Neal v. Bryant
| Decision Date | 19 December 1921 |
| Citation | 235 S.W. 1075,291 Mo. 81 |
| Parties | CORA B. NEAL, Appellant, v. WILLIAM P. BRYANT |
| Court | Missouri Supreme Court |
Appeal from Harrison Circuit Court. -- Hon. L. B. Woods, Judge.
Reversed (with directions).
Frisby & Frisby for appellant; Geo. W. Wanamaker of counsel.
(1) A trust relation existed between Joseph F. Bryant, Sr., the common source of title, and Cora B. Neal. R. S. 1909, sec 2268. It is manifested and proven by a writing signed by the party enabled to declare the trust. (2) A trust is a relation between two persons by virtue of which one of them holds property for the benefit of the other. Corby v Corby, 85 Mo. 388; Shelton v. Harrison, 182 Mo.App. 414; Perry on Trusts (4 Ed.) sec. 13. It is an equitable right, title or interest in property distinct from the legal owner thereof. Story's Eq. Juris. (8 Ed.) Redfield, sec. 964; Shelton v. Harrison, 182 Mo.App. 414. (3) The things indispensible to a trust, are here, first, sufficient words to create it; second, a definite subject; and third, a definite object. 2 Story's Eq. Juris., sec. 964; 39 Cyc. 17; Pitts v. Weakly, 155 Mo. 135; In re Soulard's Est., 141 Mo. 664. (4) No special form of words is necessary to create a trust. The words "trust" and "trustee" need not be mentioned. Heil v. Heil, 184 Mo. 676; In re Soulard's Estate, 141 Mo. 664; Perry on Trusts, sec. 82; Story's Equity Jurisprudence, sec. 972; Harris Banking Co. v. Miller, 190 Mo. 640; Zeideman v. Molasky, 118 Mo.App. 106; Moulden v. Train, 199 Mo.App. 500. (5) The trust or confidence is a thing distinct from legal property or legal right to property. Perry on Trusts, sec. 13; Story's Eq. Juris., sec. 968; 39 Cyc. 18. (6) Joseph F. Bryant, Sr., constituted himself a trustee for appellant. Perry on Trusts, secs. 13, 38; Story's Equity Juris., secs. 976, 1059; Northrip v. Burge, 255 Mo. 654; Maize v. Bank, 60 Mo.App. 364; Wallace v. Wainright, 87 Pa. St. 263; Tygard v. McComb, 54 Mo.App. 85; Martin v. Funk, 75 N.Y. 134; Dickerson's Appeal, 115 Pa. St. 198; Meussman v. Zellar, 108 Mo.App. 348. (7) The declaration of trust is manifested and proven by a writing signed by the party enabled to declare the trust. Ferguson v. Robinson, 258 Mo. 159; Stevens v. Fitzpatrick, 218 Mo. 723; Pitts v. Weakley, 155 Mo. 133; 39 Cyc. 44; Story's Eq. Juris., sec. 980; R. S. 1909, sec. 2868. (8) In jurisdiction where the above statute is in the form in which Missouri has adopted it -- that is "manifested and proved" by some writing, the rule of construction adopted is that the trust need not be created by writing, but its existence must be evidenced by some writing. 39 Cyc. 44; Perry on Trusts, sec. 97; Story's Eq. Juris., sec. 972; Lane v. Ewing, 31 Mo. 86; Cornelius v. Smith, 55 Mo. 528; Mulock v. Mulock, 156 Mo. 438; Crawley v. Crafton, 193 Mo. 431; Woodward v. Stephens, 51 Mo. 448; Stevenson v. Haynes, 220 Mo. 210; Heil v. Heil, 184 Mo. 675; Hall v. Bank, 145 Mo. 430; Pitts v. Weakley, 155 Mo. 133; Ferguson v. Robinson, 258 Mo. 132; Matthews v. an Cleave, 282 Mo. 32; Kerens v. St. Louis Union Tr. Co., 223 S.W. 645. (9) There being written evidence of the existence of the trust, parol evidence is admissible to explain the position of the parties. Perry on Trusts, sec. 79; Hutsell v. Crewse, 138 Mo. 5; Watson v. Payne, 143 Mo.App. 721; Kerens v. St. Louis Union Tr. Co., 282 Mo. 32; In re Soulard's Estate, 141 Mo. 642; Harris Banking Co. v. Miller, 190 Mo. 640. Parol evidence is admissible to explain what was meant by "the Leazenby land." Settles v. Scott, 211 S.W. 35. (10) The entire equitable interest was parted with. Lane v. Ewing, 31 Mo. 97; Hohlman v. Hohlman, 183 S.W. 623; Knapp v. Publishers, 127 Mo. 77; Bank v. McKinna, 168 Mo.App. 254. (11) A voluntary trust, if executed, will be enforced. This is an executed trust. Its scope and limitations are fully and completely declared. Nothing is left to be done to fix the matter of trust. 39 Cyc. 28, 29, 72; Story's Equity Jurisprudence (8 Ed.) sec. 973; Ewing v. Lane, 31 Mo. 725; Perry on Trusts, secs. 98, 109, 359; Hutsell v. Crewse, 138 Mo. 5; Watson v. Payne, 143 Mo.App. 728; Lane v. Ewing, 31 Mo. 84, 85, 86, 87; Mize v. Bates County Bank, 60 Mo.App. 363; Taylor v. Welch, 168 Mo.App. 234; Northrip v. Burge, 225 Mo. 650; Leeper v. Taylor, 111 Mo. 324; Harris Banking Co. v. Miller, 190 Mo. 672; In re Soulard's Estate, 141 Mo. 664; Harding v. St. Louis, 276 Mo. 136; Freeman v. Maxwell, 262 Mo. 13. (12) The writing sufficiently manifests and proves the trust. Its language is plain. It is not too indefinite, vague or uncertain to be carried into effect. Neither is it a promise to do, nor a mere admission in writing of a promise to do. It definitely declares that he has given her, his child, the land -- that it is hers forever for her use and benefit. All the elements to constitute a trust being present except the naming of a trustee, he thereby constitutes himself a trustee for her. There is nothing left to be done about the matter of the trust. It is a passive, dry, simple trust, completely and perfectly declared. There has been no revocation, since the will bears date July 9, 1915. It was not revocable. (13.) A failure to put the declaration of trust in writing does not prevent a trust from resulting by operation of law. Condit v. Maxwell, 142 Mo. 275; Mulock v. Mulock, 156 Mo. 438; Shelton v. Harrison, 182 Mo.App. 417; Wolfskill v. Wells, 154 Mo.App. 304.
A. S. Cumming for respondent.
(1) A voluntary or express trust must be manifested and proved by some writing signed by the party creating it, and from such writing the court must be able to determine the existence, terms and limits of the trust. Ferguson v. Robinson, 258 Mo. 134; Dyer's Appeal, 107 Pa. St. 454. (2) An express trust in real estate must be proved by writing. Constructive trust may be proved by parol. Although the nature of the evidence may differ, the facts to be proved are alike in both cases, and the evidence must be so clear and unequivocal as to leave no room for a doubt in the mind of the chancellor as to the existence of the trust. Ferguson v. Robinson, 258 Mo. 134. (3) A constructive trust is raised by operation of law for the purpose of circumventing fraud. 1 Beach, Mod. Eq. Jurisp., sec. 226; Wolfskill v. Wells, 154 Mo.App. 304. (4) Four things must concur to raise a voluntary trust: Sufficient words to create it, a definite object, a definite subject, the terms of the trust must be sufficiently declared. Pitts v. Weakley, 155 Mo. 135. (5) A thrust can be enforced upon evidence so clear, full and demonstrative as to banish any reasonable doubt from the mind of the Chancellor as to the existence of every element essential to the establishment of a complete trust. Northrip v. Burge, 255 Mo. 668; Reed v. Sperry, 193 Mo. 173; Harding v. Trust Co., 276 Mo. 142; Smith v. Smith, 201 Mo. 547; Curd v. Brown, 148 Mo. 92. (6) An imperfect gift will not be converted into a declaration of trust on account of the imperfection. In re Estate of Soulard, 141 Mo. 659; Pitts v. Weakley, 155 Mo. 135; Knapp v. Publishers, 127 Mo. 77. (7) Equity never enforces a mere executory agreement for a trust which is wholly voluntary. Harding v. Trust Co., 276 Mo. 144. (8) If a gift is imperfect in law and for want of consideration can not therefore be enforced, a court of equity will not aid the donee by construing it into a declaration of trust. Flanders v. Blandy, 45 Ohio St. 115. (9) Before the owner can be held as a trustee for a mere volunteer he should declare in unmistakable terms that he meant to stand in a fiduciary relation to the object of his bounty. Flanders v. Blandy, 45 Ohio St. 116.
This is a statutory action to determine and quiet title to 32.67 acres of land in Harrison County. Joseph F. Bryant, Sr., is the common source of title. Plaintiff claims that said Bryant in his lifetime gave her the land and afterward declared in writing that he held it in trust for her; and that the trust declared, being a dry or passive one, was executed by the statute. Defendant claims under the will of Bryant.
Bryant died testate January 16, 1917, without having made any formal conveyance of the land in controversy to anyone. He had been married twice; plaintiff and two sons were children of the first marriage, and defendant, four other sons and three daughters were the fruits of the second marriage. He was a man of great wealth. He seems to have made a tentative distribution of a part of his estate among his children during his lifetime. His method of making such distribution was to allot to each a particular fund, or security, or parcel of real estate, and turn over the income or rent to the distributee, but retain the legal ownership in himself. He kept an account with his children in debit and credit form. He started the account of each with a fixed credit -- a tentative distributive share of his estate. Whenever he determined to increase this amount he entered an additional credit. Against the amounts so credited to each he charged each respectively with the property, real or personal (not the income), set apart for his benefit. In two instances he seems to have made changes in the provisional allotment of real estate. This he did by crediting with such property the account of the child for whom it had previously been set apart, and then charging it to that of another. His last will was executed July 9, 1915. The accounts with his children show no entries of a date subsequent to that.
By his will, Bryant confirmed the tentative partial distribution of his property made in his lifetime, and made complete disposition of the remainder. With one exception, all devises of real estate to his children were for life only, with...
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