Shumway v. Shumway

• Decision Date: 04 May 1935
• Docket Number: 32218.
• Parties: SHUMWAY v. SHUMWAY et al. [*]
• Court: Kansas Supreme Court

44 P.2d 247

141 Kan. 835

SHUMWAY v. SHUMWAY et al. ^[*]

No. 32218.

Supreme Court of Kansas

May 4, 1935

Syllabus by the Court.

To constitute an "express trust," there must be an explicit declaration and intention to create a trust definite property or subject-matter of trust, and acceptance and handling of subject-matter by trustee as a trust.

Donor or settlor, in creating trust, may make himself trustee.

Findings of court regarding statement of plaintiff's father and father's handling and use of plaintiff's interest in his mother's estate held not to support conclusion that trust had been created in plaintiff's favor.

Where the facts as found in the trial of an action for the enforcement of a trust do not show the three essential elements for the creation of an express trust, viz., an explicit declaration and intention to create a trust definite property or subject-matter of the trust, and the acceptance and handling of the subject-matter by the trustee as a trust, such facts will not support a conclusion that the facts found constituted a trust.

Appeal from District Court, Jackson County; Lloyde Morris, Judge.

Action by Frank Shumway against Robert L. Shumway and others. Judgment for plaintiff, and defendants appeal.

Judgment reversed.

A Harry Crane, Ward D. Martin, John S. Dean, John S. Dean, Jr. and Mark L. Bennett, all of Topeka, for appellants.

E. R. Sloan, W. Glenn Hamilton, Floyd A. Sloan, and Eldon R. Sloan, all of Topeka, for appellee.

HUTCHISON Justice.

This is an action to establish a trust and declare it to be a lien upon the estate of the father of the plaintiff and also upon real property which the father conveyed shortly before his death to children of his second marriage. The trial court found in favor of the plaintiff that a trust had been created for the benefit of the plaintiff in the hands of his father, and rendered judgment for plaintiff making it a lien upon the estate and the land conveyed to the other children. These other children and the administrator appeal.

The trial court made findings of fact and conclusions of law. The first three findings give a history of the situation leading up to the important facts with reference to the existence of a trust, which facts may be briefly stated as follows: Simon B. Shumway, the father of the plaintiff and defendants, except the administrator, married Carrie Van Gasbeck in 1881 and lived in Jefferson county, Kan., 5 or 6 years; then went farther west, taking with them their son, the plaintiff, who was born in 1882. They only remained West for about one year and returned and lived with the wife's father, Frank Van Gasbeck, and family, for about 2 years. They had neither property nor funds other than two or three horses and a few household goods when they returned. Frank Van Gasbeck furnished his daughter with personal property and money with which to buy cattle and the Allen farm, consisting of 99 acres, on which they moved and established their home. Carrie Shumway died in a few months after moving on the Allen farm, leaving her husband and Frank, the plaintiff, as her only child. There was no administration of her estate, but her husband converted both real and personal property into cash, and in about 2 years later married again, and the defendant, except the administrator, are the three children of the second marriage. The second wife died in 1927, and Simon B. Shumway died in January, 1933.

The following are the fourth and fifth findings of fact:

"That, after the second marriage of Simon B. Shumway and in the year 1895 or 1896 the said Simon B. Shumway and Frank Gasbeck the father of Carrie Shumway and grandfather of this plaintiff met in the store and postoffice at North Cedar in Jefferson County, Kansas, at which time a conversation was had between the two, relative to Frank Shumway's interest in his mother's estate, and as to the method of handling the same, in which conversation it was stated by Simon B. Shumway that the son's interest in his mother's estate amounted to the sum of $2,500.00, and that such an amount was agreed by the said Simon B. Shumway and Frank Van Gasbeck as the son's proper share, and that Simon B. Shumway stated that he was holding said sum for Frank and would turn it over to him at the proper time to which arrangement Frank Van Gasbeck agreed.

"That, said sum of $2,500.00 was kept by Simon B. Shumway in a separate fund and was invested and re-invested by said Simon B. Shumway and that in the fall of 1926 plaintiff was informed by his father that said sum of $2,500.00 was then invested in bonds issued by the Capper Publication and that said money would be paid to plaintiff the following spring, that in the spring of 1927 plaintiff was informed by his father that said fund had been withdrawn from The Capper Publication and had been re-invested in a loan of $2,500.00 made to one John Coleman; that in September, 1932, plaintiff was informed by his father that John Coleman had paid said sum of $2,500.00 but that he the said Simon B. Shumway had used the same for necessary expenditures including the taking back of a farm and the paying of taxes, but that said sum of $2,500.00 would be delivered to plaintiff by said Simon B. Shumway and that Plaintiff would not lose a penny by reason of his having used the same. So far as the evidence discloses this was the first time the said Simon B. Shumway had used said money for his own use and benefit. That no part of said sum of $2,500.00 has been paid to plaintiff."

The trial court concluded and rendered judgment as above stated in favor of the plaintiff. It will be observed from the above findings that there was no writing in connection with any arrangement for the father to pay the son Frank $2,500, and his oral promise was in substance that he was holding that sum for Frank and would turn it over to him at the proper time. This statement and promise was made about 4 or 5 years after his first wife's death, and when Frank was about 14 years of age. The next incident we have in connection with the matter was 30 or 31 years later in 1926, at which time the money was said to have been invested in bonds of the Capper Publication. A year later the money was said to have been loaned to John Coleman, and 5 years later, in 1932, the father told the plaintiff that he had used the funds for necessary expenditures. This action was commenced on June 12, 1933.

As neither party to this action claims the promise related to real property, an oral agreement may create a trust. Hoover v. Hopkins, 122 Kan. 65, 251 P. 411; Diller v. Kilgore, 135 Kan. 200, 9 P.2d 643; and Stahl v. Stevenson, 102 Kan. 844, 171 P. 1164.

With reference to the findings of fact made by the trial court, our only duty is to determine from the record whether or not they are supported by substantial testimony, and we are accepting them as being sufficiently supported, although we do fail to find very strong evidence in support of the first part of the first sentence in finding No. 5, which is as follows: "That, said sum of $2,500.00 was kept by Simon B. Shumway in a separate fund and was invested and re-invested by said Simon B. Shumway."

Accepting the findings as made by the trial court as supported by the evidence, the only other question before this court on review is a legal one as to the facts stated in the findings constituting a trust. It is said in 65 C. J. 231, that: "*** To constitute an express trust there must be an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created, accompanied with an intention to create a trust, followed by an actual conveyance or transfer of lawful, definite property or estate or interest, made by a person capable of making a transfer thereof, for a definite term, vesting the legal title presently in a person capable of holding it, to hold as trustee for the benefit of a cestui que trust or purpose to which the trust fund is to be applied; or a retention of title by the owner under circumstances which clearly and unequivocally disclose an intent to hold for the use of another. *** Considered from the standpoint of parties, an express trust implies a cooperation of three persons: (1) A settlor, or a person who creates or establishes a trust. (2) A trustee, or person who takes and holds the legal title to the trust property for the benefit of another. (3) A cestui que trust or person for whose benefit the trust is created."

There is no difficulty in locating the trustee and the cestui que trust in this case, but it is not so sure about the grandfather being the settlor or the person who created or established the trust. The findings show that he furnished the funds with which his daughter purchased the farm and live stock some 4 or 5 years before the conversation was had in which the promise was made to him by his son-in-law, which is claimed to constitute the trust, and the daughter had been dead 4 or 5 years and her husband had sold all her property real and personal without administering upon her estate, so it is difficult to see what supervision, authority, or control the grandfather would have over any of the proceeds of his daughter's property even if he had originally given it to her. But this feature of the case is easily solved by the fact that a donor or settlor, in creating a trust, may make himself the trustee as it is stated in all the texts on the subject. See 1 Bogert on Trusts and Trustees, p. 5.

It was therefore...