State ex rel. Union Nat. Bank of Springfield v. Blair

• Decision Date: 12 November 1942
• Docket Number: 37952
• Parties: State of Missouri at the Relation of Union National Bank of Springfield, Missouri, a Corporation, Executor of the Estate of Mary J. Carroll, Relator, v. David E. Blair, Robert J. Smith, and James F. Fulbright, Judges of the Springfield Court of Appeals
• Court: Missouri Supreme Court

166 S.W.2d 1085

350 Mo. 622

State of Missouri at the Relation of Union National Bank of Springfield, Missouri, a Corporation, Executor of the Estate of Mary J. Carroll, Relator, v. David E. Blair, Robert J. Smith, and James F. Fulbright, Judges of the Springfield Court of Appeals

No. 37952

Supreme Court of Missouri

November 12, 1942

Motion for Rehearing or to Transfer to Banc Overruled January 4 1943.

Opinion of Court of Appeals quashed.

O J. Page and Coltrane & Coltrane for relator.

(1) The decision of the Springfield Court of Appeals in this case under the facts set out by that court in its opinion is in direct conflict with the last controlling decision of this court in the following case: Cartall v. St. Louis Union Trust Co., 153 S.W.2d l. c. 377. (2) The Court of Appeals by adopting the memorandum opinion says: "What did Mrs. Carroll intend by the writing placed upon the bond . . If it was intended for a gift, it must fail for want of proof of delivery. If she intended it as a testamentary disposition, it must fail because not disposed of in the manner and under the form required by law for wills. If she intended it neither as a gift nor as a testamentary disposition, then she must have intended to create a trust in substance," etc. The court, after declaring "there is no case decided by the Courts of Missouri parallel to and decisive of the question involved in this case," further says: "The Court is not bound by authorities cited from other jurisdictions but may yield to what it conceives to be the better reasoning." This holding is in direct conflict with the controlling decision of this court in the following case: Sell v. West, 125 Mo. l. c. 631; 1 Pomeroy's Eq. Jur. (3rd Ed.), sec. 47; because a court of equity has no more right to steer its course by crude notions of what is right in a particular case, than has a court of law. (3) The court in following the finding of the trial court upholds an intended gift, which is imperfect for failure of a delivery, by enforcing it as a trust, and in doing so, the opinion and decision of the court, is in conflict with the latest decisions of the Supreme Court, which hold that equity will not declare the transaction as equivalent to a declaration by the would-be donor to hold the property in trust for the donee, even though there may be a meritorious consideration of kinship. Cartall v. St. Louis Union Trust Co., 153 S.W.2d 370; Pitt v. Weakley, 155 Mo. l. c. 134; Goodman v. Crowley, 161 Mo. 657; Knapp v. Publishers, George Knapp & Co., 127 Mo. 53; Pennell v. Ennis, 126 Mo.App. 355. (4) The memorandum opinion states that if it was intended for a gift, it must fail for want of proof of delivery; that if she intended it as a testamentary disposition, it must fail because not disposed of in the manner and under the form required by law for wills; that if she intended it neither as a gift, nor as a testamentary disposition, then she must have intended to create a trust in substance, not having knowledge of the technicalities of the matter as to how to create a trust, or she must have not intended that it should have any effect. This is in direct conflict with the latest decisions of the Supreme Court, which provide that the burden of proof is upon plaintiff to show by clear, unequivocal and convincing evidence that there was a trust and the existence of every element essential to a complete trust. Cartall v. St. Louis Union Trust Co., 153 S.W.2d l. c. 372; Harding v. St. Louis Union Trust Co., 276 Mo. 136, 207 S.W. 68; Northrip v. Burge, 255 Mo. l. c. 654; Foley v. Harrison, 233 Mo. l. c. 583; Ambruster v. Ambruster, 326 Mo. 51. (5) Three things it has been said must concur to raise a trust, "Sufficient words to create it, a definite subject, and a definite object; and, to these requisites may be added another, viz., that the terms of the trust should be sufficiently declared." Cartall v. St. Louis Union Trust Co., 153 S.W.2d 370, quoting from, In re Estate of Soulard, l. c. 622. (6) The language used must show a clear intention to create a trust and the terms of the trust should be sufficiently declared. Cartall v. St. Louis Union Trust Co., 153 S.W.2d l. c. 377, last controlling case of this court quoting, In re Estate of Soulard, 141 Mo. l. c. 664; and continuing as follows: Elliott v. Gordon, 70 F.2d 9. (7) The declarations attributable to testator, under the instant record, tended to establish an intention to make a gift unconsummated in law at the time of his death. There were no declarations of a trust transferring equitable titles and creating and defining the interests and powers of the parties. Cartall v. St. Louis Union Trust Co., 153 S.W.2d l. c. 377, citing as follows: Elliott v. Gordon, 70 F.2d 9; Citizens Natl. Bank v. McKenna, 168 Mo.App. 254, 153 S.W. 521. (8) Statements, written or oral, made by the alleged settlor to the effect that the bond "belonged" to plaintiff or was "the property of" plaintiff, are not sufficient evidence on which to predicate a claim that the alleged settlor held the bond in trust for the plaintiff. Cartall v. St. Louis Union Trust Co., 153 S.W.2d l. c. 376; Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135; Elliott v. Gordon, 70 F.2d 9; Young v. Young, 80 N.Y. 422, 36 Am. Rep. 634; Beck v. Staudt, 133 N.Y.S. 529, affirmed 208 N.Y. 566, 101 N.E. 1095. (9) Mrs. Carroll did not lose her dominion over the bond by depositing it in a box held jointly by her and another. Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135; Bauernschmidt v. Bauernschmidt, 97 Md. 35, 54 A. 637; Albrecht v. Slater, 233 S.W. 8. (10) The judgment or decree appealed from cannot be affirmed upon the theory that Mary J. Carroll during her life created a trust in the bond in controversy here for the use and benefit of plaintiff because the record and the evidence fail to support such a theory. Cartall v. St. Louis Union Trust Co., last controlling case; Elliott v. Gordon, 70 F.2d 9; Eschen v. Steers, 10 F.2d 739; Goodman v. Crowley, 161 Mo. 657; Pennell v. Ennis, 126 Mo.App. 355; Citizens Natl. Bank v. McKenna, 168 Mo.App. 254; In re Smith's Estate, 144 Pa. 428, 22 A. 916; Young v. Young, 80 N.Y. 422; Wadd v. Hazelton, 137 N.Y. 215, 33 N.E. 143; Mitchell v. Weaver, 242 Mass. 331, 136 N.E. 166; Robertson v. Parker, 287 Mass. 351, 199 N.E. 645. (11) The declarations attributable to testator, under the instant record, tended to establish an intention to make a gift, unconsummated in law, at the time of her death. There were no declarations of a trust, transferring equitable titles and creating and defining the interests and powers of the parties. Cartall v. St. Louis Union Trust Co., last controlling case; Elliott v. Gordon, 70 F.2d 9; Eschen v. Steers, 10 F.2d 739, discussing the Missouri cases and law; Citizens Natl. Bk. v. McKenna, 168 Mo.App. 254, 153 S.W. 521; Mulloy v. Charlestown Five Cents Sav. Bk., 285 Mass. 101, 188 N.E. 608. (12) Donors, not the courts must create voluntary parol trusts the same as testators must make their wills and living persons must make their contracts. Unexecuted or imperfect parol gifts of personal property are not trusts nor are executory parol promises for the creation of a voluntary trust. Courts leave such a transaction as the donor left it. The rule is well established that equity will not give effect to an imperfect gift by enforcing it as a trust, merely because of the imperfection, since to do so would be to give effect to an intention never contemplated by the maker. Cartall v. St. Louis Union Trust Co., 153 S.W.2d l. c. 377; Harris Banking Co. v. Miller, 190 Mo. 640, 89 S.W. 629; In re Soulard Estate, 141 Mo. 642, 43 S.W. 617; Pennell v. Ennis, 126 Mo.App. 355, 103 S.W. 147.

Andrew J. Murphy, Jr., Edward A. Glenn and Farrington & Curtis for respondents.

(1) On certiorari to quash the opinion of a Court of Appeals on the ground of conflict of opinion, the Supreme Court's only province is to determine whether there is a conflict with Supreme Court rulings, and it is not within the court's province to determine whether the Court of Appeals erred in its application of the rules of the law to the facts stated in its opinion, but only whether upon those facts it announced some conclusion of law contrary to the last previous ruling of this court upon the same or a similar state of facts. Houts Mo. Pleading and Practice Ann., secs 1404, 1411; State ex rel. Continental Ins. Co. v. Reynolds, 290 Mo. 362, 235 S.W. 88; State ex rel. Kroger v. Hostetter, 98 S.W.2d 683; State ex rel. St. Louis-S. F. Ry. Co. v. Haid, 37 S.W.2d 437; State ex rel. Brenner v. Trimble, 32 S.W.2d 760; State ex rel. Harrington v. Trimble, 31 S.W.2d 783; State ex rel. Valentine Coal Co. v. Trimble, 28 S.W.2d 1028; State ex rel. Jones v. Robertson, 172 S.W. 21. (2) The opinion of the court below, as well as the opinions in all relevant cases cited by relator quote with approval the rules and test laid down in the cases of In re Estate of Soulard, 141 Mo. l. c. 664, and Northrip v. Burge, 255 Mo. 641, l. c. 654, 164 S.W. 584, as follows: Three things are necessary to raise a trust: First, a declaration of an estate or interest containing all of the essential elements of the trust; Second, a definite subject matter of the trust; Third, a definite object or beneficiary of the trust. It is found, upon analysis, that each and every case cited, including the decision of the court below, turned upon the application of this rule and test to the facts presented in that case. The opinion of the court below is consistent with and does not conflict with any case decided by the Supreme Court, when the facts of those cases are examined in the light of the tests above. (3) The opinion is not in conflict with Cartall v. St. Louis Union Trust Co., 153 S.W.2d 370. (4) The opinion is not in conflict with ...