Northrip v. Burge

• Decision Date: 03 March 1914
• Citation: 164 S.W. 584,255 Mo. 641
• Parties: ORRIS E. NORTHRIP, A Minor, by GEORGE NORTHRIP, his Next Friend, v. ELLEN A. BURGE, and ELLEN A. BURGE, Administratrix of Estate of JAMES BURGE, Appellant
• Court: Missouri Supreme Court

164 S.W. 584

255 Mo. 641

ORRIS E. NORTHRIP, A Minor, by GEORGE NORTHRIP, his Next Friend, v. ELLEN A. BURGE, and ELLEN A. BURGE, Administratrix of Estate of JAMES BURGE, Appellant

Supreme Court of Missouri, First Division

March 3, 1914

Appeal from Christian Circuit Court. -- Hon. John T. Moore, Judge.

Reversed.

Orin Patterson, J. T. White and V. O. Coltrane for appellant.

(1) Three things must concur to raise a trust: Sufficient words to create it, a definite subject, and a definite object; and to these may be added another, viz., that the terms of the trust should be sufficiently declared. In re Soulard, 141 Mo. 664; Banking Co. v. Miller, 190 Mo. 670; Crowley v. Crowley, 131 Mo.App. 183; Kramer v. McCaughey, 11 Mo.App. 429. (2) What are sufficient words to create a trust? (a) Equity will not convert an imperfect gift or settlement into a declaration of trust. Goodman v. Crowley, 161 Mo. 663; In re Soulard, 141 Mo. 659; Banking Co. v. Miller, 190 Mo. 640; Godard v. Conrad, 125 Mo.App. 175; 3 Pom. Eq. (3 Ed.), sec. 997, p. 1865. (b) To establish a trust there must be evidence of a clear intention of the settlor to become an accounting party. Knapp v. Publishers, 127 Mo. 77. (c) To constitute a trust, there must be either an explicit declaration of trust, or circumstances which show beyond a reasonable doubt that a trust was intended to be created. McKee v. Allen, 204 Mo. 655; Young v Young 80 N.Y. 422, 36 Am. Rep. 634. (d) The acts must be of that character which will admit of no other interpretation than that such legal rights as the settlor retains are held by him as trustee for the donee; the settlor must either transfer the property to a trustee or declare that he holds it himself in trust. Wadd v. Hazelton, 137 N.Y. 215 33 Am. St. 707. (e) In order to the creation of an express trust, an intention to do so must be expressed from the words used. Mulock v. Mulock, 156 Mo. 438. (f) To create a trust whether in regard to real or personal property, the act must be done with that intent, and must be manifested, by clear and unequivocal evidence. Woodford v Stephens, 51 Mo. 443. (g) When the settlor constitutes himself trustee, "he need not use the words, 'I declare myself a trustee,' but he must do something which is equivalent to it, and use expressions which have that meaning; for however anxious the court may be to carry out a man's intention, it is not at liberty to construe words otherwise than according to their proper meaning." 3 Pom. Eq., sec. 997, p. 1867 (note), sec. 998, p. 1874 (note). (3) Evidence required to establish a declaration of trust. (a) A trust in personal property must be made to appear just as definite and clear as any express trust established in real estate by writing. Crowley v. Crowley, 131 Mo.App. 179. (b) Evidence of mere loose declarations of the person holding the legal title will not be sufficient, and testimony of verbal admissions or statements of persons, since dead, is entitled to small weight in establishing such a trust. Curd v. Brown, 148 Mo. 92. (c) "Our experience shows the ease with which declarations of a deceased person may be proved and warns not to place too great reliance upon them. Evidence of such declarations never amounts to direct proof of the facts claimed to have been admitted." Rosenwald v. Middlebrook, 188 Mo. 94; Collins v. Harrell, 219 Mo. 306; Ringo v. Richardson, 53 Mo. 395; Johnson v. Quarels, 46 Mo. 427. (d) Evidence of admissions made by the party to be charged with a trust are considered unsatisfactory, especially when they are not consistent. Crowley v. Crowley, 131 Mo.App. 178. Admissions should be supported by other circumstances going also to show the existence of the trust. Ringo v. Richardson, 53 Mo. 385; Collins v. Harrell, 219 Mo. 306; 1 Perry on Trusts (4 Ed.), sec. 147; McKee v. Higbee, 180 Mo. 299; Berry v. Hartzell, 91 Mo. 132; Garrett v. Garrett, 171 Mo. 164; Allen v. Withrow, 110 U.S. 119. (e) Of all evidence the narration of a witness of his conversation with a dead person is the weakest. 2 Moore on Facts, sec. 877, p. 1014, sec. 1050, p. 1187; Fanning v. Doan, 139 Mo. 412. (f) In order to prove such a trust it must be established by testimony so clear, strong and unequivocal as to banish every reasonable doubt from the mind of the chancellor respecting the existence of such trust. Foley v. Harrison, 233 Mo. 584; Smith v. Smith, 201 Mo. 547; Crowley v. Crowley, 131 Mo.App. 183; Reed v. Sperry, 193 Mo. 173; Curd v. Brown, 148 Mo. 92; Mead v. Robertson, 131 Mo.App. 196. (g) Where there is a great conflict in the testimony an equity court will not undertake to decide which testimony is true. Brinkman v. Sunken, 174 Mo. 709. (h) No good reason can be perceived why the rule on the admission of statements of a testator should not apply to the admission of statements alleged to have been made by the declarant of a trust, at least as to that part of the trust which was to take effect at his death. Under certain conditions such statements are admissible, but they are not to be received or taken as proof of the truth of the facts narrated. Teckenbrock v. McLaughlin, 209 Mo. 548. (4) It would seem to be elementary law that when parties have put their agreements in writing, in the absence of accident, fraud or mistake, it is conclusively presumed that the whole engagement, and the extent and manner of their undertaking was reduced to writing. Davis v. Scovern, 130 Mo. 303. And that parol evidence of a contemporaneous oral agreement is inadmissible to show a trust outside of and in addition to the written instrument. Hall v. Small, 178 Mo. 629. Yet this case was tried in the lower court by a different rule. (5) The fact that James Burge directed Ellen Burge to deposit this money in the bank (it is not disputed that he did this as to the money deposited before the date of the deed), in his name and her name so that if he lived he could draw it out shows that he did not intend to part with his money until his death. Bank v. McKenna, 168 Mo.App. 258. (6) Plaintiff pleads, or undertakes to plead, that deceased gave him the property in controversy and told him to take possession of it at his death, thereby declaring a trust. Nor is the evidence any stronger in favor of plaintiff. Nothing more is pleaded than a gift causa mortis, with change of possession deferred until the death of the donor. It is the universal rule that to make such a gift valid there must be such a change of possession as to put it out of the power of the donor to repossess himself of the property. The very fact that deceased retained control of the property is incontestable evidence of the incompleteness of the gift. Brannock v. Magoon, 141 Mo.App. 316; Gartside v. Pahlman, 45 Mo.App. 164. (7) Neither the original nor amended petition of plaintiff states facts constituting a trust. In any case the material facts should be directly and not inferentially alleged. Cook v. Putnam County, 70 Mo. 668; Sec. 1794, R.S. 1909; 4 Ency. Pl. & Pr. 605, 606. And in cases of this character it will not satisfy the requirements of the law to plead or prove an agreement of an indefinite character leaving its terms more or less to inference. "There must be no equivocation or doubt in the case. 'When a plaintiff comes into court with a case of this kind, there should be no doubt in the pleadings or in the proof as to the contract.'" Rosenwald v. Middlebrook, 188 Mo. 90; Walker v. Bohannan, 243 Mo. 136. (8) This case was not tried by the tribunal appointed by law. The statute says that issues of this kind must be tried by the court, except that the opinion of a jury may be taken on specific questions of fact. Bray v. Thatcher, 28 Mo. 132; R.S. 1909, sec. 1969.

Hamlin & Seawell, J. P. Nixon, Thos J. Moore, S. E. Bronson and Frank B. Williams for respondent.

(1) There is no legal objection to a trust in personalty being created in parol, a writing being only required for realty nor is there any legal requirement that a third party shall be the trustee. The donor may make himself such. Bank v. McKenna, 168 Mo.App. 254; Banking Co. v. Miller, 190 Mo. 664; Watson v. Payne, 143 Mo.App. 726. Where a person sui juris, orally or in writing, explicitly or impliedly, declares that he holds personal property for another, he thereby constitutes himself an express trustee. Banking Co. v. Miller, 190 Mo. 664. A self-constituted trustee is not an uncommon personage. Mize v. Bank, 60 Mo.App. 363. A complete divestiture of equitable title might be produced by a clear and unambiguous declaration to that effect, although a further disposition of the legal title was still in contemplation. Lane v. Ewing, 31 Mo. 86. The creation of a trust is but the gift of the equitable interest. An unequivocal declaration as effectually passes the title to the cestui que trust as a delivery passes the legal title to the donee of a gift inter vivos. One may constitute himself trustee by mere declaration. Banking Co. v. Miller, 190 Mo. 669. If the owner of property declares a purpose and intention of immediately divesting himself of the title to its corpus for purposes openly expressed, he in effect appoints himself trustee. Godard v. Conrad, 125 Mo.App. 175. If the donor makes himself trustee no transfer of the subject-matter of the trust is necessary. Mize v. Bank, 60 Mo.App. 364. When a trust is thus created it is effectual to transfer the beneficial interest and operates as a gift perfected by delivery. Banking Co. v. Miller, 190 Mo. 671. It is not necessary in order to declare a trust that the words "trust" and "trustee," or equivalent words should be used. If a clear intention to create a trust appears from the language used, the declaration will be sufficient, though technical words are not used. In re Soulard, 141 Mo. 664; 28 Am. & Eng. Ency. Law, 898. (2...