Perry v. First Nat. Bank

• Decision Date: 17 February 1936
• Docket Number: No. 18529.,18529.
• Citation: 91 S.W.2d 78
• Parties: ARTHUR C. PERRY, GUARDIAN, ETC., APPELLANT, v. FIRST NATIONAL BANK ET AL., RESPONDENTS.
• Court: Missouri Court of Appeals

91 S.W.2d 78

ARTHUR C. PERRY, GUARDIAN, ETC., APPELLANT, v. FIRST NATIONAL BANK ET AL., RESPONDENTS.

No. 18529.

Kansas City Court of Appeals. Missouri.

February 17, 1936.

Appeal from Circuit Court of Jackson County. — Hon. Allen C. Southern, Judge.

AFFIRMED.

Gilmore, Brown & Gilmore for appellant.

Johnson, Lucas, Landon, Graves & Fane and Cooper, Neel, Kemp & Sutherland for respondents.

SHAIN, P.J.

This is an action in equity in which the appellant, plaintiff below, seeks to establish a trust, in the sum of $5,000 against monies and personal property in the hands of respondent, defendant below.

We will hereinafter refer to the parties as plaintiff and defendant to correspond to situation in trial court.

Arthur C. Perry, plaintiff, is the father of and sues as guardian of the estate of Janett Perry, a minor. Matt R. Smith, deceased, is the grandfather of Jannett Perry. The defendant, First National Bank of Kansas City, is administrator with the will annexed of the estate of the said Matt R. Smith.

It is contended by the father and guardian of Janet Perry that Matt R. Smith in his lifetime, in conformity to past gifts given the other members of his family, offered a gift of $5000 to him which he refused to take and asked Matt R. Smith to keep the $5000 and send the interest to Janett Perry, minor, as aforesaid. It is further contended that Matt R. Smith said he would be glad to keep the money and use it and whenever he was called upon to pay it he would be glad to do so.

There are ample allegations supported by testimony that, in the light of a former decision of this court of which more will be hereinafter said, we would express as an ineffectual attempt of Matt R. Smith to constitute himself the debtor of his granddaughter, Janett, in the sum of $5000.

Based upon the facts briefly stated above, plaintiff contends that Matt R. Smith carved out of his estate a dry trust estate of $5000 for his said granddaughter and that he in effect selected himself as trustee of said trust estate and this plaintiff prays for a judgment and decree establishing said alleged trust and for directions as to possession and administration of the same.

The defendant joined issue in the case at bar by alleging that the issues involved in this suit had been fully and finally adjudicated in a former suit between the same parties and touching the same subject matter, which suit was before this court for review and is reported in 228 Mo. App. 486, 68 S.W. (2d) 927.

Judgment in trial court was for defendant and plaintiff has appealed.

OPINION.

In a former suit the same subject matter declared upon, but in a different theory was before this court for consideration. The parties, plaintiff and defendant, are exactly the same as in the former suit.

The case was presented in the former hearing upon the theory that the $5000 was a completed gift made by Matt R. Smith in his lifetime to his granddaughter, Janett, which gift, it was alleged, the donor had retained in a way that constituted him a debtor in the sum of $5000 to his said granddaughter. In the review of the case as then presented, 228 Mo. App. 486, 68 S.W. (2d) 927, this court sustained the judgment of the trial court for the defendant.

The theory upon which the decision in the former case is based is, that the evidence was insufficient to show a gift inter vivos.

The plaintiff in the present action meets the claim of res adjudicata on a theory to the effect, that an action based upon one theory of legal right does not preclude from renewing the litigation on a new theory.

It has been declared by the Supreme Court that, although a suit is brought as one at law for damages, yet, if all the essential allegations are statements of a suit in equity and the evidence shows that plaintiff is entitled to maintain a suit to impress a trust and the cause will not be changed by a proper amendment, then, the court of review will exercise its discretion and remand the cause so as to permit amendment and trial on the evidence there adduced. [Mann v. Bank of Greenfield, 323 Mo. 1000, ...