Masterson v. Plummer, 7865

• Decision Date: 02 February 1961
• Docket Number: No. 7865,7865
• Parties: Henry MASTERSON, Plaintiff-Respondent, v. M. O. PLUMMER, Administrator of the Estate of Janie Crowder, Deceased, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 352

343 S.W.2d 352

Henry MASTERSON, Plaintiff-Respondent, v. M. O. PLUMMER, Administrator of the Estate of Janie Crowder, Deceased, Defendant-Appellant.

No. 7865.

Springfield Court of Appeals, Missouri.

Feb. 2, 1961.

Motion for Rehearing or to Transfer Overruled March 7, 1961.

Douglas & Douglas, Neosho, for defendant-appellant.

James L. Paul, Pineville, for plaintiff-respondent.

STONE, Presiding Judge.

This action was instituted in the Probate Court of McDonald County to determine the title to two time certificates of deposit (hereinafter referred to as the certificates) and the proceeds thereof, which had been inventoried as assets of the estate of Janie Crowder, deceased. V.A.M.S. Sec. 473.357; as amended Laws of 1959, S.B. No. 141. The probate court found that plaintiff, Henry Masterson, the son of Janie Crowder, was 'the rightful owner' of the certificates and directed defendant, M. O. Plummer, administrator of the estate, to deliver them to plaintiff. Upon appeal, the circuit court likewise so found and adjudged. Defendant again appeals.

The certificates were issued by the State Bank of Seneca and signed by M. O. Plummer, Cashier. No. 7605 dated April 10, 1958, stated that Janie Crowder had deposited $3,935 which would be 'payable to the order of herself or Henry Masterson, Beneficiary in current funds on the return of this Certificate properly endorsed 12 months after date with interest at the rate of 2 1/2 per cent per annum.' No. 7594 dated February 13, 1958, stated that Janie Crowder had deposited $1,405.40 which would be 'payable to the order of herself if living: If not living to Henry Masterson, Beneficiary in current funds on the return of this Certificate properly endorsed 12 months after date with interest at the rate of 2 1/2 per cent per annum.' (The italicized portions were handwritten.) Both certificates bore printed notations, 'No Interest After Maturity' and 'Not Subject to Check.'

Although the record before us does not fix the precise dates on which Janie Crowder, an elderly lady, initially deposited in the State Bank of Seneca the monies evidenced by the certificates, those dates must have been long prior to 1958, for defendant Plummer, the only witness upon trial, said that the certificates in suit were simply renewals 'of a series of certificates.' From Plummer's testimony as to his conversations with Janie Crowder when the monies were deposited initially, it is abundantly clear that her sole concern for herself was that 'as long as she needed it she could draw the interest' but that, with such reservation to hereself, she desired and purposed to dedicate and preserve the principal for her son (instant plaintiff) and to do whatever might be necessary to make sure that it was paid to him at her death. Coming to Banker Plummer in simple trust and complete confidence, Janie Crowder sought his advice as to what should be done to accomplish this purpose; and, although (insofar as the instant record suggests) he mayhap was no better informed than she as to the legal principles bearing upon the problem (essentially a legal one) presented to him, Plummer essayed to advise Janie Crowder and (as he put it) 'coined the words' written in the certificates, which she, in the same simple trust and complete confidence, 'approved.' We observe parenthetically that no explanation is offered as to why Plummer, having so undertaken to advise, should have 'coined' and used somewhat different language in the two certificates. In any event, all was serence so long as Janie Crowder lived, with the bank (of which Plummer was cashier) continuing to use her funds and paying to her the modest interest of 2 1/2 per cent per annum. Janie Crowder, who had been living with G. N. Crowder, her third husband, on a farm in McDonald County, died on November 29, 1958, before the certificates in suit matured. She left as her only heirs at law her husband, who followed her in death about six months later, and Henry Masterson, her son by a previous marriage and plaintiff herein.

Instant plaintiff's theory has been that, as the capable and conscientious trial chancellor found, Janie Crowder had established an executed voluntary trust as to the funds evidenced by the certificates. In his present adversary role as administrator of the estate of Janie Crowder, defendant Plummer vigorously insists that the certificates simply reflect an attempted but invalid testamentary disposition. On this appeal in a court-tried case, we review the evidence de novo and reach our own conclusions as to its weight, but with appropriate respect for the plain admonition [Rule 73.01(d), V.A.M.R.; formerly V.A.M.S. Sec. 510.310(4)] that due regard should be accorded to the superior opportunity of the trial chancellor to judge of 'the credibility and characteristics' of witness Plummer [Cull v. Pfeifer, Mo., 307 S.W.2d 424, 428(5); Peine v. Sater, Mo., 289 S.W.2d 101, 102(1); Jenkins v. German, Mo.App., 298 S.W.2d 486, 491], and that the judgment nisi should not be set aside unless clearly erroneous. National Surety Corp. v. Fisher, Mo., 317 S.W.2d 334, 339(4); Southern Reynolds County School Dist. R-2 v. Callahan, Mo., 313 S.W.2d 35, 38(3); Erickson v. Greub, Mo., 287 S.W.2d 873, 874(1).

In simple terms, a trust (not qualified by 'charitable,' 'resulting' or 'constructive') may be defined as 'a fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it.' Restatement of Trusts 2d, Sec. 2, p. 6. Even more succinctly put, it has been said that a trust is simply a perfected gift of the equitable title to property. Harris Banking Co. v. Miller, 190 Mo. 640, 669, 89 S.W. 629, 637, 1 L.R.A.,N.S., 790; Coon v. Stanley, 230 Mo.App. 524, 527, 94 S.W.2d 96, 98. Although such equitable title must pass to the beneficiary in praesenti [Atlantic Nat. Bank of Jacksonville, Fla. v. St. Louis Union Trust Co., 357 Mo. 770, 779-780, 211 S.W.2d 2, 7(7); Korompilos v. Tompras, Mo.App., 251 S.W. 80, 81(3)], the settlor may constitute himself as trustee and, as such, retain legal title. Harris Banking Co. v. Miller, supra, 190 Mo. loc. cit. 668, 669, 89 S.W. loc. cit. 637; St. Louis Uniformed Firemen's Credit Union v. Haley, Mo.App., 190 S.W.2d 636, 639(5); In re Geel's Estate, Mo.App., 143 S.W.2d 327, 330(4); Restatement of Trusts 2d, Sec. 17(a), p. 59. True, creation of the trust must be established by evidence which is clear, unequivocal and convicing to the judicial mind and thus by more than a mere preponderance of the evidence [Northrip v. Burge, 255 Mo. 641, 654-655(4), 164 S.W. 584, 586-587(6); Harding v. St. Louis Union Trust Co., 276 Mo. 136, 142(2), 207 S.W. 68, 69(3)]; but, in the final analysis, whether an attempted disposition of property can be enforced as an executed trust depends primarily upon the intention of the settlor. Covey v. Van Bibber, Mo.App., 311 S.W.2d 112, 116(5); St. Louis Uniformed Firemen's Circuit Union v. Haley, supra, 190 S.W.2d loc. cit. 639(3); In re Geel's Estate, supra, 143 S.W.2d loc. cit. 330(3); Van Studdiford v. Randolph, Mo.App., 49 S.W.2d 250, 253. Intent is to be gathered from the words and acts of the parties before, at the time of, and subsequent to the transaction under scrutiny [Coon v. Stanley, supra, 230 Mo.App. loc. cit. 528(8), 94 S.W.2d loc. cit. 98(9)], in the light of the entire situation and all of the surrounding facts and circumstances [St. Louis Uniformed Firemen's Credit Union v. Haley, supra, 190 S.W.2d loc. cit. 639(6); annotation 168 A.L.R. 1273, 1290], in short 'from all the evidence.' Covey v. Van Bibber, supra, 311 S.W.2d loc. cit. 116. The intention to create a trust may be manifest by written or spoken words or by conduct [Restatement of Trusts 2d, Sec. 24(1), p. 67], and without the use of formal or technical words. In re Soulard's Estate, 141 Mo. 642, 664(7), 43 S.W. 617, 622(9); Eldridge v. Logan, Mo.App., 217 S.W.2d 588, 590(4, 5). As one authority has well stated it, '(i)n the creation of trusts settlors have never been handicapped by formalism.' 1 Bogert on Trusts, Sec. 45, loc. cit. 293. Nor is it material whether a settlor is cognizant that the intended relationship is called a trust or knows the precise characteristics of a trust relationship. Restatement of Trusts 2d, Sec. 23, comment a, p. 66; St. Louis Uniformed Firemen's Credit Union v. Haley, supra, 190 S.W.2d loc. cit. 638.

In the case at bar, the very language of the certificates themselves, written by witness Plummer (as he positively assures us) 'by the instruction given (him) by the deceased Janie M. Crowder at the time'--'under the direction of what she stated during her conversation' with him, is indicative of the creation of a trust. For, both certificates identify and refer to Henry Masterson (instant plaintiff) as 'beneficiary,' and thus, as that term is defined, to him as '(t)he person for whose benefit property is held in trust.' Restatement of Trusts 2d, Sec. 3(4), p. 12. We observe also that, from Plummer's testimony that the certificates in suit are simply renewals 'of a series of certificates,' it is fairly inferable that the principal of the funds placed in trust had been maintained intact, a circumstance often regarded as evidencing the settlor's intention to vest, and his appreciation of the fact...