Mead v. Robertson

• Decision Date: 25 May 1908
• Citation: 110 S.W. 1095,131 Mo.App. 185
• Parties: THOMAS O. MEAD et al., Appellants, v. LILLIE M. ROBERTSON et al., Respondents
• Court: Kansas Court of Appeals

110 S.W. 1095

131 Mo.App. 185

THOMAS O. MEAD et al., Appellants, v. LILLIE M. ROBERTSON et al., Respondents

Court of Appeals of Missouri, Kansas City

May 25, 1908

Appeal from Saline Circuit Court.--Hon. Samuel C. Davis, Judge.

AFFIRMED.

Judgment affirmed.

Duggins & Rainey and W. M. Williams for appellants.

(1) If a testator "is induced either to make a will or not to change one after it is made, by a promise, express or implied on the part of a legatee that he will devote his legacy to a certain lawful purpose a secret trust is created and equity will compel him to apply property thus obtained in accordance with his promise." "The trust springs from the intention of the testator and the promise of the legatee." "The same rule applies to heirs and next of kin who induce their ancestor, or relative, not to make a will by promising in case of intestacy to dispose of the property or a part of it in the manner indicated by him. The rule is founded on the principle that the legacy would not have been given, or intestacy allowed to ensue, unless the promise had been made; and hence the person promising is bound, in equity, to keep it, as to violate it would be fraud." Trustees of Amherst College v. Ritch, 152 N.Y. 282, 37 L. R. A. 321; Williams v. Fitch, 18 N.Y. 546; Parker v. Urey, 21 Pa. 305; Hooker v Livingston, 33 Mich. 453; Bennett v. Harper (W Va.), 15 S.E. 143; O'Harra's Will, 95 N.Y. 403; Ahrens v. Jones (N. Y.), 62 N.E. 667; Owens' Case (Md.), 17 Am. Dec. 338; Grant v. Bradstreet (Me.), 33 A. 165; Brooke v. Chappel, 34 Wis 405; 1 Underhill on Wills, sec. 153; Thornton on Gifts and Advancements, sec. 437; 1 Beach on Modern Equity Jurisprudence, sec. 230; 2 Pomeroy's Eq. Jurisprudence (2 Ed.), sec. 754. (2) The enforcement of such trusts does not interfere with or modify the will of the testator, or the statute of descents and distributions in the case of intestacy. The title to the property, in the one case, is vested in the legatee in accordance with the will, and, in the other, in the heir at law, as provided by the statute. The party after receiving the property is required to hold it in trust for the uses and purposes intended by the decedent. It is not enforced as an express trust created by the deceased, but arises out of the act of the legatee or heir at law in securing a benefit to himself, under a promise to dispose of the property in a certain way, and then, refusing to carry out his agreement. With the holder for his fraud, and out of the facts raised a trust ex maleficio, instead of resting upon one as created by the testator himself. 1 Underhill on Wills, sec. 153, p. 219; Williams v. Fitch, 18 N.Y. 546; Trustees of Amherst College v. Ritch, 152 N.Y. 282, 37 L. R. A. 321; Brooke v. Chappel, 34 Wis. 405. (3) An express and formal contract between the deceased and the heir at law need not be shown, nor is it necessary to prove the decedent said he would make a will unless the heir would agree to dispose of the property in accordance with his directions. Neither is it essential to show by direct evidence that the deceased was prevented from making a will by the promise of the heir. This, like any other fact, may be deduced from the circumstances surrounding the parties, their actions, words and conduct. It is sufficient "if the decedent relied upon the promise of the heirs or devisee as an effective arrangement for the future disposition of his property. Whitehouse v. Bolster (Me.), 50 A. 240; Grant v. Bradstreet (Me.), 33 A. 165; Brooke v. Chappel, 34 Wis. 407. (4) There is evidence in this case of an express and direct promise to the deceased by the heir at law, as well as by her husband, to use the property for the purpose of carrying out his wishes and completing the gifts which he desired to make. However, "trusts of this nature may be created by silent assent, as well as by express words." "While a promise is essential, it need not be expressly made, for active co-operation or silent acquiescence may have the same effect as an express promise." Trustees of Amherst College v. Ritch, 37 L. R. A. 321; Brooke v. Chappel, 34 Wis. 414; 1 Beach on Modern Equity Jurisprudence, sec. 230, p. 260; Curdy v. Burton (Cal.), 21 P. 858; O'Hara's Will, 95 N.Y. 412; Schultz' Appeal, 80 Pa. St. 405; Gilpatrick v. Gliddon, 2 L. R. A., and note on page 662. (5) The money, notes and bonds belonging to William J. C. Mead, deceased, were turned over to defendant, Lillie M. Robertson. Five or six thousand dollars of these funds have been invested in the name of, and are now held by the defendant, J. A. Robertson, her husband. This trust fund may be followed into the hands of any person taking the same with notice. The petition asks that an account be taken of the money received by the defendants from the estate of William J. C. Mead, and that the rights of the parties in said trust funds be determined by the court and enforced by its decree. A court of equity will mould its decree to suit the facts and circumstances in the particular case. The defendants may be adjudged to pay to the plaintiff and a trustee for the defendant, Nannie Q. Mead, out of the money received by them from said estate the sums to which they are respectively entitled. Snorgrass v. Moore, 30 Mo.App. 232; Baier v. Berberich, 64 Mo.App. 537; Synod v. Showich, 143 Mo. 664.

T. H. Harvey and Frank P. Sebree for respondents.

(1) The plaintiffs failed to make a case even under the law as asserted by them, and the judgment of the lower court was right. Pitts v. Weakley, 155 Mo. 109; Mulock v. Mulock, 156 Mo. 431; Whitehouse v. Bolster, 95 Mo. 458; Grant v. Bradstreet, 33 A. 165; Rosenwald v. Middlebrook, 188 Mo. 58; Russell v. Sharp, 192 Mo. 270; Kirk v. Middlebrook, 201 Mo. 289. (2) No agreement by Dr. Robertson could fasten a trust on the property of his wife, the defendant, Lillie M. Robertson. R. S. 1899, sec. 4340; Jones v. Elkins, 143 Mo. 647; Grocery Co. v. Ballinger, 137 Mo. 369. (3) The evidence fails to show that Mrs. Robertson made any promise concerning the property, but had she done so no trust would have been created thereby. R. S. 1899, secs. 3416, 4604, 4626; 3 Pom. Eq. Jur. (3 Ed.), sec. 1054, 1056; Bedilion v. Seaton, 3 Wall., Jr., 280, 3 F. 38; Cassels v. Finn, 122 Ga. 33, 106 Am. St. 91 and notes.

OPINION

ELLISON, J.

--This is a bill in equity to declare defendants trustees ex maleficio and enforce an implied or constructive trust. The judgment in the trial court was for the defendants.

The case arises out of the following facts: William Mead was a young unmarried man about twenty-four years of age. His father and mother were dead and his only heir was his half sister, Lillie M. Robertson, who was the wife of Dr. J. A. Robertson, called Arch by some witnesses. William died in May, 1904, after a week or ten days' illness, leaving a personal estate of about ten thousand dollars. About nine o'clock of the evening preceding the day of his death there were in the room with him Dr. Robertson, his brother-in-law, Dr. Reid, his physician, Rev. Alton, the pastor of his church, Henry Mead, his uncle and former guardian, and his aunt, Mrs. Charles Mead. His sister was in an adjoining room, but in hearing. He was informed by his physician that he could not recover and was asked if there was any business he desired attended to. His uncle and former guardian stated what transpired in the following way: "I asked Willie Mead if there was anything in regard to his business he wanted attended to; he turned to me and asked me how much money he had; I told him he had $ 10,000, or thereabout, or more; I do not remember my words, and he then started up and said, 'I want to give Uncle Olan the note he owes me; I want to give Uncle Charlie's girls $ 400 each; I want to give Sam $ 1,000; I want half of my remaining estate held for the benefit of Cousin Nannie, who was his step-mother, in case she needed it; in case she did not to give it to his sister, Mrs. Robertson, and the remaining half to be given his sister. He then turned to Dr. Robertson and said: 'Are you satisfied with this?' He said: 'Yes, whatever you want done with it, we will do,' or words to that effect; he soon after that says, turning to Dr. Robertson: 'I want you and Uncle Henry to attend to this matter for me,' and Arch (Dr. J. A. Robertson) says, 'All right;' I did not say anything; Willie turned to me and said: 'Do you hear me?' I said: 'Yes, I hear you and we will attend to it; ' I think that was pretty nearly everything that occurred; there may be something I have not remembered exactly."

Later in the night his sister came out into his room. She testified: "Well, Thursday night I went to his bed myself, and he took me by both hands, as I said before, and said, 'I am almost gone, Lillie; I can not last long.' And he pressed both of my hands and I bent with my ear down to his mouth and he whispered, 'With a little distribution, I have left the rest for you.'"

After the death of William, Dr. Robertson and Henry Mead were appointed administrators of his estate. Final settlement was made and ten thousand dollars paid over to Lillie M. Robertson as sole heir. A part of this was invested by Dr. Robertson and he is made a party defendant with his wife. They refused to comply with the request of William and this bill was brought to enforce a trust, as already stated. The importance of the question here presented is heightened by the fact that it seems not to have arisen heretofore in our courts. Industry of counsel, however, has brought to our aid many adjudications from other States and countries and we are thus not left without help in its solution.

It may be stated at the outset that fraud is the foundation of an action of this nature, and that the object of such an action is to arrest the...