Leeper v. Taylor
| Decision Date | 02 July 1892 |
| Citation | 19 S.W. 955,111 Mo. 312 |
| Parties | Leeper, Public Administrator, v. Taylor, Appellant |
| Court | Missouri Supreme Court |
Appeal from Lewis Circuit Court. -- Hon. B. E. Turner, Judge.
Reversed and remanded.
J. C Anderson and H. J. Drummond for appellant.
(1) The court committed an error in permitting any evidence to be introduced by plaintiff, and in overruling appellant's motion in arrest of judgment, for the reason that the petition does not state facts sufficient to constitute a cause of action against defendant, because the petition does not show or aver any authority in respondent to take charge of the estate of Clarissa Taylor, deceased, nor to bring this suit; but on the contrary the petition discloses on its face such a state of case as shows that plaintiff was not lawfully in possession of her estate, and, therefore, not entitled to maintain this action. Revised Statutes, 1889, sec. 299, p 175; Headlee v. Cloud, 51 Mo. 601; State to use v. Malson, 38 Mo. 489; State to use v. Green, 65 Mo. 528; McCabe v. Lewis, 76 Mo. 296, 307; Reynolds v. McMullen, 22 N.W. 41. (2) The court erred in refusing to permit the appellant, William I. Taylor to testify as a witness in his own behalf. In this case he was competent and not disqualified by Revised Statutes, 1889, sec. 8918, because: First. There was no contract between him, Jeremiah and Clarissa Taylor in issue, and no cause of action in issue and on trial concerning the facts of which either the said Jeremiah or Clarissa had any knowledge. The object and spirit of the statute disqualifying one of the parties when the other is dead is to place parties on equality, so that one should not be permitted to testify to transactions cognizant by both, when the other is dead and can no longer be heard. Coughlan v. Huesler, 50 Mo. 126-128; Poe v. Domic, 54 Mo. 119-124; Orr v. Rode, 101 Mo. 387, 398; Wade v. Hardy, 75 Mo. 394-400; Amonett v. Montague, 63 Mo. 201; Fulkerson v. Thornton, 68 Mo. 468, 469; Loker v. Davis, 47 Mo. 140; Martin v. Jones, 59 Mo. 181-187; Berlin v. Berlin, 52 Mo. 151. Second. Appellant was a competent witness in this class of cases at common law, "ex necessitate rei," and is, therefore, competent under the statute. 1 Greenleaf on Evidence, sec. 348, p. 461, note 1; Angel v. Hester, 64 Mo. 142, 144, 145; Fish v. Hay, 42 Mo.App. 295. Third. Appellant was certainly competent to testify as to all his declarations and admissions testified to by the witnesses, L. D. Patterson and his wife, and the witnesses, Jerry (or Bud) Taylor and Dr. Bonny, as made at appellant's house on March 22, 1888. Wade v. Hardy, 75 Mo. 394-400; Poe v. Domic, 54 Mo. 123; Martin v. Jones, 59 Mo. 181. (3) Whether this proceeding be regarded as an action at law, or a proceeding in equity, the court committed error in striking out that portion of appellant's answer setting up a claim for compensation for board, clothing and medical attention furnished by him to said Clarissa for the period from August, 1880, until her death, December 27, 1887, and in refusing to permit defendant to offer evidence thereon. Even if the paper sued on and filed with plaintiff's petition constituted appellant a trustee of Clarissa, under the weight of authority he would be entitled to compensation. 2 Story on Equity Jurisprudence [5 Ed.] sec. 1268, note 3; 1 Story on Equity Jurisprudence [5 Ed.] sec. 322, note 5; Bispham on Principles Equity [4 Ed.] sec. 144, pp. 187, 188; Perry on Trusts, sec. 916. And even where a trustee has abused his trust he will be allowed reasonable compensation for special and extraordinary services rendered for the cestui que trust. Moore v. Yabraski, 3 C. E. Green, 51. (4) The paper filed with plaintiff's petition, styled declaration of trust, was not a contract between appellant and Jeremiah and Clarissa Taylor, nor did it constitute him a trustee for them or either of them. Appellant took the fee simple to the title to the lands in said paper mentioned, together with other lands, by the general warranty deed of the said Jeremiah and Clarissa executed by them on, and duly delivered to appellant by them on, the thirtieth day of May, 1877, for a consideration of $ 26,000. This declaration was signed by defendant on the twentieth of August, 1878, nearly fifteen months after the execution of the aforesaid deed. While it is admitted that a declaration of a trust may be contained in a different instrument from that by which the estate is vested in the trustee, yet the instruments must be contemporaneous, or at all events, in contemplation at the same time, and, if an absolute conveyance is made, no subsequent declaration can deprive the grantee of his beneficial interest therein. Bispham on Principles of Equity [4 Ed.] sec. 65, p. 99, and cases cited note 7, p. 99. The paper did not create a trust in appellant in favor of Jeremiah and Clarissa Taylor or either of them, because not delivered to them or either of them, nor to anyone for them. If any estate was created in them it was by virtue of this paper, and not otherwise. If created by this paper, it was because it was in the nature of a conveyance; delivery, therefore, to them or some one for them, was absolutely essential to create a trust estate in appellant, and vest the use in said Jeremiah and Clarissa. Turner v. Carpenter, 83 Mo. 333; Hammerslough v. Cheatham, 84 Mo. 13; Fountain v. Bank, 57 Mo. 522; Fisher v. Hall, 41 N.Y. 416. (5) It is obviously essential to the creation of a trust that there should be the intention to create a trust, and, therefore, if upon consideration of all the circumstances, the court is of opinion that the settler did not mean to create a trust, the court will not impute a trust where none was in fact contemplated. Lewin on Trusts [Blackstone Series] sec. 82, pp. 169, 170; Lane v. Ewing, 31 Mo. 75, 85, 86. (6) The paper in question and the provisions made thereby was not accepted by those for whom it was made, and, therefore, it never took effect. There was no assent to it by either of them. An acceptance or assent to it was necessary to the vesting in them of a beneficial interest. Tiedeman on Real Property, sec. 506, p. 403; Moore v. Flynn, 25 N.E. 844; 5 American & English Encyclopedia of Law, 449; Standiford v. Standiford, 97 Mo. 231; Ellis v. Railroad, 40 Mo.App. 165; Ebersole v. Rankin, 15 S.W. 422; Dikeman v. Arnold, 78 Mich. 455; Railroad v. Ruddle, 53 Ark. 32; Majors v. Todd, 47 N.W. 841; Porter v. Woodhouse, 59 Conn. 568; Sartoris v. Dolman, 49 N.W. 258.
Blair & Marchand for respondent.
(1) The petition is good; appellant waived the ground assigned in his demurrer in regard to a want of capacity in plaintiff to sue, notwithstanding the court ruled against him. By answering and going to trial he waived his exceptions. Revised Statutes, 1889, sec. 2047, p. 541, and note h. (2) The petition states the election and qualification of plaintiff as public administrator; the death of said Clarissa Taylor; that she left an estate of upwards of $ 10,000; that plaintiff took charge of it because requested by all of her heirs-at-law except defendant, and filed written notice thereof with the probate judge; that he has been in possession thereof ever since. Had he been the regular administrator of said estate the facts could not have been more minutely and fully stated. The petition does state facts sufficient to constitute a cause of action. (3) That defendant was not a competent witness is clear. First. Because Mr. and Mrs. Taylor, the persons forming one party to the contract sued on, were dead. Second. Because Mr. Taylor, the person with whom the contract was made for himself and wife, was dead. Third. Because, although the suit is in the name of public administrator having in charge the estate of Mrs. Taylor, the law is the same, and defendant stood disqualified except to acts, contracts, etc., occurring between plaintiff and defendant, since plaintiff took charge of Mrs. Taylor's estate. 2 Revised Statutes, 1889, sec. 8918, p. 2057; Wood v. Matthews, 73 Mo. 477; Chapman v. Dougherty, 87 Mo. 617; Meier v. Thieman, 90 Mo. 433; Wade v. Hardy, 75 Mo. 394; Sitton v. Shipp, 65 Mo. 297; Blobaum v. Gambs, 56 Mo. 183; Weiland v. Weyland, 64 Mo. 168; Hisaw v. Sigler, 68 Mo. 449; Kaho v. King, 19 Mo.App. 44; Lewis v. Oliver, 22 Mo.App. 203. (4) Where a trust has been created and declared in a mode not contravening the statute of frauds, it will be enforced, notwithstanding the consideration is voluntary. If the trust be executed and complete, it will be enforced, even against a volunteer; and, if incomplete and a consideration pass, it will be enforced. If the relation of trustee and cestui que trust exist, the trust will be complete. The trust or declaration of trust need not be created by writing, but when it relates to real estate it must be proven by writing, but the writing need not be in any particular form, nor need it give specific directions in regard to the execution of the trust, or disposition of the trust property. 2 Revised Statutes, 1889, sec. 5184, p. 1257; Kelley v. Johnson, 28 Mo. 249; Lane v. Ewing, 31 Mo. 75; Kelly v. Johnson, 34 Mo. 400; Norman v. Burnett, 25 Miss. 183; Duke of Cumberland v. Graves, 9 Barb. (N. Y.) 595; Throop v. Hatch, 3 Abb. Pr. (N. Y.) 23; Pratt v. Aver, 3 Chand. (Wis.) 265; Starr v. Starr, 1 Ohio 321; Garnsey v. Munday, 24 N.J.Eq. 243; Adams v. Adams, 21 Wall. 185.
OPINION
John H. Leeper, public administrator of Lewis county, having in charge the estate of Clarissa Taylor, brought this suit against William I. Taylor to recover the rental value of two hundred and sixty acres of land for some seven years.
The trial court gave judgment for the plaintiff for $ 5,392.46, from which defendant appealed.
Jeremiah Taylor and his wife...
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