State v. Ellison

• Decision Date: 01 December 1919
• Docket Number: No. 21071.,21071.
• Parties: STATE ex rel. KANSAS CITY THEOLOGICAL SEMINARY v. ELLISON et al., Judges.
• Court: Missouri Supreme Court

216 S.W. 967

STATE ex rel. KANSAS CITY THEOLOGICAL SEMINARY v. ELLISON et al., Judges.

No. 21071.

Supreme Court of Missouri, Division No. 1.

December 1, 1919.

Certiorari by the State of Missouri, on the relation of the Kansas City Theological Seminary, against James Ellison and others, Judges of the Kansas City Court of Appeals. Writ quashed.

Ed. E. Aleshire, of Kansas City, for relator.

W. E. Suddath, of Warrenburg, for respondents.

RAGLAND, C.

Certiorari. This is an original proceeding in which relator seeks to have quashed the opinion and judgment of the Kansas City Court of Appeals in the case of Kansas City Theological Seminary v. Kendrick, 203 S. W. 628, because, as it is alleged, they are in conflict with previous decisions of this court. The opinion is as follows:

"On August 31, 1914, Jane Mock, a resident of Johnson county, Mo., died intestate. However, prior to her death she attempted to execute a will making various bequests to relatives and charitable institutions, one of which was a gift of 81,000 to plaintiff. The will was not witnessed, and therefore was ineffective. After her death her heirs executed the following power of attorney to defendant:

"`Know all men by these presents, that we, C. F. Nissen, Hattie Shepherd, Alice Charles, W. M. Nissen, S. J. Nissen, M. E. Laugenour, B. S. Nissen, Stella Montague, Harry Nissen, Fred Nissen, Clara Ellis, Claude Nissen, Frank Nissen, and Jennie Nissen, being the heirs, and only heirs at law of Jane Mock, deceased, late of Knobnoster, Johnson county, Missouri, do by these presents appoint J. M. Kendrick, of Knobnoster, Missouri, our true and lawful attorney, for us and in our names to make settlement with the public administrator of Johnson county, Missouri, of any and all sums due us from the estate of the said Jane Mock, deceased, and to collect from the said administrator, and from any person having in charge the said estate, any and all sums that may be due us from the said estate, and to receipt therefor, the same as if we were present and acting in person, and to do any and all things necessary to be done in the settlement of the said estate, that we might or could do if present and acting in person. This power of attorney is executed and delivered for the purpose of making it possible for the said J. M. Kendrick to carry out the terms and provisions of a certain written will, left by the said Jane Mock, deceased, a copy of which is hereto attached which said will was refused probate for failure of witnesses, as provided by law. Granting to the said J. M. Kendrick full power of substitution.'

"After the execution of this power of attorney defendant collected the money mentioned therein from the public administrator, proceeded to carry out the terms of the will, and bad paid nearly all of the bequests, but refused to pay the bequest to plaintiff. Thereupon plaintiff brought this suit for the sum of $1,000. Defendant's answer contained a number of allegations, including one that the power of attorney mentioned above had been revoked by said heirs by a paper denominated a `Revocation and Ratification,' wherein all the acts of the defendant were ratified by said heirs, and, for various reasons assigned but not necessary to set out here, they revoked the power of attorney to defendant to pay over the bequest of $1,000 to plaintiff, and prohibited him from doing anything further with the funds that came ino his hands other than had already been done by him. To this answer plaintiff filed a demurrer, and the court overruled the same. Thereupon, after taking the proper steps, plaintiff appealed.

"(1) It is the contention of plaintiff that the power of attorney as above set forth made the defendant a trustee for the purpose of collecting from the public administrator the money of deceased, empowering and directing the defendant to pay the bequests mentioned in the will, including the $1,000 to plaintiff.

"Whether or not the power of attorney created a trust estate, made defendant a trustee to administer the same, and spade plaintiff a beneficiary to the extent of $1,000, is a matter we need not pass upon, for the reason that, admitting that defendant was made such a trustee, we do not believe that plaintiff is entitled to recover.

"(2, 3) A power of attorney may be revoked by those executing the same. (There is no contention that this power of attorney was coupled with an interest.) The fact that the heirs of Jane Mock executed an instrument one of the main incidents of which was the power of revocation shows that, even if they had intended to create a trust estate, they reserved the right of revocation. That a power to revoke a trust may be reserved in the instrument creating the same is well settled (Kelly v. Johnson, 34 Mo. 400; Mize v. Bates County National Bank, 60 Mo. App. 358; 39 Cyc. 94), and, of course, there is no question that when the right to revoke is retained in an instrument the same may be exercised at any time before the trust is executed (Mize v. Bates County National Bank, supra; Schreyer v. Schreyer, 101 App. Div. 456, 91 N. Y. Supp. 1065).

"(4) The power of attorney did not amount to a gift inter vivos to plaintiff by the heirs of Jane Mock. The direction contained in the power of attorney to defendant was that defendant give to plaintiff the $1,000 as provided for by the defective will of Jane Mock, deceased. This direction was to the agent of said heirs, and not to the agent of plaintiff. Under such circumstances there could have been no executed gift until there had been a delivery of the money by defendant to plaintiff. Tomlin. son v. Ellison, 104 Mo. 105, 16 S. W. 201; Burchett v. Fink, 139 Mo. App. loc. cit. 385, 123 S. W. 74; Chandler v. Hedrick, 187 Mo. App. 664, 173 S. W. 93; In re Estate of Soulard, 141 Mo. 642, 43 S. W. 617.

"(5) It is said in Reynolds v. Hanson, 191 S. W. 1030, and Brannock v. Magoon, 141 Mo. App. 316, 125 S. W. 535, the test is, `Has the delivery of possession been such as to put it out of the power of the donor to repossess the property?' As the heirs of Jane Mock reserved the right to revoke the authority of defendant to make the gift to plaintiff, it was manifestly their intention not to put it out of their power to repossess before delivery the property or money. There is nothing in the cases of Walter v. Ford, 74 Mo. 1,95, 41 Am. Rep. 312, and McCord v. McCord, 77 Mo. 166, 46 Am. Rep. 9, cited by plaintiff, contrary to the position herein taken. If we are to understand that plaintiff claims that the power of attorney was a symbolic delivery, of course the contention will be denied.

"The judgment is affirmed."

As shown by the opinion, the court bases its final conclusions on two principal holdings: (1) That admitting that the power of attorney referred to created a trust, yet it impliedly reserved a power of revocation in the grantors, and this power was exercised before the trust was executed; and (2) that the power of attorney did not effectuate a gift inter vivos. In the first of these rulings it is obvious that the court distinctly recognized controlling decisions of this court to the effect that a completed trust, though voluntary, can only be revoked by consent of all the beneficiaries, unless the power of revocation is reserved. Ewing v. Shannahan, 113 Mo. 188, 20 S. W. 1065; Sims v. Brown, 252 Mo. 58, 158 S. W. 624. However, it is the construction the court places on the instrument in question to the effect, that even if it creates a trust it contains an implied power of revocation thereof, that relator complains of and says is in conflict with many decisions of this court. It specifies those in the following cases only: Walter et al. v. Ford, 74 Mo. 195, 41 Am. Rep. 312; McCord v. McCord, 77 Mo. 166, 46 Am. Rep. 9; Thomas et al. v....