Northrip v. Burge

• Decision Date: 03 March 1914
• Citation: 255 Mo. 641,164 S.W. 584
• Parties: NORTHRIP v. BURGE.
• Court: Missouri Supreme Court

164 S.W. 584

255 Mo. 641

NORTHRIP v. BURGE.

Supreme Court of Missouri, Division No. 1.

March 3, 1914.

1. GIFTS (§§ 59, 62, 74, 75) — "GIFT CAUSA MORTIS" — REQUISITES IN GENERAL.

A gift causa mortis must be made in reasonable expectation of death, and there must be a delivery, actual or constructive, of the subject-matter, and such gifts are subject to be defeated by revocation during the donor's life, or by his recovery, or survival of the donee.

2. TRUSTS (§§ 17, 18) — CREATION OF VERBAL TRUSTS — STATUTE OF FRAUDS.

The statute of frauds does not prevent the creation of a verbal trust in personalty.

3. TRUSTS (§§ 17, 18) — VALIDITY OF ORAL TRUST IN PERSONALTY.

A parol trust in personalty, when completed, is an executed one, and will be enforced in equity, although voluntary.

4. TRUSTS (§§ 159, 160) — PAROL TRUST IN PERSONALTY — TRUSTEE.

It is not requisite to a completed verbal trust of personalty that a third person be named as trustee; but the settlor may constitute himself trustee, and, if no trustee is named, equity will not allow such trust to fail for that reason.

5. TRUSTS (§§ 17, 18) — "PAROL TRUST" IN PERSONALTY — CREATION.

To create a valid parol trust in personalty, the words of the settlor must express a declaration or grant by him of an estate or interest containing all the essential elements of a trust; there must be a definite subject-matter,

and a definite object or beneficiary of the trust.

6. TRUSTS (§ 44) — EVIDENCE TO ESTABLISH PAROL TRUST — PERSONALTY.

A parol trust in personalty must be established by evidence so clear and convincing as to remove all reasonable doubt as to the existence of a completed trust in reference to definite personalty, and in favor of a certain beneficiary.

7. TRUSTS (§ 44) — EVIDENCE TO ESTABLISH PAROL TRUST — SUFFICIENCY.

In an action to establish and enforce a parol trust in personalty, evidence held not sufficient to show beyond reasonable doubt that deceased, in his last sickness, transferred the contents of his house, including $30,000 secreted therein, to a 12 year old boy to whom deceased was attached.

8. TRUSTS (§ 373) — ESTABLISHMENT — SUBMISSION OF ISSUES TO JURY.

In a suit to establish and enforce a parol trust in personalty, it was error for the trial judge to submit the whole controversy to the jury under general instructions, though it would have been proper to have submitted particular issues of fact to a jury.

9. EQUITY (§ 381) — VERDICT OF JURY — EFFECT.

The verdict of juries in equitable actions are advisory only, and may be wholly disregarded by the court.

10. EVIDENCE (§ 390) — PAROL EVIDENCE — CONTRADICTING DEED.

A grantor could not by subsequent oral declarations alter the terms of his previously executed, delivered, and recorded deed, or show that it did not include all that he intended to convey, in the absence of fraud or imposition in the execution of the deed.

11. TRUSTS (§§ 17, 18) — PAROL TRUST IN PERSONALTY — CREATION.

Where the declarations made by a deceased a few days before his death did not show any intention to make a present transfer of money and other personalty to plaintiff, they were insufficient to create a completed verbal trust.

Appeal from Circuit Court, Christian County; John T. Moore, Judge.

Action by Orris E. Northrip, by George Northrip, his next friend, against Ellen A. Burge, administratrix of James Burge, deceased. From a judgment for plaintiff, defendant appeals. Reversed.

This is a suit in equity brought by a minor, through his next friend, to establish and enforce an alleged trust in certain moneys, notes, and choses in action in the hands of the administratrix of James Burge, deceased. The answer of the administratrix was a general denial. The case was tried upon a change of venue in Christian county. A jury was called over the exception of defendant, and nine of their number brought in a verdict for plaintiff for $32,787, which was adopted by the court as the basis of a decree against the administratrix.

The evidence was that James Burge died in his eightieth year, without any descendants; that he had lived about forty years before his death in the outskirts of Springfield; that he was a carpenter by trade, and occupied a four-room dwelling, the north room of which was constructed by himself; that he owned three other lots of ground in Springfield, all aggregating about $2,000 in value; that an inventory of his estate disclosed that he had also in Springfield about $61,931.06 in money and mortgages, and $13,000 in money in the state of New York; that his death took place on the 25th of February, 1911; that on the 10th, 11th, and 18th of February, 1911, $32,949 in money was taken from places in which it was hidden in his dwelling by the defendant administratrix, who was the widow of a deceased brother, and by George T. Davies, his real estate agent, and deposited to his credit in the banks of Springfield, and afterwards included in the inventory of his estate; that mortgages, bonds, and securities to the value of about $15,000 were also removed by the same persons from the places where the deceased kept them in his dwelling, and these or their proceeds were also included in the inventory of his estate; that the estate left by the deceased, with the exception of his money invested in New York, was the accumulation of a life spent in saving and self-denial and hoarding, and the bulk of it was secreted over two doors and behind a flue under a window of his residence, and in the false bottom of a work-bench. He kept an account, however, in two banks, of about $9,000. He appears to have been a man of few intimates in the town of Springfield, except the defendant administratrix, who was his sister-in-law, and George T. Davies, his real estate agent.

His personal habits were untidy because of his desire to avoid every form of expense or outlay. Such a hold did that feeling take upon him that he voluntarily deprived himself of suitable clothing, a comfortable bed and a generous diet; but he was honest in all his dealings. He frequently visited the house of his sister-in-law, in whom he seems to have had full confidence. He took Thanks-giving dinner there the November before his death, and, as he was unable to be there on Christmas day, she carried his Christmas dinner to his house. When he became sick enough to send for a doctor in January following, he requested the physician to send for his sister-in-law.

About four years before his death the plaintiff, then between eight and nine years old, delivered milk to him, and about one year before his death the plaintiff left at his door a May basket, made out of a grape box, and covered with flowers, with his name on a piece of paper in the box. His declarations to others show that he appreciated this act on the part of the plaintiff.

His last illness began about the 3d of February, 1911. On the 14th of February, at the request of the defendant, he made a deed conveying a lot to the Methodist Church; on the next day, also at her suggestion, he made a deed conveying to her, as trustee, the dwelling house and lot in which he lived in trust for plaintiff. On the same day, February 15, 1911, he drew a check for $1,000 to his nephew, William Ayers. His sister-in-law requested him to do this, because Ayers had received nothing upon the death of his mother, who was the sister of James Burge. Two days before he made the deed to plaintiff he transferred about $4,500, which he had on deposit in one bank, to the joint account of himself and defendant, to the end that, if he did not recover, she could draw it in her own name; this was also included by her in the inventory of his estate.

There is some conflict in the evidence as to the statements made by the deceased subsequent to the making of the deed to the plaintiff. The testimony on behalf of the plaintiff touching these statements is the basis upon which the decree was rendered. The testimony on behalf of the defendant, coupled with the claim that the testimony for plaintiff is insufficient to show any trust, is the basis upon which defendant appealed to this court. The material testimony adduced by parties in support of their respective contentions will be referred to and set out in the opinion in discussing the question presented for review.

Orin Patterson, J. T. White, and V. O. Coltrane, all of Springfield, for appellant. Hamlin & Seawell and J. P. Nixon, all of Springfield, Thos. R. Moore and S. E. Bronson, both of Ozark, and Frank B. Williams, of Springfield, for respondent.

BOND, J. (after stating the facts as above).

There are but two possible legal viewpoints from which to weigh the evidence in this case: First, whether James Burge made a gift of the personalty sued for in his last sickness and apprehending death; or, second, whether he executed a trust therein in favor of the plaintiff.

The law on the subject of donations causa mortis has been given exhaustive research by Woodson, J., speaking for this division. Foley v. Harrison, infra. It is essential to such conditional gifts of personal property that they should be made in reasonable expectation of death, and that the giver shall transfer the property by an actual or constructive delivery, subject to be defeated by revocation during his life, or by his recovery from his existing illness, or by his survival of the donee. Foley v. Harrison, 233 Mo. loc. cit. 518, 136 S. W. 354; Walter v. Ford, 74 Mo. loc. cit. 198, 41 Am. Rep. 312; 20 Cyc. pp. 1228-1231, and cases cited; 3 Pomeroy's Equity Jur. § 1146; Story, Equity Jur. § 607a; Seabright v. Seabright, 28 W. Va. 412.

There is no evidence in this record showing a semblance of delivery, either actual or symbolical, to plaintiff, or to any one for him, made by James Burge in his last sickness, or in his lifetime. We may therefore direct our attention wholly to the relevancy of the evidence and its probative force, as supporting the claim of plaintiff to an executed trust in his...