law. Lins v Lenhardt, 127 Mo. 280; Turner v. Overall, 172 Mo. 287; Price v. Morrison, 291 Mo. 266. (2) A resulting trust is created where property is paid for with the money or assets of one person and the title thereto is taken in the name of another person, and the controlling question is the ownership of the purchase money. Shaw v Shaw, 86 Mo. 598; Condit v. Maxwell, 142 Mo. 274; Morris v. Clare, 132 Mo. 232; 39 Cyc. 118. (3) No claim is made that George LaRue made provision for defendant, if he bought and took title in her name. If such presumption can under any circumstance be indulged, it is a rebuttable one, and it is rebutted by the facts and circumstances in evidence. Thiery v. Thiery, 298 Mo. 25, 249 S.W. 946; Gillespie v. Gillespie, 289 S.W. 579. (4) LaRue not only did not make provision for his lawful wife, but took title in the name of another to prevent her rights from attaching. (5) The rule that the evidence must be clear, unequivocal, and convincing is satisfied in this case. Miller v. Slupsky, 158 Mo. 643; Crawford v. Jones, 163 Mo. 577. (6) A resulting trust may be established by the person who furnishes the purchase price, or after his death by his heirs. 39 Cyc. 525; Crawford v. Jones, 163 Mo. 577; Young v. Thrasher, 115 Mo. 227. (7) The widow, is entitled to dower and homestead rights in the property in suit. Young v. Thrasher, 115 Mo. 227; Davis v. Evans, 102 Mo. 164; Davis v. Green, 102 Mo. 170; Reeves v. Peterman, 109 Ala. 366, 19 So. 512; Edmonson v. Meacham, 50 Miss. 34; Stubendorf v. Hoffman, 23 Neb. 360, 36 N.W. 581.

John R. Davis for respondent.

(1) Evidence to establish a resulting trust must be clear, strong, cogent and unequivocal, and so definite and positive as to leave no room for doubt. Viers v. Viers, 75 S.W. 395; Wavrin v. Wavrin, 220 S.W. 931; Woerheide v. Kelley, 243 S.W. 158; Bartlett v. White, 272 S.W. 944; Gillespie v. Gillespie, 289 S.W. 579; Shaw v. Shaw, 86 Mo. 598. (2) Where the husband purchases property with his own means, but causes a conveyance to be made to his wife, it is presumed that he intended the transfer to be a gift to his wife, and while the presumption is rebuttable, it can be overcome only by clear and positive evidence leaving no doubt in the mind of the chancellor. Bender v. Bender, 220 S.W. 929; Stevens v. Stevens, 273 S.W. 1066; Dyer v. Dyer, 2 Cox, 92; Alexander v. Warram, 17 Mo. 228.

Ellison, C. Lindsay and Seddon, CC., concur.

OPINION

ELLISON

This is a suit in equity to establish an implied or resulting trust, filed December 29, 1922. By the decree of the trial court the plaintiffs' bill was dismissed and the title to the real estate in controversy -- a dwelling house and parcel of ground in St. Louis, hereinafter called the Bates Street property -- was quieted in the defendant. The plaintiffs have appealed on the sole ground that under the evidence the decree should have been for them. They are the heirs of George LaRue, who died July 29, 1922, and his widow by a second marriage, Paulina LaRue -- impleaded by and through her guardian, she being a person of unsound mind. The defendant-respondent is the reputed third wife of the deceased.

A review of the record and a consideration of the whole case on its merits have convinced us that the cause was rightly decided by the learned chancellor who tried it. In accordance with the statutory mandate we set out a statement of the facts and legal conclusions which induce us to that view.

The petition conventionally recites that LaRue purchased and paid for the real estate involved and took title in the name of the defendant; that he died thus owning the land, and occupying it as a homestead; that the plaintiff widow, in consequence, is entitled to dower and homestead and, subject thereto, the plaintiff heirs to specified undivided fractional interests in the fee. The prayer is for divestiture of title out of the defendant into the plaintiffs according to their respective interests, for a determination of the interests of all the parties, for possession and costs, and for general relief. As characterizing the intention of the deceased LaRue it is alleged "that said George LaRue took title to said real estate in the name of defendant for the purpose of concealing his ownership thereof, and of defrauding and depriving these plaintiffs of their respective rights as widow and heirs of the said George LaRue."

The defendant's answer is a general denial and a plea of the ten-year Statute of Limitations, Section 1305, Revised Statutes 1919, coupled with an affirmation that she bought the real estate in controversy and paid the consideration out of her own separate means. As forecast by the pleadings, and as recognized in the briefs of counsel, the ultimate issue of fact is as to the ownership of the purchase money passing in the transaction.

The undisputed evidence is that George LaRue was twice married. By his first wife, Catherine, who died in August, 1881, he had one child, Frederick, who left at his death in 1899 two sons, the appellants Mathias and Peter. Four months after the demise of his first wife, or in December, 1881, George married the appellant Paulina LaRue, who bore him a year later a daughter, the appellant Paulina F. E. LaRue, also known as Lena, and hereinafter so designated. In 1883 when the latter was about a year old, the former became afflicted with some form of melancholia, and, whether for that reason or because driven away, as one of plaintiffs' witnesses surmised, a neighbor woman took both mother and daughter from LaRue's home to her own, and shortly thereafter the father of Paulina carried her and her infant daughter back to his home in Montgomery County. Thence, Paulina was presently transferred to an insane asylum in St. Louis, where she since has remained. Lena has continued to live in the home of her maternal grandfather.

In preparation for her confinement Paulina employed as domestic servant and attendant the respondent, Elizabeth LaRue, who then was a girl about seventeen years old, one of six children of humble parentage, their father being a common laborer living in a rented house. Elizabeth continued in her employment as a servant in the LaRue home from before the birth of Lena in 1882 until the departure of Paulina and Lena in 1883, and thereafter until 1885 performed additional work as an assistant in the office from which the deceased LaRue conducted a retail coal business. The uncontradicted testimony of Elizabeth (though doubted by appellants, in their brief) is that during this two-year period George LaRue made several trips to Pennyslvania, where he had relatives, the longest for about two weeks.

In February, 1885, George proposed marriage to Elizabeth, exhibiting a paper purporting to be an authenticated copy of a decree of the Supreme Court of Huntington County, Pennsylvania, dated February 24, 1885, granting to him, as plaintiff, a divorce from the appellant Paulina LaRue. Elizabeth testified she read over the decree and believed it genuine, and for that reason never submitted it to a lawyer. He also showed her a copy of a newspaper called the Springfield Weekly Journal, Volume 1, No. 48, dated Springfield, Mo., Thursday, February 19, 1895, containing an advertisement on the fourth page notifying the defendant in a suit between George LaRue and Paulina LaRue "to be at Mapleton, Huntington County, and State of Pennsylvania, on Tuesday, the 24th day of February, 1885," and failing, judgment would be rendered against him. Elizabeth preserved this paper because, she said, "it was to my interest." Objection was made by counsel for appellants to the introduction of these documents unless respondent would concede both the divorce decree and notice were null and void. This being agreed, they were admitted in evidence, "to show defendant's good faith in entering marriage with George LaRue." Appellants' inference is that the two papers were procured in the perpetration of a scheme, on the part of both George and Elizabeth, to fortify against a possible prosecution for bigamy following a contemplated bogus marriage.

A ceremony of marriage between George and Elizabeth was performed at St. Louis on April 21, 1885. They lived together before the world as man and wife for thirty-seven years until his death in 1922 at the age of nearly eighty-five years, she bearing him four children (not parties to the record) who, with her, constituted his family and wore his name. She was a party to seven of the deeds introduced in evidence by appellants to show the real estate transactions hereinafter mentioned, and in all of them her surname was given as "LaRue;" in four of them, wherein she joined as grantor with George LaRue, she was described as his wife; and, finally, when this suit was instituted by the appellants she was sued as Elizabeth "LaRue."

On the main issue, to establish their case the appellants attempted to trace into the purchase price of the Bates Street property proceeds from the sale of other pieces of real estate theretofore owned by George LaRue. In fact the appellants' whole showing consisted of a...