Rollestone v. National Bank of Commerce In St. Louis
| Decision Date | 08 June 1923 |
| Citation | 252 S.W. 394,299 Mo. 57 |
| Parties | A. A. ROLLESTONE v. NATIONAL BANK OF COMMERCE IN ST. LOUIS et al., Executors of Will of JOHN T. MILLIKEN, Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Granville Hogan Judge.
Affirmed.
Irvin V. Barth, Forest P. Tralles and Watts, Gentry & Lee for appellants.
(1) If all the evidence offered were admitted to be true it would afford no basis for the decree entered by the trial court. The evidence offered is not sufficient to establish an executed trust, which must be established before plaintiff can recover, there being no consideration, pleaded or proven for the alleged promise by Milliken. (a) The statements by Mr. Milliken, in his letters of May 17, 1906, and June 16 1906, constitute, at best, a mere promise to hold in trust, in the future, not an executed trust. As agreements such statements constitute at best a mere nudum pactum. As declarations of trust they are wholly insufficient, for they are mere promises to do something in the future. It is not sufficient in such a case for the alleged trustee to express a purpose to hold money or property in trust at a future time. The promise must have reference to an act in praesenti and not in futuro. 39 Cyc. 65, 66; Marble Co. v. Mattice, 22 Colo. 647; Mackay v. Burns, 16 Colo.App. 6; Mize v. Miller, 60 Mo.App. 58; Pomeroy on Equity Jurisdiction, sec. 997; Banking Co. v. Miller, 190 Mo. 669-670; Watson v. Payne, 143 Mo.App. 728; Bank v. McKenna, 168 Mo.App. 254; Gartside v. Pohlman, 45 Mo.App. 164. (b) The evidence of an oral promise made early in 1906, to carry plaintiff for 10,000 shares of stock, is insufficient for the same reason. Besides, a mere oral promise to give or sell the stock or its proceeds to plaintiff would be within the Statute of Frauds. Bernhardt v. Walls, 29 Mo.App. 206. (c) There was no effectual declaration of trust shown in this case, because there is a total failure of any proof that Mr. Milliken had set apart any particular portion of the stock in question, to be held by him as trustee. There must be a specific res to which the trust can attach. Mr. Milliken had just bought 600,000 shares of stock. There is no evidence that he set aside any particular 10,000 shares for Mr. Rollestone, or that he ever promised to do so. No new certificate was taken out by him for this amount, nor did he ever designate, in any other manner, the shares that he intended to hold or carry for Mr. Rollestone. Lane v. Ewing, 31 Mo. 75; In re Estate of Soulard, 141 Mo. 642; Banking Co. v. Miller, 190 Mo. 640; Moulton v. Train, 199 Mo.App. 509. (d) The evidence wholly fails to establish an effectual declaration of trust because it does not show clearly the definite terms of the trust. All that it tends to show is that Mr. Milliken was to carry the plaintiff for 10,000 shares at the price of seventy-five cents per share. All the terms of the trust must be definitely and clearly shown before a court of equity will attempt to enforce such a trust. In re Estate of Soulard, 141 Mo. 642; 39 Cyc. 38, 39. (2) Even if plaintiff would be entitled to equitable relief upon clear proof of the allegations of his petition, the evidence wholly fails to establish a case which appeals to a court of equity. In such a case the evidence must be clear, forceful and convincing beyond all reasonable doubt. In re Estate of Soulard, 141 Mo. 642; Smith v. Smith, 201 Mo. 547; Curd v. Brown, 148 Mo. 92-93; Foley v. Harrison, 233 Mo. 584. McDonald's evidence as to loose declarations by the deceased, away back in 1906 or 1907, falls far short of meeting the standard of proof demanded by a court of equity. When carefully considered, McDonald's evidence will be found untrue. This court will weigh the oral evidence as if the trial were de novo here. Turner v. Overall, 172 Mo. 271; Evans v. Evans, 176 Mo. 1; Barrett v. Ball, 101 Mo.App. 288; Richards v. Pitts, 124 Mo. 602; Bleyer v. Bleyer, 219 Mo. 99. (3) Plaintiff is barred from the right to equitable relief by reason of his own laches. Equity will not lend its aid to a person who has slept on his own rights, if he had any, until the other party cannot be heard in opposition to plaintiff's claim. Taylor v. Blair, 14 Mo. 437; Stevenson v. Saline County, 65 Mo. 429; Lenox v. Harrison, 88 Mo. 497; Rutter v. Carothers, 223 Mo. 640; Betzler v. Clark, 227 Mo. 392; Bodd v. Wolff, 148 Mo. 335, 348; Bliss v. Prichard, 67 Mo. 181.
Judson, Green & Henry for respondent.
(1) The oral and written declarations of John T. Milliken, which were established by undisputed and indisputable evidence, are sufficient to constitute Milliken trustee for Rollestone as to ten thousand shares of Golden Cycle Mining Company stock which Milliken had purchased at seventy-five cents per share and was then carrying in his own name. 39 Cyc. 34, 57; Harris Banking Co. v. Miller, 190 Mo. 640, 1 L. R A. (N. S.) 790; Moulden v. Train, 199 Mo.App. 509; Mize v. Bates County Natl. Bank, 60 Mo.App. 358; Laughlin v. Laughlin, 237 S.W. 1024; Orr v. Union Trust Co., 236 S.W. 642; In re Estate of Soulard, 141 Mo. 664; Tyler v. Tyler, 25 Ill.App. 333; Watson v. Payne, 143 Mo.App. 721. (a) No particular language is necessary to create a trust in personal property, and where the title to the property involved is then in the donor any language is sufficient which clearly indicates an intention to hold it for the benefit of a third person. Laughlin v. Laughlin, 237 S.W. 1024; Moulden v. Train, 199 Mo.App. 640; Tyler v. Tyler, 25 Ill.App. 533; Mann v. Urquhart, 89 Ark. 239; Hill on Trustees, p. 65. (b) The use of the word trust or trustee is not necessary. 39 Cyc. 57; Moulden v. Train, 199 Mo.App. 509; Laughlin v. Laughlin, 237 S.W. 1024; Watson v. Payne, 143 Mo.App. 721; Huetteman v. Viesselman, 48 Mo.App. 582. (c) An agreement to "carry" for another stock or bonds, which the declarant holds in his own name, has a well-defined significance, and such agreements or declarations, in equity, constitute the declarant a trustee of the property in question. Mann v. Urquhart, 89 Ark. 239; Price v. Dover, 40 Md. 102; Richardson v. Shaw, 209 U.S. 365, 52 L.Ed. 835. (d) It was not necessary that there should be any physical separation of the ten thousand shares allotted to Milliken by the issuance of a separate certificate therefor in order to establish an enforcible trust therein, because the declaration of trust itself clearly and expressly specified the extent of Rolletone's interest in the entire six hundred shares of stock which Milliken had just purchased. Mann v. Urquhart, 89 Ark. 239; Price v. Dover, 40 Md. 102; Corpus Juris 544; Richardson v. Shaw, 209 U.S. 365, 52 L.Ed. 835. (e) The Statute of Frauds has no application to a declaration of trust as to personal property. Harris Banking Co. v. Miller, 190 Mo. 640, 1 L. R. A. (N. S.) 790; Laughlin v. Laughlin, 237 S.W. 1024. (2) A valid trust in personal property may be created by parol. Harris Banking Co. v. Miller, 190 Mo. 640, 1 L. R. A. (N. S.) 790; Moulden v. Train, 199 Mo.App. 509; Laughlin v. Laughlin, 237 S.W. 1024. In the case at bar we have not only the oral declarations testified to by McDonald, which are sufficient of themselves to establish the trust, but we have also Milliken's own letter to Rollestone, in which he admits that he has agreed to carry ten thousand shares of the Golden Cycle Mining stock last purchased by him as trustee for Rollestone. So that this particular trust was established both by the oral and the written declarations of the donor. (3) The language testified to by witness McDonald, as well as that contained in Milliken's letter, shows a completely executed trust already established, with the donor acting as trustee, and not a mere promise to establish such a trust in the future. Watson v. Payne, 143 Mo.App. 721; Tyler v. Tyler, 25 Ill.App. 333. Milliken's declaration to McDonald in 1907 was, not that he would at some future time buy and carry ten thousand shares of this stock for Rollestone, but it was, "I am now carrying Rollestone for ten thousand shares of this stock, at seventy-five cents per share, and that will make him a fortune." (4) There is certainty about the terms of the trust, which were that ten thousand of the share then standing in Milliken's name were to be "carried" by him for Rollestone at seventy-five cents per share until Milliken could sell or dispose of them at a satisfactory price, and when disposed of by Milliken he was to pay over to Rollestone all profits realized on these ten thousand shares, over and above the purchase price of seventy-five cents per share. Huetteman v. Viesselman, 48 Mo.App. 588; Watson v. Payne, 143 Mo.App. 721; Moulden v. Train, 199 Mo.App. 509; Laughlin v. Laughlin, 237 S.W. 1024. (5) The doctrine of laches does not bar relief in this case. (a) Laches is a species of estoppel and applies only where the delay warrants the belief that plaintiff has abandoned his claim. Condit v. Maxwell, 142 Mo. 277; Schnadski v. Albright, 93 Mo. 48; St. Louis Safe Dep. Bk. v. Kennett Est., 101 Mo.App. 397. (b) Mere delay in bringing suit if short of the Statute of Limitations does not constitute laches in an equity case. Summers v. Abernathy, 234 Mo. 156; Hudson v. Cahoon, 193 Mo. 547; Meriwether v. Overly, 228 Mo. 242; Cantwell v. Crawley, 188 Mo. 45; Wendell v. Ozark Orchard Co., 200 S.W. 747; Locke v. Bowman, 168 Mo.App. 121. (c) Especially where the claim was definitely asserted and everything short of bringing suit was resorted to. Wendell v. Orchard Co., 200 S.W. 749; Lumber Co. v. Iron Co., 101 Mich. 577; Pearson v. Treadwell, 179 Mass. 462; Young v. Railroad Co., 28 Wis. 171. In cases of express trusts limitation or laches cannot be invoked to bar the beneficiary until there is an open repudiation of the...
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