Melvin v. Hoffman
| Decision Date | 30 November 1921 |
| Citation | 235 S.W. 107,290 Mo. 464 |
| Parties | THOMAS B. MELVIN v. LOUIS HOFFMAN, TRUSTEE, et al.; LULA MELVIN THOMSON and NANNIE M. MAY, Appellants |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court. -- Hon. Hopkins B. Shain, Judge.
Reversed and remanded (with directions).
Montgomery & Rucker for appellants.
(1) The trust deed is not void because in contravention of the rule against perpetuities. (a) The rule is directed only against future contingent interests and has no application to interests which necessarily vest (in right as distinguished from enjoyment) during a life or lives in being and twenty-one years thereafter. Gates v. Seibert, 157 Mo. 254; Deacon v. Trust Co., 271 Mo. 695. (b) All estates created by this instrument so vest within lives in being and twenty-one years. First, the trustees estate vested upon the delivery of the deed; second, the estates of respondent's wife and children (if he should have any) will vest at the instant of his death; third, the estates of Mrs. Thomson and Mrs. May vested upon the delivery of the deed, as vested remainders in fee. (c) The provision of the deed that the trustee, at the termination of the intermediate estates, shall convey and transfer the property to appellants, does not prevent their estates from vesting upon the execution and delivery of the deed, or postpone the vesting thereof. The persons who take are certain. No contingency can destroy their present right to the future enjoyment of their estates. Grove v. Robards, 36 Mo 525; Rodney v. Landau, 104 Mo. 257; Eckle v Ryland, 256 Mo. 424; 30 Cyc. 1484. (2) The trust is an executed, and not an executory, one. Ewing v Shannahan, 113 Mo. 195; Watson v. Payne, 143 Mo.App. 728; Taylor v. Welch, 168 Mo.App. 230; Banking Co. v. Miller, 190 Mo. 668. (3) The instrument is not testamentary in character, but passed the title upon its execution and delivery. Sims v Brown, 252 Mo. 58. (4) The trust was deliberately and advisedly planned by the respondent and entered into, with an ample and proper motive, and is fully justified by the results. The case of Ricks Appeals, 105 Pa. 528, was chiefly relied upon below as deciding that if the creator of a voluntary trust is not advised by his counsel that the trust is irrevocable, that fact is prima-facie evidence of a mistake for which the courts will revoke the trust. This case is not applicable to the facts in this case, because: (a) This instrument is not testamentary. (b) And did not create a mere agency revocable at pleasure. (c) And is not a mere covenant for posthumous gifts and as such nudum pactum. (d) Respondent does not contend that anybody told him "he could change it at any time" or "annul it at pleasure." There is no charge of fraud. (e) The grantor in Rick's Appeal did not wait sixteen years to seek relief in equity, and did not ratify it by thirteen years of acquiescence after learning that it was irrevocable. (f) The grantor was not seventy-five years old and illiterate, but thirty-two years old and educated. (g) The grantor created an irrevocable trust in order to protect himself and his family against his own incompetence and improvidence, as the grantor did in the following cases: Young v. Hyde, 255 Mo. 503; McFarland v. Bishop, 222 S.W. 146. (h) The rule announced is obiter dictum and hence not authoritative. (i) It is not in harmony with the great weight of authority in this country. 27 Am. & Eng. Enc. Law (1 Ed.), p. 310; Perry on Trusts, sec. 104. (j) No such rule has ever been applied in Missouri. (k) If the courts ever apply it, they will require the settlor to take prompt steps to revoke the trust, because the facts which determine the applicability of the rule rest in parol, that is, in the memories of witnesses and not in writings, and may be obliterated by mere lapse of time. A delay of sixteen years is too long. Furthermore, equity aids the vigilant and not those who sleep on their rights. (l) If the court should doubt that the settlor knew he was executing an irrevocable instrument, there is no doubt that he learned of that fact within two years thereafter. He waited fourteen years more before instituting this suit. Every day of delay amounted to a ratification and affirmance. Richards v. Trust Co., 97 Md. 608. (5) The express finding of the court in the suit of 1914 upon the issue joined as to whether the settlor fully understood the contents and purport of the deed, and the decree declaring the trust deed valid and in all respects sustained, are res adjudicata upon the issue here tendered by plaintiff that he did not understand the contents and purpose of the deed, and also as against all claims of plaintiff adverse to the trustee in the trust deed. (a) A point or question is in issue in a suit in such a sense that it will be concluded by judgment thereon, when an issue thereon is directly tendered and accepted by the pleadings. The judgment is conclusive, for the purpose of a second suit between the same parties, of all facts, questions or claims which are directly in issue and adjudicated. 23 Cyc. 1302. It is immaterial that the forms in which the same issue may arise, are different. If it has once been decided by a competent court, on the merits, between parties who rights are afterwards sought to be litigated, the decision binds them. Young v. Byrd, 124 Mo. 597. (b) The answer of defendants in the suit of 1914 converted the same into a suit to determine title under Sec. 2535, R. S. 1909. That statute was designed to determine all questions relating to the respective titles of the parties and to put at rest the controversy. Hence the judgment of 1914 was conclusive of all rights of the parties at that time. Williams v. Hayti, 184 S.W. 470; Northcutt v. Eager, 132 Mo. 265.
G. W. Barnett and Wilkerson & Barnett for respondent.
The decree of the trial court, declaring the title to the property in question to be in plaintiff, should be sustained because: (1) The instrument offends the rule against perpetuities in this: (a) It creates an active trust to continue during a term which may exceed lives in being and twenty-one years and the period of gestation thereafter. (b) It provides for a trust for accumulation and provides a contingency as to who shall take the trust accumulation, and such accumulation may continue for longer than lives in being and twenty-one years and the period of gestation thereafter. (c) The instrument provides for a power of sale and a power of lease, both of which may be exercised beyond lives in being and twenty-one years and the period of gestation thereafter. (2) The former judgment is not res adjudicata as to the effect of the rule against perpetuities upon the nature of the instrument. The former judgment set at rest forever the question as to the mental capacity of the grantor to make the deed, as to whether or not he was capable of understanding the nature of the deed, as to whether or not he did actually understand the nature of the deed, and possibly that the instrument was valid (though only as against the attacks made upon it); but it did not determine whether it was valid as a power or as a conveyance, and it did not determine what title any person took under the instrument, nor who had title, nor the nature of any title. It was conceded in this case in plaintiff's petition that the instrument was valid as a power of attorney, but it was claimed that a proper construction of the instrument would show the title to be in plaintiff. (a) The instrument offends the rule against perpetuities because it provides that the trustee shall hold the property upon the uses and trusts therein mentioned during the lifetime of Thomas Melvin, and upon his death, it should continue during the lifetime of his wife, if he should leave any. The instrument was executed eighteen years ago when plaintiff was twenty-seven years old and was unmarried, and he has never married since. From this it appears that it is not only possible but well within the range of possibility that Thomas Melvin may marry a woman who was not in esse at the time of the execution of the instrument who may outlive him for more than twenty-one years and the period of gestation, which would extend the life of the trust with all of its attending powers more than twenty-one years and the period of gestation after the life of Thomas Melvin. (b) The life of the trust is not measured by the life of the trustee, because if he should resign or die it would be the duty of the court to appoint a trustee to take his place. A trust will never fail for want of a trustee. 39 Cyc. 277; Rothenburger v. Garrett, 244 Mo. 191. (c) It is not enough that the time prescribed by the rule against perpetuities may come within lives in being and twenty-one years and the period of gestation thereafter. The nature of the instrument must be such that the time limit must necessarily come within lives in being and twenty-one years and the period of gestation thereafter. 30 Cyc. 1483. (d) The rule against perpetuities is not a rule of construction, but a rule of public policy. It thwarts the intent of the parties. Therefore, in construing an instrument (except in case of a public charity), it is to be construed as though no rule against perpetuities existed. The intention of the owner having been thus determined, the rule is to be inexorably followed. 30 Cyc. 1498. (e) An attempt to create an active trust to continue beyond the period prescribed by the rule against perpetuities is void. American Colonization Society v. Solsby, 129 Md. 605, L. R. A. 1917 C. 937. (f) The instrument creates a trust for accumulation which offends the rule against perpetuities. It provides that the trustee may buy farming implements, that he may erect such buildings as he may consider necessary upon the land, and that out...
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