St. Louis Union Trust Co. v. Harbaugh

• Decision Date: 10 April 1918
• Docket Number: (No. 1329.)
• Citation: 205 S.W. 496
• Parties: ST. LOUIS UNION TRUST CO. et al. v. HARBAUGH et al.
• Court: Texas Court of Appeals

205 S.W. 496

ST. LOUIS UNION TRUST CO. et al. v. HARBAUGH et al.

(No. 1329.)

Court of Civil Appeals of Texas. Amarillo.

April 10, 1918.

Rehearing Denied May 15, 1918.

Appeal from District Court, Young County; Wm. N. Bonner, Judge.

Trespass to try title by Mary O. Harbaugh and others against the St. Louis Union Trust Company and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Frank A. Thompson, of St. Louis, Mo., J. E. Gilbert, of Dallas, and Kay & Akin, of Wichita Falls, for appellants. Coke & Coke, of Dallas, C. W. Johnson, of Graham, and W. D. Isenberg, of Los Angeles, Cal., for appellees.

BOYCE, J.

The appellees, in an action of trespass to try title, recovered of appellants a two-thirds interest, theretofore undivided, in 10 surveys of land located in several different counties in this state. All the parties claim under the will of John B. Ghio. The appellants have the legal title to the entire interest, but the appellees claim that it is subject to a trust affecting an undivided two-thirds interest growing out of the settlement of the will of the said John B. Ghio. In addition to denying the trust, appellants claim to have acquired the entire interest under the 3, 5, and 10 year periods of limitation.

John B. Ghio, being the owner of the land in controversy and a large estate, situated in Missouri mostly, died in 1885, leaving a will. He left three children, or their descendants, for whom he sought to provide in the will: First, a son, James C. Ghio, who is now deceased, being the husband and father of the individual appellants who claim the land as beneficiaries under his will, of which the appellant the St. Louis Union Trust Company is trustee; second, Mary (wife of Francis X. Barada, now deceased), whose children are Andrew S. and John G. Barada, also Mary E. Barada, who is now also deceased, and whose sole devisee is W. Pratt Layton; third, Mary O. Cummiskey (now Harbaugh), a granddaughter.

By the terms of his said will the said John B. Ghio devised all of his property except certain parts set apart to his wife, and with which we are not concerned, to his son, James C. Ghio, his wife, Elizabeth M. Ghio, and his friend, William Booth, in trust, directing them as soon as the estate was settled in the probate court to partition the property, with the assistance of three other named persons, in three equal parts, and convey by deed, joined in by said assistant partitioners, one of said portions to the said James C. Ghio, in fee simple, clear and free of the trust. Said will further directed that one portion of said property so partitioned was to be designated by deed duly signed by the said trustees, joined by the said assistant partitioners, as being held by the said trustee in trust for the use and benefit of the said Mary Barada, and the income of said trust was to be paid to the said Mary Barada during her life, and after her death to the guardian of her children, and as they should attain their majority each child should be entitled to have delivered his portion of said trust estate. This trust will be referred to as the Barada trust. The third portion of said trust estate was also to be designated by deed similarly executed, and to be held by said trustees in trust for the use and benefit of the granddaughter Mary O. Cummiskey, who was to receive the benefit of the income until she should be 25 years of age, when the trust should cease and said property turned over to her. This trust will be referred to as the Cummiskey trust. The appellees are the claimants of the property under the said Cummiskey and Barada trust provisions of the will.

The partition was effected in 1887 by the three trustees named, aided by assistants designated in accordance with the provisions of the will, and certain property by deeds, such as were provided for in the will, set aside to the Barada and Cummiskey trusts, respectively, and certain property conveyed in fee to the said James C. Ghio. The 10 surveys of land in controversy were included in the said conveyance to James C. Ghio, the conveyance reciting that the property was conveyed free of the trust, in accordance with the provisions of the will; but appellees claim that, on account of the lack of information on which to make an intelligent partition of these lands, it was decided by the trustees and assistant partitioners, at the time of the partition of said land and execution of said conveyances, that an equal partition should be made of all of the other property, and that said Texas lands should be conveyed to James C. Ghio, who was to hold this property in his name, one-third of it in his absolute right, and convey one-third of it to his sister, Mary L. Barada, and one-third to his niece Mary O. Cummiskey, or it was to be held in trust by him and disposed of as they should direct. We will make such further statement as is necessary in connection with the assignments as we discuss them.

Two general issues of fact were submitted to the jury: (1) "Was the partition of the Texas land by the commissioners under John B. Ghio's will made upon the agreement that said Texas lands should be included in the deed to James C. Ghio, so they would be clear of any trust created by John B. Ghio's will, so that, when further information was had than was then in possession of the commissioners, he (James C. Ghio) could then divide said land between himself and the Cummiskey and Barada trusts, one-third each, or to the beneficiaries direct?" (2) Whether said James C. Ghio had been in adverse possession of said property for 5 or 10 years, the issues being submitted separately, prior to the filing of the suit. These issues were answered against the appellants.

On oral argument, the finding of the jury on the first issue was vigorously assailed. We find no assignment briefed raising this question, though appellants do, under a counter proposition attacking the finding of the verdict on the issue of limitations, attack the sufficiency of the evidence to establish the trust. This would not be a sufficient assignment to require a consideration of this question. However, we believe the finding is amply supported by the evidence. The positive testimony of the agreement at the time of the partition and execution of the deed given by one of the partitioners was corroborated to some extent by the evidence of another one of the partitioners and also by these additional facts: From the year 1888 to 1893 the property was handled by the trustees of the Barada and Cummiskey trusts as belonging, one-third to James C. Ghio, and the other two-thirds to the said trusts. In 1893, in two proceedings instituted in the chancery court in St. Louis by William Booth, one of the trustees, to secure his release, and the appointment of a successor in said two trusts, to which proceedings James C. Ghio and all parties at interest were parties, an agreed decree was entered in each case, discharging the said three original trustees, and appointing Francis X. Barada as sole trustee thereafter. Said decrees set forth the property subject to the trust, and in each instance described a one-third interest in the said lands in Texas as being a part of the trust estate involved in the particular proceeding. The decree directed said former trustees to deliver said property to the new trustee thus appointed, and provided for the execution of receipts, in quadruple by the new trustee, for the personal property delivered, and provided that one of such receipts should be delivered to each of the trustees and one receipt filed in said cause. The receipt filed was introduced in evidence. It was executed by the old trustees, including James C. Ghio, and the new trustee, Francis X. Barada, and recited that the said retiring trustees had delivered to the said Francis. X. Barada, successor in said trust, "all and singular the real estate described in said judgment and decree." The testimony also tended to show that the consent decrees referred to were submitted to and approved by James C. Ghio. After this appointment of the new trustee, and until about the year 1902, the property was handled by the Barada-Ghio Real Estate Company, a corporation, of which James C. Ghio was director and vice president, the taxes paid, and rents collected as belonging one-third to the said Ghio and one-third to each of the said trusts; and statements of such transactions were regularly made and delivered to the said James C. Ghio. Several of the beneficiaries of the two trusts, to wit, W. Pratte Layton and Andrew S. and John G. Barada, testified as to conversations with James C. Ghio during his lifetime, in which he admitted the existence of the trusts. There was some evidence tending to contradict some of the evidence we have stated, but these contradictions were for the jury to determine, and we think the evidence referred to is clearly sufficient to support the findings of the jury. McBride v. Briggs, 199 S. W. 342, and Ellerd v. Ellison, 165 S. W. 876, and authorities cited in those cases.

Appellants, by the first and seventh assignments of error, contend that the trustees under the will were without power to create the parol trust in James C. Ghio, since it would thereby defeat the provisions of the will, and consequently said attempted parol trust must fail, and appellants, holding under the will of James C. Ghio, would take the land absolutely free from the claims of the beneficiaries of the Barada and Cummiskey trusts. It is true, we think, that the trustees under the will had not the right to divest themselves, and the assistants to be designated to assist in the partition, of the duty of partitioning said property, and to confer upon James C. Ghio said power and the power of subsequently handling said property for the beneficiaries. So that there was at least a technical violation of the trust duties under the will. It does not follow, however, that James C. Ghio could, by reason of this wrong, acquire...