Odom v. Langston

• Decision Date: 10 June 1946
• Docket Number: 39690
• Citation: 195 S.W.2d 466,355 Mo. 115
• Parties: A. D. Odom et al., Appellants, v. Louise W. Langston et al
• Court: Missouri Supreme Court

195 S.W.2d 466

355 Mo. 115

A. D. Odom et al., Appellants, v. Louise W. Langston et al

No. 39690

Supreme Court of Missouri

June 10, 1946

Rehearing Denied July 8, 1946.

Appeal from Polk Circuit Court; Hon. C. H. Jackson, Judge.

Affirmed.

J N. Burroughs, Frank B. Williams, and Joe N Brown for appellants.

(1) The contention of respondents that the petition of appellants does not state facts sufficient to constitute a cause of action, or that it does not state a claim entitling plaintiffs to the relief asked, is without merit. In fact the Fifth Amended Petition of plaintiffs has the approval of numerous authorities as to its formal allegations in cases of this kind. Masterson v. Masterson, 130 S.W.2d 629; Andre v. Andre, 232 S.W. 153; First Baptist Church v. Robberson, 71 Mo. 326; Corby v Corby, 85 Mo. 371. (2) This proceeding is based upon the declaratory judgment act, and is supported by the decisions of our courts, and of other states as well, in construing declaratory statutes, which seem to be uniform in this country. That appellants' Fifth Amended Petition states a good cause of action under that act, both in its formal allegations and in its statement of facts there can be no doubt. Kingston v. St. Louis Union Trust Co., 154 S.W.2d 39; Smith v. Pettis County, 136 S.W.2d 282; School Dist. v. Smith, 111 S.W.2d 167; Hill v. Wright, 20 A.2d 388; Strype v. Lewis, 352 Mo. 1004, 180 S.W.2d 688. (3) The heirs of the grantor, Barsha A. Langston, have a right to bring this action to have a judicial construction of the trust instrument in question, under general equitable rules, the same as under the Declaratory Judgment Act. Platt v. Huegel, 32 S.W.2d 605; Proctor v. Board of Trustees, 123 S.W. 862; Sanford v. Van Pelt, 282 S.W. 1022; M. E. Church v. Walters, 50 F.2d 417; Lockridge v. Mace, 109 Mo. 162; St. Louis Trust v. McAllister, 302 Mo. 152; Strype v. Lewis, 352 Mo. 1004, 180 S.W.2d 688. (4) Even if the grantor in the trust intended to dispose of her property to the exclusion of those who would inherit it, that would not deprive them of their rights to any portion of her property that was not legally disposed of by means of the instrument in question. Watson v. Watson, 110 Mo. 164; Hurst v. Van De Veld, 158 Mo. 239. (5) It is the rule that testators blood relatives will be given first consideration in construing provisions of will. Wyatt v. Stillman, 260 S.W. 73; Coleman v. Haworth, 8 S.W.2d 931. (6) Referring to the specific allegations of the petition, we first direct attention to the allegation that the trust instrument in question, failed to vest any title in those attempted to be made trustees, or donees or beneficiaries at the time of its execution and delivery by the grantor. Van Studdiford v. Randolph, 49 S.W.2d 250; Starks v. Lincoln, 291 S.W. 132; Trautz v. Lemp, 46 S.W.2d 139; Sill v. West, 125 Mo. 621. (7) The power of revocation reserved by the grantor, coupled with the right to reclaim and to repossess all or any part of the property at any time, shows lack of intent to vest title on delivery of the instrument in question. ("Indenture of Trust," Sec. "Seventh.") Brannock v. Magoon, 141 Mo.App. 320; K. C. Theological Seminary v. Kendrick, 203 S.W. 628; Thomas v. Thomas, 107 Mo. 459; In re Estate of Soulard, 141 Mo. 642; Gartside v. Pahlman, 45 Mo.App. 160. (8) The words to "pay out," used in this case imply futurity, and postpone the vesting of title until the time of happening of the event named. (Sec. "Second" of "Indenture of Trust.") Van Studdiford v. Randolph, supra; Walker v. Walker, 118 N.E. 1014; Webb v. Bile, 161 N.E. 218; In re Phearmans Estate, 232 N.E. l.c. 828; Johnson's Etate, 185 Pa. St. 179; 69 C.J., p. 605. (9) The indenture of trust in question also provides that none of the named beneficiaries shall have the right to anticipate his interest in the trust property, or to alienate or dispose of same, by selling, assigning, mortgaging or otherwise encumbering or disposing of his interest. The right to alienate is indispensible to ownership. (Sec. "Seventh" of Trust.) Fidelity Trust v. Tibbany, 260 S.W. 357. (10) That an effort was made to create a trust on a trust, in that, at the termination of the purported original trust, the original trustees should "pay out" the residue of the estate to new and different trustees for new and different purposes, which renders the attempted gifts void, for the reason, it failed to vest any title, in either the new trustees or those attempted to be made beneficiaries under the new trust, at the time of the creation of the original trust. Trautz v. Lemp, supra; Sill v. West, supra; 39 Cyc., p. 87. (11) That the attempted provisions for Louise W. Langston to receive the income of the estate during her lifetime, and also to encroach upon the corpus of the estate are void, because the language employed is so doubtful and uncertain as to the authority and direction of the trustees and the limitations as to what they could do for her support, that its meaning cannot be determined. Sevier v. Woodson, 205 Mo. 202; Sanford v. Sanford, 68 P. 494; Annis v. Huggins, 152 N.W. 114; 65 C.J., p. 273. (12) That the attempted gift to each and every one of the purported beneficiaries in the residuary clause of said trust instrument, is so vague, indefinite and uncertain as to who are the beneficiaries intended, and as to the objects and purposes of the attempted gifts or how the trustees named to handle the funds should employ the same as to render the gifts to each and every one of them void and of no effect. Sanford v. Van Pelt, supra; Board of Trustees v. May, 201 Mo. 360; M. E. Church v. Walters, 50 F.2d 417; Wentura v. Kinnerk, 5 S.W.2d 66. (13) That the attempted gifts to the Central College, the Masonic Home and for a memorial, each constitutes an effort to create a trust for private purposes, and the fact that there was no statement of the object and purposes of the attempted gift and no direction to trustees as to how to apply the funds, renders the gift void, because it is so vague, indefinite and uncertain that it cannot be enforced, and also violates the law of perpetuities. Buchanan v. Kinnaird, 136 S.W. 415; Thorp v. Land, 227 Mass. 474; 65 C.J., pp. 233-238. (14) That the attempted gifts to the Central College and the Masonic Home, each were made in the name of "Board of Trustees," if any gifts were made to those institutions at all. The petition alleges that said defendants had filed pleadings in this and in other actions, in which it was alleged that said "Board of Trustees" did not constitute legal entities, which if true, rendered the attempted gifts to said Masonic Home and Central College void. 65 C.J., pp. 233, 234. (15) That the attempted gift for the erection and maintenance of a memorial has been expressly held to be void and non-enforceable, in the following cases: In re Stephens Estate, 195 A. 193; Morristown Trust Co. v. Mayor of Morristown, 91 A. 736; Bates v. Bates, 134 Mass. 110; In re Jones, 79 L.T. Rep. N.S. 154. (16) And said attempted gift for a memorial must also fail for uncertainty, lack of beneficiaries and failure to state object and purpose as heretofore assigned, and because it violates the rule as to perpetuities. (17) That the attempted gifts to the First Methodist Church and the First Presbyterian Church, are to religious corporations, prohibited by Sec. 8, Article II, Constitution of Missouri, and, therefore, said churches cannot accept and receive said gifts. Proctor v. Board of Trustees, 225 Mo. 51; M. E. Church v. Walters, 50 F.2d 416; Society v. Branch, 120 Mo. 226; Helpers v. Law, 186 S.W. 718; In re Institute, 27 Mo.App. 633. (18) This suit was filed on the 28th day of September, 1943. It is alleged in the petition that plaintiffs had no knowledge of the facts, and that the defendants wrongfully concealed the facts from the plaintiffs until February, 1939; that they were without the necessary information on which to base their action until that time, which was obtained by court orders on the defendants to produce the same; that the statute of limitations did not begin to run until February, 1939, therefore, this suit was clearly brought within the five year period. Sec. 827, R.S. 1939; Wheeler v. Ry. Co., 328 Mo. 888, 42 S.W.2d 579; Sonnefeld v. Millinery Co., 241 Mo. 309; Harper v. Pape, 9 Mo. 402; Branner v. Klaber, 330 Mo. 306; Prewitt v. Prewitt, 188 Mo. 675. (19) The Masonic Home and the Central College, two of the defendants, delayed in answering the summons for eight months. And when they did appear, they filed motions to quash the summons and the returns thereon. After another delay of nine months, the court overruled said motions to quash. Thereupon said defendants entered appearance to the merits of the action, thereby waiving their objections, and the service relates back to that of the original summons. Kahn v. Ins. Co., 228 Mo. 585; Taylor v. Mo. Pac. Ry., 279 S.W. 115. (20) The return of the officer as to the service of process is conclusive on the party served and he will not be allowed to falsify that return. Newcomb v. N.Y.C. Ry. 182 Mo. 687; State ex rel. v. Frazier, 143 S.W.2d 64; Walker v. Wab. Ry. Co., 234 S.W. 520. (21) Unless a party to a suit who has been summoned in the wrong name, appears at the return term and raises the question, he will be deemed to have waived it. Belkin v. Rhodes, 76 Mo. 643; Bedell v. Richardson, 226 S.W. 655; Stigall v. Pigment Co., 150 Mo.App. 276; Parry v. Woodson, 33 Mo. l.c. 348. (22) Where a party adopts a certain name he may be sued by that name, and he will be bound by it under the doctrine of estoppel. And that rule applies to all four of the corporate defendants in this action. State ex rel. v. Waltner, 156 S.W.2d 666. (23) Even though appellants should fail to establish that the...