Parke v. Thompson

• Decision Date: 30 April 1884
• Citation: 81 Mo. 565
• Parties: PARKE v. THOMPSON et al.; BUCK, Appellant.
• Court: Missouri Supreme Court

81 Mo. 565

PARKE

v.THOMPSON et al.; BUCK, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

AFFIRMED.

Samuel P. Sparks for appellant.

Only two questions are involved in this case. 1st, What kind of an estate did Jane and T. P. Thompson take under the will? 2nd, Was the assignment to appellant, Buck, procured by such means that it should be set aside in equity? We think that the decision of the circuit court in construing the will was correct. R. S. 1865, p. 231, § 45. But the court erred in rescinding the contract of assignment to appellant, for the reason that there was no evidence to justify such action, and must have been founded on presumption, arising alone from the relation of Buck to the trustee. Bernecker v. Miller, 44 Mo. 132. There is nothing in this case to take it out of the general doctrine, where all the facts bearing upon the transaction, will as well consist with honesty as dishonesty and fraud. The court ought not to find it to be corrupt and fraudulent; the proof of fraud should be perfectly satisfactory. Dallam v. Renshaw, 26 Mo. 533. What the evidence of Thompson and Wood tended to show, that Parke, the executor, told them, and the representations which the court found he made, were not representations, even if true. These were mere expressions of opinion. Union National Bank v. Hunt, 76 Mo. 439; 1 Perry on Trusts, § 174. If the court could have presumed fraud from the facts that interpleader, Buck, was the partner and son-in-law of the executor, the evidence of Col. Elliott, that he explained to them at the time the deed was executed, the nature and extent of the security given the executor by Ridings & Co., completely rebutted the presumption. The deed of assignment was executed Oct. 31st, 1878. Jane Carr and her husband, up to the date of her death, in 1879, were never heard to complain. Nor T. P. Thompson, until June 15th, 1880, but both parties as late as Oct. 31st, 1879, received goods in part payment of the balance due from Buck, and with full knowledge of the condition of the fund. Disaffirmance for fraud must be exercised promptly. Estes v. Reynolds, 76 Mo. 563; Hart v. Handlin, 43 Mo. 171; Dougherty v. Stamps, 43 Mo. 243; 48 N. Y. 200; 9 Hare, 262; 5 De. G. M. & G. 139; 4 Paige 537; 24 Wend. 74; 3 Sneed 220; 7 Rob. Pr. Ch. 25, § 2, p. 482; 5 R. I. 130. Courts will rarely rescind an executed contract without proof of fraud. Reese v. Smith, 12 Mo. 344; Ownes v. Ownes, 8 C. E. Green.

G. N. Elliott for respondent.

MARTIN, C.

This was a suit in equity by a trustee to obtain a judicial construction of a clause in a will under which the trustee received and holds a trust fund.

On the 12th day of December, 1867, one Hugh Parke of Johnson county died, leaving a will, which contains the following clause: “It is my will that three thousand dollars be paid to Joseph Parke, to be invested in United States gold bearing bonds for the use and benefit of my sister, Jane Thompson, and her minor son, Thos. P. Thompson, the interest arising from said investment to be paid by the trustee to my sister and her son annually for their support and maintainance, and in case of death of either of said beneficiaries before the son, Thomas P. Thompson, shall attain his majority, then the surviving one shall be entitled to have and enjoy the entire amount of said money.”

Jane Thompson afterwards intermarried with Enoch Carr, and died on the 20th of August, 1879, leaving her son, Thomas P. Thompson, surviving. He had attained his majority sometime before the decease of his mother. The trustee who asks for a construction of the will, maintains in his petition, that as the contingency provided for did not happen, the legacy has lapsed, and is now vested in the brothers and sisters of the testator, whose names are recited by him, but not included as parties to the suit. The public administrator of Johnson county in charge of the estate of Jane Carr deceased, claims one-half of the fund. Thomas P. Thompson, the surviving legatee claims one-half of it, and concedes the other half to his mother's administrator. D. H. Buck the appellant claims the whole fund, as assignee of both legatees. His position is antagonistic to that of the trustee in the construction of the will. He necessarily contends that the legacy did not lapse, but remained vested in the legatees from whom he holds an assignment. Both Thos. P. Thompson and Mrs. Carr's administrator put in issue the binding effect of the assignment. They plead a state of facts tending to impeach its validity and ask to have it annulled. The assignee, in his replication,...