Therrien v. Mercantile-Commerce Bank & Trust Co., MERCANTILE-COMMERCE
| Decision Date | 13 February 1950 |
| Docket Number | No. 41290,MERCANTILE-COMMERCE,41290 |
| Citation | 360 Mo. 149,227 S.W.2d 708 |
| Court | Missouri Supreme Court |
| Parties | THERRIEN v.BANK & TRUST CO. et al. |
Jones, Hocker, Gladney & Grand, Vincent L. Boisaubin, St. Louis, for appellant.
S. A. Mitchell, Harold I. Elbert, Charles M. Spence, St. Louis, Thompson, Mitchell, Thompson & Young, St. Louis, of counsel, for respondents.
This case comes to the writer on reassignment. The ultimate legal question involved on this appeal is whether the trial court erred in making a final order sustaining the motion of the defendant-respondent Trust Company, as trustee of May Scullin de Gheest, deceased, to dismiss the plaintiff-appellant's suit in equity against it for $60,000 on the ground that his petition failed to state a cause of action upon which relief could be granted, the motion having been filed under Laws Mo.1943, Sec. 59, p. 374, Sec. 62, p. 375, Secs. 847.59, 847.62, Mo.R.S.A. The ultimate factual-legal question is whether the trust of which the respondent was trustee was revoked pro tanto by the pleaded facts hereinafter narrated.
The appellant's claim, as pleaded in his petition, was for the $60,000, based on five bank checks, three for $10,000 each and two for $15,000 each, all except one dated October 24, 1944, and that remaining one [for $10,000] being dated December 15, 1944. The checks were the Trust Company's ordinary printed counter checks, payable to the order of ________ (no payee named), and drawn against it as a banking institution, and not as trustee or against any trust fund or account. All were signed by the said May Scullin de Gheest.
In each instance, and apparently contemporaneously with the issuance of the several checks, the payor also issued a letter of corresponding date, which was likewise addressed to the respondent Trust Company in its character as a banking institution, and not as trustee, advising it that she had 'drawn on my (her) account' the sum designated, and requesting that the Trust Company 'place and keep in escrow' a corresponding amount so that the checks would be duly met on presentation, even in case of her death.
All these checks and letters were attached to appellant's petition as exhibits, and thereby became a part thereof. Laws Mo.1943, Sec. 44, p. 371, Sec. 847.44, Mo.R.S.A. Appellant contends they had the effect of withdrawing from the trust fund of which respondent was trustee the sums specified in the checks and letters, and of pledging those amounts to the payment of the checks.
The further facts pleaded in the petition with respect to the trust [actually two trusts are involved] were as follows. The appellant is a resident of Montreal, P. Q., Canada, and the trustee of an express trust [oral, apparently] in favor of Roger Laboureix of Paris, France, under which he holds the five checks in suit as such trstee. The other aforesaid trust of which the respondent Trust Company is trustee, was in writing, and created by May Scullin de Gheest on November 8, 1935. Her heirs were the beneficiaries therein, but their names and addresses were unknown to appellant, and they were impleaded as unknown defendants and served with process by publication. When Mrs. de Gheest died, the petition does not state. The amount of the assets held in trust by the respondent Trust Company is not pleaded, but it is alleged that it exceeded the amount of the appellant's claim.
The petition alleges appellant's trust arose as follows. On October 24, 1944, the said Roger Laboureix, appellant's trustor, gave Mrs. de Gheest a good and valuable consideration in French currency, in return for which she negotiated to him the first four checks in suit. Nearly two months later, on December 15, 1944, he gave her an additional consideration in French currency, in return for which she negotiated to him the last check in suit. In order to subject [or 'revoke'] the trust of which the Trust Company is trustee to the payment of the checks she further executed the five letters marked as exhibits. Demand on the respondent trustee for the payment of the checks was not made by appellant until March, 1947, and apparently the suit was filed about a year later.
The de Gheest trust, of which the respondent Trustee is trustee, provided in part as follows:
* * *
* * *
'Sixth: The Donor reserves the right at any time by instrument, in writing, signed by the Donor, and delivered to the Trustee, to alter, amend or modify in whole, or in part, the trust herein created, provided, that the duties, powers, compensation and liability of the Trustee shall not be changed without its written consent, or to revoke the said trust in its entirety with full power to direct the Trustee as to the distribution of the trust fund.'
Appellant's petition further alleges that for a long time prior to December 15, 1944 [which was the date of the last check and letter, supra] the respondent Trust Company 'had retained in the trust account of May Scullin de Gheest the proceeds of the principal of the trust and had not paid over to May Scullin de Gheest the income derived therefrom.' This was an admission that all the funds of the trust were carried in a trust account, and that none of them were carried in an open checking account subject to checks drawn on the Trust Company as a banking institution, and not as trustee.
The 'full transcript of the record' brought up by appellant contains only the appellant's petition, heretofore summarized; the respondent Trust Company's motion to dismiss on the ground that the petition failed to state a claim upon which relief could be granted; the trial court's order sustaining respondent's motion, and allowing appellant ten days within which to file an amended petition; and the trial court's final order dismissing appellant's suit, which recited that the appellant refused to plead further and elected to stand on his original petition. This is followed by an entry showing the filing of the appellant's notice of appeal to this court.
On the ultimate question in the case, as to whether the trial chancellor erred in dismissing the appellant's suit on the ground that his petition failed to state a claim upon which relief could be granted, the facts should be kept in mind: that the suit was brought in equity, recognizing the situation was such that the ordinary principles of statutory or common law would be inadequate; that appellant was granted leave to amend his petition but refused to do so; and that the case had its origin in obscure facts arising in a remote environment, which made especially applicable the rule that 'The safety of the trust fund is the first care of the law, and on this depends every rule which has been made for the conduct of trustees.' 65 C.J., p. 651, Sec. 519. In other words the respondent trustee and the trial chancellor were justified in holding the appellant to adequate pleading and proof of the essential facts.
As stated in the beginning, the ultimate factual-legal question was whether the trustor, May Scullin de Gheest intended by the five checks and accompanying letters to revoke the trust to the extent of the $60,000, as she had a right to do under the 6th clause of the trust agreement. If such was not her intention she must have thought the earnings of the trust fund were on deposit to her personal account in the respondent Trust Company as a banking institution, and were subject to her personal checks, leaving the corpus of the trust fund unaffected. The appellant's petition is silent on that question. The amounts of the corpus and earnings are not separately pleaded, nor is the total amount of both stated except to say that it exceeded appellant's $60,000 claim.
And the five checks were the respondent Trust Company's ordinary counter checks such as would be drawn on a personal account, and the payee's name was left blank. They were drawn on the respondent as a banking institution and not as a trustee. And the five letters also were addressed to the respondent as a bank and not as a trustee. In them she stated she was drawing the amount specified from 'my account' [not a trust account]. She further requested that these amounts be kept 'in escrow', much as might be done on the issuance of a certified check out of a personal bank account.
In our opinion the pleaded facts fall short of making a substantial showing that the checks were issued by Mrs. de Gheest for the purpose of revoking her trust pro tanto, and that she did not intend to make them a charge only against the earnings of that fund, which she regarded as due her on personal account. That is borne out by the fact that the first clause of the trust agreement provided the net earnings of the fund should be paid to her quarterly or in convenient installments, and the appellant's petition alleges the respondent had failed to do that for a long time prior to December 15, 1944 [which was the date of the fifth check] thus causing the earnings to accumulate with the corpus. At any rate, her real intention cannot be ascertained from the pleaded facts.
As to the law on this question of the sufficiency of a petition to state a claim upon which relief can be granted, it is well settled that a demurrer, as well as the present Code motion to dismiss on that ground, does not admit the mere conclusions of the pleader. Bernhardt v. Long, 357 Mo. 427, 433(3), 209 S.W.2d 112, 116(8). Opposing that view appellant's counsel cite Rogers v. Poteet, 355 Mo. 986, 997-8(2), 199 S.W.2d 378, 385(1, 2), where it was said that under the Civil Code, Laws Mo.1943, p....
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