Thompson v. St. Louis Union Trust Co.

• Decision Date: 10 November 1952
• Docket Number: No. 2,No. 43049,43049,2
• Citation: 363 Mo. 667,253 S.W.2d 116
• Parties: THOMPSON v. ST. LOUIS UNION TRUST Co. et al
• Court: Missouri Supreme Court

Page 116

253 S.W.2d 116

363 Mo. 667

THOMPSON v. ST. LOUIS UNION TRUST Co. et al.

No. 43049.

Supreme Court of Missouri, Division No. 2.

Nov. 10, 1952.

Motion for Rehearing or for Transfer to Court en Banc Denied

Dec. 8, 1952.

William R. Gentry, St. Louis, for appellant, Masonic Home of Missouri and another.

Robert C. Brinkman, St. Louis, for appellant, George Washington Lodge, No. 9, A. F. & A. M. and another.

Carl M. Dubinsky, Edward A. Dubinsky and Dubinsky & Duggan, St. Louis, for respondent.

TIPTON, Judge.

This is an action to enforce an antenuptial oral contract entered into between respondent and her deceased husband, Charles Henry Thompson, whereby he agreed to leave all of his property to her if she would marry him and give up her employment of 27 years, thereby losing her pension rights to which she would be entitled if she worked 3 more years. The trial court decreed specific performance of the oral contract. From that decree the appellants have duly appealed.

Respondent and the deceased, Charles Henry Thompson, became acquainted in 1917 when they were both employed in the office of the Southern Railroad in East St. Louis, Illinois. In that year the deceased began to court the respondent and this courtship continued until they were married in November, 1943. Deceased lived with his mother in St. Louis, Missouri, until she died in 1941, and respondent lived in East St. Louis at the home of her mother until her mother's death.

Christmas, 1937, the family of respondent met at her home and deceased was present at that time. On that date deceased gave respondent an engagement ring. Respondent said she would accept the ring and that they would consider themselves engaged but that until deceased's mother came to respondent, welcomed her as a daughter-in-law, and told her she would be welcome in her home that she would not set a date for the wedding. No such welcome was forth-coming from the mother of deceased.

On December 31, 1937, the deceased executed a living trust. He named himself and the St. Louis Union Trust Company trustees of this trust estate. Under this trust agreement the trustees were to pay the deceased 'the entire net income free from trust to Grantor [deceased], in equal monthly or other convenient installments so long as he shall live.' At his death 'the rest, residue and remainder of the trust estate shall then be paid, free of trust, in equal share to the General Fund of the Masonic Home of Missouri * * * and to the General Fund of the George Washington Lodge, No. 9, A.F. and A.M. * * *.' The trust instrument further provided: 'This trust is hereby created, and the interests hereunder are vested, subject to the express condition and reservation on the part of the Grantor to alter or amend the terms of this agreement, or to revoke this agreement in whole or in part, * * * at any time during the Grantor's lifetime, * * *.'

The trust fund consisted mainly of property that deceased received upon distribution of the estate of his aunt, Ella Blume, from the Public Administrator of Cook County, Illinois. This property was not received by the trustees until several months after the execution of the trust agreement.

On July 30, 1937, the deceased executed a will which named the St. Louis Union Trust Company as executor. The provisions of the will were almost identical with the provisions of the living trust.

In the latter part of October, 1943, the deceased told respondent that if she would give up her job with the Southern Railroad and set a date for their marriage that he would go to the bank and change all his papers so when he died all his property would go to her. She had worked for the Southern Railroad 27 years and she would be entitled to a pension if she worked for that company 30 years. It was on account of the pension that she hesitated to set a date for the wedding. At first she agreed to marry him at Christmas time but he insisted on an earlier date. She then agreed to marry him after she gave the railroad two weeks' notice.

To celebrate this engagement there was a gathering of her family on the last Sunday in October of that year when she set the wedding date for November 18, 1943. At this family gathering deceased gave respondent another diamond ring. They were married and lived together as husband and wife until he died March 11, 1950.

The deceased failed to change the living trust agreement or his will.

Appellants contend that the alleged contract is an oral one and is, therefore, barred by the statute of frauds, that there can be no recovery on such a contract even after performance of the contract by respondent unless the proof is so cogent, clear and forceful as to leave no doubt in the mind of the chancellor as to its terms and character.

Mrs. Edna Davidson testified that she was respondent's sister and that she first met deceased in the year 1917; that she was at a gathering of her family at Christmas, 1937; and that at that time deceased gave respondent a diamond ring but she refused to set a wedding date. Mrs. Davidson's testimony in part is as follows:

'A. Well my sister said, 'Charley, I told you no house is big enough for two families,' she said 'Charley, I have told you repeatedly that I would never go into your mother's home and give her the impression that I was trying to drive her out,' and she said 'Until that time I wouldn't set a definite date.'

'Q. What did he say? A. Well, he wanted to set a definite date.

'Q. Was there a date set at that time? A. No, sir.'

This witness also testified that a few days before the family gathering in October 1943 the deceased and respondent were at her home and her testimony as to what occurred on that occasion is as follows:

'A. Well, at that time, Charley turned to me and said, he said, 'Edna, can't you help me to talk to Minnie not to be a chump all of her life,' he said 'Can't you talk some sense into Minnie not to be a chump all her life, I have tried and tried to get Minnie to set a date and she still harps about the pension she has coming, and I have told her repeatedly that that pension, that she had put a lot of money into it, and it don't amount to a lot to her, to pay her,' and he said 'I have told Minnie that I would go to the bank and change all papers in her favor and as long as she lives she will be well cared for, and when I die what I have is hers, what would be more fair than that,' and he even said that he had begged Minnie to do that, and he said 'I have talked to the others about it,' and he said 'See what you can do with her.' A. Well, Minnie said something about the pension, and not wanting to give up the pension, and Charley said with all these papers he would turn over to her, in her favor is what I mean, and he said that would be around ten thousand dollars a year, and her pension didn't some up to that.

'Q. Did your sister agree to set a date? A. The matter came up again, and Minnie didn't set a date then, and she left the impression that that was it, and later on it came up again and Minnie says, 'Do I have to give you a definite answer?' and he saws, 'Sooner or later it amounts to the same thing,' and Minnie did then agree to set a date, and wanted to set it for Christmas time,----

'Q. Go ahead. A. --but Charley wanted an earlier date, he said he was tired living alone and he wanted it at an earlier date, and Minnie said that after all she would have to give the company a notice, and they decided then that Minnie would give them a two week's, or fifteen days notice before she quit.

'Q. Was there some suggestion made that night about a family gathering? A. I said, 'That calls for the family.'

'Q. What did Charley say? A. He seconded the motion.

'Q. And she did arrange for the family to get together the following Sunday? A. Yes, sir, she did.

'Q. Now, on that family gathering on Sunday, the last Sunday in October, 1943, did Charley Thompson make a statement with reference to his property? A. I don't understand what you mean.

'Q. On the Sunday that the family were together, in 1943, the announcement Sunday, did Charley Thompson make any statement what would happen to his property? A. He repeated what I heard him repeat so many times, that what he had was Minnie's, would go to Minnie, and he said that all of his property would go to Minnie.

'Q. And that statement was made to the members of your family that Sunday? A. Yes, we were all there.

'Q. On that Sunday did Charley, in the presence of your sister Minnie, or did Minnie, in the presence of Charley Thompson, tell the family the date they were to be married? A. Yes, they did, they told us they would be married on the 18th of the following month.

'Q. Did Charley Thompson and Minnie visit your home any time during the following week after the last Sunday in October, 1943? A. Yes, sir.

'Q. And did you observe whether he gave your sister Minnie something on that visit? A. Yes, sir.

'Q. What did he give your sister at that time? A. A defense bond.

'Q. Did your sister make some comment to Charley about the defense bonds? A. Yes, sir.

'Q. What did she say? A. She said 'Charley, isn't this a little early for me to be Mrs. Thompson, and live at 3852 Hartford Street?', and Charley said, he seemed happy and he says, 'Minnie, that is not all, the day I bought these bonds for you', he said, 'I had my papers at the bank all changed,' and he said 'If I should die tonight everything I have is yours,' just like some happy kid giving something.'

The testimony of Earl Sandling and his wife, Beulah Sandling, a sister of respondent, was similar to that of Mrs. Davidson. Another sister, Ada Sanner, testified about the family gathering at Christmas...